THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent.

v.

Lavar K. Bryant, Appellant.

Appeal From Richland County

Marc H. Westbrook, Judge

Opinion No. 24988

Heard May 11, 1999 - Filed August 16, 1999

AFFIRMED

Deputy Chief Attorney Joseph L. Savitz, III, of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General G. Robert Deloach, III,

and Solicitor Warren B. Giese, all of Columbia, for

respondent.

BURNETT, A.J.: Appellant appeals his conviction of murder

and his sentence of life imprisonment. We affirm.

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FACTS

Before noon on August 4, 1995, Mike Suber (Suber) left his

office at the Department of Health and Environmental Control (DHEC) in

Columbia. Suber's body was discovered in the DHEC parking lot near his

personal vehicle around 1:00 p.m. that same day. Because Suber's

personal items, including his wallet, were scattered around him, SLED

agent Kelvin Crimminger concluded a struggle occurred before Suber was

killed.

Lying on the ground near the driver's side of Suber's vehicle,

police investigators found a black wig, a knife and a screwdriver.

Appellant's fingerprints were found on Suber's vehicle. After his

fingerprints identified him as a suspect, police investigators searched

appellant's home. The police found a pair of athletic shoes with a tread

pattern consistent with a footprint found at the murder scene.

The words "Metro Mike f--- your Mamma" had been etched on

the rear of Suber's vehicle. Suber's wife testified these words were not on

the vehicle that morning. Agent Crimminger concluded the scratches were

freshly made. Juvenile corrections officer Rodney Muller testified

offenders from Columbia used the term "Metro" to identify themselves.

Further, Muller testified appellant wrote "Metro" on a shirt while he was

incarcerated with the Department of Juvenile Justice.

Pathologist Sally Harding, who conducted the autopsy, found

three stab wounds in Suber's chest that were consistent with the pattern

of a flat head screwdriver. Two of the wounds were superficial. However,

the third stab wound penetrated Suber's aorta from a downward angle

causing fluid pressure to build up around Subeir's heart until it stopped

beating. Harding further testified she found scratch wounds on Suber's

forearms that were consistent with a screwdriver. Harding testified Suber

would have been conscious and capable of calling for help for about fifteen

minutes before death. Based upon the sand embedded in Suber's face and

his failure to call for help, Harding concluded someone held Suber down

before he died.

On August 5, 1995, appellant surrendered to the police. SLED

agents Tommy Robertson and Arthur Myers and Columbia Police Detective

Walter Bales interviewed appellant at the police station. After appellant

waived his right to remain silent, appellant initially denied any knowledge

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about Suber's murder. Columbia Police Chief Charles Austin then asked

appellant if he wanted to pray. Appellant agreed to pray with Chief

Austin. After a short prayer, appellant began sobbing and said "I didn't

mean to do it." Detective Bales obtained a second waiver of appellant's

rights and appellant gave several inconsistent statements concerning the

incident.

In appellant's first statement, he admitted Suber approached

him as he was breaking into Suber's vehicle. Suber went to the rear of

the vehicle and returned with a screwdriver in one hand and a steak knife

in the other hand. According to appellant, Suber dropped the knife during

the ensuing struggle. Appellant claimed he took the screwdriver away

from Suber. After Suber was disarmed, appellant swung the screwdriver

at Suber and stabbed him.

Appellant then modified his statement claiming he obtained

the screwdriver and knife from Suber's vehicle. Appellant modified his

statement again claiming he brought the knife with him. As Suber

approached, appellant pulled out the knife. Suber then ran to the vehicle

and got the screwdriver.

Appellant then asserted he threw the knife down prior to the

struggle because he did not want to fight. However, appellant did not

think Suber saw him discard the knife. Appellant then "jumped" Suber as

Suber was backing out of the passenger door with the screwdriver in his

hand. Suber hit appellant and appellant kicked Suber causing Suber to

fall and drop the screwdriver. Appellant picked up the screwdriver and

stabbed Suber three or four times when Suber came toward him.

Appellant gave a final signed written statement describing the

incident.

When I went out there I went by the truck and searched

it. I found a wallet and checkbook. I put them in my back

pocket. I came with the knife. When I was standin' in front

of the truck, he came down and asked what I was doin'. I said

nothing. He began looking in the truck and I had the knife in

my pocket with the blade pointing up. I took the knife out

and dropped it on the ground because I didn't want it poking

me in the side if we fought. When the man was backing away

from the passenger door he had a screwdriver in his hand. I

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was afraid so I grabbed the man and we started fighting.

