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Kingston Plantation September 27, 2010

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1 Kingston Plantation September 27, 2010
Robert M. Dudek Chief Appellate Defender Commission on Indigent Defense 1330 Lady St., Suite 401 Columbia, SC Kingston Plantation September 27, 2010

2 State v. Kenneth Navy, Jr. , 386 S. C. 294, 688 S. E
State v. Kenneth Navy, Jr., 386 S.C. 294, 688 S.E.2d 838 (January 11, 2010).

3 Sunday February 9, 2003 EMS responded to 911 call placed from Navy’s residence. Navy’s child pronounced dead at 4:58 p.m. at the hospital.

4 Autopsy performed on Monday
Autopsy performed on Monday. Pathologist notes the child was suffocated and had older healing rib fractures in his back. Navy gave a statement at the hospital that child just stopped breathing.

5 Police meet with the Pathologist and are told the child has died as a result of smothering or suffocation.

6 Police arrive at Navy’s house on Wednesday morning and tell him he will be home for his child’s funeral home visitation later that day.

7 In Navy’s first statement at 9:50 a. m
In Navy’s first statement at 9:50 a.m. he told the police the child awoke crying and Navy comforted him patting him on the back. Navy went downstairs and noticed the child was having breathing problems.

8 Navy “panicked” and went up and down the stairs several times before bringing his friend, Terry, who was visiting, upstairs with him.

9 The child was “lifeless
The child was “lifeless.” Navy said he performed CPR three times before calling The child later died at the hospital.

10 While at the sheriff’s department respondent was given cigarettes and escorted outside during smoking breaks. The investigator said Navy was not in custody or under arrest and that he was free to tell the officers to take him home.

11 After the first statement, Navy is informed, for the first time, that the child had been suffocated and there was evidence of broken ribs. Navy was shocked and surprised by this information.

12 Navy asked if he was under arrest and he was told was not
Navy asked if he was under arrest and he was told was not. “At this juncture, the nature of the interrogation and respondent’s status changed.” It turned into custodial interrogation.

13 In response to follow-up questions Navy told the officers he “popped” the child on the back rather than simply patted him and that he may have “patted” the child on his mouth to stop the crying.

14 The officers again allowed Navy to smoke while escorted
The officers again allowed Navy to smoke while escorted. Investigator Smith gave respondent Miranda warnings at 11:05 a.m.

15 Following the Miranda warnings, Navy gave his second statement in writing at 11:40 a.m. Navy now told the police that (A) he could not get the child to be quiet;

16 (B). Navy popped him in the middle of
(B) Navy popped him in the middle of the back causing the child to cry “one time real loud;” (C) Navy noticed the child could not get his breath;

17 (D). When Navy returned upstairs and. the child was having trouble
(D) When Navy returned upstairs and the child was having trouble breathing, Navy panicked; (E) When Navy and Terry got back upstairs the child was not breathing;

18 (F). Navy said he hit the child with an
(F) Navy said he hit the child with an open hand and didn’t hit him hard enough “trying to kill him or nothing;” (G) Navy admitted he was frustrated because the child was crying.

19 The police then either pretended to contact the pathologist or did contact the pathologist and told Navy what he admitted to could not have caused the child’s death. The child’s nose and mouth must have been covered for at least a minute.

20 Navy then admitted he could have held his hand over the child’s mouth for a longer period of time -- a minute, but not more than two minutes.

21 Navy admitted the child was gasping for breath
Navy admitted the child was gasping for breath. The Court of Appeals citing State v. Evans, 354 S.C. 579, 582 S.E.2d 407 (2003), held Navy was in custody during all three statements and that all three statements should have been suppressed.

22 The statements were given “in violation of Missouri v. Seibert, 542 U
The statements were given “in violation of Missouri v. Seibert, 542 U.S. 600 (2004) because they were taken under the ‘question first’ interrogation tactic to avoid the mandates of Miranda.”

