by Alex KornfeldALEX KORNFELD IS 2022 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 KornfeldDo 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?
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 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 KornfeldCONSTRUCTIVE POSSESSION OF DRUGS IN SOUTH CAROLINA
GREENVILLE CONSTRUCTIVE POSSESSION CRIMINAL DEFENSE LAWYER
Constructive Possession is defined as having dominion and control over something such as drugs or contraband. To prove possession under the theory of constructive possession the State must prove beyond a reasonable doubt that “one had it and knew they had it.” See Quotes of Jake Erwin, Esq.
Constructive possession requires evidence that the defendant had dominion and control over either the drugs or the premises upon which the drugs are found. See State v. Heath, 370 S.C. 326, 635 S.E.2d 18 (2006).
Constructive possession is the adversary to mere presence. The difference between constructive possession and mere presence is the difference between being guilty or not guilty. Mere presence is not enough to find one guilty beyond a reasonable doubt, but one can infer proof of possession as well as knowledge or intend for that presence. State v. Bultron, 318 S.C. 323, 457 S.E.2d, 616 (Ct. App. 1995)
In short, whether one is in constructive possession or not is highly fact specific and if charged with possession under a theory of constructive possession one would be wise to discuss all the relevant facts with their lawyer.
Alex Kornfeld is a criminal defense lawyer in Greenville, South Carolina. You can scheduled a consultation with him by calling 864-335-9990.
by Alex KornfeldGwen Stefani says, “Don’t Speak.” SC Court of Appeals Says State Can Argue “What You’re Thinking”
South Carolina Court of Appeals Holds Your Silence CAN Be Used Against You
We’ve all heard it in TV shows and movies, “You have the right to remain silent. Anything you say, can, and will be used against you …” If it’s Chris Rock in Lethal Weapon 4 you’ll also hear, “You have the right to an attorney. If you can’t afford an attorney, we’ll provide you with the dumbest f***ing lawyer on earth. If you get Johnny Cochrane, I’ll kill ya!” Well, as far as the first part goes, the SC Court of Appeals has ruled that anything you don’t say may ALSO be used against you.
Specifically, the SCCOA held, “In the absence of the sort of affirmative assurances embodied in the Miranda warnings, the state does not violate a defendant’s due process rights by permitting cross-examination of his post-arrest silence when a defendant takes the stand.”
“Due process is not violated because such silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty.”
To make matters worse, the CoA has adopted the state of Georgia’s ruling that it is the Defendant’s burden to show whether the defendant has been administered his Miranda rights—to put it in legalese is to say the Defendant has the burden to show whether a Doyle violation has occurred. What’s a “Doyle Violation?” I’m glad you asked.
On May 25, 2017, Mr. Tappia Dangelo Green was convicted of Armed Robbery, Kidnapping, and Possession of a Weapon During a Violent Crime. Green appealed his conviction arguing the Trial Court should not have (1) allowed a detective’s irrelevant testimony concerning the victim’s fear, (2) allowed evidence of Green’s post-arrest silence in violation of Doyle v. Ohio, and (3) granted a mistrial when a juror was unable to participate in deliberation.
At trial, the State stated Green and two others held a victim under gunpoint and took a small amount of cash and jewelry and then drove him to his employment to collect his paycheck and then drove him to ACE Cash Express in North Charleston. Green and his comrades released him after taking his money. Green’s defense was that the victim owed him money for drugs and that the victim voluntarily rode with the men to cash his check and turn over the money. Green’s defense was that the victim falsely alleged this was a crime to avoid the wrath of his girlfriend.
- ALLOWED A DETECTIVE’S IRRELEVANT TESTIMONY CONCERNING THE VICTIM’S FEAR
The COA found that Detective Butler’s testimony that the victim appeared creditable because he was more fearful than the average victim was NOT preserved for review because Green only objected on the grounds of relevance. Had Green objected on grounds of irrelevant bolstering it appears the COA would have found the objection should have at least been sustained. However, the CoA opined that whether the victim’s story was believable was relevant because the defense argued the victim was not telling the truth because he was afraid his girlfriend would find out about his drug debts.
