State v. Mark A. Hailey, Jr.

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.

Mark Anthony Hailey, Jr., Appellant.

Appellate Case No. 2020-001276

Appeal From Greenwood County
Donald B. Hocker, Circuit Court Judge

Unpublished Opinion No. 2024-UP-074
Submitted January 1, 2024 – Filed March 13, 2024

REVERSED

Appellate Defender Lara Mary Caudy, 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 Joshua Abraham Edwards, all
of Columbia; and Solicitor David Matthew Stumbo, of
Greenwood, all for Respondent.
PER CURIAM: Mark Anthony Hailey, Jr., appeals his convictions for murder
and possession of a weapon during the commission of a violent crime, and his
aggregate sentence of thirty-five years' imprisonment. On appeal, Hailey argues
the trial court erred by (1) failing to adequately consider the facts and
circumstances of the case in fashioning a self-defense instruction to inform the jury
that a person is not required to wait until his adversary is on equal terms or has
aimed or fired a weapon before he acts, (2) declining to instruct the jury on the
lesser-included offense of involuntary manslaughter, and (3) limiting Hailey's
questioning of an expert witness on redirect examination. We reverse because the
trial court failed to adequately consider the facts and circumstances of the case in
fashioning the self-defense charge.

We hold the trial court abused its discretion by refusing Hailey's request to charge
the jury that he did not have to wait for the victim to "get the drop on him" before
defending himself where the evidence supported the instruction, and the charge as
a whole, did not adequately cover the law based on the evidence presented at trial.
See State v. Pope, 410 S.C. 214, 221, 763 S.E.2d 814, 818 (Ct. App. 2014) ("An
abuse of discretion occurs when the [trial] court's decision is unsupported by the
evidence or controlled by an error of law."); State v. Nichols, 325 S.C. 111, 118,
481 S.E.2d 118, 122 (1997) (explaining that a defendant "is entitled to a new trial
based on the court's refusal to give a complete self-defense charge"); State v.
Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984) (listing the four elements of
self-defense: "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. 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. 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. If, however, the defendant was on his
own premises he had no duty to retreat before acting in self-defense"); State v.
Fuller, 297 S.C. 440, 443, 377 S.E.2d 328, 330 (1989) ("In charging self-defense,
we instruct the trial court to consider the facts and circumstances of the case at bar
in order to fashion an appropriate charge."); id. at 444, 377 S.E.2d at 331 ("[W]e
hold that the trial [court] erred in charging the jury only the Davis charge without
considering the facts and circumstances of the case. . . ."). Although the trial court
instructed the jury on all four elements of self-defense, we hold the instruction that
"[a]n individual [h]as no duty to retreat if by doing so the danger of being killed or
suffering serious bodily injury would increase," which more fully explained the
fourth element, did not adequately convey the full scope of the law as to the third
element here because Hailey testified he shot the victim prior to the victim
shooting him after the victim drove him two miles down a dark, wooded road,
refused his pleas to turn around, and then parked the car and waved a gun in his
face. See State v. Rash, 182 S.C. 42, 50, 188 S.E. 435, 438 (1936) (explaining the
trial court instructed the jury on the duty to retreat by including the additional
explanation that "one may act on appearances . . . [t]he law does not hold him to a
refined assessment of the danger, provided . . . he acted as the person of ordinary
coolness and courage would have acted or should have acted in meeting the
appearance of danger" and "if it is apparent, or reasonably apparent his assailant is
taking steps to get the drop on him, he must take steps first to prevent such
assailant from getting the drop on him"); see also State v. Hendrix, 270 S.C. 653,
659-61, 244 S.E.2d 503, 506-07 (1978) (holding self-defense was established as a
matter of law and explaining the third element of self-defense includes
consideration of the principle that "[o]nce the appellant's right to fire in
self-defense arose, he was not required to wait until his adversary was on equal
terms or until he fired or aimed his weapon"); State v. Starnes, 340 S.C. 312, 319,
531 S.E.2d 907, 911 (2000) (holding "the trial [court] erred by refusing to provide
the jury with more specific instructions regarding self-defense" by failing to
include the Hendrix and Rash language in its charge because Starnes testified the
victim pointed a gun at him and he believed another to be armed); compare with
State v. Harris, 382 S.C. 107, 114-15, 674 S.E.2d 532, 536 (Ct. App. 2009)
(holding the trial court's instruction on self-defense adequately covered the law
because an instruction that the defendant had the "right to act on appearances" was
substantially similar to the "gets the drop" language from Rash), and State v.
Marin, 415 S.C. 475, 483, 783 S.E.2d 808, 813 (2016) (holding the trial court's
instruction that "a person may use such force as is reasonably necessary even to the
point of taking human life where such is reasonable" captured the essence of the
Hendrix charge).

Because we reverse the trial court as to the first issue, we find it is not necessary to
address Hailey's remaining two issues on appeal. See Futch v. McAllister Towing
of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an
appellate court need not address remaining issues when its resolution of a prior
issue is dispositive).
REVERSED. 1

MCDONALD and VINSON, JJ., and LOCKEMY, A.J., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.