When I kicked him he fell down and we were fighting on the

ground.

Some way the screwdriver came loose and I picked it up

and stood up. The man got up and came at me. I stabbed at

him 3 or 4 times and he started gasping. I thought he might

die so I dropped the screwdriver and ran away.

Appellant requested an instruction on self-defense based on the

evidence that he had withdrawn from the "initial difficulty" by discarding

his knife. The solicitor argued appellant could not claim self-defense

because he was initially at fault. The trial judge refused the requested

charge because appellant brought about the initial difficulty with Suber

and did not retreat.

ISSUE

Did the trial judge err in refusing to charge self-defense?

DISCUSSION

Appellant claims the trial judge erred by refusing to charge

self-defense. Based on his statements, appellant argues the jury could

have found, although he was the initial aggressor, his right to self-defense

was restored when he withdrew from the conflict and communicated his

intent to do so before Suber attacked him with deadly force. We disagree.

A self-defense charge is not required unless the evidence

supports it. State v. Goodson 312 S.C. 278, 440 S.E.2d 370 (1994). To

establish self-defense in South Carolina, four elements must be present.

First, the defendant must be without fault in bringing on the difficulty.

Second, the defendant must have been in actual imminent danger of losing

his life or sustaining serious bodily injury, or he must have actually

believed he was in imminent danger of losing his life or sustaining serious

bodily injury. 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 was actually 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,

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the defendant had no other probable means of avoiding the danger. Id.

"[O]ne who provokes or initiates an assault cannot escape

criminal liability by invoking self defense Ferdinand S. Tinio,

Comment Note: Withdrawal, After Provocation of Conflict, As Reviving

Right Of Self-Defense, 55 A.L.R.3d 1000, 1003 (1974). Any act of the

accused in violation of law and reasonably calculated to produce the

occasion amounts to bringing on the difficulty and bars his right to assert

self-defense as a justification or excuse for a homicide. 40 Am. Jur.2d

Homicide § 149 (1999). "[A] robber, who is met with such violent

resistance by his victim that he has no opportunity to convince [the] victim

that he has abandoned his criminal intentions and only wants to

withdraw, may not claim self defense if he injures or kills his victim." 55

A.L.R.3d at 1003-04; see also United States v. Thomas, 34 F.3d 44 (2d Cir.

1994) (one who commits or attempts a robbery armed with deadly force

and kills the intended victim when victim responds with force may not

avail himself of the defense of self-defense); People v. Couch, 461 N.W.2d

683 (Mich. 1990) (a robber or other wrongdoer engaged in felonious

conduct has no privilege of self-defense); Stiles v. State, 829 P.2d 984

(Okla. Crim. App. 1994) (one who kills while committing armed robbery is

an aggressor and an aggressor is not entitled to a claim of self-defense).

"[I]f, after commencing the assault, the aggressor withdraws in

good faith from the conflict and announces in some way to his adversary

his intention to retire, he is restored to his right of self defense . . . ." 55

A.L.R.3d at 1003. One's right to self-defense is restored after a

withdrawal from the initial difficulty with the victim if that withdrawal is

communicated to the victim by word or act. State v. Graham, 260 S.C.

449, 196 S.E.2d 495 (1973).

Appellant's statements fail to establish the elements of self

defense entitling appellant to a self-defense charge. No question of fact for

the jury is created on this issue. Appellant concedes he brought on the

initial difficulty by breaking into Suber's vehicle. Even if appellant

subjectively meant to withdraw from the conflict he failed to communicate

this intent to Suber. Although in one statement appellant claimed he

dropped the knife because he did not want to fight, appellant admitted

Suber did not see him drop the knife. Thus, Suber was unaware of

appellant's intent to withdraw from the conflict. Further, appellant never

told Suber he was leaving and did not want to fight. If appellant truly

intended to withdraw he could have easily left the open parking lot. See

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Macias v. State, 283 P. 711 (Ariz. 1929) (a man who is a trespasser and in

a place where he has no right to be may not stand his ground and slay

his assailant and still claim self-defense, when by leaving such place he

might avoid the conflict). Because appellant failed to effectively

communicate to Suber his intent to withdraw from the conflict, appellant's

right to use self-defense was never restored. Appellant, as the aggressor,

remained responsible for bringing on the difficulty.

Accordingly, appellant was not entitled to a self-defense charge

and the trial judge correctly refused the charge.

AFFIRMED.

FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.

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