S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent.
v.
Lavar K. Bryant, Appellant.
Appeal From Richland County
Marc H. Westbrook, Judge
Opinion No. 24988
Heard May 11, 1999 - Filed August 16, 1999
AFFIRMED
Deputy Chief Attorney Joseph L. Savitz, III, of
South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General G. Robert Deloach, III,
and Solicitor Warren B. Giese, all of Columbia, for
respondent.
BURNETT, A.J.: Appellant appeals his conviction of murder
and his sentence of life imprisonment. We affirm.
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STATE v. BRYANT
FACTS
Before noon on August 4, 1995, Mike Suber (Suber) left his
office at the Department of Health and Environmental Control (DHEC) in
Columbia. Suber's body was discovered in the DHEC parking lot near his
personal vehicle around 1:00 p.m. that same day. Because Suber's
personal items, including his wallet, were scattered around him, SLED
agent Kelvin Crimminger concluded a struggle occurred before Suber was
killed.
Lying on the ground near the driver's side of Suber's vehicle,
police investigators found a black wig, a knife and a screwdriver.
Appellant's fingerprints were found on Suber's vehicle. After his
fingerprints identified him as a suspect, police investigators searched
appellant's home. The police found a pair of athletic shoes with a tread
pattern consistent with a footprint found at the murder scene.
The words "Metro Mike f--- your Mamma" had been etched on
the rear of Suber's vehicle. Suber's wife testified these words were not on
the vehicle that morning. Agent Crimminger concluded the scratches were
freshly made. Juvenile corrections officer Rodney Muller testified
offenders from Columbia used the term "Metro" to identify themselves.
Further, Muller testified appellant wrote "Metro" on a shirt while he was
incarcerated with the Department of Juvenile Justice.
Pathologist Sally Harding, who conducted the autopsy, found
three stab wounds in Suber's chest that were consistent with the pattern
of a flat head screwdriver. Two of the wounds were superficial. However,
the third stab wound penetrated Suber's aorta from a downward angle
causing fluid pressure to build up around Subeir's heart until it stopped
beating. Harding further testified she found scratch wounds on Suber's
forearms that were consistent with a screwdriver. Harding testified Suber
would have been conscious and capable of calling for help for about fifteen
minutes before death. Based upon the sand embedded in Suber's face and
his failure to call for help, Harding concluded someone held Suber down
before he died.
On August 5, 1995, appellant surrendered to the police. SLED
agents Tommy Robertson and Arthur Myers and Columbia Police Detective
Walter Bales interviewed appellant at the police station. After appellant
waived his right to remain silent, appellant initially denied any knowledge
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STATE v. BRYANT
about Suber's murder. Columbia Police Chief Charles Austin then asked
appellant if he wanted to pray. Appellant agreed to pray with Chief
Austin. After a short prayer, appellant began sobbing and said "I didn't
mean to do it." Detective Bales obtained a second waiver of appellant's
rights and appellant gave several inconsistent statements concerning the
incident.
In appellant's first statement, he admitted Suber approached
him as he was breaking into Suber's vehicle. Suber went to the rear of
the vehicle and returned with a screwdriver in one hand and a steak knife
in the other hand. According to appellant, Suber dropped the knife during
the ensuing struggle. Appellant claimed he took the screwdriver away
from Suber. After Suber was disarmed, appellant swung the screwdriver
at Suber and stabbed him.
Appellant then modified his statement claiming he obtained
the screwdriver and knife from Suber's vehicle. Appellant modified his
statement again claiming he brought the knife with him. As Suber
approached, appellant pulled out the knife. Suber then ran to the vehicle
and got the screwdriver.
Appellant then asserted he threw the knife down prior to the
struggle because he did not want to fight. However, appellant did not
think Suber saw him discard the knife. Appellant then "jumped" Suber as
Suber was backing out of the passenger door with the screwdriver in his
hand. Suber hit appellant and appellant kicked Suber causing Suber to
fall and drop the screwdriver. Appellant picked up the screwdriver and
stabbed Suber three or four times when Suber came toward him.
Appellant gave a final signed written statement describing the
incident.
When I went out there I went by the truck and searched
it. I found a wallet and checkbook. I put them in my back
pocket. I came with the knife. When I was standin' in front
of the truck, he came down and asked what I was doin'. I said
nothing. He began looking in the truck and I had the knife in
my pocket with the blade pointing up. I took the knife out
and dropped it on the ground because I didn't want it poking
me in the side if we fought. When the man was backing away
from the passenger door he had a screwdriver in his hand. I
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STATE v. BRYANT
was afraid so I grabbed the man and we started fighting.
When I kicked him he fell down and we were fighting on the
ground.
