State v. Davin Z. E. Ruttle

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Devin Zachary Elijah Ruttle, Appellant.

Appellate Case No. 2019-001570

Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2024-UP-398
Heard June 5, 2024 – Filed November 27, 2024

AFFIRMED

Christopher Todd Brumback and Spencer Davis Langley,
both of Brumback & Langley, LLC, of Greenville, for
Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, and Senior
Assistant Deputy Attorney General Melody Jane Brown,
all of Columbia; and Solicitor Barry Joe Barnette, of
Spartanburg, all for Respondent.
PER CURIAM: Devin Zachary Elijah Ruttle was convicted of murder and the
unlawful carrying of a handgun. On appeal, Ruttle argues (1) the trial court erred
in denying his motion for a new trial by concluding juror number 92, Nysha
Jeffries, did not give false or misleading answers during voir dire; (2) the trial
court's denial of immunity under the South Carolina Protection of Persons and
Property Act (PPPA) 1 was improper; and (3) the trial court committed reversible
error by providing both an implied malice and a self-defense jury instruction. We
affirm.

1. The trial court did not abuse its discretion by concluding Jeffries did not give
false or misleading answers during voir dire and by denying Ruttle's motion for a
new trial on this basis. See State v. Bell, 374 S.C. 136, 147, 646 S.E.2d 888, 894
(Ct. App. 2007) (determining a court's choice of whether or not to dismiss a juror
will not be reversed absent an abuse of discretion); State v. Jones, 416 S.C. 283,
290, 786 S.E.2d 132, 136 (2016) ("An abuse of discretion occurs when the trial
court's ruling is based on an error of law or, when grounded in factual conclusions,
is without evidentiary support."); State v. Douglas, 411 S.C. 307, 316, 768 S.E.2d
232, 238 (Ct. App. 2014) ("[T]he abuse of discretion standard of review does not
allow this court to reweigh the evidence or second-guess the trial court's
assessment of witness credibility."); State v. Woods, 345 S.C. 583, 587, 550 S.E.2d
282, 284 (2001) ("All criminal defendants have the right to a trial by an impartial
jury."), overruled in part on other grounds by State v. Rowell, 444 S.C. 109, 115,
906 S.E.2d 554, 557 (2024); State v. Coaxum, 410 S.C. 320, 327, 764 S.E.2d 242,
245 (2014) ("To protect both parties' right to an impartial jury, the trial court must
conduct voir dire of the prospective jurors to determinate whether the jurors are
aware of any bias or prejudice against a party, as well as to 'elicit such facts as will
enable [the parties] intelligently to exercise their right of peremptory challenge.'"
(alteration in original) (quoting Woods, 345 S.C. at 587, 550 S.E.2d at 284)),
overruled in part on other grounds by State v. Rowell, 444 S.C. 109, 115, 906
S.E.2d 554, 557 (2024); Woods, 345 S.C. at 590, 550 S.E.2d at 285 ("A juror
should be disqualified by the court if it appears to the court the juror is not
indifferent in the case. The decision to strike a juror for cause is within the sound
discretion of the trial [court]."); Coaxum, 410 S.C. at 327, 764 S.E.2d at 245
("Should jurors give false or misleading answers during voir dire, the parties may
mistakenly seat a juror who could have been excused by the court, challenged for
cause by counsel, or stricken through the exercise of a peremptory challenge."); id.
("In the event of such juror misconduct, the trial court must inquire into whether
the withheld information affects the jury's impartiality. . . . '[T]he trial [court]

1
S.C. Code Ann. §§ 16-11-410 to -450 (2016).
should exhaust other methods to cure possible prejudice before aborting a trial."'
(quoting State v. Kelly, 331 S.C. 132, 141-42, 502 S.E.2d 99, 104 (1998))). 2

