As with Homicide, discussed in Chapter 1, the various defenses referenced in this chapter are very substantially creatures of the common law. As such, attorneys practicing in South Carolina have a broad and rich array of history and tradition to draw on when drafting jury instructions and articulating principles of law. See the discussion of S.C. Code Ann. § 14-1-50 at the beginning of Chapter 1.
A. Self-Defense
1. Definition
Self-defense is "the use of force to protect oneself, one's family, or one's property from a real or threatened attack." BLACK'S LAW DICTIONARY (11th ed. 2019). Self-defense is usually justified if the person believes he or she is in danger of imminent bodily harm. Id. However, the use of force must be necessary to avoid the threatened harm and the amount of force must be reasonable. Id. The action taken by the defendant must be proportional to the threat perceived by the defendant. State v. Jones, 133 S.C. 167, 130 S.E. 747, 750 (1925), overruled on other grounds, State v. Foust, 325 S.C. 12, 479 S.E.2d 50 (1996); see also Golden v. State, 1 S.C. 292 (1870); State v. Wood, 1 S.C.L. (1 Bay) 351 (1794). If the defendant perceives a threatened slap in the face, he is not privileged to use deadly force against the assailant to prevent that attack. Restatement (Second) of Torts § 65 Self-Defense By Force Threatening Death Or Serious Bodily Harm. If the elements of self-defense are established, the defendant must be found not guilty, as it is a complete defense. 3 S.C. Jur. Assault and Battery § 28. In an important case, State v. Dickey, 716 S.E.2d 97 (S.C. 2011), the court dealt with a wide range of self-defense issues. The court in Dickey also found that the prosecution failed to disprove self-defense and overturned the defendant's conviction outright. See also Appendix A of this book which deals specifically with self-defense instructions.
2. Elements
a. The defendant "must be without fault in bringing on the difficulty or the necessity of taking human life . . . ." State v. Wigington, 649 S.E.2d 185, 188 (S.C. Ct. App. 2007); State v. Jackson, 87 S.E.2d 681, 684-85 (1955); and most recently, State v. Williams, 830 S.E.2d 904 (S.C. 2019).
b. The defendant must have believed he was in imminent danger of losing his life or sustaining serious bodily injury or he actually was in such imminent danger. Id.
c. 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. Id.
d. The defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance. Id. If, however, the defendant was on his own premises he had no duty to retreat before acting in self-defense. Id.
3. Elements Defined
a. Fault
This first element, that the defendant must have been without fault, is based on the premise that force should be used to protect innocent life. McAninch, Fairey, and Coggiola, THE CRIMINAL LAW OF SOUTH CAROLINA, 543 (6th ed. 2013) (hereafter, McAninch, Fairey, and Coggiola (2013)). See most recently, State v. Williams, 830 S.E.2d 904 (S.C. 2019). In other words, a defendant may not cause the difficulty that put himself in danger and then "claim the right of self-defense" when force is necessary to protect himself. State v. Chatman, 19 S.E.2d 100, 102 (S.C. 1999). Unlawful possession of a weapon by a defendant will not automatically preclude a claim of self-defense. State v. Slater, 664 S.E.2d 50, 52-53 (S.C. 2007) (The court noted that although the "mere unlawful possession of a firearm" does not automatically preclude a claim of self-defense, it rejected the notion that unlawful possession of a weapon could never be a basis for the preclusion of self-defense.). State v. Rivera, 699 S.E.2d 157 (S.C. 2010); see also State v. Brayboy, 691 S.E.2d 482 (S.C. Ct. App. 2010) (If a defendant is lawfully armed in self-defense yet no longer in imminent danger the defense of self-defense cannot be met).
Self-defense is not available for those engaged in mutual combat. State v. Barksdale, 428 S.E.2d 498, 502 (S.C. 1993). Fault, as it applies to pleading self-defense, may be established by physical contact, such as starting a fist fight. State v. Rowell, 56 S.E. 23, 26-27 (S.C. 1906). Also, language that is "so opprobrious that a reasonable man would expect it to bring on a physical encounter, and which did actually contribute to bringing it on" is sufficient to undermine the defendant's ability to plead self-defense. Id.
