by Alex KornfeldALEX KORNFELD IS 2020 LEGAL ELITE ACCORDING TO GREENVILLE BUSINESS MAGAZINE
Greenville Business Magazine has named Alex Kornfeld as a legal elite. The publication states the honor is given and that only attorneys in the region are allowed to vote. They then honor the top vote getters.
Source: Greenville Business Magazine
by Alex KornfeldSUBPOENA THE WITNESS
South Carolina Court of Appeals Give Guidance On When A Continuance Should Be Granted In State v. Antwuan L. Nelson
Antwuan L. Nelson was charged with murder, possession of a weapon during a violent crime, and possession with intent to distribute cocaine base.
On January 27th, 2014, officers responded to a shooting in Myrtle Beach. Several people told officers that a black man wearing a black jacket standing beside a red car had just shot someone.
The case went to trial on June 14th, 2017. After the State rested, Defense counsel informed the trial court that two witnesses that were subpoenaed were not in court. Counsel informed the court that one of the witnesses was in the hospital. Counsel also informed the Court that he did not comply with Rule 7, SCRCrimp by providing an affidavit concerning the expected testimony with respect to the witness. See page 30 of 86. 115 (c),
The Court recessed until the next day and Defense counsel did present the court with an affidavit pursuant to Rule 7(B) reasoning his witness was material and indispensable whose testimony could not be attained. Nelon’s Counsel then requested a mistrial. The prosecutor argued Defense’s witness was not hospitalized until the second day of trial and was not served with the subpoena until after that so the Court should not grant a mistrial. Defendant’s counsel explained that his witness was going to appear voluntarily so he did not think a subpoena was necessary until she went into the hospital so it took him by surprise. Defense counsel knew his witness would be important as she could speak to mutual combat, voluntary manslaughter, and self-defense.
The Court denied Defense counsel motion. Nelson was found guilty and sentenced to 25 years’ in prison for voluntary manslaughter and 5 years for possession of a weapon during the commission of a violent crime.
The issue on appeal is “whether the trial court erred in refusing to grant a continuance or declare a mistrial when a key witness who would have testified that the decedent came to her apartment looking for Nelson with a shotgun and shot first at Nelson, was in the hospital. “
In making its ruling, the Court of Appeals referenced Rule 7(b), SCRCrimP, the weight of the missing witness’s testimony, S.C. Const. art. I, §14, and the Sixth Amendment of the US Constitution.
It appears the Court considered the witness’s previous statement given to Officers, the fact that the witness was going to voluntarily testify until she was unexpectedly admitted to the hospital on June 13, 2017, and the fact that Defense counsel complied with Rule 7(b).
Nelson is granted a NEW trial and is currently still incarcerated in the South Carolina Department of Corrections.
In reading the opinion it is clear the Court narrowly tailored their ruling and it appears to suggest witnesses should be subpoenaed regardless of their willingness to testify.
Source: State v. Nelson
by Alex KornfeldDID YOU KNOW A DELL COMPUTER CAN COST 24 YEARS? BEING UNSUCCESSFUL IN BURGLARY IRRELEVANT IF CRIMINAL INTENT PROVEN, SC COURT OF APPEALS RULES
Rickey Santoine Henley appealed his 1st degree burglary conviction on 4 grounds.
On February 15, 2012 a witness drove passed the home of Amanda and Jamie Moss when he noticed a gray car backed into the Moss’s carport with the back door open and a black male running from the home’s front door to a side door. The witness found it unusual and drove back to the Moss’s home where he observed that same man standing in the doorway. The man got in his car, pulled out of the Moss’s driveway, stopped in front of the witnesses. The witness was pulling a trailer with a lawmower. The man asked the witness if he needed any help with lawn care. The witness told him no and the man drove away. The witness called 911 and described the car, the description of the man, and gave dispatchers the man’s license plate number.
Detective’s went to the Moss’s home. The only thing missing from their home was a Dell laptop computer. Mrs. Moss testified a cigarette butt found near her steps did not belong to her or her husband. A search of the license plate revealed the 97 Bonneville was owned by Henley and his girlfriend. A deputy went to Henley’s home on February 22, 2012 where he saw the Bonneville with the same license plate. Henley admitted he’d been on the road the Moss’ live on and that he smoked Newport cigarettes. Henley was arrested for 1st degree burglary and larceny a day later.
First, Henley was found not guilty of larceny connected in a previous trial in which the burglary concerning this case was also tried. The jury was hung on the burglary 1st. The Judge granted a mistrial concerning the burglary 1st. A new trial was held and Henley was found guilty of the burglary 1st and sentenced to 24 years in prison which brings us to this blog about his appeal.
