VOICES DEFENDANT HEARS IN HIS HEAD DECLARED HEARSAY; DEFENDANT’S RIGHT TO TESTIFY IS LIMITED IN STATE V. BREWTON
Lance Antonio Brewton was charged with murdering Natalie Niemitalo. Brewnton and Niemitalo had an on-again, off-again relationship for approximately two years. On September 25, 2017 Brewton arrived at Niemitalo’s house and after their friend arrived they decided to purchase cigarettes and drinks so Niemitalo got in her mom’s two-door Honda Civic, Brewton got in the back passenger seat and their friend got into the front passenger seat.
Niemitalo put on makeup but after about five minutes Brewton got out of the car, walking around to the driver’s side and started arguing with Niemitalo because he wanted to drive. The friend then heard gunshots shortly after. The friend saw Brewton pull Niemitalo out of the car, get in, and drive away.
The friend then called 911. First responders arrived and treated Niemitalo while Brewton drove by her house in her mom’s Honda Civic. Brazenly, Brewton drove by Niemitalo’s house a second time, and an office initiated a traffic stop. Instead of stopping, Brewton continued to drive for twenty-three miles to his home where he collided with a vehicle in his driveway.
Niemitalo was airlifted to the hospital where she died from the gunshot wound. The police arrested Brewton and collected his gun, a fired bullet, and a spent shell casing.
The case went to trial and at the end of the State’s case Brewton proffered testimony outside the presence of the jury regarding witchcraft and hearing voices in his head. Brewton testified that he thought Niemitalo’s mother and her friend practiced witchcraft and one of them cast a spell on him that caused him to hear the voices. Brewton thought he’d been under this spell for eight to ten months and described “experiencing paranoia” the morning of Niemitalo’s death because the voices were telling him his family was being murdered. “Brewton explained he got in the car’s back seat because the voices were telling him people were trying to kill him. Brewton testified that while the group was sitting in the car, he observed a cement truck drive past Niemitalo’s house, and the voices told him it was going to bury his family alive.”
The State objected to Brewton’s proffer on the grounds that it was full of hearsay, not relevant, and highly prejudicial if relevant. Brewton argued he had a right to give an alternative reason for leaving the scene other than a guilty mind. Interestingly, the trial court ruled Brewton could not testify about witchcraft or hearing voices because it was based on hearsay and its probative value was outweighed substantially by its prejudicial value because it seemed to give rise to an unasserted mental illness defense. Brewton was evaluated by a psychologist and it was determined he was competent to stand trial.
The South Carolina Court of Appeals further cited that every defendant may testify in his own defense however that right is not without limitation.
This is a fascinating case that lets us know that one can’t just testify that the voices told one to do something. Practically, it appears that had a psychologist determined Brewton incompetent to stand trial the Court’s analysis and the case may have ended up very different.
Source: State v. Brewton
 I know there are so many questions such as, “How did Brewton get out of the 2-door Civic when he was in the back seat? How did the friend not see the shooting? Butt…this is how the opinion reads.
 Could this be an exception to hearsay under 803 (3) a then existing mental, emotional, or physical condition?
“WHAT HAPPENS IN MARION COUNTY, STAYS IN MARION COUNTY”
“WHAT HAPPENS IN MARION COUNTY, STAYS IN MARION COUNTY”
On September 16, 2016, Mr. Russell Levon Johnson drove to Marion County, SC and convinced his ex-girlfriend, Ms. Tonya Richburg, to take a car ride with him so they could talk about his impression that Tonya was moving on. Tonya agreed to go for a ride but told Russell they could not be gone too long. On that ride, Russell took Tonya’s cell phone and removed the battery. Russell then told Tonya nobody would get in touch with her. Russell then drove to Dillon County (North of Marion County) so he could buy some wine and talk to Tonya. Tonya continued to tell Russell she needed to get home, but Russell kept driving until he stopped in a wooded area. Russell then accused Tonya of stealing money from him and cheating on him. THEN, Russell drove to Clio, South Carolina (Marlboro County, NW of Dillon County) where he went to another wooded area. Periodically Russell was drinking and using cocaine during the trip. Once Russell stopped in Clio, he popped the trunk and got a long, sharp metal object and stabbed Tonya Richburg in the chest. Then he pulled her out of the car, kicked her, punched her, and accused her of cheating and stealing. Then he took a hammer and hit Tonya in the head and told her no one would ever find her or him. Tonya told Russell she wouldn’t hurt him again, so Russell stopped attacking Tonya and got her back into the car.
