STATE OF SOUTHCAROLINA ) COURT OF GENERAL SESSIONS ) FIFTEENTH JUDICIAL CIRCUIT COUNTY OF HORRY ) INDICTMENT NUMBERS: 2022GS2604305 2022GS2604307 2022GS2604308 State of South Carolina ) ) vs. )} ORDER GRANTING THE DEFENDANT'S ) MOTION FOR IMMUNITY Brandon Ezekiel Hembree, ) ) Defendant. ) ) Hearing Dates: April 18 — 19, 2023 State Attomeys: Mary-Ellen Walter, Senior Assistant Solicitor Elizabeth Farmer, Assistant Solicitor Defendant’s Attorneys: Eric Fox, Chief Public Defender Caitlyn A. Caldwell, Assistant Public Defender Court Reporter: Natalie Dahl The defendant is charged with two counts of murder and possession of a weapon during the commission of a violent crime. Before the Court is the defendant’s Motion for Immunity Pursuant to $.C. Code Ann. §§16-11-410, ef seg. and Motion to Dismiss. Present upon the call of this motion for hearing were the State’s attorneys, defendant's attorneys and the defendant. Based upon the testimony and evidence presented during this motion hearing, I do hereby find the following salient facts: FINDINGS OF FACT ‘The defendant, his brother Daniel Hembree and their friend Brady Gilcrease traveled together in a Dodge Avenger from Greenville, South Carolina, to Myrtle Beach.' While in Myrtle Beach, they supported themselves by selling marijuana. For protection, the defendant kept a 9mm pistol in the glove compartment of their car. "The defendant, Daniel Hembree and Brady Gilerease are referred to collectively asthe “Greenville group.” Page 1 of 7 OcoeKanon Cook-Melvin, his girlfriend Aniyja Summers, Ja’Leel Stephens and Keyotta Johnson traveled together in a car from Fayetteville, North Carolina, to Myrtle Beach Prior to June 10, 2021, these two groups had never met one another. On June 10, 2021, the defendant, his brother and Brady Gilerease were riding in their Dodge Avenger around Myrtle Beach, Brady Gilerease was driving. The defendant was in the front passenger seat and Daniel Hembree was in the back passenger-side seat. ‘They had marijuana in the car and in the trunk of the car? They pulled up to a traffic light at an intersection and stopped. The Fayetteville group ‘was in a car stopped at the traffic light beside them. ‘The Greenville group sees Aniyja Summers rolling a “blunt” in the Fayetteville group’s car. The two groups begin talking about buying and selling marijuana. The Fayetteville group signals for the Greenville group to follow them. The Greenville group follows the Fayetteville group down Willoughby Lane, a public street in a residential subdivision with a cul-de-sac at the end. The Fayetteville group circles the cul-de- sae and stops with their car facing the exit to the cul-de-sac. The Greenville group stops next to the Fayetteville group with their car facing the opposite direction. Kanon Cook-Melvin gets out of the Fayetteville group's car, walks over to the Greenville group’s car and purchases marijuana from Daniel Hembree for $30.00 to $45.00. Kanon Cook-Melvin retums to his car and the Fayetteville group exits the cul-de-sac and drives back down Willoughby Lane. The Greenville ‘group circles the cul-de-sac and follows the Fayetteville group along Willoughby Lane. Within a few seconds, the Fayetteville group stops on Willoughby Lane and the Greenville group stops behind them. The Fayetteville group’s car is stopped in front of the Greenville group's car, blocking the Greenville group from traveling any further along Willoughby Lane. Kanon 2 Kanon Cook-Melvin, Aniyja Summers, Ja'Leel Stephens and Keyotta Johnson are referred to colletively asthe “Fayetteville group.” > Although the amount of marijuana in the Greenville group's ear isnot known, the amount was mote than the threshold for possession with intent to distribute. Page 2 of 7 JapeCook-Melvin exits his car, comes to the Greenville group’s car, but soon returns to his car. As Kanon Cook-Melvin is walking back to his car, the defendant begins to feel uneasy about the situation and retrieves his Smm pistol from the glove compartment. Kanon Cook-Melvin retrieves 1a Glock pistol from his car and begins to walk back to the Greenville group's car. He is followed closely by Ja’Leel Stephens. When Kanon Cook-Melvin gets back to the Greenville group's car, he asks to get in the back seat, Before anyone in the Greenville group can answer, Kanon