Because he was found not guilty of larceny and the jury was hung concerning the burglary charge Henley argued his burglary should have been dismissed because to not do so would be double jeopardy. Unfortunately for Henley, The Court of Appeals did not agree. The Court of Appeals ultimately reasoned that burglary merely requires that “the person enters a dwelling without consent and with the intent to commit a crime in the dwelling”. In the previous trial the jury only found that the State failed to prove beyond a reasonable doubt that Henley took the Dell computer, they were hung on the burglary.
Further reasoning, “there was no requirement that the State actually prove he successfully committed a separate crime within Victim’s home to prove the burglary charge.” In short, just because you’re not good a burglary or successful in your endeavor doesn’t preclude you form being tried on a burglary.
Second, Henley argued it was improper to exclude evidence of the prior larceny acquittal. The trial court did a weighted (401, 402, and 403) analysis and ultimately found that Henley’s acquittal on the larceny charge was irrelevant because it did not make the existence of any fact or consequence in the proceeding more or less probable with respect to the elements of first degree burglary. The Court of Appeals further articulated it’s ruling that it was true that the State must prove Henley entered the victim’s home without her consent AND with intent to commit a crime BUT there was no requirement the State prove that Henry was successful in committing that crime (here, taking a Dell computer). Further, the Court was concerned it would have invited this jury to speculate about what occurred at the first trial. Interestingly, The Court of Appeals opinion does not discuss what Henley’s intent was when he entered the home. If it wasn’t to steal the Dell laptop, what was it??
Third, the Court limited Henley’s attempt to get the admission of a witness’s prior trial testimony into evidence. At the first trial, Henley’s girlfriend testified but in preparation for this trial Henley could not find the girlfriend. Henley cited Rule 804(b)(1) arguing the previous testimony was admissible under a hearsay exception where the witness is unavailable. Henley represented to the Court he was unable to find the witness. The State wanted to try to find the witness as well and the trial court replied, “Okay. If you can find her, get her.” The State did make contact with her on the phone. The witnesses stated she was in Anderson County and that she did not receive a subpoena. The paramount question concerning the admissibility of the testimony from the prior trial was whether Henley was able to procure Gray’s attendance by process or other reasonable means. The trial court let some of the testimony in but excluded the rest.
The Court of Appeals stated because Rule 804(a)(5) requires the declarant’s unavailability despite “process or other reasonable means” the Court believes the witnesses testimony was inadmissible hearsay.
It is undisputed that the witness did not receive a subpoena (process). One can deduce that The Court of Appeals was not persuaded that Henley met the requirement to use other reasonable means to get the witness to Court. The only evidence Henley gave concerning his attempt to meet the requirement of other reasonable means was to offer his investigator as to all efforts that she made to try and locate the witness. In hindsight, appears it would have been wise to call the investigator so the trial court could weigh the specific lengths of which Henley’s investigator took to locate the witness and whether this met the other reasonable means standard.
In reading the opinion, it appears Henley was offering the testimony of the investigator in the most gracious of ways but at that time the State did not have an objection. To make matters worse for Henley, the State found her via a phone call in what appears to be a very short amount of time.
Fourth and finally, Henley argued the trial court improperly denied his motion to exclude evidence of DNA testing conducted on the cigarette butt found at the crime scene because the State could not present a complete chain of custody and the cigarette butt was not available for comparison to the crime scene photograph at trial. Further, the State’s negligence in destroying the cigarette butt constituted bad faith.
The Court of Appeals disagreed. Henley had to prove that either the state destroyed evidence in bad faith, OR that the state destroyed evidence that possessed an exculpatory value that IS apparent before the evidence was destroyed and the defendant cannot obtain other evidence of comparable value by other means. “Bad faith cannot be inferred simply because the evidence was lost.” The Court was also unconcerned with whether the cigarette butt was available for comparison reasoning it would not have contributed anything of value. The Court seemed to reason this was favorable to Henley because it allowed him to argue that the evidence was lost and to criticize the State’s investigation as a whole.
So, Dell Laptops can cost 24 years. Are they even making those things anymore?
Source: https://www.sccourts.org/opinions/HTMLFiles/COA/5694.pdf
by Alex KornfeldAN “EXPERT” AND THE POINT OF IMPACT IN A FELONY DUI CASE
A defendant’s belated appeal concerning his felony dui conviction. Untimely blood draws without warrants. Police opinion testimony. Excluding videos of accident reconstructions.
