“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.
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.”
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
AN “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.
JUSTICE 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, 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.
Rental 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.”.
Sources: Byrd v. US
Supreme Court Audio Oral Arguments
INTENT MUST BE SPECIFIC FOR ATTEMPT CRIMES AND INADMISSIBLE JAIL CALLS
SC SUPREME COURT CLARIFIES THAT STATE MUST PROVE SPECIFIC ATTEMPT IN ATTEMPT CRIMES.
THE COURT CAN’T ADMIT JAILCALLS OVER DEFENSE COUNSEL’S OBJECTION WITHOUT AT LEAST LISTENING TO THE CALLS FIRST
A cursory review of State v. Raheem D. King and why intent must be specific for attempt crimes.
King was found guilty of attempted murder, armed robbery, and possession of a firearm during the commission of a violent crime. He was sentenced to a collective 45 years in the pen. The Court of Appeals affirmed his conviction for armed robbery and possession of a firearm during the commission of a violent crime, but reversed and remanded King’s attempted murder conviction. The Supreme Court modified, but affirmed the Court of Appeals ruling.
In 2010 in North Charleston a cab driver was called at 4:06 a.m. to pick up a customer. The cab driver obliged, and the pickup location was well known by the cab driver as he had lived on the street for several years and so did his aunt. Upon arrival the cab driver actual saw a man leaving his currently abandoned aunt’s home. What a coincidence, right? The man got in the cab and the cab driver questioned him about why he was on his aunt’s property. An argument ensued. The man cocked a pistol, put a gun to the cab driver’s face, and demanded money. The cab driver gave the man some money and tried to flee from his car when he was shot in the elbow. The man gave chase and shot at the cab driver several times. Ultimately, through phone records and a photo lineup it was believed that Raheem D. King was the ‘man’.
King was arrested and jailed. He made 63 calls to the cellphone number that was used to call the cab on the night of the incident. In the first recorded phone call, King provided a person on the other end of the line with a pin to the cellphone. The State wanted to let the jury hear the 15-minute recording. Defense counsel objected but the Judge let the State publish it anyway. The Supreme Court ruled that allowing the jury to listen to the tap was improper because the Judge refused to listen to the tape prior to allowing the jury to listen to it. If a Judge doesn’t listen to the tape he can’t do the required analysis of whether the probative value is outweighed by any unfair prejudice. In this case, the prejudicial value was mountainous. The tape was riddled with profanity, racial slurs, and prior bad acts of King.
To save you the boredom of the entire analysis concerning attempt crimes I write that the Court clarified that an attempt crime must be one of specific intent. The Court looked to the legislature’s intent and reasoned that it was clear the legislature intended attempt crimes to be those of specific intent, not general.
During King’s trial an Officer testified to hearsay in an effort to prove King fired more than one gunshot. The State argued the Officer merely testified to what ‘she learned as part of her investigation of the crime scene’ and that even if it was hearsay it was harmless beyond a reasonable doubt. The Court ruled it was hearsay and warned prosecutors against using ‘investigative information’ as it appears this is an attempt to circumvent the rules against hearsay.’
What is the likelihood that King would get a cab driver that knew he was in a house he had no business being in and then question him about it? The world is a strange place, my friends.
A REVIEW OF ‘YOU HAVE THE RIGHT TO REMAIN INNOCENT’
I recently reviewed You Have The Right To Remain Innocent by Professor James Duane. The book is only 119 pages. Duane posted a highly viewed lecture on YouTube titled “Don’t Talk to Police”. In this short book, Duane articulately and concisely explains why you should not talk to officers investigating a crime.
He explains that humans are subject to what psychologist call confirmation bias. Confirmation bias occurs when one comes to a conclusion and then contemplates that the conclusion may be faulty. It is much easier to convince yourself that you did not make a mistake than it is to admit that you may not have been correct. One may misremember, recall nonexistent details, or persuade themselves things occurred that didn’t to corroborate their story.
Duane’s book is filled with sites to creditable sources and studies. He explains ‘the most recent and comprehensive investigation, which took a careful look at 250 prisoners exonerated by DNA evidence, found that 16% of them made what’s called a false confession: admitting to the commission of a crime that they did not commit.’ In 2015 the author of Contaminated Confessions wrote an updated review in the Virginia Law Review.
Duane speaks of the overcriminalization that is occurring. There are tens of thousands of laws of which you could have possibly violated. He quotes Supreme Court Justices that echo his warning and succinctly states: ‘In other words: ‘the deck is stacked heavily against you, and you have no idea what you are up against.’ Duane goes on to say that people incorrectly believe that there are rules that restrict officers from using deception, informing you that they have more information than they do, or trying to trick you otherwise but that people are wrong. He cites the United States Court of Appeals, concerning promises police make to those they interrogate, has ruled that a promise of immunity is no good unless it is authorized by an Assistant United States Attorney in the case of United States v. Flemmi, 225 F3d 78, 91 (1st Cir. 2000).
Duane is highly skeptical of eye witness identifications. Out of hundreds of wrongly convicted people that were later exonerated by DNA evidence, 76% were mistakenly identified by an eyewitness. In a study of over 250 cases in which a defendant was later exonerated by DNA evidence, forensic evidence was used to help convict an innocent suspect 74% of the time.
He explains the difficulty and inaccuracy cross-racial identifications are riddled with and how it has caused innocent men like Earl Ruffin to be wrongfully convicted.
Don’t plead the 5th, Duane advises as it could now be used against you thanks to Salinas v. Texas.
He advises the reader that pleading the 5th is now more complicated than ever and that you should simply, clearly, and unequivocally state, ‘I WANT A LAWYER’ and repeat it until the cops realize you know how the judicial system works.