THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

The State, Respondent, 

v. 

Brandon Rashad Marshall, Jr., Appellant. 

Appellate Case No. 2016-000870 

Appeal From Charleston County 

R. Markley Dennis, Jr., Circuit Court Judge 

Opinion No. 5674 

Submitted November 1, 2018 – Filed August 7, 2019 

 AFFIRMED 

Appellate Defender Susan B. Hackett, of Columbia, for 

Appellant. 

Attorney General Alan McCrory Wilson, Deputy 

Attorney General Donald J. Zelenka, Senior Assistant 

Deputy Attorney General Melody Jane Brown, and 

Assistant Attorney General Alphonso Simon, Jr., all of 

Columbia; and Solicitor Scarlett Anne Wilson, of 

Charleston, all for Respondent. 

WILLIAMS, J.: In this criminal appeal, Brandon Rashad Marshall, Jr. appeals

his convictions for murder and possession of a firearm during the commission of a 

violent crime. On appeal, Marshall argues the circuit court erred in denying him

immunity under the Protection of Persons and Property Act (the Act), S.C. Code 

Ann. §§ 16-11-410 to -450 (2015). We affirm. 
FACTS/PROCEDURAL HISTORY 

Marshall was indicted for murder and possession of a weapon during the 

commission of a violent crime after he shot and killed Anthony Williams (Victim) 

on May 22, 2014. Prior to trial, Marshall sought immunity from prosecution 

pursuant to the Act, and on April 4, 2016, the circuit court conducted an immunity 

hearing pursuant to State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011). At the 

immunity hearing, the circuit court admitted the video recording of Detective 

Burckhardt interviewing Marshall on the night of the incident (the recorded 

interview). 

During the immunity hearing, Marshall testified he met Victim approximately 

three months prior to the shooting, and the two began a sexual relationship about 

one month later. At the time of the incident, Victim was also in a relationship with 

Ashley Butler. Victim and Butler resided together, but Victim was not on Butler's 

lease and was on trespass notice for Butler's apartment (the apartment). On the 

night of the shooting, Marshall was invited to visit Butler and Victim at the 

apartment. Marshall stated he took his gun into the apartment because he argued 

with Butler's neighbor before, and he previously witnessed the neighbor severely 

assault another man. Marshall testified that while he was at the apartment, Victim

and Butler got into an argument, so he left the room. Marshall stated he returned 

to the room when he heard Butler yelling, "Get off of me, you are always putting 

your hands on me." He also indicated he heard Butler say she could not breathe. 

Marshall stated he saw Victim on top of Butler with one hand around her neck and 

the other hand positioned to strike her face. Marshall testified he grabbed his gun 

off the table, inserted the clip, and told Victim he needed to stop and needed to 

leave. Victim left the apartment, and Marshall followed him. 

Marshall stated he returned to the back door to gather his belongings, but Butler 

did not want to open the back door, so she put his bag on the front porch. Marshall 

testified that after he put his bag, but not his gun, in his car, he saw Victim go back

to the apartment, and he thought Victim was trying to kick in the door. Marshall 

stated he approached Victim in an attempt to calm Victim down and encourage 

him to leave because he feared Victim would get in trouble for violating the 

trespass notice. Marshall also testified he was afraid Victim would attempt to kill 

Butler if Victim was successful in kicking in the door. Marshall stated Victim

shoved him to the ground, and Marshall was fairly certain his glasses fell off. 

Marshall testified he approached Victim again and tried to grab Victim's wrist, but 

Victim pulled away and resumed kicking and punching the door. When Marshall 

attempted to grab Victim's hand, Victim turned around and shoved him twice, 
knocking him into a tree. Marshall indicated he had a hard time getting up, and 

when he finally got up, Victim pushed him against the tree again, causing Marshall 

to fall. Marshall indicated Victim got on top of him and hit his face at least once 

while Marshall repeatedly told Victim to get off of him. According to Marshall, he 

was not physically able to get Victim off of him because he was overweight and 

suffered from prior injuries stemming from automobile accidents. Marshall 

testified he was pretty sure he was on the ground when he turned over, threw back 

his hand, and fired the gun until it stopped firing. Marshall then ran to his car and 

drove away, but he quickly returned to the scene after police arrived. Marshall 

testified he believed Victim was trying to kill him and Butler and that Victim

would have killed him had he not defended himself. According to Marshall, he did 

not make a definite decision to shoot Victim. 

