State v. Marin

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Manuel Antonio Marin, Petitioner.

Appellate Case No. 2013-002001

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Spartanburg County
J. Derham Cole, Circuit Court Judge

Opinion No. 27613

Heard April 8, 2015 – Filed March 23, 2016

AFFIRMED AS MODIFIED

Chief Appellate Defender Robert M. Dudek and
Appellate Defender David Alexander, both of Columbia,
for Petitioner.

Attorney General Alan Wilson, Chief Deputy Attorney
General John W. McIntosh, Senior Assistant Deputy
Attorney General Donald J. Zelenka, and Assistant
Attorney General Anthony Mabry, all of Columbia; and
Solicitor Barry J. Barnette and Assistant Solicitor Russell
D. Ghent, both of Spartanburg, for Respondent.
JUSTICE KITTREDGE: Petitioner Manuel Antonio Marin was convicted of
murder and possession of a firearm during the commission of a violent crime.
Marin appealed, and the court of appeals affirmed, rejecting his argument that the
trial court committed reversible error by refusing to instruct the jury that a person
acting in self-defense has the right to continue shooting until the threat has ended.
State v. Marin, 404 S.C. 615, 745 S.E.2d 148 (Ct. App. 2013). We issued a writ of
certiorari to review the court of appeals' decision. We affirm as modified.

I.

On July 20, 2008, both Marin and Nelson Tabares (Victim) attended a Colombian
Independence Day festival, followed by an after-party at a Greenville nightclub.
According to Christopher McDonald, the nightclub's bouncer, Victim was
extremely intoxicated and had difficulty standing and walking, but was not
aggressive. Due to Victim's condition, nightclub staff members, including
McDonald and owner Larry Rodriquez, determined that it would not be safe for
Victim to drive. As a result, McDonald and Rodriquez attempted to find Victim a
ride home.1

Marin told McDonald that he knew where Victim lived and volunteered to drive
Victim home. However, after McDonald helped Victim into the back seat of
Marin's vehicle, Marin said that he needed Victim's address so that he could put it
in his navigation system. McDonald looked at Victim's identification and gave the
address to Marin. Marin, accompanied in the front seat by his former brother-in-
law, Alfredo Jimenez, then began driving Victim home.

Marin testified that Victim was unruly and combative during the drive. According
to Marin, Victim told him, "I'm sorry, but you got to go," then reached over the
backseat and placed him in a headlock. Marin said he then decided not to take
Victim home, but to drive to a public location and seek help. Marin further
testified that Victim attempted to grab the steering wheel. However, Jimenez

1
Rodriquez testified that Victim was not drunk, but merely ill. However, tests
taken after his death revealed that Victim's blood-alcohol concentration was
0.323%, more than four times the legal limit to drive a motor vehicle. See S.C.
Code Ann. § 56-5-2933(A) (Supp. 2015) (making it unlawful to drive a motor
vehicle with a blood-alcohol concentration of 0.08% or higher).
stated that Victim became upset and began fighting with Marin over control of the
steering wheel after Marin drove past the road on which Victim's home was located
and would not stop.2

It is undisputed that Marin drove into Spartanburg County, retrieved a gun from
the glove compartment, and shot Victim twice in the back of the head. Rather than
stopping immediately, Marin continued driving until he arrived in downtown
Spartanburg. Several witnesses observed Marin and Jimenez arguing in the street
and a passerby called the police.

Marin was subsequently indicted for murder and possession of a firearm during the
commission of a violent crime. Marin pleaded not guilty to both charges.

While Marin claimed he shot Victim in self-defense, he did not request any
specific language for the self-defense charge at the charge conference, only
requesting that the charge include an instruction that he had a right to act on
appearances. Further, Marin did not object when, during closing arguments, the
State asserted that Marin's firing of two shots was evidence of malice and
supported a murder conviction, nor did he ask for any additional instructions
before the trial court charged the jury, in relevant part, as follows:

In this case the defendant has . . . raised what is known in the
law as the defense of self-defense. The law recognizes the right of
every person to defend himself or herself or a friend, relative[,] or
another from death or from sustaining serious bodily harm. To do this
a person may use such force as is reasonably necessary even to the
point of taking human life where such is reasonable.
The right of self-defense is founded upon necessity, either
actual or reasonably apparent necessity. And it is a complete defense
to a charge of an unlawful homicide should you find that it exists
based upon your evaluation of the evidence produced during the trial
of this case. The existence of self-defense entitles a person charged
with the commission of an unlawful homicide to a verdict of not
guilty.