Cook- Melvin opens the backseat door, starts getting into the car, points the Glock pistol at the back of Brady Gilerease’s head and says, “Give me everything you got.” Ja’Leel Stephens then opens the driver's door and begins hitting Brady Gilerease. The defendant then shoots Kanon Cook-Melvin and Ja’Leel Stephens, killing both. CONCLUSIONS OF LAW ‘The defendant seeks immunity from prosecution for murder and possession of a weapon. during the commission of a violent crime pursuant to Code of Laws of South Carolina 1976 §16- 11-410, ef seq., also referred to as the Protection of Persons and Property Act (“the Act"). Code §16-11-420(A) states, in pertinent part, that “the intent of the General Assembly is to] codify the common law Castle Doctrine which recognizes that a person’s home is his castle and to extend the doctrine to include an occupied vehicle....” Further, Code §16-11-440(C) states, in pertinent part, as follows: A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be...has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes itis necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in section 16-1-60. (emphasis added). Page 3 0f7 [7g‘A person asserting the Act as a bar to prosecution bears the burden of proving by a preponderance of the evidence at a pre-trial hearing that he or she is entitled to immunity under the Act. State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011). To receive immunity from prosecution, a defendant must prove a valid case of self-defense. Necessarily, the court must consider the elements of self-defense in determining a defendant's entitlement to the Act's immunity. This includes all elements of self-defense, save the duty to retreat. State v. Curry, 406 S.C. 364, 752 S.E.2d 263 (2013). The four elements required by law to establish self-defense are: 1) the defendant must be without fault in bringing on the difficulty; 2) the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger; 3) a reasonably prudent man of ordinary firmness and courage would have entertained the same belief or 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; and 4) the defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did. State v. Davis, 282 8.C. 45, 317 S.E.2d 452 (1984). The fourth element—the duty to retreat— is excused under the Act and the Castle Doctrine. State v. Curry, ibid ‘The initial question that the Court must decide in this case is whether or not the Act applies, specifically Code §16-11-440(C). The State argues that the defendant’s involvement in the sale of marijuana is an “unlawful activity” that prohibits the defendant from receiving immunity under the Act. In support of its argument, the State relies upon State v. Williams, 427 8.C. 246, 830 S.E.2d 904 (2019). In that case, the South Carolina Supreme Court affirmed the trial judge’s refusal to charge a jury with the law of self-defense where the defendant brought an unlawfully possessed gun to an illegal drug transaction to purchase marijuana that resulted in the defendant Page 4 07 //pagc.shooting the victim during the transaction after the victim attacked the defendant. However, in aff 1g the trial court’s refusal to charge the jury with the law of self-defense, the South Carolina Supreme Court states, “In some future case involving facts different from these, perhaps the defendant will convince the trial court he has produced evidence he was not at fault in bringing on the violent occasion.” State v. Williams, id. This case differs from State v, Williams in several respects. First, Williams deals with the trial court’s refusal to charge a jury with the law of self-defense. This case currently involves the court’s pre-trial determination of whether the defendant engaged in an “unlawful activity” that would bar immunity under the Protection of Persons and Property Act. Secondly, Williams possessed an illegally purchased gun, Nothing in the case at hand indicates that the defendant illegally purchased or illegally possessed the 9mm pistol. Thirdly, the altercation in Williams occurred during the drug transaction, In this case, the transaction had concluded and the parties ‘were leaving the area where the drug transaction had taken place when the Fayetteville group stopped their car in front of the Greenville group’s car. Lastly, the defendant in