State v. Smith

LOCKEMY, J.,

concurring in a separate opinion.

I concur in the majority’s decision to affirm Smith’s conviction. However, I do not believe a jury issue existed as to whether Smith brought on the difficulty which led to the shooting. The issue of self-defense and Smith’s right to avail himself of that defense was a matter of law, not fact. The facts in this case did not support an instruction on self-defense as a matter of law because the first element of self-defense, being without fault in bringing on the difficulty, was not present. Therefore, the trial court’s denial of Smith’s directed verdict motion on the ground of self-defense was not error.

To support his self-defense claim, Smith cites State v. Starnes, 340 S.C. 312, 531 S.E.2d 907 (2000). In Starnes, two shootings took place in a home where there was disputed testimony that a drug transaction was involved. 340 S.C. at 316-18, 531 S.E.2d at 910-11. Our supreme court found the facts presented entitled Starnes to a self-defense charge in regard to both shootings. Id. at 322, 531 S.E.2d at 913.

However, the facts in Starnes are very different from those in this case. In Starnes, the testimony centered on anger regarding an unpaid or late paid debt, victims bent on mischief, and a shooting to defend others. 340 S.C. at 316-18, 531 S.E.2d at 910-11. The purported drug transaction was only one element, and one could argue it had dissipated as a reason for the shootings. Here, Smith willingly brought a loaded weapon to the scene solely for the purpose of furthering his efforts to conduct the illegal sale of drugs.

I believe the reasoning in State v. Slater, 373 S.C. 66, 644 S.E.2d 50 (2007), is more akin to the facts of this case. In Slater, Slater willfully entered into an altercation in progress *557with a loaded weapon. 373 S.C. at 68, 644 S.E.2d at 51. After shots were fired, Slater returned fire killing the victim. Id. Our supreme court reversed this court and agreed with the trial court that Slater was not entitled to a self-defense charge. Id. at 71, 644 S.E.2d at 53. The court stated, “[a]ny act of the accused in violation of law and reasonably calculated to produce the occasion amounts to bringing on the difficulty and bars the right to assert self-defense.” Id. at 70, 644 S.E.2d at 52 (quoting State v. Bryant, 336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999)). In other courts, this reasoning has been applied to deny the accused the right to a self-defense charge. In United States v. Desinor, 525 F.3d 193 (2d Cir. 2008), the Second Circuit determined the defendants were not entitled to self-defense charges for killing an unintended victim. The Second Circuit held, “[i]t has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill.” Desinor, 525 F.3d at 198 (quoting United States v. Thomas, 34 F.3d 44, 48 (2d Cir.1994)).

At the time of the shooting, Smith was engaged in the crime of selling illegal drugs. This activity, in addition to damaging the lives of untold numbers of people, also results in shootings and deaths on a very frequent basis. Smith’s decision to bring a loaded weapon to the drug deal clearly shows his knowledge of the danger of the situation. His criminal conduct brought on the necessity to take the life of another. Smith created a situation fraught with peril. He cannot be excused for the violence that logically and tragically often occurs when engaging in such conduct, nor can he claim he did not anticipate the high probability of such violence.

Therefore, I would affirm the denial of the directed verdict motion on the ground that Smith was not entitled under the facts of this case to the defense of self-defense. The self-defense charge, although not warranted in my view, was not objected to by either party nor has it been argued to this court that it was prejudicial to Smith. Thus, Smith’s conviction should be affirmed.