2
While Jimenez did not testify at trial, his statements were admitted into evidence
as excited utterances. See Rule 803(2), SCRE (excepting from the prohibition
against hearsay "statement[s] relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the event or condition").
 And although the defendant has raised the defense of self-
defense, the burden of proof is not on the defendant to prove the
existence of self-defense. As I have already told you, the burden is
always upon the state to prove the defendant's commission of the
crime alleged against him beyond a reasonable doubt. And this would
therefore necessarily require that the state prove beyond a reasonable
doubt the absence of self-defense.
But in order for you to consider the defense of self-defense you
obviously must know what the elements are. And there are four basic
elements that are required before self-defense may be established.
First, it must be shown that the defendant was without fault in
bringing on the immediate difficulty which gave rise to the necessity
of using deadly force which resulted in the taking of human life.
One cannot provoke, initiate[,] or otherwise through his own
fault bring about a difficulty and then claim the right of self-defense in
the use of deadly force against an attack which was caused by that
provocation.
Secondly, it must be shown that at the time the fatal act was
committed the defendant actually believed that he was in imminent
danger of losing his life or sustaining serious bodily injury, or some
other person was, or that the defendant actually was in such imminent
danger. And the term imminent danger means an immediate or
present danger and not a past or future danger.
And, thirdly, if the defense is based upon a belief of imminent
danger, then it must be shown that the belief was reasonable, that is a
reasonably prudent person of ordinary firmness and courage would
have entertained the same belief.
If the defendant or the other person being defended actually was
in imminent danger, then it must be shown that the circumstances
were such as would warrant a person of ordinary prudence and
courage to inflict the fatal injury in order to save himself or some
other person from death or serious bodily injury.
In other words, it must be shown that a reasonably prudent
person of ordinary firmness and courage if acting under the same or
similar circumstances would have reached the same conclusion and
entertained the same belief.
Deadly force is only appropriate when necessary and may only
be exercised where the defendant entertains a reasonable belief that he
or some other is about to sustain loss of life or suffer serious bodily
harm.
 The law of self-defense encompasses preventative action taken
to protect one's own life without another [sic] if such action is taken in
anticipation of imminent danger of losing one's life or sustaining
serious bodily injury.
A defendant has a right to act upon appearances. He may be
mistaken. The law does not hold someone to a refined assessment of
the danger as might be accomplished having an adequate time to
reflect, provided however that the defendant has acted as a person of
ordinary reason, firmness[,] and courage would have acted or should
have acted in meeting the appearance of the danger.
In other words, one does not have to wait until his or her
assailant gets the advantage, for one always has the right under the
law of self-preservation to prevent another from getting an advantage.
Again, there is however a requirement of objectivity. Any such
belief must be reasonable, that is a reasonable and prudent person if
acting under the same or similar circumstances would have so
believed or would have also been warranted in acting as the defendant
did.
And, fourthly, it must be shown that the defendant had no other
means of avoiding the danger of losing his life or sustaining the
infliction of serious bodily injury other than to act as he did under the
particular circumstances as existed, because, as I have stated, self-
defense is founded upon necessity.
Now, if you have a reasonable doubt as to the defendant's guilt
as it relates to a proof of an unlawful homicide after considering all of
the evidence received during this case, including any evidence relating
to the issue of self-defense, then it would be your duty to resolve that
reasonable doubt in favor of the defendant and find him not guilty.

After the jury was charged, but prior to deliberations, the trial court provided an
opportunity for the parties to note any exceptions to the charges. It was at this
juncture that Marin first requested that the trial court instruct the jury that "if the
defendant is justified in defending himself or others in firing the first shot, then the
defendant—also [may] continue—to continue [sic] shooting until it is apparent that
the danger of death or serious bodily injury has . . . completely ended."