23 The Supreme Court, 3-2, held the Court of Appeals correctly concluded police actions violated Seibert and therefore Navy’s second and third statements should have been suppressed.

24 The Court noted that Seibert looked to:
(1) the completeness and detail of the question and answers in the first round of the interrogation; (2) the timing and setting of the first questioning;

25 (3) the continuity of police personnel;
(4) the degree to which the interrogator’s questions treated the second round as continuous with the first;

26 Status of the case: Now pending on the state’s petition for writ of certiorari in United States Supreme Court.

27 State v. Johnny Rufus Belcher, 385 S. C. 597, 685 S. E
State v. Johnny Rufus Belcher, 385 S.C. 597, 685 S.E.2d 802 (October 12, 2009).

28 Fred Suber was shot and killed during a cookout with family and friends. Those in attendance included Suber’s ex-girlfriend and Hansel Brown, whom Suber believed was the father of his ex-girlfriend’s child. Suber confronted Brown and an argument ensued. Belcher interceded.

29 Belcher presented evidence that after the confrontation between Suber and Brown was seemingly resolved, Suber without provocation confronted Belcher with a gun.

30 Belcher fled to Brown’s truck where he retrieved a gun from Brown and fired it at Suber while Suber was approaching, gun in hand.

31 The jury was instructed that “malice may be inferred by the use of a deadly weapon” and convicted Belcher of murder.

32 HOLDING: The jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify the homicide.

33 The “use of a deadly weapon” implied malice instruction has no place in a murder (or assault and battery with intent to kill) prosecution where evidence is presented that would reduce, mitigate, excuse or justify the killing (or the alleged assault and battery with intent to kill).

34 The trial court’s error in charging that malice could be inferred by the use of a deadly weapon could not be considered harmless since evidence of self-defense was presented, thereby highlighting the prejudice resulting from the charge. It is entirely conceivable that the only evidence of malice was Belcher’s use of a handgun.

35 “Because our decision represents a clear break from our modern precedent, today’s ruling is effective in this case and for all cases which are pending on direct appeal or not yet final where the issue is preserved.”

36 State v. Keith Anthony Sims, 387 S. C. 557, 694 S. E
State v. Keith Anthony Sims, 387 S.C. 557, 694 S.E.2d 9 (May 17, 2010).

37 The Supreme Court held the Court of Appeals erred in finding the defendant’s statement was admissible as an out-of-statement made by a non-testifying “coconspirator of a party during the course and in furtherance of the conspiracy.”

38 The decedent, Anderson, was last seen alive on December 30, 2003 at a party in a Columbia hotel. His body was found in a Newberry pond on December 31, 2003.

39 Sims and Anderson were acquaintances
Sims and Anderson were acquaintances. They left the party together around midnight in Anderson’s car. Sims was subsequently arrested.

40 Ruff and Davis testified at trial and acknowledged helping Sims hide Anderson’s body and destroy evidence. Sims’ other coconspirator, English, did not testify.

41 Davis maintained she was unaware of the killing and the real reason they were taking a ride was so English could buy “gloves and stuff.” Davis testified when asked what was going on that English told her that the defendant “had murdered somebody.”

42 The issue was whether this statement “occurred during the course of and in furtherance of the conspiracy.” The Court held the statement that was attributed to English was not hearsay and was admissible under the Rule 801(d)(2)(E), SCRE exception to the hearsay rule.

43 The Court noted that in State v. Anders, 331 S. C. 474, 476, 503 S. E
The Court noted that in State v. Anders, 331 S.C. 474, 476, 503 S.E.2d 443, 444 (1998) the court had held that even if the statement was made during the conspiracy, the statement in no way advanced the conspiracy.

44 The court concluded English’s statement was made during the conspiracy but it was not made in furtherance of the conspiracy. Therefore, the statement was not admissible under Rule 801(d)(2)(E), SCRE.

45 The court held the error was harmless
The court held the error was harmless. The Chief Justice and Justice Hearn held the Court of Appeals properly ruled the statement was admissible.

