State v. Johnson

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.

Brittany Johnson, Appellant.

Appellate Case No. 2011-185926

Appeal From Horry County
Edward B. Cottingham, Circuit Court Judge

Unpublished Opinion No. 2016-UP-353
Submitted March 1, 2016 – Filed 2016-UP-353

AFFIRMED

Breen Richard Stevens, of Orangeburg; and Appellate
Defender Benjamin John Tripp, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General Donald J. Zelenka,
Chief Deputy Attorney General John W. McIntosh, and
Assistant Attorney General Brendan Jackson McDonald,
all of Columbia; and Solicitor Jimmy A. Richardson, II,
of Conway, for Respondent.
PER CURIAM: Brittany Johnson appealed her conviction for murder, arguing the
trial judge erred in (1) admitting a statement she made to the police, (2) refusing to
grant a mistrial, (3) refusing to charge the jury on self-defense, and (4) refusing to
submit the charge of involuntary manslaughter to the jury. In 2013, this court
issued an opinion reversing Johnson's conviction and remanding the matter for the
new trial based solely on Johnson's arguments concerning the admissibility of her
statement to the police. State v. Johnson, Op. No. 2013-UP-288 (S.C. Ct. App.
filed June 26, 2013). The State petitioned for a writ of certiorari, and in 2015 the
Supreme Court of South Carolina reversed this court's decision, holding the trial
court's finding that Johnson lacked credibility was supported by the record and the
admission of her statement to the police was therefore proper. State v. Johnson,
413 S.C. 458, 467-68, 776 S.E.2d 367, 371-72 (2015).

Johnson then moved to remand the case to this court pursuant to the procedure
applied in State v. Grovenstein, 335 S.C. 347, 354 n.6, 517 S.E.2d 216, 219 n.6
(1999), for a review of the issues raised in her appeal that were not addressed by
this court in its 2013 opinion. The Supreme Court granted the motion and
remanded the matter to this court. We affirm on the remaining issues that Johnson
raised in her appeal.1

1. We affirm the trial court's refusal to declare a mistrial based on Johnson's
allegation that the jury engaged in premature deliberations. Johnson moved for a
mistrial on the second day of her three-day trial immediately after the trial court
received a note from the jury requesting a second opportunity to view the recording
of Johnson's videotaped statement to the police.2 Although "premature
deliberations may affect the fundamental fairness of a trial,"3 the trial court acted
within its discretion in finding the jurors' actions did not amount to misconduct that
would compromise the jury's impartiality. See State v. Carmack, 388 S.C. 190,
198, 694 S.E.2d 224, 228 (Ct. App. 2010) ("'The trial court has broad discretion in
assessing allegations of juror misconduct' and unless such misconduct affects the
'jury's impartiality, it is not [of the type] as will affect the verdict.'" (quoting State

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
2
The note advised that all jurors agreed a second viewing was necessary.
3
State v. Aldret, 333 S.C. 307, 311, 509 S.E.2d 811, 813 (1999).
v. Kelly, 331 S.C. 132, 141, 502 S.E.2d 99, 105 (1998)). Here, the note indicates
only that the jury had trouble hearing the recording because of its poor sound
quality, a problem the court itself had acknowledged immediately after the
recording was played during the trial. There was no reason to believe the jurors
had engaged in deliberations. See Black's Law Dictionary 519 (10th ed. 2014)
(defining "deliberate" as "to weigh and analyze all the evidence after closing
arguments" (emphasis added)).

