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
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