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
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
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
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.
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.”.
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
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