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 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 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
by Alex KornfeldRental Car Criminal Defense Rights
Violating a Rental Car Agreement Doesn’t Give Police A Right To Violate One’s Constitutional Rights
In September of 2014 a lady rented a car in New Jersey while Terrence Byrd waited outside. The signed rental car agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. The lady gave the keys to Byrd once she left the Budget car-rental facility. Byrd stored personal belongings in the trunk and left alone for Pittsburgh. Byrd was stopped for a traffic infraction. Get this; according to the Supreme Court Order the Penn State Trooper that pulled Byrd over was “suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car.” Put another way, he said that Byrd looked suspicious without articulating that Byrd violated any laws. Penn State Troopers learned that Byrd was not listed as an authorized driver AND that he had prior drug and weapons convictions. Byrd told the Troopers he had a blunt in the car and offered to get it for the Troopers which the Troopers agreed to. The Troopers told Byrd they didn’t need his consent to search the car and the trunk. The Troopers searched the trunk and discovered body armor and 49 bricks of heroin in the trunk. The case was turned over to the Feds and they charged him with distribution and possession of heroin with intent to distribute and possession of body armor by a prohibited person.
Byrd’s motion to suppress the evidence under the theory of fruit of the poisonous tree was denied. The Court reasoned that because Byrd was NOT listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. On May 14, 2018 the United States Supreme Court reversed the lower courts and found that Byrd did in fact have a reasonable expectation of privacy.
The Court specifically held, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” This is good sound reasoning. Otherwise, one could effectively contract another’s (in this case, Byrd’s) constitutional rights away by violating the terms of an agreement. Put another way, just because a civil contract is violated doesn’t mean you have sacrificed or waived your constitutional rights!
The Court took a practical approach and added, “As anyone who has rented a car knows, car-rental agreements are filled with long lists of restriction.” Put another way, we know you don’t read the 28 page contract.
The Supreme Court sent the case back to the lower court to consider whether Byrd had an expectation of privacy even though he used the lady to get the car because he could not rent the car himself OR whether the Troopers had probable cause to search the car because they believed it contained evidence of a crime.
“Few protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures.”.
by Alex KornfeldBURGLARY. APPURTENANT OR NOT IS THE KEY QUESTION
BURGLARY. APPURTENANT OR NOT IS THE KEY QUESTION IN STATE V. JOHN KENNETH MASSEY, JR.
John Kenneth Massey, Jr. was charged with first degree burglary. Prior to trial Massey’s lawyer moved to quash the first-degree burglary indictment because the building that Massey allegedly burglarized was on a separate piece of land than the victim’s residence and it was used for the victim’s business, not as a dwelling.
The land of which the business was located was titled in his Uncle Bill’s name, not his name. The victim also stated the building that was burglarized was primarily used as a storage building for belongings like four-wheelers, boats, and tools.
The Government argued the storage building was appurtenant to the family dwelling. Although the building was titled in Uncle Bill’s name it was a mere 200 feet from victim’s residence. Over the government’s objection, the Court granted Massey’s motion to quash the indictment reasoning that victim did not own the piece of land (remember Uncle Bill did) or the storage building nor was it appurtenant to the residence. The Court further stated the appropriate charge is actually burglary, second degree.
The government attempted to argue for the first time before the South Carolina Court of Appeals that the lower court lacked authority to quash the indictment because burglary is a crime of possession, not a crime of ownership. The South Carolina Court of Appeals did not rule on this argument because it was unpreserved.
In layman terms, the Court found the storage building wasn’t a dwelling which was a requirement to meet the elements of first-degree burglary in this case. To be first degree burglary in this case the structure needed to be within 200 yards of a dwelling AND appurtenant. The government couldn’t prove the latter because the Court found that a building unattached to a residence on a separate parcel of land isn’t appurtenant.
So, what difference does it make if it’s burglary first or burglary second? A whole lotta time…A whole lotta time.
Source: https://www.sccourts.org/opinions/HTMLFiles/COA/5630.pdf
On June 10, 2020 The South Carolina Supreme Court Reversed the Court of Appeals Decision and Remanded the Case to the trial court.
Source: https://www.sccourts.org/opinions/HTMLFiles/SC/27981.pdf
I HAVE INCLUDED THE BURGLARY LAWS FOR REFERENCE
SECTION 16-11-311. Burglary; first degree.
(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:
(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:
(a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or
(3) the entering or remaining occurs in the nighttime.
(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, “life” means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.
HISTORY: 1985 Act No. 159, Section 2; 1995 Act No. 83, Section 17.
SECTION 16-11-311. Burglary; first degree.
(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:
(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:
(a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or
(3) the entering or remaining occurs in the nighttime.
(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, “life” means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.
HISTORY: 1985 Act No. 159, Section 2; 1995 Act No. 83, Section 17.
SECTION 16-11-312. Burglary; second degree.
(A) A person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein.
(B) A person is guilty of burglary in the second degree if the person enters a building without consent and with intent to commit a crime therein, and either:
(1) When, in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
(a) Is armed with a deadly weapon or explosive; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument; or
(d) Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) The burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or
(3) The entering or remaining occurs in the nighttime.
(C)(1) Burglary in the second degree pursuant to subsection (A) is a felony punishable by imprisonment for not more than ten years.
(2) Burglary in the second degree pursuant to subsection (B) is a felony punishable by imprisonment for not more than fifteen years, provided, that no person convicted of burglary in the second degree pursuant to subsection (B) shall be eligible for parole except upon service of not less than one-third of the term of the sentence.
