THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Jalann Lee Williams, Petitioner.

Appellate Case No. 2017-000727

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal from Charleston County R. Lawton McIntosh, Circuit Court Judge

Opinion No. 27895 Heard October 18, 2018 – File d June 19, 2019

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody J. Brown, Assistant Attorney General Sherrie Butterbaugh , all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

JUSTICE FEW: In this appeal from a conviction for murder, we hold the trial court properly refused to charge the la w of self-defense. The defend ant shot and killedthe victim with an unlawfully-po ssessed pistol the defendant in tentionally brought to an illegal drug transaction. We find the defendant was at f ault in bringing on the

violence. We affirm.

Robert Mitchell made arrangements with Akim Ladson to meet for the purpose of purchasing from Ladson a particularly high-quality variety of m arijuana known as

"loud." 1 Mitchell then went to the mobile home where he knew Jalann Wi lliams to be living to recruit Williams as a participant in the drug deal . The reasons Mitchell

recruited Williams—and Williams agreed to go—are disputed. Mit chell testified

Williams told him he was going to the drug deal to rob Ladson b ecause Williams needed money to pay his bail bondsman on other charges. Willia ms denied any

intent to rob Ladson. He testif ied he loaned Mitchell the mone y to buy "loud," but the price seemed low, so he went to the drug deal to be sure Mi tchell was buying the proper marijuana. His apparent purpose was to ensure his loan would be repaid. Referring to the price, he testified, "I didn't really trust th at but I was like, 'That's

him buying and as long as I get my money back by the end of the week I was all right.'" Williams further explained his purpose, "I said, 'wel l, I'm going to go along with you because I don't believe nobody got no price [sic] for that weed.'" He later testified, "Out of the whole my main concern was just to get my money back at the

end of the week because I n eeded the money back."

These disputed facts, however, ar e not important to our analysi s. What is important to our analysis is the undisputed fact that when Williams agree d to participate in the drug deal, he made a conscious choi ce to take his loaded pistol with him.

Williams and Mitchell waited for Ladson in the same mobile home park where

Williams was living. Ladson arrived in a car driven by his gir lfriend, Alayah Hamlin. Ladson was in the front passenger seat. Williams and Mitchell entered the backseats of Hamlin's car and began the drug deal. Ladson hand ed Mitchell the marijuana, and Mitchell began to inspect and weigh it on a port able scale Williams brought with him. Viewing the evidence in the light most favor able to Williams,

Ladson attacked Williams, Williams feared for his safety, and W illiams had no opportunity to get away. Willia ms then shot and killed Ladson.

1 "Loud" is defined in the Urban Dictionary as, "A slang term fo r marijuana of high quality," and, "Bomb-ass weed." See Loud , Urban Dictionary, https://www.urbandictionary.com/define.php?term=loud (last visi ted June 14, 2019).The State charged Williams with murder, armed robbery, and poss ession of a firearm during the commission of a violent crime. At trial, Williams r equested the trial court charge the jury the law of self-defense as to the murder charge . The trial court refused. The jury convicted Willia ms of murder and possession o f a firearm during

the commission of a violent crime. The jury was unable to reac h a verdict on the charge that Williams robbed Ladson. The trial court sentenced Williams to thirty years in prison.

Williams appealed, arguing the trial court erred in refusing to charge the law of selfdefense. The court of appeals affirmed. State v. Williams , Op. No. 2017-UP-015 (S.C. Ct. App. filed Jan. 11, 2017). We granted Williams' peti tion for a writ of

certiorari to review the cour t of appeals' decision.

The trial court must charge the jury on the law applicable to t he jury's deliberations.

See State v. Marin , 415 S.C. 475, 482, 783 S.E.2d 808, 812 (2016) ("The trial court is required to charge only the current and correct law of South Carolina. The law to be charged must be determined from the evidence presented at tr ial.") (quotations and citations omitted); Winkler v. State , 418 S.C. 643, 655, 795 S.E.2d 686, 693 (2016) (holding a trial court should not answer a jury's questi on if the answer is "not applicable to the jury's deliberations") (citation omitted). I n some cases, the jury must be charged that criminal liability for homicide may be excused under the

doctrine of self-defense. The law requires this self-defense c harge, however, only when there is evidence in the record that supports the right of the defendant to use deadly force. To enable trial courts to determine when the evi dence does support that right, and thus when the law of self-defense must be charg ed to the jury, this

Court has listed four element s that must be present. State v. Dickey , 394 S.C. 491, 499, 716 S.E.2d 97, 101 (2011). If there is no evidence to sup port the existence of any one element, the trial court must not charge self-defense t o the jury. Whether there is any evidence to support e ach element is a question of law.