- ALLOWED EVIDENCE OF GREEN’S POST-ARREST SILENCE IN VIOLATION OF DOYLE V. OHIO
Next, and the most interesting holding is this case, was whether the state violated the Defendant’s due process rights by permitting cross-examination of his post-arrest silence when a defendant took the stand. The CoA held, In the absence of the sort of affirmative assurances embodied in the Miranda warnings, “the state does not violate a defendant’s due process rights by permitting cross-examination of his post-arrest silence when a defendant takes the stand.” In laymen terms that means your silence CAN be held against you IF you are not Mirandized and you take the stand.
To make matters worse, there was a disagreement as to whether the Defendant was Mirandized. The Defendant stated he was and, “That’s why they do police body cameras. All that should be on record.” The officer who testified denied giving the Defendant Miranda warnings. Defendant’s lawyer moved for a mistrial noting the police incident report noted the entire incident was captured with body cameras. Defense counsel properly asserted it was the State’s burden to prove the matter beyond a reasonable doubt. The trial court disagreed opining that it was merely a question of whether a Doyle violation occurred- meaning whether Defendant was Mirandized and therefore his silence couldn’t be used against him should he testify.
- NOT GRANTING A MISTRIAL WHEN A JUROR WAS UNABLE TO PARTICIPATE IN DELIBERATION.
During the trial, Juror #280 was unable to participate in deliberations due to a menstrual problem. The trial court judge said, “I’m going to miss try [sic] the case” noting that Juror #280 wasn’t participating and therefore, was not an effective juror. However, the jury returned a verdict before the Judge could declare a mistrial. The Defendant did not object or move for a mistrial until AFTER the jury found him guilty. You can’t get the verdict and then decide to appeal on grounds that the juror was ineffective just because you don’t like the verdict.
In closing, it’s important to emphatically (and at the top of your lungs) DEMAND a lawyer.
Comedian Tom Segura said it best during his ‘First 48’ bit in his 2014 Netflix Stand-Up Comedy Special, Completely Normal, “Lawyer up. [Don’t be like,] ‘I’m gonna talk to the cops and straighten this whole thing out.’ You’re gonna do 25-Life; have fun with that man.”
Say, “I want a lawyer.”
Say, “I’d love to tell you everything, but my lawyer requires that he be present.”
Sadly, it appears that not only the things you say can be used against you but even when you …DON’T SPEAK… the State can try and use that against you as well.
LINKS
https://abcnews4.com/news/crime-news/man-charged-in-robbery-of-good-samaritan-sentenced-to-15-years
by Alex KornfeldALEX KORNFELD IS 2018 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.
It’s an honor to even be considered but I can’t help but to think of Jerry Seinfeld’s take on awards. I feel as though it is silly but I am still honored so thank you. Jerry Seinfeld’s Take On Awards
by Alex KornfeldThe 4th Amendment, Flashy Cars, And ‘Responsible Party’ Undefined
The 4th Amendment; Vehicle Impound Searches And Why Justice Beatty’s Dissent Is Right. A cursory review of State v. Jonathan Xavier Miller.
In 2013, two Columbia Cops were investigating unrelated criminal activity when a local resident informed the cops that an older-model, silver and green Chevy with large rims was making a lot of stops “at a location known for drug activity.”
Why wouldn’t he take advice from Lil Dicky and Save That $ (I know this link is forced but so is this opinion.)
For whatever reason, Jonathan Xavier Miller, didn’t save that money. He got the big rims instead and he was approached by cops later that day when he pulled into a gas station parking lot. When Miller got out of the car he didn’t have a driver’s license with him but gave his name and DOB. DMV records showed that Miller’s license was expired SOOOOO the cops arrested Miller. The cops then searched him incident to his arrest and found an electronic scale in his pocket. The cops learned the vehicle owner was a Cassandra Jones. They then asked for consent to search, but Miller must be a fan of Jay-Z because he refused to allow the Cops to search his stuff. (Should I just write what Jay-Z really says?) While Miller was being arrested his girl came out of an apartment and told the cops that Miller was visiting her.
Columbia Police Department’s standard procedure permit its officers to tow vehicles when the driver is arrested away from his residence and there is no responsible party present at the scene. The policy requires cops to conduct an inventory search of the passenger compartment of a towed vehicle. Because Miller was arrested and the owner of the vehicle was not present, the cop called a tow truck to tow the car. Before the truck arrived, the cops did an inventory search and found about 5 grams of crack cocaine under the driver’s seat.
