B. Self-defense

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

B. Self-Defense

1. Burden of Proof

The defendant must raise the issue of self-defense. Once in issue, it must be disproved by the State beyond a reasonable doubt. "It is clear that the defendant need not establish self-defense by a preponderance of the evidence but must merely produce evidence which causes the jury to have a reasonable doubt regarding his guilt." State v. Bellamy, 293 S.C. 103, 105, 359 S.E.2d 63, 64-65 (1987), overruled on other grounds by State v. Torrence, 305 U.S. 45, 406 S.E.2d 315 (1991) (abrogating the doctrine of in favorem vitae).

At common law self-defense, originally an affirmative defense, had to be established by the defendant by a preponderance of the evidence. State v. McDowell, 272 S.C. 203, 249 S.E.2d 916 (1978); State v. Franklin, 80 S.C. 332, 60 S.E. 953 (1908), aff'd. sub. nom.. Franklin v. South Carolina, 218 U.S. 161 (1910). Dictum in Mullaney v. Wilbur, 421 U.S. 684 (1975), suggested that due process might preclude such a requirement as an extension of the previously established due process requirement that the State establish each element of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). In response to Mullaney some jurisdictions ceased to require the defendant to shoulder any burden of proof in regard to a defense. E.g., State v. Moore, 237 Ga. 269, 227 S.E.2d 241 (1976).

Subsequent United States Supreme Court cases indicate, however, that concepts of federal due process are not offended by a requirement that the defendant establish a defense by a preponderance of the evidence, at least if the defendant is not thereby required to disprove one of the elements of the offense. E.g., Patterson v. New York, 432 U.S. 197, 206 (1977); Rivera v. Delaware, 429 U.S. 877 (1976) (insanity defense). Nonetheless, by the early 1980s, only two states, South Carolina and Ohio, continued to view self-defense as an affirmative defense. Martin v. Ohio, 480 U.S. 228, 236 (1987).

In South Carolina, murder is defined as "the unlawful killing of another with malice aforethought." State v. Johnson, 291 S.C. 127, 128, 352 S.E.2d 480, 481 (1987) (emphasis added). Accord State v. Gaskins, 284 S.C. 105, 120, 326 S.E.2d 132, 144, cert. denied, 471 U.S. 1120 (1985), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abrogating the doctrine of in favorem vitae). Such a killing must, of course, be unlawful. To require the defendant to establish that the killing was in self-defense would appear to require him to disprove an element of the offense, that it was not an unlawful killing or that the killing was not with malice aforethought. Such a result would seem inconsistent with Mullaney and distinguishable from the insanity defense, which is not inherently inconsistent with the elements of the offense.

A narrow 5-to-4 majority of the United States Supreme Court rejected a similar contention in Martin v. Ohio, 480 U.S. 228 (1987), and upheld Ohio's requirement that the defendant establish self-defense by a preponderance of the evidence. The holding in Martin is, however, extremely narrow for two reasons. First, the Court observed that even if the defendant's evidence of self-defense did not add up to a preponderance, as long as it raised a reasonable doubt as to the existence of any of the elements of the defense, the jury could not convict. As the dissenters observed, this makes for a most confusing affirmative defense.

The second limitation on any implication of Martin is a function of the combination of the unique definition of aggravated murder in Ohio and the factual posture of the case. The offense requires that the actor purposely, and with prior calculation and design, cause the death of another. The appellant did not dispute the existence of any of these elements, including that she had killed her husband with prior calculation and design. In this posture of the case, then, five members of the Court concluded that due process was not offended by some of the burden being placed on the defendant.

In a post-Martin case, the South Carolina Supreme Court unequivocally rejected an invitation to resurrect self-defense as an affirmation defense because this "does not comport with South Carolina law." Bellamy, at 105, 359 S.E.2d at 65. The Court referred with approval to the proposed instructions on self-defense that it had suggested three years previously.

If you have a reasonable doubt of the defendant's guilt after considering all the evidence including the evidence of self-defense, then you must find him not guilty. On the other hand, if you have no reasonable doubt of the defendant's guilt after considering all the evidence including the evidence of self-defense then you must find him guilty.

Id. (quoting State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984)).