2. We hold the trial court correctly denied Johnson's request to instruct the jury
on self-defense. There was no evidence in the record to support a finding that
Johnson was without fault in bringing about the difficulty. In her statement to the
police, Johnson admitted she hit the victim when she approached the jeep in which
the victim and the victim's friends were seated, and this admission supports the
finding that Johnson was the initial aggressor. At trial, Johnson stated she could
not remember the events that took place during her altercation with the victim;
therefore, although her trial testimony is not consistent with her police statement, it
does not provide evidence that she was without fault in bringing about the
difficulty that led to the victim's death. Although a witness testified on Johnson's
behalf that she saw the occupants of the jeep exit the vehicle and surround
Johnson, this witness admitted she could not deny the allegation that Johnson
struck the victim first. Because the record lacks evidence of at least one of the
required elements of self-defense, Johnson was not entitled to a self-defense
charge. See State v. Santiago, 370 S.C. 153, 161, 634 S.E.2d 23, 28 (Ct. App.
2006) (affirming the denial of a self-defense charge because "the record
demonstrates as a matter of law the absence of at least one element of self-
defense").

3. Finally, we affirm the denial of Johnson's request to charge involuntary
manslaughter and reject her argument that she was entitled to this charge because
of evidence that she was lawfully armed in self-defense and the victim's death
occurred as the result of an accidental discharge of her gun when the two struggled
over it. We are mindful of prior decisions in which the Supreme Court of South
Carolina noted that evidence of a struggle over a weapon between a defendant and
the victim supports an involuntary manslaughter charge. See, e.g., State v. Light,
378 S.C. 641, 649, 664 S.E.2d 465, 469 (2008) ("[T]he fact petitioner and [the
victim] were struggling over the weapon is sufficient evidence for submission of
an involuntary manslaughter instruction to the jury."); State v. Patrick, 289 S.C.
301, 305-06, 345 S.E.2d 481, 483-84 (1986) (stating the appellant's testimony that
"the victim, apparently thinking that the appellant was going to shoot him, grabbed
the end of the barrel causing the gun to fire . . . constituted a sufficient ground for
submitting the possible verdict of involuntary manslaughter to the jury").
However, we are compelled to affirm Johnson's conviction pursuant to State v.
Rivera, 389 S.C. 399, 699 S.E.2d 157 (2010), a more recent decision from the
Supreme Court of South Carolina.

In Rivera, the Supreme Court, reversing this court's unpublished opinion,4 agreed
with the State that "[Rivera's] brandishing of a weapon was unlawful conduct
naturally tending to cause death or great bodily harm[;] thus[,] he was not entitled
to a charge on involuntary manslaughter." Id. at 403, 699 S.E.2d at 159; see also
State v. Smith, 391 S.C. 408, 414, 706 S.E.2d 12, 15 (2011) (finding no evidence to
support a finding that the defendant was "lawfully armed in self-defense at the time
the fatal shot occurred" so as to be entitled to an involuntary manslaughter charge
and noting, among other reasons to support this conclusion, that the defendant was
"pursu[ing] [a] drug deal while armed with a loaded gun" and "brandished the gun
and used it to pistol-whip Victim"); State v. Gibson, 390 S.C. 347, 357, 701 S.E.2d
766, 771 (Ct. App. 2010) ("[R]egardless of whether [a murder defendant] was
lawfully armed in self-defense, the essence of the involuntary manslaughter is the
involuntary nature of the killing."). In the present case, although prior acrimonious
dealings with the victim may have explained Johnson's decision to keep a gun on
her person, the only reasonable inference from the evidence in the record is that
Johnson approached the vehicle in which the victim was sitting and used her gun to
pistol-whip the victim. There was no evidence that would support a finding that
Johnson struck the victim in response to aggressive acts by the victim or the
victim's companions; therefore, Johnson was not entitled to an involuntary
manslaughter charge. See Rivera, 389 S.C. at 404, 699 S.E.2d at 159 (defining
involuntary manslaughter as either "(1) the unintentional killing of another without
malice, but while engaged in an unlawful activity not naturally tending to cause
death or great bodily harm; or (2) the unintentional killing of another without
malice, while engaged in a lawful activity with reckless disregard for the safety of
others").

AFFIRMED.

HUFF, SHORT and THOMAS, JJ., concur.

4
State v. Rivera, Op. No. 2008-UP-187 (S.C. Ct. App. filed March 18, 2008).