By RENEE SEXTON and DAVID DONOVAN

The South Carolina Court of Appeals has recommended new language for judges to use when instructing juries on the defense of accident, particularly in cases where the defendant may have been engaging in unlawful conduct when the alleged accident occurred.

The court affirmed the conviction of a Charleston County man who was convicted of murder after shooting a man in an ill-fated drug deal, but said that the new guidance might help juries better understand a legal doctrine that is easily misunderstood. 

Ahshaad Mykiel Owens, the defendant, contended that one of the victim’s friends pulled a gun on him during the deal. Owens said that the gun accidentally discharged as he was trying to wrestle it away from the friend in order to defend himself.

Charleston County Circuit Court Judge Markley Dennis instructed the jury on the defense of accident, saying that the defense would not apply if the shooting was caused by Owens’ own “unlawful activity.” Owens objected to the instruction, arguing the jury might interpret it to mean he couldn’t claim the defense because he was involved in a drug deal when the shooting happened.

Judge D. Garrison Hill, writing for a unanimous Court of Appeals panel in a July 10 opinion, said that no such clarification was necessary and the jury charge was sufficient. But Hill noted the inherent challenge in explaining the defense of accident to juries, who could easily be confused in cases where a defendant claims that the accident occurred while he was acting in lawful self-defense, as Owens had contended.

“The confusion deepens when the defendant’s unlawful activity …  is so intertwined with a lawful activity (self-defense) that the conduct may appear indivisible,” Hill wrote. “Whether the shooting was caused by the lawful or the unlawful activity is an issue that would vex jurors as well as philosophers.”

The court thus recommended a specific charge to offer when instructing a jury about the accident defense, and an additional instruction in cases where the evidence supports an accident charge on behalf of a defendant who has lawfully armed himself in self-defense.

The ruling was initially filed as an unpublished opinion in January, but was later withdrawn and refiled as a published opinion after Owens successfully petitioned for a rehearing. The original opinion did not contain the recommended jury instructions.

Chief Appellate Defender Robert Dudek represented Owens on appeal. Dudek said that the court recognized in its opinion the difficulty that exists in trying to get juries to understand that even if a defendant is involved in an illegal activity when a shooting occurs, he can still be not guilty by reason of self-defense or accident.

“These are difficult cases because someone’s armed and they may not be legally armed or have a concealed weapons permit, say but something unexpectedly happens during a low-level drug deal and then we have to still deal with everyday principles of self-defense and accident,” Dudek said. “It’s a difficult area of criminal law and it’s evolving as far as how to be fair to criminal defendants in this situation and it’s going to continue to evolve as these cases come up.”

Hill noted in his opinion that in June a divided South Carolina Supreme Court held that a defendant who had brought a loaded, unlawfully possessed pistol to a different drug deal in Charleston County had been properly denied a jury instruction on self-defense at his murder trial. (Owens testified that he came to his drug deal unarmed.)

The South Carolina Attorney General’s Office declined to comment on the ruling.

The eight-page decision is State v. Owens (Lawyers Weekly No. 011-064-19). The full text of the opinion, including the full text of the recommended jury instructions, is available online at sclawyersweekly.com.

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