Russell stopped to let Tonya use the bathroom outside a small church in Dillon County. Russell then drove back to Mullins (Marion County) where he went into a store to buy beer. Tonya said she didn’t run away because she didn’t know where Russell was; it was dark, and she was scared. Russell then stopped at another store and bought a black t-shirt to hide the blood on Tonya’s clothing. Russell then drove to The Imperial Motel (pictured above) where Russell told Tonya this would be her last night because he was going to kill her and then kill himself. Russell got his rubber gloves and Windex from his car and then tried to “pop [Tonya’s] neck.” All the while, Russell is snorting cocaine. Russell eventually fell asleep and Tonya ran next door to ask for help. The people next door called the police and Tonya fled but was intercepted by a police officer while she was walking down the road.
Russell Levon Johnson was charged with kidnapping and first-degree domestic violence in Marion County.
Russell made a motion in limine to exclude testimony and evidence related to conduct occurring outside Marion County, but the Court denied the motion reasoning that the entirety of the events of that night were vital to proving the charge of kidnapping and would be admissible.
At trial, Tonya was the first witness. Russell’s lawyer objected when Tonya began testifying to events that occurred outside of Marion County. The trial judge rules it would allow Tonya’s testimony concerning events outside of Marion County but would “give a clear charge that to prove domestic violence in this case it must come from evidence that happened in Marion County”, BUT at the conclusion of the State’s case the trial judge changed his position and rescinded his prior ruling. The judge relied on SC Code § 17-21-20 which states:
When any person shall be struck, wounded, poisoned, or otherwise injured in one county and dies thereof in another any inquisition or indictment thereon found by jurors of either county shall be as good and effectual in law as if the stroke, wound, poisoning or other injury had been committed and done in the county in which the party shall die. And the person guilty of such striking, wounding, poisoning or other injury and every accessory thereto, either before or after the fact, shall be tried in the county in which such indictment shall be found and, if convicted, punished in the same mode, manner and form as if the deceased had suffered such striking, wounding, poisoning or other injury and death in the county in which such indictment shall be found.
Russell was found guilty of first-degree domestic violence but not guilty of kidnapping and was sentenced to 10 years in South Carolina’s Department of Corrections.
The SC Court of Appeals held that SC Code § 17-21-20 was not applicable in this case because Tonya did not die from her injuries. Further, Russell did not contest venue in Marion County, he contested the admissibility of acts of domestic violence outside Marion County.
The SC Court of Appeals stated the trial court erred by not giving a limited instruction to mitigate the prejudice to Russell to ensure the jury found Russell’s conduct in Marion County established his guilt of domestic violence. The jury in this case saw photos of the aftermath of the attack as it occurred to domestic violence in Marlboro County, NOT Marion County. Because of this, The SC Court of Appeals found the trial courts denial of the limiting instruction as reversible error and Russell will be entitled to a new trial.
EDIT: The South Carolina Supreme Court Reversed The Court of Appeals on April 19, 2023 and Reinstated Mr. Johnson’s conviction.
State v. Russell Levon Johnson
Russell Johnson’s SCDC Inmate Report (as of 1/16/2021)
“EW, DAVID”, ORANGE MIGHT NOT BE YOUR COLOR
DO INMATES HAVE TO WEAR AN ORANGE JUMPSUIT TO TRIAL
No, a defendant does not have to go to trial while wearing an orange jumpsuit or a jail uniform. On the other hand, if plans are not made a defendant can go to trial in his jail uniform.
The Defendant must make plans to make sure appropriate attire is delivered to him or his counsel prior to a trial. In most cases, it makes sense to deliver the defendant’s clothes directly to their representative’s office. Dropping clothes off at the lawyer’s office or at the courthouse on the date of a trial limits the number of those handling the clothing.
It is possible that it could be to a defendant’s benefit to be in an orange jumpsuit at trial but that would be rare. An example in which it may be beneficial to be in an orange jumpsuit would be an elderly person or single parent charged with a minor offense.
So, what should a defendant wear to trial? That is a fact-specific question. One must consider the venue, the charge, the possible victims, etc? What color should a defendant wear? Definitely not orange or maybe orange? Should the defendant wear a suit or something less formal?
If you or your loved one is going to Court, it is an important consideration that should not be overlooked.
Source: Humbert v. State, 345 S.C. 332, 548 S.E.2d 862 (S.C. 2001)
“Petitioner claims he received ineffective assistance of counsel because defense counsel allowed the case to proceed to trial while petitioner was wearing a jail uniform, shackles, and an identification bracelet bearing his mug shot. We disagree.”