During voir dire, the trial court instructed the prospective jurors to notify the court
if any juror or an immediate family member was the victim of a violent crime; 3 if
any juror or his or her immediate family attend or had ever attended New Life
Deliverance Worship Center (the Church); or if a juror has ". . . any connection by
blood or marriage . . . work, school,[4] or church" or otherwise "met[,] . . . socialize
with . . . or know" Ruttle or his father "in any fashion whatsoever." 5 In his motion
for a new trial, Ruttle alleged that (1) her grandfather was the victim of a violent
crime, (2) she had previously attended the Church, and (3) she knew Ruttle and or
his father from her past attendance at the Church.6

Jeffries did not conceal that her grandfather was the victim of a violent crime when
asked whether she or an immediate family member was the victim of a violent
crime. The trial court defined an immediate family member as "a parent, spouse,
child, or sibling." This definition did not include grandfather, so Jeffries concealed
no information when she failed to respond to the question.
As to the allegation that Jeffries attended the Church and as a result knew Ruttle or
his father, Ruttle presented evidence at the hearing for his motion for a new trial
that he asserted proved Jeffries had previously attended the Church. This included
videos from events at the Church between the years of 2011 and 2012 depicting a

2
Woods and Coaxum were overruled in part by Rowell, which provides a new test
for juror concealment. The statements above from Woods and Coaxum are limited
to trial rights, voir dire procedure, and juror concealment generally and are
consistent with Rowell.
3
The court identified "murder, manslaughter, armed robbery, burglary, criminal
sexual conduct, domestic violence of a high and aggravated nature, common-law
robbery, aggravated assault and battery[,] or any other similar type of an offense"
as violent crimes.
4
Ruttle alleged in his memorandum in support of his motion for new trial that
Jeffries concealed she graduated from the same high school as Ruttle. This issue
was not appealed.
5
Ruttle's father was the Church's acting minister at the time Jeffries was alleged to
have attended.
6
Neither Ruttle nor his father ever claimed to know Jeffries. No one ever asserted
Jeffries was a member of the Church. Ruttle only mentioned Jeffries "looked
familiar" to his attorneys during posttrial polling.
young Black female and testimony from former youth pastor, Travis Mims, that
this individual had the same first name, "Nysha," as Jeffries. The trial court "was
unable to determine with any degree of conviction whether the two females are the
same person." The trial court did not abuse its discretion in making this finding.
Ruttle argues that at the posttrial hearing, the trial court engaged in improper
burden shifting by requiring him to produce Jeffries at the hearing or otherwise
prove she was the same Nysha who attended the Church. However, Ruttle had the
burden to provide evidence to support his motion. See State v. Tucker, 423 S.C.
403, 414, 815 S.E.2d 467, 472 (Ct. App. 2018) ("As the party alleging misconduct,
[the defendant] bore the burden of proving [the juror] was biased or could not
otherwise follow her oath."). Ruttle never subpoenaed Jeffries, nor produced an
affidavit or other form of sworn testimony from Jeffries, nor requested the trial
court require Jeffries to appear. We cannot say based on the videos and Mims's
testimony, it is either clear and convincing or more likely than not that Jeffries is
the same Nysha who attended the Church. See State v. Covington, 343 S.C. 157,
164, 539 S.E.2d 67, 70 (Ct. App. 2000) (finding evidence of juror misconduct is
evaluated under a clear and convincing standard); State v. Fletcher, 379 S.C. 17,
24, 664 S.E.2d 480, 483 (2008) ("Clear and convincing evidence is that degree of
proof which will produce in the mind of the trier of facts a firm belief as to the
allegations sought to be established. Such proof is intermediate, more than a mere
preponderance but less than is required for proof beyond a reasonable doubt; it
does not mean clear and unequivocal."); Covington, 343 S.C. at 164, 539 S.E.2d at
70 (finding that a clear and convincing standard need not be applied when juror
concealment cannot first be proven under the lesser preponderance of the evidence
standard); Groesbeck v. Marshall, 44 S.C. 538, 545, 22 S.E. 743, 744-45 (1895)
(finding to establish a defense under a preponderance of the evidence standard, a
party must convince the trial court the grounds for its defense are more likely than
not to have occurred). Accordingly, the trial court did not abuse its discretion in
finding Jeffries did not give false or misleading answers during voir dire.