This structure places the burden on the defendant to produce so me evidence to support the existence of each element. See Stone v. State , 294 S.C. 286, 287, 363 S.E.2d 903, 904 (1988) (stating "a defendant is entitled to a j ury instruction on selfdefense if he has produced evidence tending to show the four elements of that defense"); State v. Bellamy , 293 S.C. 103, 105, 359 S.E. 2d 63, 64-65 (1987) (stating the defendant "must . . . produ ce evidence" to support the char ge of self-defense), overruled on other grounds by State v. Torrence , 305 S.C. 45, 406 S.E.2d 315 (1991). While the State must present evidence to support the existence of each element of the crime charged, the State is under no burden to p roduce evidence to refute the existence of self-defense. However, if there is som e evidence to supporteach element of self-defense—whether found in the State's presentation of evidence or produced by the defendant—it becomes the State's burden to p ersuade the jury beyond a reasonable doubt that at least one element of the defe nse does not exist. See State v. Wiggins , 330 S.C. 538, 544, 500 S.E.2d 489, 492-93 (1998) (stating "current law requires the State to disprove self-defense, once raised by the defendant, beyond a reasonable doubt"); Bellamy , 293 S.C. at 105, 359 S.E.2d at 64 (finding the trial court erred in holding the defendant to the burden of persuasion (relying on

State v. Glover , 284 S.C. 152, 326 S.E.2d 150 (1985), and State v. Davis , 282 S.C. 45, 317 S.E.2d 452 (1984))).

This case involves the element we have traditionally described as, "The defendant [must be] without fault in bringing on the difficulty." Dickey , 394 S.C. at 499, 716 S.E.2d at 101. The issue in this case is whether there was any evidence presented at trial that would support a finding Williams was "without fault. " 2 We addressed the

element in State v. Bryant , 336 S.C. 340, 520 S.E.2d 319 (1999). We held the defendant's actions precluded a charge on self-defense as a mat ter of law because he was "responsible for bringing on the difficulty." 336 S.C. at 346, 520 S.E.2d at 322. We explained, "Any act of the accused in violation of law and r easonably calculated to produce the occasion amounts to bringing on the difficulty a nd bars his right to assert self-defense as a[n] . . . excuse for a homicide." 336 S.C. at 345, 520 S.E.2d at 322 (citing 40 Am. Jur. 2d Homicide § 149 (1999)). We established in Bryant the principle that a defendant is not entitled to a charge of self- defense if the evidence supports only the conclusion that he acted "in violation of law " in a manner "reasonably calculated to produ ce [a violent] occasion." Id.

Under this principle from Bryant , the trial court properly refused to charge selfdefense. Williams' act of intentionally bringing a loaded, unl awfully-possessed pistol to an illegal drug transaction was a "violation of law" that was "reasonably calculated to produce" violence. Id. Williams' act "bars his right to assert selfdefense as a[n] . . . excu se for a homicide." Id.

Intentionally bringing a loaded , unlawfully-possessed pistol to an illegal marijuana transaction is "in violation of law" in three important respect s. First, Williams'

2 We readily acknowledge Ladson was at fault, and perhaps Mitche ll and Hamlin. The question, however, is not who else might have been at fault , but whether

Williams was without fault. In answering that questi on, it does not matter who els e was at fault. Thus, the fact "there is evidence . . . that Lad son . . . produced the violent occasion" is not relevant. The dissent mistakenly reli es on the premise that only one person can be at fault.possession of the pistol was a violation of law. See S.C. Code Ann. § 16-23-20 (2015) (providing, "It is unlawful for anyone to carry about th e person any handgun . . . except . . ." under circumstances not applicable in this case). Second, the possession, purchase, or sale of marijuana is a violation of state and federal law. S.C. Code Ann. § 44-53-370(a) and (c) (2018); 21 U.S.C.A. §§ 84 1, 844 (West 2013). Third, and most important, it is a separate violation o f federal law to bring any gun to an illegal drug trans action. Subsection 18 U.S.C.A. § 924(c)(1)(A) (West 2015) provides, "any person who, during and in relation to any . . . drug trafficking crime . . . , uses or carries a f irearm, or who, in furtherance of any such crime, possesses a firearm, shall, (i) be sentenced to a term of impri sonment of not less than 5 years . . . ."

