hearsay Tag

by Alex Kornfeld

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:

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 Kornfeld

JOHNSON CUT WHITE’S HAIR. SOMETIME LATER, WHITE CUT JOHNSON’S THROAT. Self-defense, accident, shanks, and haircuts

A review of State v. David Alan White. Self-defense, accident, shanks, and haircuts

On the night of November 27, 2013 in Charleston County, “Johnson cut White’s hair. Sometime later, White cut Johnson’s throat.” David Alan White and Joseph Johnson were at a friend’s backyard gathering. It was unclear as to what caused White to cut Johnson’s throat.

White testified at trial that he did not mean to injure Johnson. White testified that Johnson was cutting his hair. Sometime later, White decided to leave the backyard gathering. As he was walking he was punched on the side of his head. White testified he had one hand in his pocket and quickly spun around after he was punched. White testified he then noticed that Johnson was injured. While spinning around White swung a knife that stabbed Johnson.
White testified that he didn’t feel threatened but had a lot of head injured in the past. One in which he was hit on the side of his head that required stitches, one in which he was hit by a window pane that required stitches, and he once had a brain aneurysm. White further testified that he didn’t run because he was scared and didn’t know if he could get away safely. White then testified that he did feel threatened by the conversation with Johnson and his intent in swinging his arm was to protect himself. White stated his swinging was a reaction and that he didn’t even realize the knife was in his hand or that it was Johnson that close behind him when he swung his arm. White later testified that he knew it was Johnson who hit him but that he was fearful of Johnson.

White requested the Court charge the jury on self-defense and accident, first-degree assault and battery, and second-degree assault and battery. The trial court refused to charge self-defense and second-degree assault and battery. White was found guilty of ABHAN (assault and battery of a high and aggravated nature) and possession of a weapon during the commission of a violent crime and sentenced him to 15 years in prison.

During the trial, White wanted to testify about Mr. Johnson’s statements concerning weapons on his moped and about shanks that Mr. Johnson made in the past arguing it was relevant to self-defense and was not hearsay but the Court excluded this testimony. The South Carolina Court of Appeals found White should have been able to testify concerning the weapons on Johnson’s moped as it was relevant to his self-defense claim. The Court refused to make any ruling concerning the admissibility of the shanks due to the fact that this evidence was admitted to impeach Johnson at trial.
The Court reasoned that Johnson’s statements were relevant to explain why White believed he was “in imminent danger and if that belief was reasonable”. Although White admitted he did not know if Johnson was armed or saw Johnson with a weapon, Johnson testified he accessed his moped directly before he incident. The Court found, “Because White had reason to believe Johnson stored weapons on his moped and accessed his moped prior to the stabbing, we find Johnson’s statement was relevant to White’s self-defense claim.”

The Court also ruled that Johnson’s statements about weapons on his moped were not hearsay because the statements were offered to show what Johnson believed, not for the truth of the matter asserted.

White also argued that the trial court erred by limiting him to pursue either a self-defense OR an accident defense because there was evidence in the record to support both theories. The South Carolina Court of appeals agreed with White and reasoned, “Here, there was evidence White unintentionally stabbed Johnson and also evidence he intentionally stabbed Johnson.”
In 2013, November 27th was the day before Thanksgiving. You can almost paint of picture of the gathering in the backyard. Johnson cutting White’s hair. Talking about mopeds, weapons, and Johnson’s ability to make shanks. What else were White and Johnson conversating about??? We may never know, but I can tell you one thing; You betta tip your barber!

Alex Kornfeld is a Criminal Defense Attorney in Greenville, South Carolina. If you have been arrested or are under suspicion of a crime, it is in your best interest to consult with an attorney. You may reach Alex by phone at 864-335-9990.

by Alex Kornfeld

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.