During oral arguments, Ruttle heavily relied on Hand v. Savannah & Charleston
Railroad Co., which he submitted as a supplemental citation following arguments.
17 S.C. 219 (1882). We accepted the citation; however, we distinguish it from the
present case. In Hand, the defendant company sought to estop persons funding
bonds from claiming a prior lien under a former act. Id. at 222-25. Our supreme
court found when evidence was presented that a person who held a bond and
whose name also appeared in the company's ledger,

such concurrence and coincidence would be at least
presumptive that the bonds [that] [the person] now holds
are the bonds [that] he held at the time he funded the
coupons, and the burden of proof is upon him to show
that he did not hold the bonds [that] he now holds at the
time of the funding.

Id. at 224.

Ruttle also cites State v. Rawls in his supplemental citation. 11 S.C.L. (2 Nott &
McC.) 331 (1820). In Rawls, the court found a name was presumptive of identity
when a witness, who did not know the defendant, testified he heard on two
occasions the defendant be addressed by a name, respond to that name, and the
defendant later pleaded to the indictment under that same name. We do not
interpret Hand or Rawls to mean concurrence and coincidence of name in all
circumstances leads to a presumption of identity. The facts, circumstances,
procedural postures, and standards of review of Hand, Rawls, and the present case
differ drastically. 7 Also, both Hand and Rawls contain corroborating facts beyond
name alone to support the presumption.8 The facts in the present case do not
sufficiently support the presumption. Accordingly, Ruttle failed to prove identity,
and therefore that Jeffries concealed information.

In addition to proving a juror concealed information, the party moving for a new
trial must also establish bias. See State v. Zeigler, 364 S.C. 94, 108, 610 S.E.2d
859, 866 (Ct. App. 2005) ("Where a defendant seeks a new trial on the basis of
juror misconduct, he is required to prove both the alleged misconduct and the
resulting prejudice."). Our supreme court recently revised the framework used to
assess alleged juror concealment. See State v. Rowell, 444 S.C. 109, 115, 906
S.E.2d 554, 557 (2024) ("The juror's intent may bear on the inquiry, but the
ultimate question remains whether the juror was biased and whether the bias, in
turn, caused prejudice."). Under this new framework, trial courts need not
distinguish between intentional and unintentional concealment. Further,

7
Hand was a civil case, which began when the plaintiff sought to enjoin the
defendant railroad company from selling a road. Though Rawls is a criminal case,
the cited portion is from the hearing before the Constitutional Court of Appeals of
South Carolina. Further, the defendant's identity was at issue in Rawls, not a
juror's.
8
In Hand, bond owners were identified by proof of bond ownership corroborated
by their names in the company's official ledger to verify time of acquisition.
Similarly, in Rawls, the witness's testimony that he heard the defendant called by a
certain name was corroborated when the defendant pleaded under the same name.
the juror's bias may not be presumed, and a new trial may
be ordered only when prejudice is proven by showing the
concealed information reveals a potential for bias and
would have made an objectively material difference in
the moving party's use of a peremptory strike or resulted
in a successful challenge for cause.

Id. at 16.
Assuming Jeffries and the Nysha shown in the Church videos were the same
person, Ruttle did not show the allegedly concealed information would have made
a difference in the moving party's use of a peremptory strike or challenge for cause.
Ruttle failed to prove Jeffries concealed information and her alleged association
with the Church reveals no potential for bias against Ruttle. Accordingly, we
affirm the trial court's denial of Ruttle's motion for a new trial. 9