“We find it generally improper for a defendant to appear for a jury trial dressed in readily identifiable prison clothing.”
DO SOUTH CAROLINA PRISONERS GET CONJUGAL VISITS?
No. Currently, only four states allow inmates to receive conjugal visits: they are California, Connecticut, New York, and Washington.
In Lyons v. Gilligan, 382 F. Supp. 198 the Court held that prisoners have no federal constitutional right to conjugal visits with their spouses during sentences. Federal Prison doesn’t allow conjugal visits either.
Should inmates be allowed conjugal visits?
South Carolina Court of Appeals Rules Convicted Defendant’s Have “Polling Rights”
In 2017, Randy Wright was charged and convicted of assault and battery of a high and aggravated nature in Berkeley County, just north of Charleston. Wright requested that the trial court poll each juror individually, but the court refused and explained that the jurors raised their hand individually. Polling, if occurred, would require each juror to individually state that he found the defendant guilty.
The South Carolina Court of Appeals found that the trial courts refusal to allow Wright to individually poll the jurors did not satisfy his polling rights and was reversable error.
The Court of Appeals quoted precedent:
“The right to poll the jury is not in itself a constitutional right but a procedural protection of the defendant’s constitutional right to a unanimous verdict”
“It is our firm view that depriving a defendant of his or her polling right is not a technicality, but a material and prejudicial error.”
And the Court specifically stated, “We are aware retrials are costly and impeded judicial efficiency. We are equally aware that appellate reviews requiring lengthy searches through thick transcripts to sense the net impact of an error on the whole trial can also be costly and inefficient where, as here, the error is not in what was done, but what was not done.”
The Court does not specifically state it, but it appears that the Court is appealing to people’s practically understanding of efficiency. To put it another way, it doesn’t take so long to individually poll each juror so if it is requested it should be done.
Source: State v. Randy Wright
ENTRAPMENT IN SOUTH CAROLINA
The affirmative entrapment defense consists of two elements:
(1) Government inducement
(2) Lack of predisposition to commit the crime.
A defendant alleging entrapment must show he was induced, tricked, or incited to commit a crime, which he would not otherwise have committed.
The facts of the case are important as it relates to an entrapment defense. In the case of State v. Brown, 362 S.C. 258, 607 S.E.2d 93 (S.C. App. 2004) the Court of Appeals of South Carolina stated there was government inducement in which Brown was charged with distribution of drugs. Specifically, law enforcement instigated the drug transaction through a confidential informant who had an incentive to set up a drug deal.
The Court also found Brown had a lack of predisposition to commit a drug deal. Brown was a retired Army first sergeant, gainfully employed, declined to conduct the drug deal at his business, the drugs were not readily accessible, timing was not ideal, and he did not have a significant amount of cash. Further, there was no evidence that Brown had engaged in any other drug activity.
“When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.”
Source: State v. Brown, 362 S.C. 258, 607 S.E.2d 93 (S.C. App. 2004)
WITH FRIENDS LIKE THESE…
A REVIEW OF STATE V. SHA’QUILLE WASHINGTON AND ACCOMPLICE LIABILITY
On August 25, 2013, at a nightclub in Huger, South Carolina, Trey Manigault and his cousin, Larry Jenkins, had an encounter with Sha’quille Washington and Washington’s Uncle, Larry Kinloch.
Things got heated in the club and a bartender testified that Trey Manigault said “[Kinloch] going to shoot me, they going to kill me.”
When the club closed, a fight broke out in the parking lot. The testimony as to the participants of the fight varied greatly. Jenkins said he joined the fight after at least two people hit Manigault but could not identify those two people. Jenkins did testify that he saw Washington holding a small silver revolver in his right hand and firing towards Manigault; he was 100% sure Washington shot Manigault.
Another witness testified that Washington and Manigault exchanged words and Washington struck Manigault with his left hand…Manigault slid towards the ground and Washington continued to hit him. The witness then said she raised a beer bottle to Washington but thought better of it when Washington held a gun to her face and said, “I ain’t playing, I ain’t playing.” She said she turned and ran and then heard four gunshots.
Washington’s statement given to police was read to the jury and it stated he arrived at the club around 2AM and spoke to “a few ladies.” He stated he walked outside, heard a commotion, and saw three people fighting. According to Washington, “the victim” (presumably Manigault) walked off, and an unknown person Washington termed “the suspect” fired a shot from a revolver at Manigault. Washington said he was four to five feet away from them at this point. Washington stated he was several feet further away from them when he heard two more shots. Washington stated he called the police the next morning to give a statement and clear his name after his grandmother informed him people accused him of shooting Manigault.”
