by Alex KornfeldPOLICE 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:
1. Hearsay
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
by Alex KornfeldSUBPOENA THE WITNESS
South Carolina Court of Appeals Give Guidance On When A Continuance Should Be Granted In State v. Antwuan L. Nelson
Antwuan L. Nelson was charged with murder, possession of a weapon during a violent crime, and possession with intent to distribute cocaine base.
On January 27th, 2014, officers responded to a shooting in Myrtle Beach. Several people told officers that a black man wearing a black jacket standing beside a red car had just shot someone.
The case went to trial on June 14th, 2017. After the State rested, Defense counsel informed the trial court that two witnesses that were subpoenaed were not in court. Counsel informed the court that one of the witnesses was in the hospital. Counsel also informed the Court that he did not comply with Rule 7, SCRCrimp by providing an affidavit concerning the expected testimony with respect to the witness. See page 30 of 86. 115 (c),
The Court recessed until the next day and Defense counsel did present the court with an affidavit pursuant to Rule 7(B) reasoning his witness was material and indispensable whose testimony could not be attained. Nelon’s Counsel then requested a mistrial. The prosecutor argued Defense’s witness was not hospitalized until the second day of trial and was not served with the subpoena until after that so the Court should not grant a mistrial. Defendant’s counsel explained that his witness was going to appear voluntarily so he did not think a subpoena was necessary until she went into the hospital so it took him by surprise. Defense counsel knew his witness would be important as she could speak to mutual combat, voluntary manslaughter, and self-defense.
The Court denied Defense counsel motion. Nelson was found guilty and sentenced to 25 years’ in prison for voluntary manslaughter and 5 years for possession of a weapon during the commission of a violent crime.
The issue on appeal is “whether the trial court erred in refusing to grant a continuance or declare a mistrial when a key witness who would have testified that the decedent came to her apartment looking for Nelson with a shotgun and shot first at Nelson, was in the hospital. “
In making its ruling, the Court of Appeals referenced Rule 7(b), SCRCrimP, the weight of the missing witness’s testimony, S.C. Const. art. I, §14, and the Sixth Amendment of the US Constitution.
It appears the Court considered the witness’s previous statement given to Officers, the fact that the witness was going to voluntarily testify until she was unexpectedly admitted to the hospital on June 13, 2017, and the fact that Defense counsel complied with Rule 7(b).
Nelson is granted a NEW trial and is currently still incarcerated in the South Carolina Department of Corrections.
In reading the opinion it is clear the Court narrowly tailored their ruling and it appears to suggest witnesses should be subpoenaed regardless of their willingness to testify.
Source: State v. Nelson
by Alex KornfeldJUSTICE 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,[1] 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.
by Alex KornfeldThere Are No Laws Against Recording Police Officers In Public
You can record police officers in public. You can’t interfere with a police officer. If you are simply recording but not interfering with an officer in a public place it is not illegal.
Jesse Bright, a lawyer in North Carolina, was incorrectly told by an officer that filming the officer was illegal. Here’s the link.
Here is another article concerning filming an officer:
https://www.theatlantic.com/technology/archive/2015/04/what-to-say-when-the-police-tell-you-to-stop-filming-them/391610/
by Alex KornfeldWhether The Drugs Are “CUT” Doesn’t Matter in Trafficking of Cocaine Case And That’s The Bottom Line Because The Supreme Court Said So (until it says something differently)
Whether The Drugs Are “CUT” Doesn’t Matter in Trafficking of Cocaine Case And That’s The Bottom Line Because The Supreme Court Said So (until it says something differently)
If charged with trafficking of cocaine or methamphetamine arguing that the net weight of the cocaine is less than the statutory amount is a losing argument. In State v. Kerr, 383 S.E.2d, 299 S.C. 108 (S.C.,1989), Kerr was convicted of trafficking cocaine 100 grams or more. The gross weight of the cocaine Kerr possessed was over 100 grams but only 74% of that weight was pure cocaine. Kerr argued that the pure weight of his cocaine was only 82.4952 grams which would put him below the 100 gram threshold.
The South Carolina Supreme Court disagreed and cited the statute that stated, “cocaine or any mixtures containing cocaine”. The Court reasoned that drugs like cocaine and methamphetamine are often sold in a diluted state and that when the drug is “cut” the substance is more harmful to society as a whole because the dilution increases the potential number of people that will come in contact with the drugs. This, the Court stated, is exactly what the law is trying to deter.
Does this make sense? What is the majority of the drugs mixture is “cut”? What if there are only trace amount of drugs within a pile of flour? Hopefully reasonable minds would prevail. These lines of questioning bring me to this? In this case, the Supreme Court is like Stone Cold? “Huh”, you say?
Do you remember when Stone Cold stated, “And that’s the bottom line because Stone Cold said so?” Well, until the law is changed the “why” doesn’t matter as much because The Supreme Court said so.
Sources: State v. Kerr, 383 S.E.2d, 299 S.C. 108 (S.C.,1989)
SC Code 44-53-392