The issue before the South Carolina Supreme Court is whether it was reasonable under the Fourth Amendment for the cops to seize, search, and then tow the Chevy Miller drove while on private property away from his residence when the owner of the vehicle is not present.
The first thing the Court determined was whether the cop’s decision to seize Miller’s Chevy violated the Fourth Amendment. The Court reasoned that since the cops acted in accordance with the department policy that was passed under authority of a state statute that Miller’s 4th amendment rights were not violated. Of importance was the 3 requirements of the policy that must be met before the vehicle is towed: (1) the officer makes the arrest from the vehicle, (2) the arrest occurs away from the arrestee’s residence, and (3) the owner is not present at the scene and no other person is present who is authorized to take responsibility for the vehicle.
The Court then addressed whether it was reasonable to do an inventory search of the vehicle. The Courts have long held that if it is reasonable to seize a vehicle it is reasonable to do an inventory search so long as it is conducted according to standardized criteria AND performed in good faith. Here, the search was conducted according to the written policy and Miller did not allege bad faith.
The real issue that the Court fails to address is what does it take to be authorized to take responsibility for the vehicle???? No one has alleged that Miller’s girlfriend is not authorized to take responsibility for the vehicle and it is not alleged that he was in unlawful possession of the vehicle. This leaves one to conjecture: Would Miller have escaped a search incident to arrest if he had a letter from the owner in the vehicle giving him permission to be in possession of the vehicle? Would a recording of the owner authorizing him to be in the vehicle be suffice? What about a text? My argument is that the Courts have agreed that that no one was present who was authorized to take responsibility for the vehicle without first requiring the State to prove it beyond a reasonable doubt-WHICH THEY MUST and they failed to do.
Thankfully this was not lost on Justice Beatty. I urge you to read his dissent attached below but I have attached some of my favorite points.
“I respectfully dissent as I believe the circumstances did not reasonably justify the seizure, which precipitated the inventory search. Initially, other than a citizen’s “tip” about a vehicle making frequent stops in a location known for drug activity, the officers offered no objective justification for pursuing Miller’s vehicle, asking for his information, and consent to search the vehicle. Further, because the Columbia Police Department’s policy did not provide the requisite authority to seize Miller’s vehicle from the private driveway, the ultimate seizure was unlawful and, in turn, the resultant inventory search violated the Fourth Amendment.”
“Given this evidence, I would find the officers’ decision to tow Miller’s vehicle from a private driveway was improper as it was based solely on a suspicion of drug activity. See Florida v. Wells, 495 U.S. 1, 4 (1990) (recognizing that “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence”); Bertine, 479 U.S. at 375 (“Nothing in Opperman or [Illinois v.] Layfayette, [462 U.S. 640 (1983)] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” (emphasis added)); cf. S. Dakota v. Opperman, 428 U.S. 364, 376 (1976) (upholding inventory search where “there [was] no suggestion whatever that this standard procedure . . . was a pretext concealing an investigatory police motive”).”
“I believe the mere existence of a police department policy is insufficient to satisfy the State’s burden of proving the applicability of the inventory search exception to the Fourth Amendment. See Spencer, 948 N.E.2d at 203 (“[T]he existence of a police regulation cannot be used as a predicate to determine the lawfulness or reasonableness of an inventory search of a vehicle.”). “To hold otherwise would grant the police an unlimited ability to evade the requirements of the fourth amendment by promulgating regulations that authorize the use of inventory searches following every arrest.” Id. Unlike the majority, I do not believe the Columbia Police Department’s policy authorized the officers to seize Miller’s vehicle from a private driveway.”
And probably MOST persuasive:
“Finally, even accepting the majority’s conclusion that the Columbia Police Department’s policy authorized the officers to tow Miller’s vehicle from private property, I would find the officers failed to comply with the procedure outlined in Section 7.2. In relevant part, Section 7.2 states: “Department personnel may also tow the following vehicles: Any vehicle from which an officer makes an arrest and there is no responsible party to whom the arrestee can turn over the possession of the vehicle (§56-5-2520 S.C. Code).” (Emphasis added.) Contrary to the majority’s interpretation, this provision does not require the responsible party be “present” at the location of the vehicle about to be towed. Here, Officer McDonald admitted that he did not check to determine if there was a responsible party despite the requirement in the policy.”
State v. Jonathan Xavier Miller https://www.sccourts.org/opinions/HTMLFiles/SC/27798.pdf