In addition, intentionally bringing a loaded, unlawfully-posses sed pistol to an illegal drug transaction is "calculated to produce a violent occasion." Williams' pistol was not simply a convenience for him so he could protect himself ju st in case violence

arose. Rather, it is well-documented that the mere presence of guns at illegal drug

transactions produces the violence. See Harmelin v. Michigan , 501 U.S. 957, 1003, 111 S. Ct. 2680, 2706, 115 L. Ed. 2d 836, 870 (1991) ("Studies . . . demonstrate a direct nexus between illegal drugs and crimes of violence."); State v. Banda , 371 S.C. 245, 253, 639 S.E.2d 36, 40 (2006) (citing, in a different context, the "indisputable nexus between drugs and guns"). Congress enacted subsection 924(c)(1)(A) for the purpose of separately criminalizing the co mbination of drug dealing and unlawful possession of a gun, not just the individu al crimes. See Smith

v. United States , 508 U.S. 223, 240, 113 S. Ct. 2050, 2060, 124 L. Ed. 2d 138, 155 (1993) ("When Congress enacted th e current version of § 924(c)( 1), it was no doubt aware that drugs and guns are a dangerous combination."). Cong ress recognized the

causal connection between the presence of an unlawfully-possess ed gun and violence in illegal drug transactions. See Muscarello v. United States , 524 U.S. 125, 132, 118 S. Ct. 1911, 1916, 141 L. Ed. 2d 111, 118 (1998) ("Thi s Court has described [subsection 924(c)(1)'s] basic pur pose broadly, as an effort to combat the 'dangerous

combination' of 'drugs and guns.'" (citing Smith , 508 U.S. at 240, 113 S. Ct. at 2060, 124 L. Ed. 2d at 155).

We have held—in other circumstances—a defendant may lawfully ar m himself in self-defense even when in unlawful possession of a firearm. See, e.g.

, State v.

Burriss , 334 S.C. 256, 513 S.E.2d 104 (1999). In Burriss , several men attacked and attempted to rob the defendant. 334 S.C. at 258, 513 S.E.2d at 106. The defendant pulled a gun and intentionally fired it into the ground. The s hot caused a short pause in the fight. When the fight resumed, the gun fired again—the defendant claimed accidentally—killing one of the me n who attacked him. 334 S.C. at 258-59, 513S.E.2d at 106. We reversed the trial court's refusal to charge the law of accident, 334 S.C. at 264, 513 S.E.2d at 109, stating "a person can be ac ting lawfully, even if he is in unlawful possession of a weapon, if he was entitled to arm himself in selfdefense at the time of the shoo ting," 334 S.C. at 262, 513 S.E. 2d at 108; see also

State v. Slater , 373 S.C. 66, 71, 644 S.E.2d 50, 53 (2007) (stating "the [ Burriss accident] analysis is equally applicable in determining if a de fendant in unlawful possession of a weapon is entitled t o a charge on self-defense" ).

The defendant in Burriss was not doing anything "in violation of law" except unlawfully possessing a pistol. As the Burriss majority explained, the defendant simply "went to visit a friend at [the friend's] apartment" and "was waiting for his friend to come out of the apartment" when the men attacked him. 334 S.C. at 258, 513 S.E.2d at 106. In this case, Williams was doing something "in violation of law" in addition to merely unlawfully possessing a pistol. He was p articipating in an illegal drug deal for which he illegally armed himself in violation of 18 U.S.C.A. § 924(c)(1)(A).

For this reason, Williams' case is more like Slater . In that case, Lord Byron Slater "noticed that [a] disturbance was taking place in an adjacent parking lot. Carrying his gun with him, [Lord Byron] went to the adjacent parking lot to investigate." 373

S.C. at 68, 644 S.E.2d at 51. The "disturbance" turned out to be a robbery, and when Lord Byron "surprised one of th e attackers . . . , the man turn ed around and pointed a gun." Id. Lord Byron shot and killed him. Id. At Lord Byron's trial for "murder and possession of a firearm during the commission of a violent crime," 373 S.C. at 67-68, 644 S.E.2d at 51, the tri al court refused to charge self-defense, 373 S.C. at 69, 644 S.E.2d at 52. The jury convicted Lord Byron of both ch arges. Id.