On November 14, 2011 Daniel Hamrick struck Ahmed Garland while driving on U.S. Highway 17 in Mount Pleasant. Ahmed Garland suffered permanent brain injuries as a result. The State argued Ahmed was stepping off a paving machine behind a row of cones when Hamrick struck him. Hamrick argued he struck Ahmed in his lane of travel.
A police officer arrived on scene within 5 minutes of the accident and administered first aid to Ahmed. Within 10 minutes an officer was questioning Hamrick and other witnesses. The officer requested that Hamrick perform field sobriety tests but Hamrick refused. Another Officer came on scene and instructed (more forcefully I presumed) Hamrick to perform sobriety tests. Hamrick performed the test and an officer stated the test indicated Hamrick was intoxicated.
The police arrested Hamrick and took him to jail where he refused to take the breathalyzer test. An officer then took Hamrick to a hospital and told him he was required to provide a blood sample. The officer did not seek a search warrant before drawing Hamrick’s blood. Hamrick’s BAC measured at .113.
Hamrick motioned to suppress the blood test arguing it was taken pursuant to a warrantless search in violation of his Fourth Amendment rights because no exigency existed, and there was no other applicable exception to the warrant requirement. Hamrick relied on Missouri v. McNeely which states, “the natural metabolization of alcohol in the bloodstream [does not] present [] a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing.” The Trial Court found the exigent circumstances exception excused the warrant requirement on the “unique fact presented”, and denied Hamrick’s motion to suppress. Hamrick then tried to get the test suppressed because the blood wasn’t drawn within the 3 hour time limit prescribed by law. The trial court presumably found that the delay in testing did not materially affect the accuracy or reliability of the test results and denied Hamrick’s motion.
The main issues at trial concerned the officer giving expert testimony (accident reconstruction) and the exclusion of the defenses video attempting to recreate the incident.
To prove Hamrick guilty of felony DUI the State had to prove Hamrick was under the influence, that he committed an act forbidden by law or neglected any duty imposed by law in the driving of the motor vehicle, which proximately caused great bodily injury to another person.
The Stated wanted to prove that Hamrick was speeding, he failed to keep a proper lookout, and that he struck Ahmed outside the designated lane of travel.
The State intended to prove this, in part, through the Officer’s testimony over the repeated objection of Hamrick. The Court found the officer’s testimony was improper as to accident reconstruction as he was not an expert concerning accident reconstruction. The Court characterized the officer’s testimony as lay opinion, but lay opinions are limited to those based on perception. The Supreme Court took issue with the officer’s opinion because he arrived 48 minutes after the incident occurred. Further and more importantly the Court found “lay opinion is “limited to those opinions…which…do not require special knowledge, skill, experience or training. Accident reconstruction requires expertise. The trial court never qualified the officer as an expert by knowledge, skill, experience, training, or education AND it doesn’t appear the officer was an expert in accident reconstruction as his training was limited to a few courses he took over a period of several years. This reminds me of Jay-Z’s line, “I ain’t passed the bar but I know a lil bit.” Here, the office wasn’t an expert but he knew a little bit. That is not o.k. because the officer gave a critical opinion concerning the point of impact of Hamrick’s vehicle and Ahmed.
Next, Hamrick attempted to offer a video to re-create his theory of the point of impact through its expert. Hamrick’s expert was in fact and expert and a mechanical and civil engineer. The trial court was concerned with the admission of the video and reasoned that the trial court could not be assured of the accuracy of any re-enactment and thought the video may mislead the jury. The Supreme Court found this to be improper because the Supreme Court opined the trial court failed to do the property analysis. The Court found the video was “clearly relevant because the video tended to prove Hamrick could not have struck Ahmed in the construction zone as the State claimed he did.” The Court went on to state Hamrick’s video would have attempted to show how the incident did not happen as the State theorized. The Supreme Court stated if the trial court was concerned that the video would mislead the jury then it was required to conduct an on the record analysis weighing it’s probative/unduly prejudicial value. The trial court did not analyze the video so it could not do the proper and required analysis.
So, now the case of Daniel Hamrick will go back to the trial court and Hamrick will get a new trial. The crucial issue of whether the State proves the point of impact was outside of Hamrick’s lane of travel will be hashed out. This time I suspect the State will bring its own witness with her own theories. To complicate matters further, since this case was tried the United State of America has ruled that a search incident to arrest permits law enforcement to conduct warrantless breath tests but not blood tests on suspected drunk drivers in Birchfield v. North Dakota, 136 S. Ct. 2160. Will this trial court rule that the States blood draw was a violation of Hamrick’s Fourth Amendment right but find that it was the product of good-faith thereby letting it in? Time will tell.
