1. law, govt and politics
2. law enforcement
3. police

CJA LESSON PLAN COVER SHEET
CLASS TITLE:
Legal Update 2010-2011
LESSON PLAN #:
I0120
TRAINING DEPARTMENT:
Legal
TIME ALLOCATION:
2 Hours
PRIMARY INSTRUCTOR:
Joe Lumpkin
ALT. INSTRUCTOR:
DATE LESSON PLAN PREPARED:
May 2010
STATUS (New/Revised):
New
LESSON PREPARED BY:
Joe Lumpkin
JOB TASK ANALYSIS DATE:
LESSON PLAN PURPOSE:
The purpose of this lesson is to update the student about changes in the law and procedure that relate to law
enforcement.
EVALUATION PROCEDURES:
None
TRAINING AIDS, SUPPLIES, EQUIPMENT, SPECIAL CLASSROOM/INSTRUCTIONAL REQUIREMENTS:
Television
VCR
Student Handout
1
PERFORMANCE OBJECTIVES
CLASS TITLE:
Legal Update 2010-2011
LESSON PLAN #:
I0120
PERFORMANCE OBJECTIVES:
1.
Discuss burglary.
2.
Discuss murder and manslaughter.
3.
Discuss speedy trial.
4.
Discuss new search law.
5.
Discuss Miranda and Sixth Amendment.
6.
Discuss Batson.
7.
Discuss Allen charge.
8.
Discuss probable cause.
9.
Discuss new drug cases.
10.
Discuss probative value vs. prejudicial effect.
11.
Discuss access to courts.
12.
Review new laws.
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STATUS (New/Revised):
New
LESSON PLAN EXPANDED OUTLINE
CLASS TITLE:
Legal Update 2010-2011
I.
LESSON PLAN #:
I0120
STATUS (New/Revised):
New
INTRODUCTION
This unit of instruction is designed to update the student about changes in law and procedure that relate to
law enforcement.
II.
BODY
A.
BURGLARY
1.
State v. Singley, 679 S.E.2d 538, S.C.App., (2009)
In late August 2001, Singley's father passed away. As a result, his father's ownership interest
in Singley's childhood home passed intestate to Singley, his mother, and his brother. Singley
grew up in the home and lived there until his early twenties. Singley returned and resided in
the home briefly in 2005, but his mother requested he leave the home in April of the same
year. His mother testified Singley did not have permission to enter the house after April
2005. She also stated Singley did not return his key, but informed her he had lost it.
In October 2005, Singley's mother returned home from a night out when Singley jumped her
from behind, put a knife to her throat, and demanded money. His mother gave him all the
money she had at the time. Then, Singley forced his mother into the bedroom and tied her to
the bed. After he left, Singley's mother untied herself and went to a neighbor's house for
help.
Singley was charged with kidnapping, armed robbery, and first-degree burglary. At trial,
Singley moved for a directed verdict on the first-degree burglary charge, arguing he was part
owner of the house and could not be found guilty of burgling his own home. The trial court
denied Singley's motion. The jury convicted Singley of armed robbery and first-degree
burglary. Singley was sentenced to two concurrent sentences of life without parole pursuant
to statute. This appeal followed.
The Court of Appeals affirmed the conviction, holding that burglary is a crime against lawful
possession, and that Singley’s small ownership share was not enough to show he was in
possession of the house.
2.
McMillian v State, 680 S.E. 2d. 905 (2009)
McMillian was charged with first-degree burglary as a result of an incident that occurred in
Columbia, South Carolina on April 10, 2004. At approximately 1:00 a.m. on that date,
McMillian knocked on the door of the home of Lanelle Hicks and her adult son, Mark Hicks.
Lanelle Hicks looked out a window and saw McMillian, so she went to her son's room to
wake him. At that point, McMillian's knocking turned into beating on the door, and then he
crashed the door open, damaging the door. As soon as McMillian entered the house,
however, Mark Hicks took McMillian back outside and held him there with the assistance of
a neighbor until the police arrived.
McMillian subsequently pled guilty to the charge of first-degree burglary. McMillian filed a
PCR application. At the PCR hearing, McMillian asserted, among his claims, that his
attorney did not explain to him that the State must prove not only that he had broken into the
victims' home, but that he did so with the intent to commit a crime. He maintained he would
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have exercised his right to go to trial and would not have pled guilty if his attorney had
properly advised him that there was no evidence to support an inference of his intent to
commit a crime.
