In State v. Owens, decided today by the SC Court of Appeals, the Court affirmed Owens’ conviction for murder, but also provided a proposed jury instruction on the defense of accident for future trials.

The Court also found that a photograph introduced at trial by the prosecutor, that shows the victim hugging his brother, was not relevant and was prejudicial, but it was harmless error that did not warrant reversing the conviction.

When is accident a defense? What happens if the facts could support accident or self-defense? Can the judge give a jury instruction on both defenses?

What jury instruction should courts give when the defense raises the defense of accident?

When is Accident a Defense?

Honestly, the word “accident” is commonly understood and seems simple enough.

Do we really have to explain it with complicated legalese that will confuse most jurors? Couldn’t we just say, “If you find that the defendant’s actions were an accident you must acquit the defendant. The prosecution must disprove the defense of accident beyond any reasonable doubt?”

Apparently not. The elements of the defense of accident are:

• The defendant acted unintentionally;
• The defendant was acting lawfully; and
• The defendant used due care with the weapon.

The defense of accident (sometimes called misadventure) protects a defendant who, while acting lawfully and with due care, unintentionally causes harm to another. The defense has three elements: (1) the harm was unintentional, (2) the defendant was acting lawfully, and (3) due care was used in the handling of the weapon.

Can Carelessness = Criminal Intent?

On the one hand, the appellate courts say that, when the jurors find that the killing (or other crime) was an accident, they must acquit because there was no criminal intent:

If the harm was caused by accident, the defendant is not criminally responsible because of the absence of criminal intent. It is precisely this lack of intent that separates accident from self-defense, for self-defense “admits an intentional killing, and sets up as justification a necessity to kill in order to save the accused from death or serious bodily harm, whereas a defense of homicide by accident denies that the killing was intentional.” State v. McDaniel, 68 S.C. 304, 317, 47 S.E. 384, 389 (1904).

On the other hand, the appellate courts also say that, if the defendant was careless with the weapon, the defendant is guilty, and the defense of accident does not apply:

The burden is on the State to prove beyond a reasonable doubt that th[e] act was not an accident . . . but was caused by the negligence or carelessness on the part of the defendant in [the] handling of a dangerous instrumentality or by unlawful activity by the defendant himself.

Can carelessness be the equivalent of criminal intent? I would say no – that makes no sense – but there it is.

• If accident, not guilty because no criminal intent.
• If careless, no accident and guilty.

Which sounds like the criminal intent, when a defendant has asserted the defense of accident, is now “carelessness” instead of “malice aforethought.” That won’t confuse jurors…

Also, isn’t carelessness the cause of most accidents?

When is Accident Not a Defense to Murder?

The Court points out that engaging in an unlawful activity can preclude an accident charge – for example, if a defendant brings a gun to a drug deal and accidentally shoots someone, they are not entitled to a self-defense charge:

We note too that drug dealing is an unlawful activity that can under certain circumstances preclude an accident charge altogether. See State v. Smith, 391 S.C. 408, 415, 706 S.E.2d 12, 16 (2011). In a recent 3-2 decision, our supreme court held that a defendant who brought a concealed pistol to a drug deal brought on the difficulty and is therefore not entitled to a self-defense charge. State v. Williams, Op. No. 27895 (S.C. Sup. Ct. filed June 19, 2019) (Shearouse Adv. Sh. No. 25 at 13) (“Williams’ actions proximately caused the difficulty as a matter of established law because his act of taking a loaded, unlawfully-possessed pistol into an illegal drug transaction was not ‘merely incidental’ to the act of arming himself in self-defense” (internal citations omitted)).

So, if the defendant is engaged in an unlawful activity (like a drug deal), and if the defendant brings a weapon to the drug deal, accident cannot be the defense…

On the other hand, if the defendant is engaged in an unlawful activity and arms himself in self-defense, even though it happens during a drug deal, accident is a valid defense because the act of arming yourself in self-defense is lawful:

The confusion in explaining the defense of accident crops up when no distinction is made between a defendant who has lawfully armed himself with a weapon in self-defense and then accidentally harms the victim (e.g., he stumbles and his finger slips and pulls the trigger) and a defendant who has lawfully armed himself with a weapon in self-defense and then intentionally harms the victim. Only the defendant in the former situation is entitled to the defense of accident, and he is also entitled to have the jury charged that his conduct in arming himself in self-defense was lawful.

All of this highlights how confusing standard jury instructions on the defense of accident and self-defense can be. For me, it also highlights how ridiculous it is that we can’t just instruct the jurors in simple language: “If it was an accident, find the defendant not guilty. If it was self-defense, find the defendant not guilty. The prosecution has the burden of disproving accident or self-defense beyond a reasonable doubt.”

Note also that the defenses of accident and self-defense are not mutually exclusive – in some trials, one may apply, in others, both may apply. When any evidence has been introduced during the trial from which the jurors could find accident or self-defense, the court must give a jury instruction on either or both defenses.

Owens Provides New Standard Language for Jury Instructions on Accident

The Court of Appeals provided some proposed language for jury instructions on accident in future trials – language that is just as confusing as most jury instructions on accident:

The defendant has raised the defense of accident. Harm to another, including death, is excusable on the ground of accident if the harm was caused by the unintentional and lawful act of a defendant exercising due care. For the defense of accident to apply, you must find: (1) the act of the defendant that caused the harm was accidental and not intentional; (2) the act was lawful; and (3) the act was not careless, negligent, or reckless. If you find the defense of accident applies, you must find the defendant not guilty. However, if the State has proven beyond a reasonable doubt that any of the three elements of the defense of accident do not apply, then the defendant is not entitled to the defense. A defendant engaged in unlawful conduct, including the unlawful possession of a weapon, is entitled to claim the defense of accident unless the State has proven beyond a reasonable doubt that the unlawful conduct was not merely incidental to but was the direct and foreseeable cause of the Victim’s harm.

In cases where self-defense is also raised, the Court of Appeals suggest trial courts use this additional language:

A defendant exercising due care who accidentally harms another while acting in self-defense is acting lawfully. Therefore, a defendant can be acting lawfully, even if he is in unlawful possession of a weapon, if you find he was entitled to arm himself in self-defense and the victim was shot by accident by the unintentional discharge of the weapon.

Thoroughly confused now? So are my jurors in accident and self-defense cases…

Charleston SC Criminal Defense Trial Lawyer

Grant B. Smaldone is a criminal defense trial lawyer in Charleston, SC who defends state and federal criminal cases in the Eastern SC area.

If you have been charged with a crime in state or federal court in SC, call now at (843) 808-2100 or contact us online to talk to a Charleston, SC criminal defense attorney today.