46 State v. Syllester D. Taylor, Op. No. 4687 (May 13, 2010).

47 On July 25, 2006, between 10:30 and 11:00 p. m
On July 25, 2006, between 10:30 and 11:00 p.m., Florence County Deputy Toby Bellamy received an anonymous tip indicating “a black male on a bicycle...[was] possibly” selling drugs on the “dirt portion of Ervin Street.”

48 The tip did not include a clothing description
The tip did not include a clothing description. Bellamy drove his car towards Ervin Street, and observed a black male, later identified as Taylor, riding a bicycle on the dirt road.

49 Bellamy observed Taylor on a bicycle “huddled close together” with another black male.

50 Taylor mounted his bicycle and rode towards Bellamy, while the other individual walked in the opposite direction.

51 Taylor pedaled past Bellamy on his bicycle, glanced at him, and Bellamy ordered him to stop.

52 When Taylor ignored Bellamy’s second command to stop, Bellamy conducted an “arm-bar takedown.” Taylor had a tennis ball containing crack cocaine in it.

53 Taylor moved to suppress arguing the incident arose as a result of an unreliable anonymous tip. Taylor also asserted he was within his rights to ignore Bellamy’s command under the circumstances.

54 Taylor further contended the anonymous tip in a high-crime area did not rise to reasonable suspicion. The state argued Bellamy had reasonable suspicion because of: (1) The anonymous tip; (2) The area was known for drug related offenses;

55 (3). Taylor’s close conversation with
(3) Taylor’s close conversation with another individual was typical of criminal activity; (4) Taylor’s companion departed towards the woods when the officers approached; and,

56 Holding: The officers lacked reasonable suspicion to stop Taylor.
(5) Taylor got on his bicycle and pedaled towards the officer “like [he was] not going to stop.” Holding: The officers lacked reasonable suspicion to stop Taylor.

57 An individual’s presence in a high crime area, standing alone, is not enough to support a reasonable, particularized suspicion that a person is committing a crime.

58 The lateness of the hour is another fact that may raise the level of suspicion.

59 An individual’s innocent and lawful actions may, in certain situations, combine to suggest criminal activity.

60 Sometimes while any one of these factors is not sufficient to be proof of illegal conduct, when taken together they may amount to reasonable suspicion.

61 Anonymous tips generally are less reliable than a tip from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability.

62 The officer’s observations of Taylor did nothing more than confirm the readily noticeable conditions communicated by the anonymous tipster.

63 Mindful of our “any evidence” standard of review, we find no reasonable suspicion existed for stopping Taylor.

64 State v. Amos Mattison, Op. No. 26853 (Decided August 9, 2010)

65 There was evidence Mattison may have known that the other man intended to rob “some Mexicans” using the purchase of an automobile as a subterfuge.

66 One of the men was murdered and another was shot during the robbery attempt.

67 The judge charged that “a principal in a crime is one who either in person perpetrates the crime or who being present aids and abets and assists the commission of the crime.”

68 The judge also charged that mere presence at the scene of the crime was not sufficient to convict.

69 Defense counsel took exception to the trial judge not charging his requests on “mere association and prior knowledge.”

70 Holding: Court held the judge’s charge was confusing and at times contradictory with respect to the explanation of “mere presence.”

71 The court found the trial judge correctly and sufficiently charged the law on “mere presence” and “mere association.”

72 The court noted that the charge was sufficient to have the jury understand the concepts of “mere presence and mere association.”

73 The court held that it was concerned about the trial judge’s failure to charge “mere knowledge” or “prior knowledge” and the conclusion of the Court of Appeals that this charge was “implicit” in the judge’s instruction.

74 The court concluded that the jury understood the instructions as a whole and that the trial judge’s language on “intent” and that the jury had to find that the homicide was, “beyond a reasonable doubt that the homicide was the probable and natural consequence of the acts which was done in pursuant to the common design” was substantially correct and adequately covered the applicable law.