McMillian's counsel testified that she believed there was evidence of intent to commit a
crime and that she had advised McMillian of all the elements of first-degree burglary.
Counsel stated, “I explained that to Mr. McMillian, that the intent could be inferred from the
trespassing because it was not his property, and he was illegally on someone else's property,
and he broke the door down of-pushed the door open. I said that it could be inferred fromtrespass could be with the intent to commit a crime. Trespass could be inferred from these
actions.”
McMillian argues counsel was ineffective in advising him that intent to commit a crime
could be inferred from a trespass. The lower court held against McMillian. He petitioned the
South Carolina Supreme Court to overturn the ruling. The Supreme Court held that in its
general sense, to “trespass” is “to make an unwarranted or uninvited incursion” onto the
property of another. Webster's Third New International Dictionary 2439 (2002).Certainly, a
jury would have been free to disbelieve McMillian's version of events and find that he had
the intent to commit a crime based on his conduct at the time of this offense. In State v.
Haney, 257 S.C. 89, 91, 184 S.E.2d 344, 345 (1971), this Court observed that “proof of
intent necessarily rests on inference from conduct.” They noted the unexplained breaking
and entry of a dwelling in the night is itself evidence of intent to commit larceny. The
decision of the lower court was affirmed.
B.
MURDER VS. MANSLAUGHTER
State v Belcher, 685 S.E.2d 802 (S.C., 2009)
Johnny Rufus Belcher was convicted of murder and possession of a firearm during the commission
of a violent crime following the shooting of his cousin, Fred Suber. The jury was charged with the
offenses of murder and voluntary manslaughter, as well as self-defense. Of special significance was
the jury instruction that permits an inference of malice from the use of a deadly weapon.
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 exgirlfriend's child. Suber confronted Brown and an argument ensued. Belcher interceded.
The testimony presented at trial revealed conflicting versions of the event. The State's view tended to
show that after Belcher confronted Suber, Belcher retrieved a gun from Brown and, with no
justification or excuse, fatally shot Suber. Conversely, Belcher presented evidence that after the
confrontation between Suber and Brown was seemingly resolved, Suber without provocation
confronted him (Belcher) with a gun. Belcher fled to Brown's truck where he retrieved a gun from
Brown and fired it at Suber while he (Suber) was approaching, gun in hand.
The jury was instructed that “malice may be inferred by the use of a deadly weapon” and convicted
Belcher of murder and the related firearm charge.
The trial judge charged that malice may be inferred by the use of a deadly weapon, which had been
the law at the time. The South Carolina Supreme Court changed the law saying:
“We do not reach our decision lightly. The State understandably urges this Court to honor what has
been treated as a settled fixture in our criminal law. The able trial judge diligently prepared the
charge in faithful adherence to our precedent. Moreover, the trial court charged the jury that the
“killing has to be unlawful” and that “[t]here has to be a deliberate and intentional design to use or
employ or handle a deadly weapon so as to endanger the life of another without just cause or
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excuse.” Thus, while we acknowledge the State's argument, we are firmly convinced that instructing
a jury that “malice may be inferred by the use of a deadly weapon” is confusing and prejudicial
where evidence is presented that would reduce, mitigate, excuse or justify the homicide. A jury
charge is no place for purposeful ambiguity.”
C.
SPEEDY TRIAL
State v. Evans, 688 S.E.2d 583, S.C.App., 2009.
Florence Evans appeals her convictions for three counts of involuntary manslaughter, arguing the
trial court erred in denying her motion to dismiss the charges against her because her constitutional
right to a speedy trial was violated by the twelve-year delay in bringing her case to trial. We affirm.
On March 4, 1994, Evans’ trailer caught fire, killing her three small children. Evans was not in the
home at the time of the fire. An initial test of the site revealed the presence of a flammable substance
in the debris. When police first questioned Evans on March 14, 1994, she told them she had lit a
kerosene heater in the home while her children were sleeping and had gone next door to visit her
sister. She said that minutes after arriving at her sister's house, she saw her trailer in flames and ran
home in an attempt to save her children. However, after several hours of questioning, Evans gave a
written statement to the police that she intentionally “dropped a lit piece of paper on the floor,” went
to her sister's house, and “waited about two hours until someone saw the fire.” The officers
immediately placed Evans under arrest, and on April 18, 1994, she was indicted on three counts of
murder.