Marshall acknowledged his testimony during the immunity hearing differed from 

what he told Detective Burckhardt in the recorded interview, but he indicated his 

memory was much better at the immunity hearing than it was "immediately after 

the traumatizing incident." The recorded interview differed from the immunity 

hearing testimony as to the distance between Marshall and Victim when Marshall 

fired the gun and as to whether Marshall (1) had his glasses on when he shot 

Victim, (2) was standing or lying on the ground when he shot Victim, (3) put the 

clip in the gun during Victim and Butler's argument or after Victim shoved him,

and (4) fired the gun continuously or stopped firing but resumed firing after Victim 

tried to get back up. 

At the immunity hearing, Butler's testimony differed from Marshall's account of 

the events. Butler testified that on the night of the incident, an argument ensued 

between her and Victim. Butler stated she spit at Victim, and Victim grabbed her 

and held her down on the couch. Butler testified that although she could not 

breathe when Victim held her down on the couch, she believed it was because of 

the position she was in not because Victim was choking her. Butler averred Victim 

did not choke her. She further testified Victim did not hit her, she never told 

Victim to stop hitting her, and she never believed Victim was going to kill her or 

seriously hurt her. She stated that throughout their relationship, Victim never hit or 

assaulted her. 

According to Butler, Victim left when Marshall grabbed Victim while he was on 

top of her on the couch and told Victim to leave. After Marshall and Victim left, 

Butler locked the back door. She testified Marshall knocked on the back door to 

get his things, she put them on the front porch, and she asked him to leave. Butler 

indicated Victim then knocked on the back door to get some clothes. Butler 
 

testified Victim knocked louder than Marshall, but she did not think he was trying 

to kick in the door, and she did not fear he was going to hurt her. Butler stated she 

did not let Victim in, but she yelled through the door that she would get Victim's

clothes from upstairs. Butler testified she did not let Victim in because she feared 

she would get kicked out of her apartment as a result of the trespass notice, not 

because she was afraid. As she was coming down the stairs with Victim's clothes, 

Butler stated she heard gunshots. A photograph admitted into evidence by the 

State showed that the police found Victim's clothes near the front door.

Butler's neighbor also testified at the immunity hearing. She stated she awoke to 

the sound of gunshots, and then she heard a male voice yell "you are messing with 

the wrong [person]." She testified she heard no pause in the gunshots. 

Dr. Nicholas Batalis conducted Victim's autopsy, which showed four bullet 

wounds. He testified he did not observe any stippling or soot on Victim's injuries. 

Dr. Batalis explained soot will not travel further than six to twelve inches from the 

location where the gun was shot, and stippling will not travel more than two to four 

feet. This indicated Marshall was not within close range when he shot Victim. 

At the close of the immunity hearing, the circuit court denied Marshall's request for 

immunity under the Act, finding Marshall failed to show the elements of 

self-defense by a preponderance of the evidence. Specifically, the court noted the 

inconsistencies (1) within Marshall's testimony at the hearing, (2) between the 

recorded statement and Marshall's testimony, (3) between Marshall's testimony and 

Butler's testimony, and (4) between the scientific evidence and Marshall's theory of 

the case. The case proceeded to a jury trial, and Marshall was convicted of murder 

and possession of a weapon during the commission of a violent crime. The circuit 

court sentenced Marshall to concurrent sentences of forty years' imprisonment for 

murder and five years' imprisonment for the possession of a weapon during the 

commission of a violent crime. This appeal followed.1

ISSUE ON APPEAL 

1

 Marshall's counsel initially filed a motion to be relieved and a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), which raised another issue on appeal. 