75 State v. Norman Starnes, Op. No. 26868 (Decided August 16, 2010).

76 Starnes owned a restaurant in Pelion, South Carolina
Starnes owned a restaurant in Pelion, South Carolina. In January 8, 1996 Bill Welborn and Jared Champlain, friends of Starnes, came in the restaurant and left with Starnes to go to a local bar.

77 Starnes returned twice to get money out of the cash register
Starnes returned twice to get money out of the cash register. Starnes appeared a third time with a mark on his temple and appeared very upset. Starnes told his girlfriend that Bill had pistol-whipped him in the bathroom of the bar.

78 Appellant’s girlfriend went with appellant to his house where she saw the men’s bodies inside appellant’s house.

79 Starnes told his girlfriend that Jody Fogle had come over to facilitate a drug deal and Starnes saw Jared pull a gun on Jody. Starnes admitted to his girlfriend that he shot Jared and Bill.

80 Starnes had his girlfriend follow him in a separate car to his uncle’s property where Starnes kicked and urinated on the bodies of the two men.

81 In January, until the bodies were discovered in May, Starnes assisted law enforcement in searching for the victims, even appearing on television pleading for any evidence that would help him find his friends.

82 A tip from appellant’s girlfriend led to the discovery of the bodies and the charges against Starnes.

83 Starnes elected to represent himself at trial, and testified in his own defense.

84 Starnes testified while the men were at the bar Bill came up behind him and put a metal object to the back of his head and began yelling at Starnes about money Starnes allegedly owed him.

85 Starnes dropped Bill and Jared off at Starnes’ house and picked up Jody Fogle and brought Fogle back to his house.

86 Starnes said that he heard Jared cussing and saw him pointing a gun at Jody Fogle. Starnes stated that he ran into the bedroom and retrieved his gun. As Starnes left the bathroom, Bill said “whoa,” and he was pointing a gun at him. Starnes admitted he shot Bill, and then turned and shot Jared.

87 Jody Fogle testified that Jared pulled a gun on him and asked him: “Where is the dope?”

88 Jared told Fogle he would kill him
Jared told Fogle he would kill him. Fogle testified that Bill took the gun from Jared, and then Starnes shot them.

89 Fogle also maintained that when Jared charged at him with a gun, that Bill took the gun from Jared and everyone calmed down. Fogle testified Starnes came out of the bedroom and fired three shots at Bill and then fired at Jared.

90 The trial court charged the jury on murder and self-defense but refused to charge voluntary manslaughter.

91 HOLDING: The Court noted that Starnes based his entitlement to a voluntary manslaughter charge on his testimony that when Bill pointed a gun at him, he felt threatened and he was in fear. Starnes argued the threat of an imminent deadly assault was sufficient to entitle him to a voluntary manslaughter instruction.

92 The State argued that Starnes based his request for a voluntary manslaughter instruction on testimony he was “afraid.” The State claimed there was no evidence Starnes shot the victims in a heat of passion, and therefore the trial correctly refused to charge voluntary manslaughter.

93 The Court noted that it had held fear resulting from an attack can constitute a basis for voluntary manslaughter. See State v. Wiggins, 330 S.C. 538, 539, 500 S.E.2d 489, 495 (1998).

94 The Court wrote “We reaffirm the principle that a person’s fear immediately following an attack or threatening act may cause the person to act in a sudden heat of passion. However, the mere fact that a person is afraid is not sufficient, by itself, to entitle a defendant to a voluntary manslaughter charge.”

95 The Court reasoned the fear must be a result of a sufficiently legal provocation and cause the defendant to lose control and create an uncontrollable impulse to do violence.

96 The Court held that viewing the evidence in the light most favorable to Starnes, there was no evidence to support a voluntary manslaughter instruction. The Court emphasized that self-defense and voluntary manslaughter are not mutually exclusive.

97 In his dissent Justice Pleicones stated in this case it could not be accurately held that there was “no evidence whatsoever tending to reduce the crime from murder to manslaughter.”