Public Defender Jay Hodge was assigned to Evans’ case; however, in 1994 or 1996 he was elected
Solicitor and was conflicted from the case. The case was transferred to the Attorney General's Office
as a conflict case, and Attorney General David Avant was assigned to represent the State. On March
25, 1998, Burnie Ballard was appointed as Evans’ counsel, and on April 29, 1998, Evans filed a
motion for speedy trial.
On May 4, 1998, the trial court held a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d
908 (1964), hearing to determine the admissibility of Evans’ oral and written statements to police on
March 14, 1994. The trial court suppressed Evans’ statements after finding there was the “functional
equivalent of interrogation” and Evans was “tantamount to being in custody.” FN1 The trial judge
granted the State permission to take an interlocutory appeal of its order suppressing Evans’
statements. On June 12, 2000, the Court of Appeals filed an opinion affirming the order suppressing
Evans’ statements; however, the State filed a petition for rehearing, which was granted. As a result,
on January 2, 2001, the Court of Appeals withdrew its previous opinion and filed a new opinion,
reversing the trial court's suppression order and remanding the case to the trial court for entry of a
more definite suppression ruling as to whether Evans was in custody. The Supreme Court granted a
petition for certiorari to review the Court of Appeals' decision on September 27, 2001. On June 9,
2003, the Supreme Court reversed the Court of Appeals, finding the trial court properly suppressed
Evans’ statements because she gave them in a custodial interrogation, and she should have been
given Miranda warnings. The State filed a petition for rehearing, which was denied by the court, and
the remittitur was sent to the trial court on July 15, 2003.
On June 18, 2003, the Attorney General's Office transferred the case to the Fifth Circuit Solicitor's
Office, and Assistant Solicitor David Pascoe was assigned to the case. However, Pascoe was elected
as First Circuit Solicitor in 2004, and although he took the case with him, he never personally
appeared in court. On March 29, 2005, Judge Lockemy heard and denied Evans’ motion for speedy
trial. That same day, Evans was indicted on three counts of homicide by child abuse. Evans filed a
motion to reconsider on April 8, 2005. On January 13, 2006, Evans’ case was transferred from the
Fifth Circuit Solicitor's Office to the Eleventh Circuit Solicitor's Office. Judge Lockemy heard
Evans’ motion for reconsideration of the speedy trial motion on October 16, 2006, and again denied
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the motion. That same month, on October 31, 2006, Evans was indicted on three counts of homicide
by child abuse and three counts of involuntary manslaughter.
Evans’ trial was held on December 11, 2006. That morning, before trial, Evans filed a motion for
violation of due process based on delay for the indictments for involuntary manslaughter and
homicide by child abuse. At the trial, Evans also requested Judge Lockemy reconsider his denial of
her motion for speedy trial. Judge Lockemy denied both motions. Judge Lockemy granted Evans’
motion for directed verdict on three counts of homicide by child abuse, and the jury found Evans
guilty of three counts of involuntary manslaughter. He sentenced Evans to two concurrent five-year
terms for two counts of involuntary manslaughter, and one consecutive five-year term for the third
count of involuntary manslaughter. This appeal followed.
A reviewing court should consider four factors when determining whether a defendant has been
deprived of his or her right to a speedy trial: 1) length of the delay; 2) reason for the delay; 3)
defendant's assertion of the right; and 4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,
530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); see also State v. Brazell, 325 S.C. 65, 75, 480 S.E.2d 64,
70 (1997). These four factors are related and must be considered together with any other relevant
circumstances. Barker, 407 U.S. at 533, 92 S.Ct. 2182. “Accordingly, the determination that a
defendant has been deprived of this right is not based on the passage of a specific period of time, but
instead is analyzed in terms of the circumstances of each case, balancing the conduct of the
prosecution and the defense.” Pittman, 373 S.C. at 549, 647 S.E.2d at 155. However, in Doggett v.
U.S., 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the United States Supreme
Court suggested in dicta that a delay of more than a year is “presumptively prejudicial.” Also, in
State v. Waites, our supreme court found a two-year and four-month delay was sufficient to trigger
further review. Waites, 270 S.C. at 108, 240 S.E.2d at 653. Therefore, “a delay may be so lengthy as
to require a finding of presumptive prejudice, and thus trigger the analysis of the other factors.”