Kinloch testified for the State. He first denied any involvement in the fight, but eventually said he held Larry Jenkins without throwing any punches.
Kinloch was questioned about a phone call he had with his incarcerated brother of which Kinloch testified he didn’t remember. Kinloch allegedly told his brother he fought a big “light-skinned dude” and then “got [Manigault] on the car. Me and him going back and forth. Dow, dow, dow [referring to three gunshots].” (CAN’T HELP BUT BELIEVE THIS WAS “POW POW POW.”) Kinloch also allegedly told his incarcerated brother he saw Washington shoot Manigault. NONE of the recordings or transcript was introduced into evidence concern this conversation.
Washington’s lawyer crossed examined Kinloch in an effort to get him to admit he shot Manigault or told others he shot Manigault. But Kinloch denied it all.
Washington’s lawyer called the doctor who performed Manigault’s autopsy to testify to Manigault’s blood alcohol content at the time of the autopsy. The State objected on grounds that it was unduly prejudicial and the Judge agreed reasoning that there was testimony that there was drinking or not by Manigault. They did allow a proffer of Manigault blood alcohol level at the time of the autopsy which was .235.
Washington’s lawyer then called Kevin Watson to testify but the court refused to allow him to testify because he disobeyed a sequestration order. A sequestration order prohibits a witness from sitting in the trial until after that witness testifies.
Washington then called three other witnesses, 1. Robin Williams, 2. Tyson Singleton, and 3. Kenneth Quinton Grant.
Robin testified she heard fussing when she walked out of the club at closing time when she saw a young lady holding a glass bottle in Washington’s face. Robin said there was a van parked nearby and a fight was taking place on the side of the van. Robin said Washington never had a gun but she did hear two gunshots about five seconds after she saw the young lady holding the bottle in Washington’s face and that Washington ran on the second shot. Robin said she heard two more shots after that but Washington wasn’t around when those shots were fired.
Tyson said he was talking to Robin in the parking lot when he heard three shots but he couldn’t see who it was because the van was blocking his view. Tyson said he saw Washington in the road next to the woods before the first shot and that Washington was nowhere near where the shots were fired.
Kenneth said he was Kinloch’s best friend and claimed Kinloch told him he shot Manigault about 20-25min after the shooting. With friends like Kinloch who needs enemies? The State objected on hearsay grounds and the Judge ruled this was not admissible because it was hearsay and instructed the jury to disregard the testimony.
THE MAIN ISSUE: ACCOMPLICE LIABILITY JURY CHARGE
When the Case went to the jury the State argued it was entitled to an accomplice liability charge because Washington’s lawyer suggested Kinloch killed Manigault. The State also argued that if a person is involved in an altercation, a defendant who participates in the altercation is criminally responsible for the end result.
Over Washington’s objection, the trial court charged the jury on accomplice liability. The jury was deadlocked for quite some time but eventually found Washington guilty of voluntary manslaughter, but not guilty of murder.
Washington appealed and presented six arguments but this blog only concerns whether the trial court erred in instructing the jury on the theory of accomplice liability.
The Supreme Court of South Carolina ruled that the trial court erred in instructing the jury on accomplice liability and that Washington was prejudiced by this error. So, the Supreme Court reversed Washington’s conviction and sent it back to the trial court.
For the Supreme Court, “The question becomes whether there was equivocal evidence the shooter, if not Washington, was an accomplice of Washington. Based on the evidence presented in this case, Kinloch is the only possible person who could fall into the category of Washington’s accomplice. Therefore, if the record contains no evidence Kinloch was the shooter, then the accomplice liability instruction should not have been given. The State argues Ariana Coakley’s testimony that Manigault told her, “[Kinloch] going to shoot me, they going to kill me” was evidence from which a jury could conclude Kinloch was the shooter. We disagree, as this statement was not evidence Kinloch ultimately did shoot Manigault. The State contends the testimony of Robin and Tyson saw Washington running unarmed from the scene as shots were fired elsewhere creates an inference that someone other than Washington was the shooter. That is certainly true, but their testimony does not create any inference Kinloch—again, the only possible accomplice of Washington—was the shooter. The State argues Kinloch admitted to his brother during the jailhouse telephone conversation that he was “strapped”—armed with a firearm—while at the club. We disagree with the State’s characterization of the conversation.