2. The trial court did not abuse its discretion by failing to grant Ruttle immunity
under the PPPA. See State v. Manning, 418 S.C. 38, 43, 791 S.E.2d 148, 150
(2016) (finding circuit courts utilize pretrial hearings to determine whether a
defendant is entitled to immunity under the PPPA by applying a preponderance of
the evidence standard); id. at 45, 791 S.E.2d at 151 ("[Appellate courts] review
immunity determinations under an abuse of discretion standard."); Jones, 416 S.C.
at 290, 786 S.E.2d at 136 ("An abuse of discretion occurs when the trial court's
ruling is based on an error of law or, when grounded in factual conclusions, is
without evidentiary support."). Section 16-11-440(C) provides immunity from
prosecution if a person is found to be justified in using deadly force under the
PPPA. See State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984) ("There are
four elements required by law to establish self-defense in this case. First, the
defendant must be without fault in bringing on the difficulty. Second, the
defendant must have actually believed he was in imminent danger of losing his life
or sustaining serious bodily injury, or he actually was in such imminent danger.

9
Rowell held the trial court erred by "declin[ing] the [defendant's] request for an
evidentiary hearing so [a] [j]uror . . . could be examined as to whether his pending
charges could have caused him to be biased." Id. at 116, S.E.2d at 558. Our
supreme court's reasoning was that "[e]valuating the merits of a juror misconduct
claim is a fact-intensive inquiry, which is most appropriately conducted after a
hearing." Id. (quoting McCoy v. State, 401 S.C. 363, 371, 737 S.E.2d 623, 628
(2013)). We agree but distinguish Rowell from the present case in which a
posttrial hearing was held and Ruttle did not produce Jeffries at that hearing.
Third, 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. [ 10] If the defendant actually was in imminent danger, the circumstances
were such as 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. Fourth, 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"); See also State v. Cervantes-Pavon, 426 S.C. 442,
451, 827 S.E.2d 564, 569 (2019) (finding when the evidence conflicts as to the
issue of immunity, "the court must sit as the fact-finder at this hearing, weigh the
evidence presented, and reach a conclusion under the [PPPA]" and then, "if the
circuit court determines the movant has not met his burden of proof as to
immunity, the case will go to trial, and the issue of self-defense may—depending
upon the evidence presented at trial—be presented to the trial jury"); Terwilliger v.
Marion, 222 S.C. 185, 188, 72 S.E.2d 165, 166 (1952) ("The fact that evidence is
not contradicted by direct evidence does not render it undisputed, as there still
remains the question of its inherent probability and the credibility of the witness or
his interest in the result. To justify a [c]ourt in instructing a jury that a witness has
told the truth, and in directing a verdict based on the truthfulness of his evidence,
there must be nothing in the circumstances or surroundings tending to impeach the
witness or to throw discredit on his statements. If there is anything tending to
create distrust in his truthfulness, the question must be left to the jury." (emphasis
added) (quoting Green v. Greenville County, 176 S.C. 433, 180 S.E. 471, 473
(1935))). Here, none of the exceptions allowing a presumption of imminent fear
apply. Therefore, Ruttle had to meet all four of the self-defense elements outlined
in Davis under a preponderance of the evidence standard to be entitled to immunity
from prosecution. This court "does not re-evaluate the facts based on its own view
of the preponderance of the evidence but simply determines whether the trial
court's ruling is supported by any evidence." State v. Edwards, 384 S.C. 504, 508,
682 S.E.2d 820, 822 (2009). A knife was recovered at the scene, which Ruttle
alleged the victim, Dalton Moore, threatened him with. However, evidence
supports the trial court's finding that Ruttle did not act in self-defense but brought
on the difficulty and his use of deadly force was not reasonable under the
circumstances given the following facts: Ruttle's friend and codefendant, Lorenzo
Calderon, had prior conflicts with Moore including an altercation earlier on the day

10
A rebuttable presumption of imminent fear is provided under section
16-11-440(A), (D), and (E); however, this consideration is limited to circumstances
in which someone enters a residence, vehicle, or business without permission or
attempts to remove someone against his or her will.
of the killing; after spotting Moore from the road, Ruttle followed Moore in his car
with Calderon in the passenger seat; while Calderon waited in the car, Ruttle,
armed with a concealed handgun Calderon provided, approached Moore; after
killing Moore, Ruttle fled the scene with Calderon driving; and Ruttle disposed of
the clothes he was wearing at the time of killing and the handgun and lied about his
whereabouts when questioned by law enforcement. Accordingly, Ruttle failed to
establish by a preponderance of evidence he was entitled to immunity, and we
affirm the trial court's denial of immunity under the PPPA.