By order filed November 13, 2017, this court denied the motion to be relieved as 

counsel and ordered the parties to fully brief the issue of whether Marshall was 

entitled to immunity from prosecution pursuant to the Act. 
Did the circuit court err by denying Marshall immunity from prosecution pursuant 

to the Act?

STANDARD OF REVIEW 

Circuit courts utilize pretrial hearings to determine whether a defendant is entitled 

to immunity under the Act, employing a preponderance of the evidence standard. 

State v. Manning, 418 S.C. 38, 43, 791 S.E.2d 148, 150 (2016). Appellate courts 

review an immunity determination for abuse of discretion. Id. at 45, 791 S.E.2d at 

151. A circuit court abuses its discretion when its ruling is based on an error of 

law or, when grounded in factual conclusions, is without evidentiary support. State 

v. Jones, 416 S.C. 283, 290, 786 S.E.2d 132, 136 (2016).

LAW/ANALYSIS 

Marshall argues the circuit court erred in denying him immunity from prosecution 

under the Act. Specifically, Marshall contends he established by a preponderance 

of the evidence the elements required for immunity under the Act and the requisite 

elements of self-defense because (1) he was without fault in bringing on the 

difficulty because Victim was the initial aggressor, (2) he believed he was in 

imminent danger and a reasonably prudent person would have held the same belief, 

(3) he was not engaged in unlawful activity at the time of the fatal altercation with 

Victim, and (4) he had no duty to retreat because the altercation occurred in a 

public area of Butler's apartment complex. We disagree. 

Subsection 16-11-450(A) of the South Carolina Code (2015) provides, "A person 

who uses deadly force as permitted by the provisions of this article or another 

applicable provision of law is justified in using deadly force and is immune from 

criminal prosecution and civil action for the use of deadly force . . . ." Subsection 

16-11-440(C) provides: 

A person who is not engaged in an unlawful activity 

and who is attacked in another place where he has a 

right to be, including, but not limited to, his place of 

business, has no duty to retreat and has the right to 

stand his ground and meet force with force, including 

deadly force, if he reasonably believes it is necessary 

to prevent death or great bodily injury to himself or 

another person or to prevent the commission of a 

violent crime as defined in Section 16-1-60. 
S.C. Code Ann. § 16-11-440(C) (2015). 

To warrant immunity under the Act, there must be a pretrial determination where 

the accused must demonstrate the elements of self-defense, save the duty to retreat, 

to the satisfaction of the circuit court by a preponderance of the evidence. State v. 

Curry, 406 S.C. 364, 370–71, 752 S.E.2d 263, 266 (2013). The accused must

show (1) he was without fault in bringing on the difficulty; (2) he actually believed 

he was in imminent danger of losing his life or sustaining serious bodily injury, or 

he actually was in such imminent danger; and (3) if his defense was based upon his 

belief of imminent danger, a reasonably prudent man of ordinary firmness and 

courage would have held the same belief, or if he actually was in imminent danger, 

the circumstances "would warrant a man of ordinary prudence, firmness and 

courage to strike the fatal blow in order to save himself from serious bodily harm 

or losing his own life." Id. at 371 n.4, 752 S.E.2d at 266 n.4.

We find the circuit court did not abuse its discretion in holding Marshall was not 

entitled to immunity because he failed to prove the elements of self-defense by a 

preponderance of the evidence due to inconsistencies in the record. In recent 

precedent, our supreme court has clarified when inconsistent evidence warrants a 

denial of immunity from prosecution under the Act. See State v. Cervantes-Pavon, 

426 S.C. 442, 448–451, 827 S.E.2d 564, 567–69 (2019); State v. Andrews, Op. 

27894 (S.C. Sup. Ct. filed June 19, 2019) (Shearouse Adv. Sh. No. 25 at 9–12). 