Sources:
https://www.sccourts.org/opinions/HTMLFiles/SC/27886.pdf
https://scholar.google.com/scholar_case?case=13321473862812444568&hl=en&as_sdt=6&as_vis=1&oi=scholarr
by Alex KornfeldJUSTICE FEW TORCHES “ABSOLUTELY INEXCUSABLE” CLOSING ARGUMENTS; SUPREME COURT GRANTS OSCAR FORTUNE A NEW TRIAL
As a kid I can remember visiting family in the Midwest. I’d often see an old rusty truck with a weathered bumper sticker that read, “Don’t Take Farmers For Granted”. Practicing law reminds me not to take our freedom for granted. I once was sitting with C. Carlyle Steele, the quintessential southern lawyer, when a man said, “well he can’t do that!” to which Carlyle responded, “he just did!”. The point of this story is to illustrate that if the government goes unchecked, if they are not ALSO held to the law, citizens rights can be and will be violated. Laws and rules can be and will be disregarded.
Just as in a football game, if the offense holds a defender and the Refs don’t see it you’ll often see the coach for the defense losing his mind. As a defense lawyer in South Carolina, there seems to be a lot of times to lose my mind but none seems to be so egregious as what occurred in the case of the State of South Carolina v. Oscar Fortune.
Oscar had the “misfortune” of being charged with murder and possession of a weapon during the commission of violent crime on December 23, 2001. He has been locked up since March 9, 2006. It’s important to note this because this case was just heard by the South Carolina Supreme Court on October 15, 2019 and an opinion was just issued on December 4, 2019. That’s a lot of time.
The jury found Oscar guilty of murder and possession of a weapon during the commission of a violent crime and Oscar was sentenced to thirty-seven years in prison. The Court of Appeals upheld the conviction in 2009. Oscar then filed an application for PCR alleging that his counsel should have requested a curative instruction and for failing to move for a mistrial in relation to the Solicitor’s closing arguments. Oscar argued the Solicitor’s statements violated his right to due process and counsel. The PCR Court denied Oscar relief so Oscar filed a petition for a writ of certiorari with the Supreme Court of which ultimately brought us here. The PCR Court reasoned, “The solicitor’s remarks, while improper, are not so prejudicial to [Oscar Fortune’s] substantial rights so as to deprive him of a fair trial, especially when combined with the accompanying objections of trial counsel and the curative comments of the trial judge.”
The Supreme Court of South Carolina asked, “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’”
At Fortune’s trial, the assistant solicitor began his closing argument:
SOLICITOR: Ladies and gentlemen of the jury, thank you so much for your time throughout the course of this trial. I want to start by telling you that we both have jobs here. My job is to present the truth. In fact if you look in the South Carolina Code of Laws which mandates what a solicitor’s job is we can’t be like a normal attorney is. A normal lawyer has to advocate on behalf of his client. But on the other hand the Solicitor can’t. We have to say what the truth is and it’s –
Defense counsel objected, arguing “the jury are the finders of the truth.”
The trial court ruled, THE COURT: The jury is the finders of the truth. I think what he was referring to was there is also an obligation on the Solicitor’s Office beyond simply that of presentation, but the jury does have the burden of deciding what is the truth in this matter.
The assistant solicitor continued, SOLICITOR: And what that means is that we have something in law that [is] called nolle prosse,[1] and [to] nolle prosse a person that has been indicted for a crime or charged with a crime. After further investigation somebody else did the crime where you can dismiss it and nolle prosse is the notif[ication] in which we dismiss the case. And [if] I know the person has done something that I think the facts show they’re guilty of, then I can’t nolle prosse it. I have to go forward with it. And as I said my job is to show the truth. On the other hand, the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to — without regard for the truth — to get a not guilty verdict.
Defense counsel again objected.
The trial court ruled, “I don’t think that their job is to defraud the court or the jury and to that extent I sustain the objection.”
Finally, over 13 years after Oscar was jailed the Supreme Court of South Carolina found the solicitor’s remarks “absolutely inexcusable”.
The Court went on to say, “Whether this assistant solicitor’s closing argument was improper—in light of the long history of courts condemning the same misconduct—is an easy question. The PCR court found it was improper, and we wholeheartedly agree. Whether the assistant solicitor’s misconduct violated Fortune’s due process rights is a tougher judgment call. In State v. Thomas in 1986—twenty years before Fortune’s 2006 trial—we granted the defendant a new trial because—in our judgment—the solicitor’s similarly improper closing argument required it. 287 S.C. at 412-13, 339 S.E.2d at 129. We cautioned solicitors not to engage in misconduct of this sort because we recognized the extent to which it endangers the due process rights of criminal defendants.4 287 S.C. at 413, 339 S.E.2d at 129. Today, we make the same judgment call. The assistant solicitor’s misconduct in his closing argument requires that Oscar Fortune be granted a new trial.”