On appeal, relying on Burriss , Lord Byron argued the trial court erred in refusing the self-defense charge. 373 S. C. at 69-70, 644 S.E.2d at 52. We affirmed the trial

court, 3 stating, Lord Byron "fails to meet the first requirement for t he self-defense charge: specifically, [Lord Byron] was not without fault in bri nging on the difficulty." 373 S.C. at 70, 644 S.E.2d at 52. We cited the p assage above from Bryant , and observed that Lord Byron "approached an altercation that was already

3 The court of appeals reversed the trial court in a split decis ion. State v. Slater , 360

S.C. 487, 493, 602 S.E.2d 90, 94 (Ct. App. 2004) (Hearn, C.J., dissenting), rev'd

, 373 S.C. 66, 644 S.E.2d 50 (2007). On the State's petition for a writ of certiorari,

we reversed the court of appeals and reinstated the jury verdic t. 373 S.C. at 71, 644

S.E.2d at 53.underway with a loaded weapon by his side," which we found was "reasonably calculated to bring the difficu lty." 373 S.C. at 70, 644 S.E.2 d at 52.

Slater is not identical to Williams' case. In fact, we stated Lord Byron "carried the cocked weapon, in open view, into an already violent attack." 373 S.C. at 71, 644 S.E.2d at 53. Here—although Williams made his gun possession k nown to

Mitchell—the evidence indicate s Williams concealed his pistol f rom Ladson until he was attacked. However, Slater is important to our analysis in this case because Lord Byron armed himself for the purpose of entering into a sit uation he knew to be rife with violence—just like Williams did here.

Slater is also important because we explained Burriss . Referring to Burriss , we "reject[ed] the position that the unlawful possession of a weap on could never constitute an unlawful activity w hich would preclude the assert ion of self-defense." 373 S.C. at 70, 644 S.E.2d at 52-53. Further explaining Burriss , we stated, "Clarifying an ambiguity in this Court's prior case law, we not ed [in Burriss ] that

where the defendant's unlawful possession of a weapon is merely incidental to the defendant's lawful act of arming himself in self-defense, the u nlawful possession of the weapon will not prevent the use of an accident defense." 3 73 S.C. at 71, 644 S.E.2d at 53 (emphasis added) (citing Burriss , 334 S.C. at 262 n.5, 513 S.E.2d at 108 n.5).

Where the unlawful possession of a weapon is not "merely incide ntal," as we found

it was not in Slater

, the unlawful possession of a weapon does foreclose a selfdefense charge. Like Lord Byr on, Williams illegally armed hims elf before he chose

to enter a situation he knew to be unlawful, and which he knew was likely to be violent. Williams' actions proximately caused the difficulty 4 as a matter of

established law because his act o f taking a loaded, unlawfully- possessed pistol into an illegal drug transaction was not "merely incidental" to the act of arming himself

in self-defense. Bryant , 336 S.C. at 345, 520 S.E.2d at 322; Slater , 373 S.C. at 71, 644 S.E.2d at 53; see also State v. Smith , 391 S.C. 408, 415, 706 S.E.2d 12, 16 (2011)(holding, "Because Smith was acting unlawfully" in taking a loaded, unlawfullycarried pistol into an illegal drug transaction, "he was not entitled to an accident charge").

4 In Slater , we said the question was whet her "the weapon is the proximate cause of the killing." 373 S.C. at 71, 644 S.E.2d at 53. We should have said the question is whether it is the proximate cause of the "difficulty" or "occas ion" that led to the killing.We conclude with a quote from now Chief Judge Lockemy of the co urt of appeals

in State v. Smith , 406 S.C. 547, 752 S.E.2d 795 (Ct. App. 2013). Concurring in the majority's decision to affirm the trial court's refusal to gran t the defendant a directed verdict on the basis of self-defense, Judge Lockemy argued that bringing a loaded, unlawfully-possessed pistol to an illegal drug deal forecloses self-defense,

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.

406 S.C. at 557, 752 S.E.2d at 800 (Lockemy, J., concurring).

In some future case involving facts different from these, perha ps the defendant will convince the trial court he has produced evidence he was not at fault in bringing on

the violent occasion. In this cas e, however, there is no evidence on which a jury may find Williams' unlawful possession of a loaded pistol durin g an illegal drug transaction was "merely incidental" to arming himself in self-d efense. Rather—as a

matter of law—Williams' act of taking the pistol to the drug de al was a violation of law that produced the violent occasion. Bryant , 336 S.C. at 345, 520 S.E.2d at 322. The trial court correctly refused the charge.

AFFIRMED.

