Alex Kornfeld criminal defense Tag

by Alex Kornfeld

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

by Alex Kornfeld

CRACK, CONFESSION, AND A TV

A case review of State v. Derek Vander Collier’s case filed In The Court of Appeals on October 4, 2017.

YOU MAY BE HIGH ON CRACK, AND A COP MAY HAVE PROMISED YOU TELLING THE TRUTH WOULDN’T HURT YOUR SITUATION BUT YOUR STATEMENT WILL BE CONSIDERED VOLUNTARY AND IT WILL BE USED AGAINST YOU

On November 20th and 21st of 2013 the room doors at the Jamaican Motor Inn in Myrtle Beach were being repainted. I guess Justin Kirkman was a big wig in the subcontractor industry because he stayed on the fifth-floor penthouse and was in charge of checking the doors at thirty-minute intervals and closing them when the paint dried. On November 21, 2013 Kirkman was in the penthouse between the tough job of door checking when he noticed the light in one of the rooms was on even though he had turned it off. Kirkman went to the room and saw a man attempting to take a T.V. Kirkman said he confronted the man and the man pulled, what looked like, a handgun and fled the room. Kirkman said he saw the man face-to-face for 10 to 15 seconds. He followed the man to the parking lot and saw him drive away in a four-door sedan where he noticed a TV in the back seat of the sedan. He tried to get a license number but didn’t quite. (I know this is incorrect grammar but the line ‘didn’t quite’ is in a James McMurty song and this is on a blog so piss off!)
About a week after the incident Kirkman went to the police station to meet with an artist. (I guess the penthouse was nice. He didn’t have time to go down to the cop shop any sooner.) The artist created a computer sketch of the suspect based on Kirkman’s description. Later, Kirkman viewed a lineup and narrowed his selection down to two photos. (Talk about a beauty pageant you don’t wanna win. AmIright?) Out of the two, Kirkman could not make a final decision. (He loves me, he loves me not?)
A detective recognized Derek Collier on the street and tried to contact Collier because he was facing several burglary charges. Collier gave a false name but the police already knew who he was and arrested him.
First Interrogation: The detective then interrogated Collier about 5 to 10 minutes after Collier was arrested. Collier told the detective he smoked crack cocaine a short time earlier. However, the detective stated Collier ‘did not appear to be under the influence of any drugs’ and wanted to proceed with the interview. Collier admitted to burglarizing several hotels claiming he did so to help his financially strapped mother and further admitted that he had been to the Jamaican multiple times.
Second and Third Interrogation: Another detective interrogated Collier two more times on January 30 and 31 of 2014. In the 3rd interrogation Collier admitted Kirkman had encounter him at the Jamaican but denied pulling a gun on him.
Collier went to trial, was found guilty of 2nd degree burglary, and was sentenced to 13 years in prison.
The issues the Court of Appeals were concerned with were:
Did the trial court improperly limit Collier’s closing argument by prohibiting him from responding to the State’s alleged bolstering of its key witness?

Did the trial court err in allowing the jury to hear recordings of Collier’s first
and third police interviews?

Did the trial court err in allowing Kirkman’s in-court identification of
Collier?

The only issues that this article addresses are the interviews.

Collier argued the jury should not have heard the recording of the first interrogation because it took place just after Collier smoked crack cocaine. Collier argued the highly addictive and intoxicating effects of the drugs were likely to have induced him to do almost anything to avoid prison. See Tyrone Biggums. Collier argued the 3rd interrogation was requested by him because of concerns about the admission he made during the first interview and because law enforcement promised leniency during the interview that overbore his will. (Did someone say ‘Freeeedom’?) The trial court ruled the statements were made voluntarily and allowed the admission to be heard by the jury. The Court of Appeals reasoned that the detective testified Collier did not appear to be under the influence of drugs and that Collier refused to postpone the first interrogation. The Court found that Collier appears relaxed and forthcoming in the ‘interview’ and that it did not appear that the detective was overreaching. Collier argued the 3rd tape should have been suppressed because had he not made the 1st statement after just smoking crack cocaine he wouldn’t have made the 3rd, so the 3rd statement was also involuntary. The Court didn’t buy it, stating the first interview was voluntary so the 3rd interview was voluntary too.
Collier argued his cooperation with detectives was only a desperate attempt to appease the police in order to avoid incarceration. The Court stated that the detective only assured him that telling the truth would not hurt his situation.
The moral of the story is that it doesn’t matter if you’re high on crack cocaine and make a confession if you don’t appear to be under the influence and are ‘eager’. (Aren’t crackheads stereotypical ‘eager’?) and even if an officer tells you ‘telling the truth won’t hurt your situation’ your statement will be considered voluntary unless there is a ‘promise of leniency that is so connected with the inducement as to be a consequence of the promise’ (What’s that mean???? These words…”Because I don’t understand them, I’m gon’ take them as disrespect”)