3. Although the trial court did err in providing both an implied malice and a self-
defense jury instruction, this issue was unpreserved. Alternatively, if preserved,
the error was harmless. See State v. Smith, 430 S.C. 226, 234, 845 S.E.2d 495, 499
(2020) (per curiam) ("[A]n implied malice charge should not be given if there has
been evidence presented that the defendant acted in self-defense."). 11 The State
argues Smith only addressed an implied malice instruction in the context of a
felony attempted murder. We disagree. Smith established that a jury may not be
instructed on both implied malice and self-defense. Id. Our supreme court
reasoned that because malice is admitted in a self-defense claim but excused for
the protection of oneself or others, providing both instructions is contradictory and
risks misleading a jury. Id. However, Ruttle never raised this issue with the trial
court and we cannot consider unpreserved issues on appeal. See State v. Nichols,
325 S.C. 111, 120, 481 S.E.2d 118, 123 (1997) ("An issue may not be raised for
the first time on appeal, but must have been raised to the trial [court] to be
preserved for appellate review."); State v. Rogers, 361 S.C. 178, 183, 603 S.E.2d
910, 912-13 (Ct. App. 2004) ("There are four basic requirements to preserving
issues at trial for appellate review. The issue must have been (1) raised to and
ruled upon by the trial court, (2) raised by the appellant, (3) raised in a timely
manner, and (4) raised to the trial court with sufficient specificity." (quoting Jean
Hoefer Toal et al., Appellate Practice in South Carolina 57 (2d ed. 2002))).

Further, even had the issue been properly preserved, the error was harmless. See
Burdette, 427 S.C. at 496, 832 S.E.2d at 578 ("An erroneous instruction alone is

11
Notably, this differs from the rule established by Smith's predecessor, State v.
Burdette. 427 S.C. 490, 503, 832 S.E.2d 575, 582 (2019). In Burdette, our
supreme court held a jury instruction that malice can be inferred from the use of
deadly weapon may not be given. Id. Though Ruttle alleges the trial court gave
such an instruction, we disagree. The trial court gave an implied malice
instruction; however, this instruction never indicated malice could be inferred from
Ruttle's use of the handgun in the killing.
insufficient to warrant [an appellate court's] reversal."); Smith, 430 S.C. at 233, 845
S.E.2d at 498 ("[E]rroneous jury instructions are subject to a harmless error
analysis."); Burdette, 427 S.C. at 496, 832 S.E.2d at 578 ("When considering
whether an error with respect to a jury instruction was harmless, we must
'determine beyond a reasonable doubt that the error complained of did not
contribute to the verdict.'" (quoting State v. Middleton, 407 S.C. 312, 317, 755
S.E.2d 432, 435 (2014))); id. at 496, 575 S.E.2d at 578-79 ("In making a harmless
error analysis, our inquiry is not what the verdict would have been had the jury
been given the correct charge, but whether the erroneous charge contributed to the
verdict rendered." (quoting State v. Kerr, 330 S.C. 132, 145, 498 S.E.2d 212, 218
(1998))); State v. Reyes, 432 S.C. 394, 406, 853 S.E.2d 334, 340 (2020)
("'[O]verwhelming evidence' of a defendant's guilt is a relevant consideration in the
harmless error analysis."). Given the overwhelming weight of the evidence of
guilt, any error in the jury instructions was harmless. Therefore, although the trial
court erred in providing both a malice and self-defense instruction, the error is
unpreserved and harmless. Ruttle's conviction is

AFFIRMED.
WILLIAMS, C.J., and KONDUROS and TURNER, JJ., concur.