State v. Derrick Lamar Porter

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.

Derrick Lamar Porter, Appellant.

Appellate Case No. 2018-000770

Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2022-UP-173
Heard February 15, 2022 – Filed April 20, 2022

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Ambree Michele Muller, both of
Columbia, and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.

PER CURIAM: Derrick Lamar Porter appeals his convictions for attempted
murder and possession of a weapon during the commission of a violent crime,
arguing the circuit court erred in refusing to charge the jury on prior difficulties
between Porter and the victim, Fitzgerald Byas. We affirm.

We agree with the circuit court that the evidence presented at trial did not support
an instruction on prior difficulties between the parties. First, the evidence relevant
to this issue—the video of Porter's interview and Detective Jerry Jellico's
testimony about the interview—concerned past difficulties between Porter's family
and Byas's family, not between the two men themselves. Detective Jellico testified
that Porter admitted he and Byas had a history, and Jellico noted Porter believed
Byas "was somehow or another involve[d] in his cousin's death." When he
interrogated Porter about the shooting, Detective Jellico summarized his
understanding of the past family difficulties by stating: something happened "years
ago," Byas's "younger brother did something to one of [Porter's] cousins," "that's
been boiling all this time, since 2011," and any disagreement "was all over that
thing from 2011." These vague statements were insufficient to support a jury
charge on prior difficulties between Porter and the victim. See Cook v. State, 415
S.C. 551, 556, 784 S.E.2d 665, 667 (2015) ("The trial court must determine the law
to be charged based on the evidence at trial." (quoting State v. Smith, 363 S.C. 111,
115, 609 S.E.2d 528, 530 (Ct. App. 2005)); but see State v. Nichols, 325 S.C. 111,
117, 481 S.E.2d 118, 121 (1997) (holding the circuit court erred in refusing to
charge the jury on the relevance of prior difficulties between the defendant and the
victim because the evidence established the defendant had an affair with the
victim's wife and the victim previously pointed a gun at the defendant).

Moreover, State's Exhibit 16, the surveillance video footage from a nearby beauty
store, primarily shows Porter and Byas shaking hands and talking. The entire
video is approximately seven minutes long. About one minute and thirty seconds
into the video, Porter pulls into the parking lot, and Byas pulls up about one minute
later. Around the three-minute mark, Porter exits the store and waits for Byas.
When Byas exits the store, the men approach each other, grasp hands, and begin
talking. Porter then follows Byas to his car and the two continue to talk; Byas
leaves his driver's door open during this exchange. The conduct of the two men in
the video provides further support for the circuit court's finding that neither party
presented evidence to support a charge on prior difficulties between Porter and the
victim. See State v. Marin, 415 S.C. 475, 482, 783 S.E.2d 808, 812 (2016) ("An
appellate court will not reverse the trial judge's decision regarding a jury charge
absent an abuse of discretion." (quoting State v. Mattison, 388 S.C. 469, 479, 697
S.E.2d 578, 584 (2010)); State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265
(2006) ("An abuse of discretion occurs when the conclusions of the trial court
either lack evidentiary support or are controlled by an error of law."). Therefore,
we find the circuit court did not abuse its discretion in declining to instruct the jury
on prior difficulties between the parties.

AFFIRMED.

THOMAS, MCDONALD, and HEWITT, JJ, concur.