Source: State v. Collier

by Alex Kornfeld

WARRANTLESS CELL PHONE SEARCHES AND WHY JUDGE KONDUROS IS RIGHT

WARRANTLESS CELL PHONE SEARCHES AND WHY JUDGE KONDUROS IS RIGHT
A review of STATE V. ROBERT LEE MOORE.
In the case of State v. Moore the South Carolina Court of Appeals ruled a limited warrantless search of Moore’s cellphone was not in violation of the law, therefore it was admissible. Moore was found guilty of attempted murder and sentenced to 30 years.
On a winter day in 2013, a victim was found shot in the head at a Taco Bell parking lot in Spartanburg. When officers arrived at the Taco Bell, the victim was draped over the driver’s side door of his vehicle. Three cell phones were found in the car. The phone at issue was found almost under the driver’s side seat according to officers. Money and drugs were also found in the car to round out the trio of clues.
The cops took pictures of the phones and took them to a detective to do a forensic examination on the phones to determine who owned each phone. To determine the ownership of the phone in question the detective took the SIM card from the phone and got the number of that particular phone. The detective told another cop of the phone number who ran it through a database. The database determined the phone belonged to Moore. Then, and only then, the cops applied for a search warrant to examine the stored data on the phone. After the search warrant was granted the detective did a full forensic examination of the phone in which stored contacts, images, call logs, and text messages were gathered.
Moore moved to suppress any and all information gathered from the search of his phone pursuant to Supreme Court case, Riley v. California, 134 S. Ct. 2473 (2014).
Moore correctly argued the search warrant affidavit submitted to support the phone warrant application was conclusory and did not support the finding of probable cause needed for issuance of a search warrant. Therefore, the evidence should be suppressed. The trial court denied Moore’s motion, ruling the phone was abandoned.
At trial, the State established the victim was at his mother’s home before the shooting and that five calls were made to the victim’s phone between 1:03 p.m. and 2:06 p.m. After the shooting, witnesses saw a white Chrysler 300 fleeing the scene. Surveillance footage from a nearby gas station showed Moore and his co-defendant exit a white Chrysler 300 and go into the gas station. At trial, there was testimony from witnesses, video surveillance, and testimony from the co-defendant that Moore got in the victim’s vehicle and pulled a gun on the victim. The co-defendant testified that a struggled occurred between Moore and the victim and the tried to open the car but the doors were locked. Then, Moore shot the victim.
On appeal, Moore argued the search of the phone violated the Fourth Amendment, and no exception to the warrant requirement applied. The Court held Moore’s Fourth Amendment right was not violated relying on persuasive rulings in other states. In this case, the Court reasoned the officer ‘removed the phone’s SIM card and processed it from the limited purposed of obtaining the telephone number. I recognize that even small manipulations of personal property have been held to be Fourth Amendment searches. However, under the facts of this case, law enforcement’s limited search of the SIM card to obtain the phone number did not constitute an unreasonable search under the Fourth Amendment because Moore had no reasonable expectation of privacy in the number itself.’ The Court went on to state the officers got a warrant before performing any further analysis to examine the phone’s content.
That’s basically it. The opinion is more detailed than that but that’s basically it concerning the phone search. Here’s why they got it wrong and why I predict, should this case go to the South Carolina Supreme Court Supreme Court, the search will be deemed a violation of the Fourth Amendment—it appears the Court incorrectly assumes that one can take a SIM card out of a phone without opening it or manipulating it. A cursory youtube search informs one that taking a SIM card out of a phone is a search that requires some difficulty. https://www.youtube.com/watch?v=DRKF_C-dA5o
This was appreciated by the United States Supreme Court as they ruled ‘Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant’. See Rliey v. California.

Judge Konduros of the South Carolina Court of Appeals respectfully dissented. (Thank you Judge!) She correctly stated, ‘The minute Officer McGraw removed the SIM card, he had access to digital information in which our courts have recognized an expectation of privacy.’ Further, she states the Officer got more than the cell phone number. He got thirty-four contacts and three text messages.

‘THE FACT THAT TECHNOLOGY NOW ALLOWS AN INDIVIDUAL TO CARRY SUCH INFORMATION IN HIS HAND DOES NOT MAKE THE INFORMATION ANY LESS WORTHY OF THE PROTECTION FOR WHICH THE FOUNDERS FOUGHT.’-Justice Roberts