In “defense of others” is a defense to a criminal charge, not an instruction for solicitors—at least in this case—to use offensively, the state Court of Appeals has ruled.
When laying out its case against murder defendant Steven Otts, the 11th Circuit Solicitor’s Office told the Saluda County jury during its opening statement that the jury would learn about how one—here, victim Hydrick Burno—can legally stand in the shoes of his friend or family member who is being attacked and “intercede.”
It discussed the “defense of others” doctrine during closing arguments and convinced the trial judge to give the jury instruction that under state law, someone who “comes to the assistance of a friend or relative … enters the combat on the same footing as the person whose assistance he come [sic] and under the same legal status.”
“Burno was trying to help his cousin … and was murdered for his troubles,” the state said. The jury agreed, convicting Otts. Otts was sentenced to 30 years in prison.
Unfortunately for the state, the appeals court could not find case law supporting the charging of the jury on the offensive “defense of others” to address a victim’s behavior. Unanimously, it reversed and remanded the case for a new trial.
“The offensive defense of others instruction requested here was incomplete, risked improper burden shifting, and was confusing for the jury,” Judge Stephanie McDonald wrote for the court.
Messages to 11th Circuit Solicitor Samuel “Rick” Hubbard III and the state attorney general’s office seeking comment were not returned.
According to court documents, on Jan. 27, 2011, Otts and his girlfriend, Saca Jawea Coleman, were out with another couple. The couple, Lakeisha Stallworth and Antonio Valentine, drove Otts to the home where he lived with Burno’s aunt and uncle. Otts and Coleman argued, and reportedly tussled, because Otts wanted Coleman to come home with him, while Coleman wanted to continue partying.
Accounts differ on what exactly happened and whether Otts assaulted Coleman (Coleman testified that he did not), but eventually Burno—Coleman’s cousin by marriage—came outside to break up the argument.
Witnesses said that Burno attempted to get Otts away from the situation by placing him in a “bear hug” and pulling him away from Coleman. Otts admitted that he punched Burno one time in the head after warning him not to touch him, but said that he never meant to hurt Burno.
Burno fell to the ground and struck his head on the pavement. When police and emergency medical technicians arrived, Burno was sitting on the curb, alert but swaying. EMTs were unsure whether his “swaying and confusion” were the result of a head injury or his apparent intoxication.
On the way to a local hospital, EMTs said, Burno became combative and uncooperative. Shortly after arriving at the hospital, less than an hour after first responders met with him, Burno died.
According to the coroner, he died from swelling of the brain caused by the initial blow rather than the injury suffered when his head struck the ground.
Otts was indicted for murder on May 4, 2011. During trial, the undisputed testimony was that Burno came out to help Coleman. At the charge conference, the state requested a “defense of others” charge, noting its plan to use it in a “reverse, offensive posture,” court documents show. Solicitors contended the charge was necessary to show the jury that Burno standing in Coleman’s shoes would negate the element of sufficient legal provocation required for voluntary manslaughter, and that it would “counter any self-defense issues.” If Burno had killed Otts, the state argued, he would be entitled to immunity under the stand-your-ground statute.
The trial court was initially concerned that the charge would confuse the jury, but ultimately it gave the charge.
The jury—considering murder, voluntary manslaughter and involuntary manslaughter—convicted Otts of murder.
On appeal, Otts argued that the charge was improper because it presents a possible defense to a criminal charge and is not to be used offensively by the state; it was not accurate under the facts of the case; and it was incomplete and confusing to the jury because it failed to set forth either the necessary elements of the defense or any framework for its application to the facts of this case.
The appeals court agreed, finding no case law supporting the charge for offensive purposes. McDonald wrote that some of the state’s own arguments “alert us to the confusion created” by the charge. Despite its argument that the jury could not decide the case without knowing Burno’s legal status or knowing the principle of law, for instance, the appeals court found that the charge failed to address the legal status of Burno or Coleman, whom he was allegedly defending. Further, McDonald found, the charge provided no framework for the application of self-defense elements necessary for properly evaluating the legal principle and failed to provide guidance to the jury regarding the applicable burden of proof.
“Even if we were to accept that a defense of others instruction could be proper in an offensive posture—which, particularly under the facts of this case, we do not—the State would still be required to prove not only that Victim acted in defense of Coleman, thus satisfying the required elements of a self-defense claim, but also that Coleman’s own actions satisfied them,” McDonald wrote.
Despite the state’s contentions that no one bore the burden of proof, McDonald made clear that the state would “necessarily” bear the burden of proof beyond a reasonable doubt.
Otts’ attorney, appellate defender Susan Hackett of Columbia, said that she, too, found the jury instruction confusing, and worthy of appellate review.
Susan Kuo, a criminal law professor at the University of South Carolina School of Law, agreed.
“I understand what the state was trying to do … but what the circuit court ended up saying is that it was just confusing to the jury, and I was confused,” Kuo said.
Where the court wrote that the jury charge here is erroneous, “particularly under the facts of this case,” it is unclear whether it may be appropriate in another case.
Hackett said she has never seen the defense used as an offense, and Kuo added that while she has not read the trial court’s opinion, perhaps the unusual use of “defense of others” would have been more successful if it were more “well-orchestrated.”
“It may have worked if they had set forth the structure within which they were going to make their arguments, but they didn’t,” she said.
According to Hackett, the state has petitioned for rehearing. She said that while hopes the state will not seek certiorari of the “well-reasoned opinion,” she expects that it will.
The 10-page decision is State v. Otts (Lawyers Weekly No. 011-063-18). The full text of the opinion is available online at sclawyersweekly.com
Follow Heath Hamacher on Twitter @SCLWHamacher