HISTORY: 1985 Act No. 159, Section 2; 2010 Act No. 273, Section 11, eff June 2, 2010.
SECTION 16-11-313. Burglary; third degree.
(A) A person is guilty of burglary in the third degree if the person enters a building without consent and with intent to commit a crime therein.
(B) Burglary in the third degree is a felony punishable by imprisonment for not more than five years for conviction on a first offense and for not more than ten years for conviction of a second offense according to the discretion of the Court.
HISTORY: 1985 Act No. 159, Section 2.
by Alex KornfeldCivil Forfeiture In South Carolina And How To Get Your Money Back
If you’ve been charged with a crime in South Carolina and money or property was seized in relation to the charge your property was likely taken pursuant to a civil forfeiture. I am sure you are concerned with getting your money or property back. This article will briefly explain that process.
Recently, the press has given more attention to civil forfeitures. John Oliver even did an entire special concerning civil forfeitures.
Some of the items that law enforcement may seize covers a wide variety of property to include money in close proximity to the alleged crime, firearms, equipment and materials used in the production of illegal substances, land, vehicles, overseas assets of persons convicted of trafficking in persons also are subject to forfeiture to the extent they can be retrieved by the government, tools, and written or electronic records.
After law enforcement seizes the property they are required by law to file a civil forfeiture suit within a reasonable amount of time. This suit must be properly served on the Defendant. At that time the Defendant may respond. Law enforcement will attempt to keep the property. The Defendant will attempt to get the property back.
Defendant’s may bring several defenses. It is best to consult with a lawyer prior to responding to the lawsuit.
Alex Kornfeld is a lawyer in Greenville, South Carolina. If you have been served with a civil forfeiture lawsuit and you are trying to get your money or property back it is in your best interest to consult with an lawyer. You may reach Alex by phone at 864-335-9990.
Sources:
by Alex KornfeldJOHNSON CUT WHITE’S HAIR. SOMETIME LATER, WHITE CUT JOHNSON’S THROAT. Self-defense, accident, shanks, and haircuts
A review of State v. David Alan White. Self-defense, accident, shanks, and haircuts
On the night of November 27, 2013 in Charleston County, “Johnson cut White’s hair. Sometime later, White cut Johnson’s throat.” David Alan White and Joseph Johnson were at a friend’s backyard gathering. It was unclear as to what caused White to cut Johnson’s throat.
White testified at trial that he did not mean to injure Johnson. White testified that Johnson was cutting his hair. Sometime later, White decided to leave the backyard gathering. As he was walking he was punched on the side of his head. White testified he had one hand in his pocket and quickly spun around after he was punched. White testified he then noticed that Johnson was injured. While spinning around White swung a knife that stabbed Johnson.
White testified that he didn’t feel threatened but had a lot of head injured in the past. One in which he was hit on the side of his head that required stitches, one in which he was hit by a window pane that required stitches, and he once had a brain aneurysm. White further testified that he didn’t run because he was scared and didn’t know if he could get away safely. White then testified that he did feel threatened by the conversation with Johnson and his intent in swinging his arm was to protect himself. White stated his swinging was a reaction and that he didn’t even realize the knife was in his hand or that it was Johnson that close behind him when he swung his arm. White later testified that he knew it was Johnson who hit him but that he was fearful of Johnson.
White requested the Court charge the jury on self-defense and accident, first-degree assault and battery, and second-degree assault and battery. The trial court refused to charge self-defense and second-degree assault and battery. White was found guilty of ABHAN (assault and battery of a high and aggravated nature) and possession of a weapon during the commission of a violent crime and sentenced him to 15 years in prison.
During the trial, White wanted to testify about Mr. Johnson’s statements concerning weapons on his moped and about shanks that Mr. Johnson made in the past arguing it was relevant to self-defense and was not hearsay but the Court excluded this testimony. The South Carolina Court of Appeals found White should have been able to testify concerning the weapons on Johnson’s moped as it was relevant to his self-defense claim. The Court refused to make any ruling concerning the admissibility of the shanks due to the fact that this evidence was admitted to impeach Johnson at trial.
The Court reasoned that Johnson’s statements were relevant to explain why White believed he was “in imminent danger and if that belief was reasonable”. Although White admitted he did not know if Johnson was armed or saw Johnson with a weapon, Johnson testified he accessed his moped directly before he incident. The Court found, “Because White had reason to believe Johnson stored weapons on his moped and accessed his moped prior to the stabbing, we find Johnson’s statement was relevant to White’s self-defense claim.”
The Court also ruled that Johnson’s statements about weapons on his moped were not hearsay because the statements were offered to show what Johnson believed, not for the truth of the matter asserted.
White also argued that the trial court erred by limiting him to pursue either a self-defense OR an accident defense because there was evidence in the record to support both theories. The South Carolina Court of appeals agreed with White and reasoned, “Here, there was evidence White unintentionally stabbed Johnson and also evidence he intentionally stabbed Johnson.”
In 2013, November 27th was the day before Thanksgiving. You can almost paint of picture of the gathering in the backyard. Johnson cutting White’s hair. Talking about mopeds, weapons, and Johnson’s ability to make shanks. What else were White and Johnson conversating about??? We may never know, but I can tell you one thing; You betta tip your barber!
Alex Kornfeld is a Criminal Defense Attorney in Greenville, South Carolina. If you have been arrested or are under suspicion of a crime, it is in your best interest to consult with an attorney. You may reach Alex by phone at 864-335-9990.