Marin represented to the trial court that State v. Rye, 375 S.C. 119, 651 S.E.2d 321
(2007), mandated such a charge. However, the trial court reviewed Rye and noted
that only the dissenting opinion mentioned that language, and the reference was in
the context of a different legal issue. Marin then acknowledged that Rye was not
on point. When the trial court asked Marin if there were any other cases that
approved of such a charge, Marin's counsel responded, "I'm not a walking
encyclopedia." Thus, in the absence of any supporting authority, the trial court
declined to give the requested charge.

A short time later, the jury requested further instruction on malice and voluntary
manslaughter, but did not ask for clarification or reinstruction on self-defense.
After the trial court reinstructed the jury on both malice and voluntary
manslaughter, Marin renewed his request to have the "continuing to shoot"
language charged to the jury. The trial court denied the request, finding that its
thorough charge properly communicated the law of self-defense to the jury.

II.

Marin argues the trial court committed reversible error by failing to charge the jury
that one who is acting in self-defense and has the right to fire a first shot has the
right to continue shooting until it is apparent that the danger of death or serious
bodily injury has ended. We disagree, for this common law rule was sufficiently
encompassed in the jury charge provided by the trial court.

"'[T]he trial court is required to charge only the current and correct law of South
Carolina.'" State v. Brandt, 393 S.C. 526, 549, 713 S.E.2d 591, 603 (2011)
(alteration in original) (quoting Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d
462, 472 (2004)). "'The law to be charged must be determined from the evidence
presented at trial.'" Id. at 549, 713 S.E.2d at 603 (quoting State v. Knoten, 347 S.C.
296, 302, 555 S.E.2d 391, 394 (2001)). "An appellate court will not reverse the
trial judge's decision regarding a jury charge absent an abuse of discretion." State
v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010) (citing State v.
Pittman, 373 S.C. 527, 570, 647 S.E.2d 144, 166 (2007)). "'In reviewing jury
charges for error, we must consider the court's jury charge as a whole in light of the
evidence and issues presented at trial.'" Brandt, 393 S.C. at 549, 713 S.E.2d at 603
(quoting State v. Adkins, 353 S.C. 312, 318, 577 S.E.2d 460, 463 (Ct. App. 2013)).
"The substance of the law is what must be instructed to the jury, not any particular
verbiage." State v. Smith, 315 S.C. 547, 554, 446 S.E.2d 411, 415 (1994) (citing
State v. Rabon, 275 S.C. 459, 462, 272 S.E.2d 634, 636 (1980)). Moreover, "'[t]o
warrant reversal, a trial judge's refusal to give a requested jury charge must be both
erroneous and prejudicial to the defendant.'" Brandt, 393 S.C. at 550, 713 S.E.2d
at 603 (quoting Mattison, 388 S.C. at 479, 697 S.E.2d at 583).
 III.

The court of appeals expressed concern that "the charge Marin requested is not a
correct statement of law." Marin, 404 S.C. at 620, 745 S.E.2d at 151. On this
point the court of appeals erred, for we have previously held that "when a person is
justified in firing the first shot, he is justified in continuing to shoot until it is
apparent that the danger to his life and body has ceased." State v. Hendrix, 270
S.C. 653, 661, 244 S.E.2d 503, 507 (1978) (citation and internal quotation marks
omitted). But see 40 C.J.S. Homicide § 189 (2014) ("[A] person who fatally
wounds another, even in self-defense, is not entitled to hasten the victim's death by
continuing to pump bullets into the victim's body."). While we acknowledge that
the language Marin requested accurately states the law, our inquiry on appellate
review is concerned only with the question of whether the jury charge, when
viewed as a whole, accurately conveys the applicable law of self-defense. See,
e.g., Brandt, 393 S.C. at 549, 713 S.E.2d at 603 ("'A jury charge is correct if, when
the charge is read as a whole, it contains the correct definition and adequately
covers the law.'" (quoting Adkins, 353 S.C. at 318, 577 S.E.2d at 464)). Indeed,
"'[t]he substance of the law is what must be charged to the jury, not any particular
verbiage.'" Id. at 549, 713 S.E.2d at 603 (emphasis added) (quoting Adkins, 353
S.C. at 318–19, 577 S.E.2d at 464).

