Murder Conviction Reversed and New Stand Your Ground Immunity Hearing Ordered

Stand your ground immunity under the SC Protection of Persons and Property Act was designed to correct a common injustice in our criminal courts – when a victim of violence becomes a suspect and then a defendant charged with murder because they successfully defended themselves.

In State v. Cervantes-Pavon, the SC Supreme Court reversed a murder conviction and 30-year prison sentence and ordered a new stand your ground immunity hearing where the trial judge, while denying immunity to Cervantes-Pavon, mischaracterized the evidence that had been presented and misstated the legal standard she was supposed to apply.

Why Didn’t the Trial Court Grant Stand Your Ground Immunity to Cervantes-Pavon?

It seems that Cervantes-Pavon’s situation could have happened to anyone. If you are threatened and then attacked at your workplace, don’t you have a right to defend yourself? Isn’t that the purpose of SC’s stand your ground immunity?

What were the Facts of the Case?

According to the appellate opinion, the testimony at the hearing established that Muniz, Cervantes-Pavon’s coworker, had fought with Cervantes-Pavon the week before over a broom. Although Cervantes-Pavon reported the incident to his boss, Muniz continued to harass Cervantes-Pavon – including using homophobic slurs and threatening to kill him.

According to Cervantes-Pavon, who testified through an interpreter:

…his problems with Muniz started when Muniz snatched a broom from him and continued when he attempted to tell his boss about the incident. Muniz continued to verbally assault Cervantes-Pavon by using homophobic slurs and threatening to kill him.

On the day of the incident, Muniz threatened Cervantes-Pavon with a pipe. According to another coworker, Cervantes-Pavon was on a ladder when Muniz began threatening him again. Cervantes-Pavon came down from the ladder, picked up a pipe himself, and Muniz picked up another tool.

According to Cervantes-Pavon, both of them dropped their weapons when Muniz punched Cervantes-Pavon in his stomach and jaw. Muniz grabbed Cervantes-Pavon by the neck and began strangling him, which is when Cervantes-Pavon pulled out a small saw and stabbed Muniz with it, causing his death:

On August 13, Muniz threatened him throughout the day, including with a pipe. According to Cervantes-Pavon, he also picked up a pipe to defend himself, but Muniz struck him in the stomach and jaw. He lost possession of the pipe, Muniz dropped his pipe, and Muniz held him around the neck, strangling him. Cervantes-Pavon stated he grabbed his saw and stabbed Muniz once in an attempt to stop him.

Cervantes-Pavon was at his place of employment, where he had a legal right to be. He had a reasonable fear of death or injury based on Muniz’s repeated threats to kill him, including threatening him with a metal pipe.

Cervantes-Pavon also had a right to arm himself in self-defense when he came down from the ladder. Was he not entitled to stand your ground immunity?

If your answer is no, because he should have walked away, that’s not how SC’s stand your ground law works. The whole point is you do not have to walk away– you are entitled to stand your ground and defend yourself.

Cervantes-Pavon Might be Hispanic and Gay – Did Prejudice Play a Role in His Conviction?

When I first read this opinion, my gut reaction was that Cervantes-Pavon got shafted at each stage of this case because he is most likely Hispanic (I’m basing this solely on his surname and the fact that he needed an interpreter) and possibly gay (based solely on the fact that Muniz was using homophobic slurs).

At least, his attacker appeared to believe that Cervantes-Pavon was gay, and that seems to me to be the motivation for the attack. Cervantes-Pavon wasn’t just defending himself against an attack by a coworker – he was defending himself against a hate crime. Shouldn’t that be factored into the Court’s analysis, at least as to whether he had a reasonable fear of death or injury?

My first thought was to wonder if, but for anti-gay and/or anti-Hispanic prejudices on the part of the police, prosecutor, or judge, Cervantes-Pavon would have received immunity. Or, if he would have only been charged with manslaughter in the first place…

That may or may not be true, but there is no evidence in the appellate opinion to support it. What I have found, in talking about this case with non-lawyers, is that people get stuck on the duty to retreat – they don’t agree with it and they think that a person should be required to retreat before defending themselves.

“There is no duty to retreat,” I say. “Right,” they reply. “But he should have quit his job and sued his boss.” Again, I say, “But there is no duty to retreat.” After some back and forth, it becomes clear that some people, at least, simply get stuck on the victim-defendant’s failure to walk away…

What is Stand Your Ground Immunity in SC?

Simply put, if you are attacked in a place where you have a legal right to be, there is no duty to retreat – you have the right to stand your ground, and, if you stand your ground and defend yourself, you are entitled to immunity from prosecution.

SC’s stand your ground law is the same as SC’s self-defense law, except:

  • There is no duty to retreat; and
  • You are entitled to immunity – it is not a question for a jury.

The trial court, in denying immunity to Cervantes-Pavon, mischaracterized the evidence and testimony and misstated the law:

We believe the circuit court’s immunity ruling was controlled by multiple errors of law, and combined with the court’s erroneous characterization of Somosa’s testimony, this amounted to an abuse of discretion.

Are You Entitled to Stand Your Ground Immunity if Your Attacker is Unarmed?

The trial court said that Cervantes-Pavon was not entitled to immunity because the two men were “merely wrestling,” and “relied on the fact that Muniz was not armed when Cervantes-Pavon stabbed him.”

The Supreme Court notes that the fact that the attacker is unarmed may be a relevant consideration, but “it does not automatically prohibit immunity.” Furthermore, the fact that the defendant armed himself does not automatically make him the aggressor.

My own two cents: I would not describe being strangled by a man who has repeatedly threatened to kill me while yelling homophobic slurs as “merely wrestling.” You are trying to kill me, and I am going to defend myself with any means available, whether that is with my hands, a gun, or a saw blade.

Is Stand Your Ground Immunity a Question for the Jury?

The trial court also stated that Cervantes-Pavon’s immunity claim was a question for the jury – it absolutely is not.

There are situations where a defendant is not entitled to immunity from prosecution but may still have a valid self-defense claim for the jury to consider. But the immunity claim is always a question for the judge.

The whole point is the court should hear the evidence, consider the claim, and stop the prosecution if the defendant is entitled to immunity – there should not be a trial and the case should never be heard by a jury.

Cervantes-Pavon’s 30-year sentence for murder was reversed and the Supreme Court ordered, not a new trial, but a new immunity hearing where the trial court will apply the correct law to the actual facts testified to at the hearing…

Criminal Defense Lawyer in Myrtle Beach, SC

Daniel A. Selwa is a criminal defense attorney in Myrtle Beach, SC.

Call now at (843) 492-5449 or send an email to speak with a SC criminal defense lawyer in Myrtle Beach today.

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