In contrast, the receiver of the opprobrious message or threatening words has no right to respond with force. State v. Heyward, 15 S.E.2d 669, 672 (S.C. 1941). There may be an exception if the threats are accompanied by threatening or hostile acts. State v. Heyward, 15 S.E.2d 669, 672 (S.C. 1941). The premise that the defendant must be without fault does not include unlawful possession of a weapon if he was entitled to defend himself. State v. Burriss, 513 S.E.2d 104, 108 (S.C. 1999).
In some cases, even the person originally at fault with no right to self-defense may have this right restored. State v. Hendrix, 244 S.E.2d 503, 506 n. 3 (S.C. 1978); accord McAninch, Fairey, and Coggiola, 545-56 (2013). A dictum from a footnote in State v. Hendrix suggests that if an aggressor withdraws and communicates this to the other party, the right to self-defense may be restored. This premise was followed in a 1999 case which stated, "if, 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 . . . ." State v. Bryant, 520 S.E.2d 319, 322 (1999).
b. Imminent danger
The second element allows a defendant to plead self-defense to situations where he was not only in actual imminent danger but also in situations where the defendant believed he was in imminent danger of losing his life or sustaining serious bodily injury. S.C. Juris. Assault & Battery, Defenses § 28. See also State v. Dickey, 716 S.E.2d 97 (S.C. 2011).
State v. Fuller established that the defendant has a right to act based on appearances. State v. Fuller, 377 S.E.2d 328, 331 (S.C. 1989). The court found that words along with hostile acts may be enough to establish self-defense. Fuller, 297 S.C. at 444. Testimony at trial revealed that one of the victims said "he was going to take care" [of defendant] and subsequently grabbed the defendant by the throat and called him a "n****r." Id. Testimony also revealed that the victims rammed their truck into the defendant's car. Id. Further, they opened their trunk and the defendant saw what he thought was a "shiny object." Id. This was sufficient for the court to find that words and acts together could support a claim of self-defense. Id.
This element illustrates the point that the threat of death or bodily injury must be "apparent and immediate and actually feared by the defendant". 6 Am. Jur. 2d Assault and Battery § 55.
The threat of future harm will not, under ordinary circumstances, be sufficient to justify self-defense. Id.; see also State v. Lee, 362 S.E.2d 24, 26 (S.C. 1987) (noting that defendant's belief that victim kept a gun in his truck was not enough for a charge on self-defense when there was no evidence that victim actually had a gun at the time of the shooting).
Generally speaking, the defendant must have been able to appreciate the danger and the immediacy of the danger at the time he used deadly force to protect himself. 6 Am. Jur. 2d Assault and Batttery § 130. While the danger must be imminent and immediate, the defendant does not have to wait to be attacked to have a right to kill the assailant in self-defense. Id. One South Carolina case notes that a defendant need not wait until his attacker is on equal terms to act in self-defense. State v. Starnes, 531 S.E.2d 907, 913 (S.C. 2000).
Similarly, a person does not have to wait "until his assailant gets the drop on him" to act. Id. See also State v. Day, 535 S.E.2d 431, 435 (S.C. 2000) (requiring tailored self-defense instructions when required by the facts). Thus, the law permits a person to act in self-defense in a preemptive fashion. State v. Harris 674 S.E.2d 532, 535 (S.C. Ct. App. 2009) (Trial court refused the "get the drop on him" language and instead charged, "You may consider the deceased's conduct[,] actions and general demeanor immediately before the incident as bearing on the deceased's temper and state of mind at the time of the fatal encounter[,] and the defendant does not have to show that he was actually in danger. It is enough if the defendant believed he was in imminent danger and a reasonable prudent person of ordinary firmness and courage would have had the same belief. The defendant has the right to act on appearances even though the defendant's beliefs may have been mistaken.... The trial court's instructions made it clear Harris did not have to wait until he was actually under attack in order to employ force to defend his life. The trial court informed the jury that Harris had a right to act on appearances even if those appearances may have been erroneous. The simple fact that the trial court refused to use the '[gets] the drop on him' language does not render the charge improper." (emphasis in original)). See further State v. Marin, 783 S.E.2d 808, 811-12 (S.C. 2016), involving the "continuing to shoot charge."
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...
