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South Carolina
Judicial Department
2011-UP-060 - State v. Parker


In The Court of Appeals

The State, Respondent,


Dervick Lamont Parker, Appellant.

Appeal From Dorchester County
Diane Schafer Goodstein, Circuit Court Judge

Unpublished Opinion No. 2011-UP-060
Submitted January 4, 2011 – Filed February 16, 2011


Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mark Farthing, all of Columbia; and Solicitor David M. Pascoe, Jr., of Summerville, for Respondent.

PER CURIAM: Dervick Lamont Parker appeals his conviction for assault and battery with intent to kill.  He argues the trial court committed reversible error in (1) overruling his objection to the court's failure to instruct the jury on self-defense and (2) denying his motion for a mistrial.  We affirm.[1]

1. Parker contends the trial court erred in overruling his objection to the court's failure to instruct the jury on self-defense.  We disagree.  "To warrant reversal, a trial court's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant."  State v. Gaines¸ 380 S.C. 23, 31, 667 S.E.2d 728, 732 (2008).  Moreover, "[t]he law to be charged to the jury is determined by the evidence presented at trial."  Id.  Therefore, "[i]f there is any evidence in the record from which it could reasonably be inferred that the defendant acted in self-defense, the defendant is entitled to instructions on the defense, and the trial judge's refusal to do so is reversible error."  State v. Slater, 373 S.C. 66, 70, 644 S.E.2d 50, 52 (2007).  A defendant must prove four elements to establish self-defense, including that "the defendant must be without fault in bringing on the difficulty." Id. at 69, 644 S.E.2d at 52.  "Any act of an accused that is reasonably calculated to produce the occasion amounts to bringing on the difficulty and bars the right to assert self-defense."  State v. Dickey, 380 S.C. 384, 394, 669 S.E.2d 917, 922 (Ct. App. 2008) (citation omitted). 

Here, Parker's conduct was reasonably calculated to produce an altercation between him and a police officer.  Parker's own testimony corroborated other witnesses' testimony he had a gun in his hand when he pursued an undercover officer, who was attempting to escape an apartment complex because he believed his undercover status had been compromised.  Accordingly, Parker brought on the altercation, and the trial court properly declined to instruct the jury on self-defense.

2. Parker next argues the trial court erred in denying his motion for a mistrial because the State violated his rights pursuant to Maryland v. Brady, 373 U.S. 83 (1963) and the Confrontation Clause of the United States Constitution.  We disagree. 

"[W]hether to grant or deny a mistrial is within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion."  State v. Herring, 387 S.C. 201, 216, 692 S.E.2d 490, 498 (2009) (citation omitted).  Moreover, whether to grant a mistrial is determined by "'whether the mistrial was dictated by manifest necessity or the ends of public justice.'"  State v. Stanley, 365 S.C. 24, 34, 615 S.E.2d 455, 460 (Ct. App. 2005) (quoting State v. Prince, 279 S.C. 30, 33, 301 S.E.2d 471, 472 (1983)).

A due process claim pursuant to Brady that the prosecution failed to disclose evidence favorable to a defendant despite the defendant's request for that evidence requires four elements.  Gibson v. State, 334 S.C. 515, 524, 514 S.E.2d 320, 324 (1999) (citations omitted).  Two of those elements are that the evidence "was in possession of or known to the prosecution" and "was suppressed by the prosecution."  Id. (citations omitted).  Here, Parker could not impeach an adverse witness on the witness's two-year-old conviction of a felony gun offense because neither the State nor Parker knew of the conviction during Parker's trial.  They learned of the conviction because, while they awaited the jury's decision for Parker's trial, they attended the proceedings in which the witness pleaded and received sentencing for a charge of assault with intent to kill.  Therefore, the State did not violate Parker's right to evidence pursuant to Brady because the State did not know of or suppress the witness's conviction.  

"The right to meaningful cross-examination of an adverse witness is included in the defendant's Sixth Amendment right [under the United States Constitution] to confront his accuser."  State v. Cheeseboro, 346 S.C. 526, 544, 552 S.E.2d 300, 309 (2001) (citations omitted).  However, "[v]iolations of the Confrontation Clause are subject to a harmless error analysis."  State v. Holder, 382 S.C. 278, 285, 676 S.E.2d 690, 694 (2009) (citation omitted).  The test is whether "'the evidence is overwhelming and the violation so insignificant by comparison that we are persuaded, beyond a reasonable doubt, that the violation did not affect the verdict.'"  Id. (quoting State v. Vincent, 120 P.3d 120, 124 (2005)).  A reviewing court must consider "'the importance of the witness's testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case.'"  Id. (quoting Vincent, 120 P.3d at 124). 

Here, even though Parker could not impeach the adverse witness on the conviction, most of that witness's testimony was corroborated and expounded upon by the testimony of Parker and the undercover officer.  Moreover, the court allowed extensive cross-examination of the witness, and Parker used that cross-examination both to corroborate parts of Parker's story and impeach the witness's credibility.  Therefore, any violation of Parker's Confrontation Clause rights was harmless, and the trial court acted within its discretion in denying Parker's motion for a mistrial.


HUFF and LOCKEMY, JJ., and GOOLSBY, A.J., concur.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.