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State v. Marshall

Court of Appeals of South Carolina

August 7, 2019

The State, Respondent,
v.
Brandon Rashad Marshall, Jr., Appellant. Appellate Case No. 2016-000870

          Submitted November 1, 2018

          Appeal From Charleston County R. Markley Dennis, Jr., Circuit Court Judge

          Appellate Defender Susan B. Hackett, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, and Assistant Attorney General Alphonso Simon, Jr., all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.

          WILLIAMS, J.:

         In this criminal appeal, Brandon Rashad Marshall, Jr. appeals his convictions for murder and possession of a firearm during the commission of a violent crime. On appeal, Marshall argues the circuit court erred in denying him immunity under the Protection of Persons and Property Act (the Act), SC Code Ann. §§ 16-11-410 to -450 (2015). We affirm.

         FACTS/PROCEDURAL HISTORY

         Marshall was indicted for murder and possession of a weapon during the commission of a violent crime after he shot and killed Anthony Williams (Victim) on May 22, 2014. Prior to trial, Marshall sought immunity from prosecution pursuant to the Act, and on April 4, 2016, the circuit court conducted an immunity hearing pursuant to State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011). At the immunity hearing, the circuit court admitted the video recording of Detective Burckhardt interviewing Marshall on the night of the incident (the recorded interview).

         During the immunity hearing, Marshall testified he met Victim approximately three months prior to the shooting, and the two began a sexual relationship about one month later. At the time of the incident, Victim was also in a relationship with Ashley Butler. Victim and Butler resided together, but Victim was not on Butler's lease and was on trespass notice for Butler's apartment (the apartment). On the night of the shooting, Marshall was invited to visit Butler and Victim at the apartment. Marshall stated he took his gun into the apartment because he argued with Butler's neighbor before, and he previously witnessed the neighbor severely assault another man. Marshall testified that while he was at the apartment, Victim and Butler got into an argument, so he left the room. Marshall stated he returned to the room when he heard Butler yelling, "Get off of me, you are always putting your hands on me." He also indicated he heard Butler say she could not breathe. Marshall stated he saw Victim on top of Butler with one hand around her neck and the other hand positioned to strike her face. Marshall testified he grabbed his gun off the table, inserted the clip, and told Victim he needed to stop and needed to leave. Victim left the apartment, and Marshall followed him.

         Marshall stated he returned to the back door to gather his belongings, but Butler did not want to open the back door, so she put his bag on the front porch. Marshall testified that after he put his bag, but not his gun, in his car, he saw Victim go back to the apartment, and he thought Victim was trying to kick in the door. Marshall stated he approached Victim in an attempt to calm Victim down and encourage him to leave because he feared Victim would get in trouble for violating the trespass notice. Marshall also testified he was afraid Victim would attempt to kill Butler if Victim was successful in kicking in the door. Marshall stated Victim shoved him to the ground, and Marshall was fairly certain his glasses fell off. Marshall testified he approached Victim again and tried to grab Victim's wrist, but Victim pulled away and resumed kicking and punching the door. When Marshall attempted to grab Victim's hand, Victim turned around and shoved him twice, knocking him into a tree. Marshall indicated he had a hard time getting up, and when he finally got up, Victim pushed him against the tree again, causing Marshall to fall. Marshall indicated Victim got on top of him and hit his face at least once while Marshall repeatedly told Victim to get off of him. According to Marshall, he was not physically able to get Victim off of him because he was overweight and suffered from prior injuries stemming from automobile accidents. Marshall testified he was pretty sure he was on the ground when he turned over, threw back his hand, and fired the gun until it stopped firing. Marshall then ran to his car and drove away, but he quickly returned to the scene after police arrived. Marshall testified he believed Victim was trying to kill him and Butler and that Victim would have killed him had he not defended himself. According to Marshall, he did not make a definite decision to shoot Victim.

         Marshall acknowledged his testimony during the immunity hearing differed from what he told Detective Burckhardt in the recorded interview, but he indicated his memory was much better at the immunity hearing than it was "immediately after the traumatizing incident." The recorded interview differed from the immunity hearing testimony as to the distance between Marshall and Victim when Marshall fired the gun and as to whether Marshall (1) had his glasses on when he shot Victim, (2) was standing or lying on the ground when he shot Victim, (3) put the clip in the gun during Victim and Butler's argument or after Victim shoved him, and (4) fired the gun continuously or stopped firing but resumed firing after Victim tried to get back up.

         At the immunity hearing, Butler's testimony differed from Marshall's account of the events. Butler testified that on the night of the incident, an argument ensued between her and Victim. Butler stated she spit at Victim, and Victim grabbed her and held her down on the couch. Butler testified that although she could not breathe when Victim held her down on the couch, she believed it was because of the position she was in not because Victim was choking her. Butler averred Victim did not choke her. She further testified Victim did not hit her, she never told Victim to stop hitting her, and she never believed Victim was going to kill her or seriously hurt her. She stated that throughout their relationship, Victim never hit or assaulted her.

         According to Butler, Victim left when Marshall grabbed Victim while he was on top of her on the couch and told Victim to leave. After Marshall and Victim left, Butler locked the back door. She testified Marshall knocked on the back door to get his things, she put them on the front porch, and she asked him to leave. Butler indicated Victim then knocked on the back door to get some clothes. Butler testified Victim knocked louder than Marshall, but she did not think he was trying to kick in the door, and she did not fear he was going to hurt her. Butler stated she did not let Victim in, but she yelled through the door that she would get Victim's clothes from upstairs. Butler testified she did not let Victim in because she feared she would get kicked out of her apartment as a result of the trespass notice, not because she was afraid. As she was coming down the stairs with Victim's clothes, Butler stated she heard gunshots. A photograph admitted into evidence by the State showed that the police found Victim's clothes near the front door.

         Butler's neighbor also testified at the immunity hearing. She stated she awoke to the sound of gunshots, and then she heard a male voice yell "you are messing with the wrong [person]." ...


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