State v. Slater

*494HEARN, C.J.,

dissenting:

Because Slater failed to effectively communicate his intent to withdraw after he provoked a dangerous situation, I do not believe he was entitled to a charge of self-defense. Therefore, I respectfully dissent.

A person who provokes an assault cannot claim a right to self-defense unless that person “ ‘withdraws in good faith from the conflict and announces in some way to his adversary his intention to retire.’ ” State v. Bryant, 336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999) (quoting 55 A.L.R.3d at 1003). Here, all the evidence, including Slater’s own testimony, indicates that he provoked a conflict by running toward an altercation while conspicuously holding a cocked and loaded handgun, even though he had no personal connection to the people involved in the fight.9

Slater argues that he withdrew from the conflict because (1) he began to run when a man involved in the turmoil pointed a gun at him, and (2) he did not shoot his gun until he heard someone else fire first. However, in his testimony, Slater admitted that the events — his running, hearing the shot, and firing back — all “happened so fast.” Slater further admitted that he not only shot backwards as he was running away, but that he also shot in the air after he had gotten inside a car and was riding away from the scene. In my view, even if Slater intended to withdraw, neither his words nor his actions communicated this intent. See id. (“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).

While the trial court is required to charge the jury on self-defense if there is any evidence supporting the charge, all the evidence in the record shows that Slater provoked a dangerous situation and no evidence indicates that he ever communi*495cated his withdrawal after the provocation. Despite Slater’s claim that he attempted to retreat, he admitted that he still had a cocked and loaded gun in his hand. With a dangerous weapon readily available for Slater to use, the person whom Slater had approached could not have known whether Slater was withdrawing from the conflict or whether Slater was retreating to gain tactical advantage. See 40 C.J.S. Homicide § 125 (1991) (“As long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any act or statement as indicative of an intent to discontinue the assault.”); see also Bryant, 336 S.C. at 346, 520 S.E.2d at 322 (finding the defendant failed to effectively communicate his withdrawal even though he threw down his knife because the defendant admitted the victim did not see him drop the knife). Because Slater failed to communicate his intent to withdraw, his right to use self-defense was never restored. Therefore, I find no error in the trial court’s refusal to charge self-defense.

Because I disagree with the majority’s decision to reverse on the failure to charge self-defense, I briefly address Slater’s additional arguments on appeal. In addition to his argument regarding self-defense, Slater also contends the trial court erred by allowing the victim’s mother to testify that her son did not have a criminal record.

Rule 404(a)(2), SCRE, states that although character evidence is generally not allowed, “[ejvidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case [is admissible when it is used] to rebut evidence that the victim was the first aggressor.” Here, because the gist of Slater’s defense at trial was that he had been shot at first, evidence regarding the victim’s character was properly offered to rebut the inference that the victim may have been the initial shooter.10 Therefore, I find no error in the trial court allowing this testimony.

Slater’s final argument on appeal is that the trial court erred by admitting hearsay testimony of a police officer. I disagree.

*496At trial, Deshawn Brown, who was accompanying Slater on the night of the incident, testified he heard a gunshot earlier in the evening when he and Slater were “standing by the school by the gym.” On redirect examination, Brown testified that he remembered giving a statement to the police. When asked whether he told the investigating officers that he heard gunshots earlier that night, Brown replied that he did not. Brown explained that he never told anyone about the gunshots he heard because, until the trial, he had never been asked about hearing any other gunshots that night.

At a later point in Slater’s trial, the State questioned one of the officers who had questioned Brown, and the following exchange occurred:

Q: Did you ask them about guns at the scene of the crime? A: Yes, I did.
Q: Did you ask them about anybody else shooting at the scene of the crime?
A: Yes, I did. *
Q: Well, when you were interviewing Deshawn Brown, did he ever tell you that he heard anybody else shooting out there?
Defense Counsel: Objection, your Honor, that’s not proper. The Court: No, sir, I will — no, sir, I’ll permit that question. Go ahead.
Q: Did he ever tell you that?
A: I interviewed Deshawn Brown. He never once told us about anybody else shooting at the scene.

Slater contends on appeal that the above testimony was inadmissible hearsay because it refers to a statement “other than one made by the declarant while testifying at trial or hearing, offered into evidence to prove the truth of the matter asserted.” See Rule 801(c), SCRE.

While the above testimony regarding the statements of Brown is hearsay, we find that it is admissible under Rule 613(b), SCRE. This rule provides, in pertinent part:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is advised of the substance of the statement, the time and place it was allegedly made, and the person to whom it was made, and is *497given the opportunity to explain or deny the statement. If a witness does not admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible.

Rule 613(b), SCRE (emphasis added). When a witness is presented with the requisite circumstances surrounding an alleged inconsistent statement and nevertheless continues to deny before the court ever making the statement, another person’s testimony that the witness did, in fact, make that statement is admissible under Rule 613(b), SCRE. See State v. Fossick, 333 S.C. 66, 69-70, 508 S.E.2d 32, 33 (1998).

In the case before us, the investigating officer testified that he asked all the witnesses (including Brown) about whether anyone else was shooting a weapon at the scene of the crime. He testified Brown had not told him about anyone else shooting. Because Brown denied ever being asked this question after he was presented with all the requisite circumstances, the officer’s testimony constituted extrinsic evidence of a prior inconsistent statement and was admissible under Rule 613(b). Thus, the judge acted properly in overruling Slater’s objections to the testimony.

Accordingly, based on the foregoing, I would affirm Slater’s conviction.

. Slater made no claim of "defense of others at trial,” nor did his testimony in any way reflect an intention to enter the conflict in defense of those being attacked.

. After the victim’s mother testified, Slater presented testimony that powder residue on the victim's hands could have resulted from the victim firing a weapon, further indicating that the defense’s strategy was to implicate the victim as the initial shooter.