Here, the experienced and excellent trial judge gave a thorough and comprehensive
self-defense charge, well beyond the general State v. Davis3 elements. While the
"continuing to shoot" charge may have been appropriate, its absence does not
mandate reversal. The essence of the charge was encompassed in the jury
instructions, particularly the instruction that "a person may use such force as is
reasonably necessary even to the point of taking human life where such is
reasonable." The circumstances here are therefore unlike those in cases where the
charge given completely omitted applicable principles of self-defense law. See,

3
282 S.C. 45, 317 S.E.2d 452 (1984) (per curiam). The four-part self-defense
instruction recommended by this Court in Davis was (1) the defendant was without
fault in bringing about the danger; (2) the defendant believed he was, or the
defendant actually was, in imminent danger of death or serious bodily harm; (3)
the defendant's belief or action was reasonable; and (4) the defendant had no other
probable means of avoiding the danger, except that a defendant on his own
premises has no duty to retreat. Id. at 46, 317 S.E.2d at 453.
e.g., State v. Fuller, 297 S.C. 440, 444, 377 S.E.2d 328, 331 (1989) (holding "the
trial judge erred in charging the jury only the Davis charge without considering the
facts and circumstances of the case").

IV.

The dissent relies in part on Fuller to support its conclusion that the trial court
inadequately instructed the jury on the law of self-defense as the law applied to the
facts of this case. The dissent's approach would extend the Fuller holding to the
point it both conflicts with our well-settled standard of review and risks offending
our constitutional prohibition against judges "charg[ing] juries in respect to matters
of fact." S.C. Const. art. V, § 21.

The facts in Fuller were as follows:

On the night of September 20, 1986, Fuller, a black man,
solicited a white prostitute, Susan Phillips, on Two Notch Road, in the
parking lot of the Columbia Motor Lodge. Fuller agreed to meet Ms.
Phillips back at her trailer. Ms. Phillips lived in a trailer on Blume
Court, next to the Ole Place Club and behind the Columbia Motor
Lodge. Fuller drove to Blume Court while Ms. Philips ran down Two
Notch Road to Blume Court. Fuller parked his car and waited on
Blume Court while Ms. Phillips went in the trailer. Upon arriving at
her trailer, Ms. Phillips found that another prostitute already had a
"bag" (a man) in the bedroom. Since the trailer was occupied by
another prostitute, Fuller left to find a friend's party.
Unsuccessful in finding the party, Fuller returned to Blume
Court. Upon returning, Fuller encountered a car driven by a white
woman blocking the entrance to Blume Court. Fuller asked her to
move. Mr. Dixon, the owner of the private Ole Place Club, and Mr.
Phillips, the Ole Place Club's bouncer, approached Fuller's car and
asked him what he was "trying to do to that white lady." Fuller denied
that he was "doing anything." While grabbing Fuller's door, Mr.
Dixon responded, "Nigger, don't lie to me." Mr. Dixon then grabbed
Fuller by the throat[] and stated, "[T]hat is why we have got to take
care of niggers like you."
Fuller, threatened by Mr. Dixon, reached down to the
floorboard of his car and retrieved his gun. He then fired a warning
shot between Dixon and Phillips. Not knowing Blume Court was a
dead end street, Fuller drove to the end of Blume Court. As he began
 to turn around in an attempt to leave, he saw Dixon and Phillips open
the trunk of their car. Both Dixon and Phillips then got in their car
and tried to block Fuller's car from exiting Blume Court.
Maneuvering past Dixon's car, Fuller turned right on Two
Notch Road. After entering Two Notch Road, Fuller's car crashed
into a steel rail at the road's curb. Fuller could not move his car off of
the steel rail. The testimony was unclear as to whether the Dixon car
forced Fuller off the road or whether he lost control of his car. After
Fuller crashed his car, Dixon and Phillips drove their car into Fuller's
car. Fuller testified that one of the two men yelled, “[W]e're going to
take care of you.”
Fuller testified that after his car had been rammed, the two men
began to exit their car. He cautioned them to stay in their car. Fuller
testified that when the door of the car opened, he saw something shiny
in Dixon's hand and thought it was a gun. Fuller fired four shots at
the men's car and killed both men. A gun was never found in Dixon's
car.

Fuller, 297 S.C. at 441–42, 377 S.E.2d at 329–30.