"[J]ust because conflicting evidence as to an immunity issue exists does not 

automatically require the court to deny immunity; the court must sit as the factfinder at this hearing, weigh the evidence presented, and reach a conclusion under 

the Act." Cervantes-Pavon, 426 S.C. at 451, 827 S.E.2d at 569. "Thus, the 

relevant inquiry is not merely whether there is a conflict in the evidence but, rather, 

whether the accused has proved an entitlement to immunity under the Act by a 

preponderance of the evidence." Andrews, Op. 27894 at 11–12. 

Marshall points to State v. Douglas to support his contention that immunity should 

have been granted. 411 S.C. 307, 768 S.E.2d 232 (Ct. App. 2014). In Douglas, 

this court held the accused proved he acted in self-defense by a preponderance of 

the evidence when he shot the victim after the victim assaulted him and refused to 

leave the accused's house. Id. at 314, 319, 768 S.E.2d at 236, 240. However, this 

case differs from Douglas because the physical evidence presented in Douglas was 

consistent with the accused's testimony. Id. at 319–20, 768 S.E.2d at 239–40. In 

the instant case, the circuit court found numerous inconsistencies called Marshall's 

credibility into question and resulted in Marshall failing to establish entitlement to 
 

immunity by the preponderance of the evidence. Such inconsistencies included the 

sequence of events leading up to the shooting, whether Marshall was standing and 

whether he was wearing his glasses when he fired the shots towards Victim, 

whether the shots were continuous, when Marshall put the clip in the gun, and the 

distance between Marshall and Victim when Marshall fired the gun. The court 

also noted inconsistencies between Marshall's testimony and Butler's testimony, 

including what led to the initial argument between Butler and Victim, whether 

Victim was choking and hitting Butler, and the intensity with which Victim was 

knocking on the back door. Based on these inconsistencies, the circuit court found 

Marshall's testimony was unreliable and prevented the court from finding he 

established the relevant elements of self-defense by a preponderance of the 

evidence. 

The circuit court specifically noted Marshall did not establish by a preponderance 

of the evidence that he was without fault in bringing about the difficulty. See 

Curry, 406 S.C. at 371 n.4, 752 S.E.2d at 266 n.4 (explaining to establish selfdefense, the accused must show he was without fault in bringing on the difficulty); 

State v. Jackson, 227 S.C. 271, 278, 87 S.E.2d 681, 684 (1955) ("[O]ne cannot 

through his own fault bring on a difficulty and then claim the right of self-defense . 

. . ."); State v. Wigington, 375 S.C. 25, 32, 649 S.E.2d 185, 188 (Ct. App. 2007) 

("[O]ne who provokes or initiates an assault cannot escape criminal liability by 

invoking self[-]defense . . . ." (first alteration in original) (quoting State v. Bryant, 

336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999))). In State v. Slater, our supreme 

court noted it could be reasonably calculated that the accused brought on the 

difficulty when he approached an altercation that was already underway with a 

loaded weapon by his side. 373 S.C. 66, 70, 644 S.E.2d 50, 52 (2007). In the 

instant case, following the argument between Victim and Butler, the parties 

separated before Marshall, who was aware Victim was angry, approached Victim

at the back door of the apartment and inserted himself—and his gun—into Victim's

interactions with Butler. Marshall repeatedly grabbed Victim's wrist and hand, 

causing Victim to become aggravated and shove Marshall. Based on Marshall's 

actions, the circuit court found Marshall did not establish by a preponderance of 

the evidence that he was without fault in bringing about the difficulty.

Based upon our review of the record, we find the circuit court properly weighed 

the evidence presented and did not abuse its discretion in denying immunity under 

the Act.

CONCLUSION 
 

Thus, the circuit court's denial of immunity is 

AFFIRMED.2

HUFF and SHORT, JJ., concur. 

2

 We decide this case without oral argument pursuant to Rule 215, SCACR.