Williams was an active participant in the drug transaction. The only evidence presented in this case is that the defendant’s brother sold marijuana to one of the victims. The defendant was only present in the vehicle during and after the transaction “In determining whether a defendant satisfies section 16-11-440(C), the circuit court must analyze whether, at the time of the incident, he was engaged in an unlawful activity...” Stare v. Glenn, 429 8.C. 108, 838 S.E.2d 491 (2019). A proximate cause analysis must be applied to the unlawful activity to determine whether the activity, at the time of the incident, was the proximate cause of the incident. State v. Glenn, id. A person engaged in an unlawful activity is not barred * However, the court notes thatthe defendant did possess marijuana at the time of the transaction and subsequent altercation. Further, the defendant admitted that he supported himself financially by selling marijuana, Page 5 of 7 Jaefrom receiving immunity under the Act if the unlawful activity is not the proximate cause in bringing on the difficulty. See State v. Glenn, id. (Holding that a defendant is entitled to immunity under the act notwithstanding being a trespasser and in unlawful possession of a firearm). In the case at hand, even though the defendant was in the Greenville group’s car when his brother sold marijuana to Kanon Cook-Melvin and even though the defendant possessed marijuana when the two groups stopped on Willoughby Lane seconds after the transaction, neither of those actions proximately caused the difficulty resulting in the deaths of Kanon Cook-Melvin and Ja’Leel Stephens. A preponderance of the evidence shows that the sole proximate cause of that difficulty arose when Kanon Cook-Melvin put a gun to the back of Brady Gilerease’s head and said, “Give me everything you got” while Ja’Leel Stephens assaulted Brady Gilcrease. Therefore, I find as matter of law that the defendant's actions do not constitute an “unlawful activity” barring application of the Act. Next, the court must determine whether or not the defendant has proved by a preponderance of the evidence all elements of self-defense, saving and excepting the duty to retreat. First, the defendant must be without fault in bringing on the difficulty. As discussed above, the defendant did not bring on the difficulty but, rather, the vietims brought on the difficulty that resulted in their deaths. Next, the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger. When Kanon ‘Cook-Melvin gets into the back seat of the Greenville group’s car with a gun and points it at Brady Gilerease, the defendant, his brother and Brady Gilcrease were all in danger of losing their lives and a reasonably prudent man of ordinary firmness and courage would have entertained the same belief. Further, a man of ordinary prudence, firmness and courage would have also struck the fatal blow in order to save himself from serious bodily harm or losing his own life. Finally, even though Page 6 ay (Omethe defendant had no duty to retreat, he had no other probable means of avoiding the danger of serious bodily injury or death to himself, his brother and Brady Gilcrease than to act as he did. Kanon Cook-Melvin was in the defendant’s car with a gun, pointed at Brady Gilerease and the Fayetteville group’s car blocked the Greenville group’s travel down Willoughby Lane. Although not argued by the defendant, the court also finds that the defendant was preventing the commission of a violent crime as defined in section 16-1-60 and, therefore, could meet force with force without retreating pursuant to Code §16-11-440(C). Code §16-1-60 classifies armed robbery as a violent crime. Kanon Cook-Melvin pointed his Glock pistol at Brady Gilcrease and said, “Give me everything you got.” ‘That is armed robbery and was prevented by the defendant. NOW, THEREFORE, based upon the above findings of fact and conclusions of law, it is hereby ORDERED, that the defendant’s Motion for Immunity Pursuant to S.C. Code Ann. §§16- 11-410, et seq. and Motion to Dismiss is GRANTED; it is further ORDERED, that the defendant is immune from the State’s prosecution of the charges against him in this case and those charges are DISMISSED. AND IT IS SO ORDERED. Benjamin H. Culbertson Presiding Judge April 21, 2023, ‘Conway, SC Page 7 of 7