This Court held "it was error for the trial judge to charge Davis as an exclusive
self-defense charge." Id. at 443, 377 S.E.2d at 330. In charging only the general
self-defense law from Davis, we held the trial court failed to charge the jury on
applicable principles of law that were directly implicated by the facts of the case,
such as the right to act on appearances,4 that words accompanied by hostile acts
may establish self-defense,5 and that an individual has no duty to retreat if doing so
would place him at an increased risk of death or serious bodily harm.6 Id. at 443–
44, 377 S.E.2d at 331 (citations omitted).

4
"[Fuller] testified that he saw Dixon and Phillips open the trunk of their car and
also thought he saw a shiny object in Dixon's hand." Id. at 444, 377 S.E.2d at 331.
5
"Testimony presented at trial revealed that Dixon stated 'he was going to take
care' of Fuller; that Dixon grabbed Fuller by the throat; and[] that Dixon and
Phillips called Fuller a 'nigger.' Testimony also revealed that Dixon and Phillips
rammed Fuller's car . . . ." Id. at 444, 377 S.E.2d at 331.
6
"Testimony elicited at trial revealed that Dixon and Phillips rammed Fuller's car
door when he tried to leave his car. Fuller also testified that he did not believe it
was safe to leave his car and run from the scene." Id. at 444, 377 S.E.2d at 331.
Here, unlike in Fuller, the trial court gave a thorough self-defense instruction that
far exceeded the requirements of Davis. Fuller does nothing to alter the
recognized principles that an appellate court must consider the jury charge as a
whole and a trial court need not use the precise verbiage requested by a party as
long as the legal principle is included in the charge. Adopting the dissent's
expansive interpretation of Fuller would therefore place the law on jury
instructions at odds with settled law by encouraging appellate courts to ignore the
standard of review and encouraging trial courts to make unconstitutional comments
on the facts. See S.C. Const. art. V, § 21 ("Judges shall not charge juries in respect
to matters of fact, but shall declare the law."). Indeed, while maintaining it was
reversible error to not charge the "continuing to shoot" language, the dissent
concedes the charge is "alarmingly close to an impermissible charge on the facts."

V.

Because the thorough jury charge included consideration of the applicable
principles of self-defense, the failure to incorporate the precise "continuing to
shoot" verbiage does not rise to the level of reversible error. As the court of
appeals correctly observed, "[c]onsidered as a whole, the trial court's charge
explained this principle of law." Marin, 404 S.C. at 622, 745 S.E.2d at 152. We
therefore affirm the court of appeals' decision as modified.

AFFIRMED AS MODIFIED.

BEATTY, HEARN, JJ., and Acting Justice Jean H. Toal, concur.
PLEICONES, C.J., dissenting in a separate opinion.
CHIEF JUSTICE PLEICONES: I dissent from the majority's decision because
in my view, the trial judge's refusal to charge the legal principle contained in the
requested charge was reversible error. Accordingly, I would reverse Marin's
conviction and sentence and remand for a new trial.

I agree with the majority that the language requested by Marin was a correct
statement of law. However, in my opinion, the charge given did not encompass the
charge requested, and, therefore, based on the evidence at trial, it was reversible
error for the trial judge to refuse to give the requested charge. See State v. Brandt,
393 S.C. 526, 549, 713 S.E.2d 591, 603 (2011) ("In reviewing jury charges for
error, we must consider the court's jury charge as a whole in light of the evidence
and issues presented at trial" (quoting State v. Adkins, 353 S.C. 312, 318, 577
S.E.2d 460, 463 (Ct. App. 2003))); State v. Day, 341 S.C. 410, 418, 535 S.E.2d
431, 435 (2000) (finding a trial judge's refusal to specifically tailor the self-defense
charge to adequately reflect the facts and theories presented by the defendant is
reversible error (citation omitted)); State v. Fuller, 297 S.C. 440, 443, 337 S.E.2d
328, 330 (1989) (holding a trial judge's refusal to include an additional requested
jury charge on self-defense is reversible error where the facts and circumstances
presented at trial warrant such a charge). First, it is my opinion that Marin was
entitled to a charge explaining that where a defendant is justified in using deadly
force, the defendant may continue to use such force until the danger dissipates.7
See State v. Hendrix, 270 S.C. 653, 661, 244 S.E.2d 503, 507 (1978) (holding a
person justified in firing the first shot in self-defense may continue to shoot until
the apparent danger to his life or body has ceased). Marin, who was employed as a
newspaper marketing director and manager of a car rental company, testified he
was being attacked from the backseat when he twice shot the victim out of fear for
his safety, and evidence presented at trial corroborated Marin's version of events.
Specifically, law enforcement testified skid marks and debris in the roadway were