There is nothing in the record defining the term “strapped.” Even if the term means “armed,” all we can glean from the record is that Kinloch told his brother Washington was strapped, and then said to his brother, “[y]ou know how we do.” There is no evidence Kinloch told his brother he was armed the night of the shooting. The State also contends Washington’s aggressive cross-examination of Kinloch constituted evidence Kinloch could have been the shooter. The State points to Washington asking Kinloch on cross-examination to admit he—Kinloch—told Grant and Darlene Washington he was armed with a .357 Magnum and that he told both of them he shot Manigault. Kinloch denied these assertions. Similarly, Washington asked Kinloch to admit he—Kinloch—had been described “in the streets” as the shooter. Kinloch denied that assertion as well. While Washington very aggressively cross-examined Kinloch, the fact remains that counsel’s questions and accusations were not evidence. Kinloch’s refusal to admit to the statements and conduct attributed to him does not constitute evidence upon which the jury could rely to determine Kinloch was armed or that he was the shooter. Otherwise, the jury would be allowed to engage in speculation.
“For an accomplice liability instruction to have been warranted, there must be some evidence in the record that Kinloch shot Manigault.”
“There was no evidence Kinloch was armed with a firearm, and there was no evidence Kinloch shot Manigault.”
“An alternate theory of liability may not be charged to a jury “merely on the theory the jury may believe some of the evidence and disbelieve other evidence.”
The jury certainly may have doubted Kinloch’s testimony that he did not shoot Manigault. However, since Kinloch was the only possible accomplice of Washington whose actions could result in criminal liability for Washington, there must be some evidence Kinloch shot Manigault. There was none.
“We also hold the trial court’s accomplice liability instruction prejudiced Washington. The evidence that Washington shot Manigault was not overwhelming, as several witnesses testified Washington was not armed and was not in the immediate area where the shooting occurred. The insertion of the accomplice liability charge into the case invited the jury to speculate whether Kinloch—the only possible accomplice of Washington—shot Manigault, when there was no evidence Kinloch was the shooter.”
Source: State v. Washington
POLICE AUDIO RECORDINGS DEEMED HEARSAY AND BURDEN SHIFTING
SC COURT OF APPEALS GRANTS WASHINGTON A NEW TRIAL
On August 21, 2015, someone broke into a Johns Island home and stole a rifle, a Husqvarna weed eater, and some other items. Mack Seal Washington pawned a rifle at one pawn shop and a Husqvarna weed eater at a different pawn shop. Washington was arrested over 7 months later on March 23, 2016, and a detective interrogated Washington the very next day.
Prior to the trial, Washington’s lawyer objected to the admissibility of the audio recorded interrogation on 3 grounds:
2. Improper bolstering of the State’s fingerprint expert’s testimony
3. The recording contained improper opinion evidence
The Court of Appeals opined that the detective ’s interrogation method may have been proper but “… every word he uttered during the out of court interview was inadmissible hearsay.” On the other hand, Washington’s statements would not be hearsay because they were admissions by a party opponent. “The State could have admitted Washington’s statements by asking the detective about them, avoiding the hearsay…” At trial the State argued the statements were not hearsay because they were offered for context, but there is no context exception to the hearsay rule.
The Court of Appeals also found that the detective s’ repeated requests that Washington explain why he was not guilty was “inadmissible burden shifting.” It has long been held that a Defendant is not required to prove his innocence. The Court of Appeals quoted Justice Kittredge Opinion in State v. Brewer, 411 S.C. 401, 768 S.E.2d 656 (2015) that, “Law enforcement’s ad nauseam insistence that Brewer prove his innocence has no place before the jury.”
The State next argued that the error was harmless, but the Court of Appeals felt otherwise. Opining that the State’s case against Washington was strong but circumstantial. It appears that the fact that the jury received the 17 minute interrogation in the jury room upon their request, and they came back 20 minutes later with a guilty verdict was also important in the Court of Appeals finding that the error was in fact, NOT harmless.
The Court of Appeals found that due to the erroneously admitted hearsay evidence, the case will be reversed and remanded for a new trial. As of the time of this writing, Washington is still in SCDC custody.
Judge Konduros appears to have written a well-reasoned dissent. She doesn’t believe Washington mentioned Brewer or “burden shifting” and that even if it were, it was a harmless error because of the overwhelming evidence of guilt. I think this is a close one. Will the Supreme Court of South Carolina agree with the majority of the Court of Appeals?
Thankfully for ALL of us, in trials concerning the guilt or innocence of the accused, rules matter.
Source: State v. Washington
SUBPOENA 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
DID 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?