KITTREDGE and HEARN, JJ., concur. JAMES, J., dissenting in a s eparate opinion in which BEA TTY, C.J., concurs.JUSTICE JAMES: I dissent. Presumably, the majority would not balk at the giving of a self-defense instruction if Ladson and Williams (wi th a gun illegally concealed in his back pocket) h ad not been engaged in a drug de al but had instead been arguing about which radio station to listen to. I fully agree illegal drug

transactions are rife with viole nce. They are an absolute blig ht on civilized society.

However, I believe our self-defen se law already adequately sets forth the parameters of how judges and juries are to consider the question of whethe r a drug-dealing or drug-purchasing defendant was or was not "without fault in brin ging on the difficulty."

The majority cites this Court's holding in State v. Bryant that a defendant's act "in violation of law and reasonably calculated to produce the occas ion amounts to bringing on the difficulty and bars his right to assert self-de fense." 336 S.C. 340, 345, 520 S.E.2d 319, 322 (1999). As does the majority, I empha size the portion of our holding in Bryant that self-defense is barred if the defendant's act was reasona bly calculated to produce the violent occasion. Here, even the maj ority acknowledges the evidence indicates the gun was in Williams' back pocket the entire time before Ladson climbed over the front seat and then got on top of and b egan to choke Williams, who was in the back seat . I respectfully reject the majority's supposition

that I rely upon the premise that only one person can be at fau lt in "bringing on the difficulty" as contemplated in our self-defense law. I do not. I simply conclude

there is evidence in this case that Ladson, and Ladson only, pr oduced the violent occasion by attacking Williams, which in turn led to Williams r etrieving his gun

from his back pocket and firi ng in self-defense.

In its footnote 4, the majority clarifies our holding in State v. Slater

, 5 by stating, "In

Slater , we said the question was whether 'the weapon is the proximate cause of the killing.' 373 S.C. at 71, 644 S. E.2d at 53. We should have sa id the question is whether it is the proximate cause of the 'difficulty' or 'occas ion' that led to the killing." I agree with that clar ification, and I believe it requires the giving of a selfdefense instruction in this case; as applied to the evidence in this record, there is evidence to support a finding by a jury that, in this case, the sole proximate cause of the "difficulty" or the "occasion" that led to the killing was Ladson choking Williams, not Williams having a gun in his back pocket.

The majority cites Slater for the proposition that "where the defendant's unlawful possession of a weapon is merely incidental to the defendant's lawful act of arming himself in self-defense, the unlawful possession of the weapon will not prevent the

5 373 S.C. 66, 644 S.E.2d 50 (2007).use of an accident defense." 373 S.C. at 71, 644 S.E.2d at 53 (emphasis added) (citing State v. Burriss , 334 S.C. 256, 262 n.5, 513 S.E.2d 104, 108 n.5 (1999)). 6 Again, the majority acknowledges the evidence indicates William s' gun was in his back pocket until he was attacked by Ladson. Consequently, the re is evidence that the taking of the gun to the transaction was "merely incidental " to Williams lawfully arming himself in self-defense after being attacked. In other words, Williams' possession of the gun was a moot point, legally and factually, until Ladson brought about the difficulty by choking Williams.

The defendant who, without first being attacked, brandishes a f irearm during the course of any transaction, whe ther it is an illegal drug deal o r otherwise, will likely be considered, as a matter of law, to have "brought about the d ifficulty." In virtually every such scenario, any violence that breaks out would likely be "calculated to produce" the violence that ensue d. However, the majority makes an illogical and unnecessary leap when it broadly c oncludes that "intentionally bringing a loaded, unlawfully-possessed pistol to an illegal drug transaction is ' calculated to produce a

violent occasion.'"

Finally, and most respectfully, I take issue with the majority' s emphasis of now Chief Judge Lockemy's concurrence in State v. Smith , in which he expresses his view that

because the defendant was engaged in the crime of selling illegal drugs, his decision to bring a loaded weapon to the transaction foreclosed self-def ense. 406 S.C. 547, 557, 752 S.E.2d 795, 800 (Ct. App. 2013). In the very next paragraph, however, the majority states it does not foreclose the possibility that a future drug-dealing or drugpurchasing defendant will rightly convince a trial court that a self-defense instruction is warranted. At the least, the majority is giving the trial b ench mixed signals on this

issue.

I would reverse Williams' convictions and remand for a new tria l.

BEATTY, C.J., concurs.

6 Of course, we have extended our reasoning to the issue of self -defense. See Slater

, 373 S.C. at 71, 644 S.E.2d at 53.