Subsequently, the Court noted that "current law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt." State v. Wiggins, 330 S.C. 538, 544, 500 S.E.2d 489, 492-93 (1998). In cases tried after the date of Wiggins, May 18, 1998, in which self-defense is properly submitted to the jury, "the defendant is entitled to a charge, if requested, that the State has the burden of disproving self-defense by proof beyond a reasonable doubt." State v. Addison, 343 S.C. 290, 294, 540 S.E.2d 449, 451 (2000) (citations omitted). Simply instructing the jury that the burden is not on the defendant to prove self-defense is not an adequate charge under current South Carolina law. State v. Burkhart, 350 S.C. 252, 565 S.E.2d 298 (2002) (reversing conviction for refusing to charge the burden was on State to disprove self-defense beyond a reasonable doubt). It should be part of the trial court standard charge on self-defense that once a defendant has introduced any evidence of self defense, the State has the burden to prove the elements of self-defense are not present and the State must prove the absence of the defense beyond a reasonable doubt. Id.

As the Wiggins/'Addison charge, that the State bears the burden of disproving self-defense beyond a reasonable doubt, is firmly established in South Carolina law, failure of counsel to object to a affirmative defense instruction is a denial of effective assistance of counsel. Dandy v. State, 301 S.C. 303, 391 S.E.2d 581 (1990).

If there is no dispute that a defendant acted in self-defense, then a directed verdict of not guilty should be entered.

Davis and its progeny, as written, do not say that the new approach is mandated by due process; nor do they purport to invalidate earlier convictions in which the burden of establishing self-defense was clearly on the defendant. Nonetheless, as all the foregoing should suggest, there is a strong argument that due process does preclude self-defense from being an affirmative offense, and there are a number of persons who arguably have been convicted improperly.

Can a person who failed to object to self-defense as an affirmative defense at the time of conviction raise the issue now? The United States Supreme Court has indicated that the answer to this question depends upon the date of conviction. In Reed v. Ross, 468 U.S. 1 (1984), the defendant had been convicted in North Carolina in 1969 of first degree murder and appealed but did not raise the issues of self-defense and lack of malice as affirmative defenses. Some six years later the Court invalidated the requirement of the defendant's having to prove lack of malice. Mullaney v. Wilbur, 421 U.S. 684 (1975). Mullaney was held to be retroactive in Hankerson v. North Carolina, 432 U.S. 233 (1977). Consequently, in Reed, the Court concluded that the novel nature of the claim excused the defendant's not having raised it on direct appeal from his conviction, and therefore he could subsequently raise it in a federal habeas corpus proceeding. Reed, at 16-17. The test in such cases turns on whether the state of the law at the time of the appeal offered a "reasonable basis" on which to challenge the jury instructions.

Thus a person convicted prior to Mullaney v. Wilbur may now challenge self-defense as an affirmative defense, even though the issue was not raised at trial or on direct appeal. It will be recalled that Mullaney dealt with the affirmative defense of disproof of malice; it did not involve self-defense. Additionally, as noted above, in the subsequent case of Martin v. Ohio, 480 U.S. 228 (1987), the Court, in a very narrow ruling, upheld Ohio's affirmative defense of self-defense. Nonetheless, there still seems to be a strong argument that when self-defense in South Carolina was an afirmative defense it violated due process, (an argument rejected in State v. Hardy, 283 S.C. 590, 593, 325 S.E.2d 320, 322 (1985)), and a person so convicted after Mullaney ought to be able to raise the issue for the irst time.

In a split decision, the Fourth Circuit, sitting en banc, reversed the district court's grant of habeas corpus to a defendant complaining of his affirmative burden to establish self-defense in his 1981 South Carolina murder conviction, Smart v. Leeke, 873 F.2d 1558 (4th Cir.), cert, denied, 493 U.S. 867 (1989). Relying on Martin v. Ohio, 480 U.S. 228 (1987), the court concluded that this affirmative defense did not violate due process so long as the jury was adequately instructed on the State's burden to establish the existence of every element of the charge by proof beyond a reasonable doubt and was not precluded from considering the evidence of self-defense in determining whether there was a reasonable doubt of the defendant's guilt.

In a case involving claims of both self-defense and accident it may be necessary for the self-defense instructions to distinguish between the right to arm oneself in self-defense and the right to use the weapon in self-defense. State v. McCaskill, 300 S.C. 256, 387 S.E.2d 268 (1990). The defense of accidental homicide is available only if the defendant was acting lawfully at the...