98 Justice Pleicones stated he was not suggesting that a voluntary manslaughter instruction had to be given every time a defendant testified he was “in fear.” However he wrote in light of all the evidence presented here, Starnes was entitled to a voluntary manslaughter instruction.

99 State v. Chris Anthony Liverman, 386 S. C. 223, 687 S. E
State v. Chris Anthony Liverman, 386 S.C. 223, 687 S.E.2d 70 (December 4, 2009)

100 The defendant asked for a Neil v. Biggers identification hearing
The defendant asked for a Neil v. Biggers identification hearing. The State argued the defendant was not entitled to such a hearing under State v. McLeod, 260 S.C. 445, 196 S.E.2d 645 (1973) because the identifying witness, Tyrone, knew the defendant and was not a stranger.

101 The trial judge agreed to give the defense a “limited” hearing on whether Tyrone sufficiently knew the defendant.

102 Tyrone made an in-court identification of the defendant as a shooter
Tyrone made an in-court identification of the defendant as a shooter. Tyrone testified he had known the defendant since he was elementary school age, had known him for a period of approximately seven years, and he knew the defendant visited a deaf child’s home next to where Tyrone’s aunt lived.

103 Tyrone also had seen the defendant working at McDonalds twice in 2003
Tyrone also had seen the defendant working at McDonalds twice in The shooting took place in August 2004.

104 In addition, Tyrone said he saw the defendant earlier on the day of the shooting about two houses away, at a housing complex.

105 Tyrone testified that he gave investigator Gray his statement shortly after the shooting and he identified the defendant as the shooter by his nickname.

106 Ruling: The judge found there was a sufficient relationship, or at least knowledge that Tyrone had of the defendant, so that the sufficiency of the prior knowledege went to the weight of the testimony and not its admissibility.

107 When the trial began two months later, defense counsel asked trial judge to revisit the identification issue. Information had come out in an unrelated hearing, that was not available at the time of the judge’s initial ruling on the matter, that Tyrone had inaccurately identified the defendant as the person who pointed a gun at him during a prior incident.

108 The defense argued it was now entitled to a full in camera hearing as required by Rule 104, SCRE.

109 The trial judge ruled he was still of the opinion a sufficient showing had been made under McLeod, and a full identification hearing was not required.

110 The defense argued on appeal that the fact Tyrone knew the defendant prior to the crime was only a factor to consider in the analysis where, as here, the witness had incorrectly identified the defendant on a previous matter.

111 Further, the defense argued Tyrone had participated in an inherently suggestive show-up.

112 The Court noted that the evidence in State v
The Court noted that the evidence in State v. McLeod showed the victim knew the accused because as the victim struggled with her assailant she exclaimed: “Oh, you Hattie’s boy.” The assailant fled the scene.

113 Though the victim did not know her assailant’s name, she identified the person arrested as the one who assaulted her.

114 In McLeod the Court held that pretrial identification procedures were designed for application where the accused and the victim were strangers, and were never intended to apply where the victim knew the accused.

115 HOLDING: Tyrone’s prior knowledge of the defendant was such that a Neal v. Biggers hearing was not required.

116 The witness knew the defendant by his nickname, and had known him for years. Witness also testified he had seen defendant on several occasions over the years, including seeing him earlier on the day of the shooting.

117 State v. Henry Lee Wilson, 387 S.C. 597, 693 S.E.2d 923 (May 24, 2010)

118 Wilson was charged with the murder of his ex-wife.

119 An assistant solicitor in Clarendon County was assigned to prosecute the case. Defense counsel moved to disqualify the assistant solicitor based on the fact that the husband of the assistant solicitor had represented Wilson in his divorce from the murder victim just sixteen months before the alleged murder, and the brother-in-law of the assistant solicitor had represented Wilson at his bond hearing on the criminal charges.

120 The circuit court granted the motion for disqualification.

121 The State appeals from this pretrial order, arguing the circuit court applied an incorrect legal standard in granting the motion for disqualification.