7
I find the specific language "continuing to shoot" alarmingly close to an
impermissible charge on the facts. See S.C. Const. art. V, § 21 (“Judges shall not
charge juries in respect to matters of fact, but shall declare the law.”); State v.
Hartley, 307 S.C. 239, 241, 414 S.E.2d 182, 183–84 (Ct. App. 1992). Regardless,
Marin's requested charge was based on a correct principle of law, and the trial
judge was required to charge that principle to the jury. See Brandt, 393 S.C. at
549, 713 S.E.2d at 603 (holding when a party requests the trial judge charge a
correct and applicable principle of law, the court must charge it (citation omitted)).
consistent with damage observed to the front of Marin's vehicle corroborating
Marin and Jimenezs' statements after the incident that there was a struggle over
control of the steering wheel; the crime scene investigator found the victim's body
slumped over the center console of Marin's vehicle between the driver's and front
passenger's seat, with his left arm positioned palm-up in the driver's seat, and with
one foot on the backseat floorboard and one foot on the backseat;8 and the
pathologist who performed the autopsy on the victim testified there were two
gunshot wounds to the head—one fatal, and one potentially fatal—and it was not
possible to determine which gunshot wound came first, only that the gunshots
"came close together," and both were fired at extremely close range. As to why
Marin shot the victim twice, Marin testified at trial, "It happened real fast -- boom,
boom."

In closing argument, the solicitor argued, "Ladies and gentlemen, I submit this is
malice. Two shots, not one, two shots to the back of the head." The solicitor
further argued, "Would a reasonable person shoot someone twice in the back of the
head?" While the solicitor's statements do not singularly require the trial judge
give the requested charge, in my view, the statements effectively highlight the
importance of the charge requested in light of the facts of this case. Additionally,
in my opinion, it is worth noting that after the trial judge gave the original jury
charge, the jury requested additional guidance as to malice and voluntary
manslaughter, and the trial judge again refused to include Marin's requested
verbiage regarding the principle of "continuing to shoot."9 See State v.
Blassingame, 271 S.C. 44, 46-47, 244 S.E.2d 528, 530 (1978) (finding that when a
jury submits a question to the court following a jury charge, it is reasonable to
assume the jury is focusing "critical attention" on the specific question asked, and
that the information relayed by the trial judge to the jury is given "special
consideration.").

Second, in my view, the language cited by the majority as encompassing Marin's
requested charge—"a person may use such force as is reasonably necessary even to
the point of taking human life where such is reasonable"—merely explains that a
defendant may take a human life in self-defense, and utterly fails to further define

8
The crime scene investigator further found no indication the victim's injuries
were sustained in the backseat or any other location other than where his body was
positioned between the front seats of the vehicle.
9
The jury returned its verdict approximately one hour after the trial judge provided
the additional instruction.
for the jury reasonable self-defense conduct under the facts of this case. In my
opinion, the charge requested by Marin goes a step further, and elucidates
reasonableness in this case, i.e., a person entitled to exercise self-defense may
continue using deadly force until the perceived danger has dissipated.
Accordingly, in light of the solicitor's closing argument, I find the language cited
by the majority is not remotely sufficient to explain or clarify for the jury that the
two shots fired by Marin were not necessarily indicative of malice. See Brandt,
393 S.C. at 549, 713 S.E.2d at 603; Day, 341 S.C. at 418, 535 S.E.2d at 435;
Fuller, 297 S.C. at 443, 337 S.E.2d at 330 (1989). Thus, I do not find the jury
charge included the requested, applicable principle of self-defense.

For the reasons given above, I would find the trial judge committed reversible error
by failing to charge the principle embodied in the requested "continuing to shoot"
language, reverse Marin's conviction, and remand to the lower court for a new trial.