SUBPOENA THE WITNESS

by Alex Kornfeld

Criminal LawSeptember 21, 20200 comments 0 Likes

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