122 The Court noted “an appeal ordinarily may be pursued only after a party has obtained a final judgment.”

123 “The right of appeal arises from and is controlled by statutory law.”

124 “The determination of whether a party may immediately appeal an order issued before or during trial is governed primarily by South Carolina Code section ”

125 provides an order is directly appealable if it affects “a substantial right made in an action where such order (a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, or (b) grants or refuses a new trial.”

126 The Court noted it held that an order setting bail for each defendant in a capital murder case was not appealable by the State because they “do not involve the merits, nor do the orders affect a substantial right which determines or discontinues the action.” State v. Hill, 314 S.C. 330, 444 S.E.2d 255 (1994).

127 The Court in State v. McKnight, 287 S. C. 167, 337 S. E
The Court in State v. McKnight, 287 S.C. 167, 337 S.E.2d 208 (1985) concluded a pretrial order granting the suppression of evidence that significantly impaired the prosecution of the State’s case could be directly appealed by the State under section (2)(a).

128 HOLDING: In the current appeal, the order disqualifying the solicitor is not appealable. It is not an order affecting a substantial right made in an action [and]... in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action.

129 The Court held that the “deprivation of the right to one’s preferred attorney [in a civil case] would affect the attorney-client relationship, which is extremely important in our adversarial system.”

130 An appeal after a final judgment and a new trial would not adequately protect a party’s interests because it would be difficult or impossible for the affected party or the appellate court to ascertain by any objective standard whether prejudice resulted from the disqualification.

131 The reasons articulated the justification for allowing the direct appeal of a deprivation of counsel are not present here, “as the State has no substantial right that has been invaded, and the State’s ability to appeal has historically been limited in criminal matters.”

132 “In South Carolina, a criminal defendant may not appeal until sentence has been imposed. We see no justification for extending different treatment to the State so as to allow direct appeal of this pretrial order.”

133 Samuel Anthony Wilder v. State, Op. No. 26841 (Filed July 26, 2010).

134 This was a White v. State, 263 S. C. 110, 108 S. E
This was a White v. State, 263 S.C. 110, 108 S.E.2d 35 (1974) belated direct appeal.

135 Wilder and the decedent were married for less than a year when she left him. Two days after moving out of the home they shared, the decedent was shot dead.

136 She was inside a club when shots were fired, and then patrons, including the decedent, ran into the street.

137 Several witnesses were unable to identify Wilder as the shooter at the club. However several witnesses did identify Wilder as the shooter.

138 One witness, Scennie Murdaugh, an employee of the club where the shooting occurred, testified and identified Wilder as the person firing the gun.

139 The defense was not allowed to impeach Murdaugh with nine alleged incidents of preparing false returns, holding these prior bad acts were not probative of her credibility under Rule 608(b), SCRE.

140 HOLDING: Under Rule 608(b)(1), SCRE the trial judge may allow a witness to be cross-examined about “specific instances of [that witness’s] conduct” if the trial judge, in his discretion, finds these instances probative of the witness’s credibility.

141 The Court found that the defense should have been allowed to impeach Murdaugh since preparing false tax returns are probative of the witness’s credibility. The Court found the error harmless since Murdaugh was one of six eye witnesses who identified Wilder as the shooter.

142 The scope of cross-examination in South Carolina is very broad under Rule 608(c), SCRE. The defendant has a right to cross-examine a witness concerning bias under the Confrontation Clause. Davis v. Alaska, 415 U.S. 308 (1974).

143 State v.Mizzell 349 S.C. 326, 563 S.E.2d 315 (2002) held a defendant had the right to cross-examine a co-conspirator about his potential sentence if he was convicted of the same crimes as the defendant.

144 State v. Brewington, 267 S.C. 97, 226 S.E.2d 249 (1976).
The Court held that “as a general rule, anything having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of the witness may be shown and considered in determining the credit to be accorded his testimony, and on cross-examination, any fact may be elicited which tends to show interest, bias, or partiality of the witness.”

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