Some way the screwdriver came loose and I picked it up
and stood up. The man got up and came at me. I stabbed at
him 3 or 4 times and he started gasping. I thought he might
die so I dropped the screwdriver and ran away.
Appellant requested an instruction on self-defense based on the
evidence that he had withdrawn from the "initial difficulty" by discarding
his knife. The solicitor argued appellant could not claim self-defense
because he was initially at fault. The trial judge refused the requested
charge because appellant brought about the initial difficulty with Suber
and did not retreat.
ISSUE
Did the trial judge err in refusing to charge self-defense?
DISCUSSION
Appellant claims the trial judge erred by refusing to charge
self-defense. Based on his statements, appellant argues the jury could
have found, although he was the initial aggressor, his right to self-defense
was restored when he withdrew from the conflict and communicated his
intent to do so before Suber attacked him with deadly force. We disagree.
A self-defense charge is not required unless the evidence
supports it. State v. Goodson 312 S.C. 278, 440 S.E.2d 370 (1994). To
establish self-defense in South Carolina, four elements must be present.
First, the defendant must be without fault in bringing on the difficulty.
Second, the defendant must have been in actual imminent danger of losing
his life or sustaining serious bodily injury, or he must have actually
believed he was in imminent danger of losing his life or sustaining serious
bodily injury. Third, if his defense is based upon his belief of imminent
danger, a reasonably prudent man of ordinary firmness and courage would
have entertained the same belief. If the defendant was actually in
imminent danger, the circumstances were such as would warrant a man of
ordinary prudence, firmness and courage to strike the fatal blow in order
to save himself from serious bodily harm or losing his own life. Fourth,
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STATE v. BRYANT
the defendant had no other probable means of avoiding the danger. Id.
"[O]ne who provokes or initiates an assault cannot escape
criminal liability by invoking self defense Ferdinand S. Tinio,
Comment Note: Withdrawal, After Provocation of Conflict, As Reviving
Right Of Self-Defense, 55 A.L.R.3d 1000, 1003 (1974). Any act of the
accused in violation of law and reasonably calculated to produce the
occasion amounts to bringing on the difficulty and bars his right to assert
self-defense as a justification or excuse for a homicide. 40 Am. Jur.2d
Homicide 149 (1999). "[A] robber, who is met with such violent
resistance by his victim that he has no opportunity to convince [the] victim
that he has abandoned his criminal intentions and only wants to
withdraw, may not claim self defense if he injures or kills his victim." 55
A.L.R.3d at 1003-04; see also United States v. Thomas, 34 F.3d 44 (2d Cir.
1994) (one who commits or attempts a robbery armed with deadly force
and kills the intended victim when victim responds with force may not
avail himself of the defense of self-defense); People v. Couch, 461 N.W.2d
683 (Mich. 1990) (a robber or other wrongdoer engaged in felonious
conduct has no privilege of self-defense); Stiles v. State, 829 P.2d 984
(Okla. Crim. App. 1994) (one who kills while committing armed robbery is
an aggressor and an aggressor is not entitled to a claim of self-defense).
"[I]f, after commencing the assault, the aggressor withdraws in
good faith from the conflict and announces in some way to his adversary
his intention to retire, he is restored to his right of self defense . . . ." 55
A.L.R.3d at 1003. One's right to self-defense is restored after a
withdrawal from the initial difficulty with the victim if that withdrawal is
communicated to the victim by word or act. State v. Graham, 260 S.C.
449, 196 S.E.2d 495 (1973).
Appellant's statements fail to establish the elements of self
defense entitling appellant to a self-defense charge. No question of fact for
the jury is created on this issue. Appellant concedes he brought on the
initial difficulty by breaking into Suber's vehicle. Even if appellant
subjectively meant to withdraw from the conflict he failed to communicate
this intent to Suber. Although in one statement appellant claimed he
dropped the knife because he did not want to fight, appellant admitted
Suber did not see him drop the knife. Thus, Suber was unaware of
appellant's intent to withdraw from the conflict. Further, appellant never
told Suber he was leaving and did not want to fight. If appellant truly
intended to withdraw he could have easily left the open parking lot. See
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STATE v. BRYANT
Macias v. State, 283 P. 711 (Ariz. 1929) (a man who is a trespasser and in
a place where he has no right to be may not stand his ground and slay
his assailant and still claim self-defense, when by leaving such place he
might avoid the conflict). Because appellant failed to effectively
communicate to Suber his intent to withdraw from the conflict, appellant's
right to use self-defense was never restored. Appellant, as the aggressor,
remained responsible for bringing on the difficulty.
Accordingly, appellant was not entitled to a self-defense charge
and the trial judge correctly refused the charge.
AFFIRMED.
FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.
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