“The assistant solicitor’s improper statements to the jury during closing argument infected Fortune’s trial with such a high degree of unfairness as to make his conviction a denial of due process. We reverse the order of the PCR court denying Fortune relief and remand to the court of general sessions for a new trial.”
In this case, the Solicitor went way out of bounds and the reason it matters is a man did not get a fair trial and now he’s been sitting in prison for over 13 years.
by Alex KornfeldAlex Kornfeld Named Legal Elite Of The Upstate By Greenville Business Magazine
The Greenville Business Magazine has named Alex Konrnfeld “Legal Elite of The Upstate” in 2019. This is the fourth time Alex has received this recognition.
Source: http://www.greenvillebusinessmag.com/2019/08/07/217687/legal-elite-of-the-upstate-2019
by Alex KornfeldCLIENT NOT GUILTY OF MURDER
Greenville, SC – Alex Kornfeld’s client went to a jury trial the week of November 11, 2019. After the close of the State’s case, Kornfeld Motioned the Court for a Directed Verdict. A directed verdict can only be granted if there is a failure of competent evidence tending to prove the charge in the indictment.
The Court granted Kornfeld’s Motion For a Directed Verdict. Although a directed verdict is extremely rare, Kornfeld and his client believed that this case warranted a directed verdict. “I can not fully articulate the pressure of representing a man charged with murder any more than I can articulate the way my client and I felt when the charges were dismissed against him at trial.”
by Alex KornfeldGREENVILLE COUNTY PROBATE COURT PROVIDES FREE LIVING WILL AND HEALTH CARE POWER OF ATTORNEY FORMS
Advanced directives are so important and the Greenville Probate Court is providing a free form living will and a health care power of attorney on their website. Not deciding IS deciding to allow someone else to make decisions for you. It’s always best to consult with an attorney. Here’s the link. Greenville Living Will and Health Care Power of Attorney Form
Here is an article explaining why advance directives are so important.
by Alex KornfeldThere Are No Laws Against Recording Police Officers In Public
You can record police officers in public. You can’t interfere with a police officer. If you are simply recording but not interfering with an officer in a public place it is not illegal.
Jesse Bright, a lawyer in North Carolina, was incorrectly told by an officer that filming the officer was illegal. Here’s the link.
Here is another article concerning filming an officer:
https://www.theatlantic.com/technology/archive/2015/04/what-to-say-when-the-police-tell-you-to-stop-filming-them/391610/
by Alex KornfeldWhether The Drugs Are “CUT” Doesn’t Matter in Trafficking of Cocaine Case And That’s The Bottom Line Because The Supreme Court Said So (until it says something differently)
Whether The Drugs Are “CUT” Doesn’t Matter in Trafficking of Cocaine Case And That’s The Bottom Line Because The Supreme Court Said So (until it says something differently)
If charged with trafficking of cocaine or methamphetamine arguing that the net weight of the cocaine is less than the statutory amount is a losing argument. In State v. Kerr, 383 S.E.2d, 299 S.C. 108 (S.C.,1989), Kerr was convicted of trafficking cocaine 100 grams or more. The gross weight of the cocaine Kerr possessed was over 100 grams but only 74% of that weight was pure cocaine. Kerr argued that the pure weight of his cocaine was only 82.4952 grams which would put him below the 100 gram threshold.
The South Carolina Supreme Court disagreed and cited the statute that stated, “cocaine or any mixtures containing cocaine”. The Court reasoned that drugs like cocaine and methamphetamine are often sold in a diluted state and that when the drug is “cut” the substance is more harmful to society as a whole because the dilution increases the potential number of people that will come in contact with the drugs. This, the Court stated, is exactly what the law is trying to deter.
Does this make sense? What is the majority of the drugs mixture is “cut”? What if there are only trace amount of drugs within a pile of flour? Hopefully reasonable minds would prevail. These lines of questioning bring me to this? In this case, the Supreme Court is like Stone Cold? “Huh”, you say?
Do you remember when Stone Cold stated, “And that’s the bottom line because Stone Cold said so?” Well, until the law is changed the “why” doesn’t matter as much because The Supreme Court said so.
Sources: State v. Kerr, 383 S.E.2d, 299 S.C. 108 (S.C.,1989)
SC Code 44-53-392