Pittman, 373 S.C. at 549, 647 S.E.2d at 155.
Evans asserts the twelve-year delay in bringing her case to trial was unreasonable and violated her
right to a speedy trial. She claims she was prejudiced by the delay in the loss of four of her
witnesses: Alberta Tillman, Dickie Allen, Inez Robinson, and Clay Wilson. Tillman had been
diagnosed with Alzheimer's disease in 2003 and was not competent to testify. Allen had passed away
in February 2006, and Robinson had died in August 1998. Evans also was unable to locate Wilson.
She alleges the delays by the State in prosecuting the case were arbitrary and unreasonable because
“placing running for solicitor over one's present duties is not an acceptable excuse, and it does not
trump [Evans’] rights to a speedy trial.” She also asserts that under the totality of the circumstances,
it should be taken into account that the State's appeal of the suppression order was unsuccessful.
Evans filed her first motion for speedy trial on April 29, 1998; however, the motion was not ruled
upon until March 29, 2005. At the March 29, 2005 hearing, the State asserted the reason for the
delay in 1994 after Hodge was conflicted from the case was the result of the Attorney General's
office having problems scheduling the trial with the Fourth Circuit Solicitor's Office. Regarding the
delay in 2003, the State asserted that then Assistant Solicitor Pascoe was running for Solicitor of the
First Circuit, and he had a “pretty hefty caseload” at the time. During the hearing, Judge Lockemy
considered the Barker factors in making his decision. He noted that the case had been delayed for a
long time, but he did not “find any neglectful delay prejudicial to the defense to any great degree
other than the fact in and of itself [it has] been [twelve] years.” Judge Lockemy noted the reasons for
the delay included that: (1) the case was transferred from Public Defender Hodge to the Attorney
General's office due to Hodge's election as Solicitor; (2) Evans’ statement was suppressed; (3) the
suppression order was appealed; (4) five years was taken in appeals; (5) after the appeal, the case
was transferred from the Attorney General's office to Assistant Solicitor Pascoe; and (6) Pascoe was
elected as Solicitor of another circuit. Judge Lockemy also discussed the prejudice to Evans
involving witnesses and evidence. He noted that Tillman “may have said [something] from someone
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else,” which “may or may not be admissible” and Ballard did not know if she was “dead or alive.”
He also stated that as to the evidence, no one had “introduced to me yet anything ... that is going to
be prejudicial specifically to the defendant.”
The Court of Appeals found Judge Lockemy's denial of Evans’ 1998 motion to dismiss based on a
violation of her right to a speedy trial was supported by the evidence. The conviction was therefore
affirmed.
D.
SEARCHES
1.
Safford v Redding, 129 S. Ct. 2663 (2009)
The events immediately prior to the search in question began in 13-year-old Savana
Redding's math class at Safford Middle School one October day in 2003. The assistant
principal of the school, Kerry Wilson, came into the room and asked Savana to go to his
office. There, he showed her a day planner, unzipped and open flat on his desk, in which
there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked
Savana whether the planner was hers; she said it was, but that a few days before she had lent
it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged
to her.
Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and
one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but
banned under school rules without advance permission. He asked Savana if she knew
anything about the pills. Savana answered that she did not. Wilson then told Savana that he
had received a report that she was giving these pills to fellow students; Savana denied it and
agreed to let Wilson search her belongings. Helen Romero, an administrative assistant, came
into the office, and together with Wilson they searched Savana's backpack, finding nothing.
At that point, Wilson instructed Romero to take Savana to the school nurse's office to search
her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her
jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets),
which she was then asked to remove. Finally, Savana was told to pull her bra out and to the
side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and
pelvic area to some degree. No pills were found. Redding sued, and the case was eventually
appealed to the U.S. Supreme Court.
The court held that the search in this case was unreasonable. In sum, what was missing from
the suspected facts that pointed to Savana was any indication of danger to the students from
the power of the drugs or their quantity, and any reason to suppose that Savana was carrying
pills in her underwear. We think the combination of these deficiencies was fatal to finding
the search reasonable.
The court also held that the T.L.O. concern to limit a school search to reasonable scope
requires the support of reasonable suspicion of danger or of resort to underwear for hiding
evidence of wrongdoing before a search can reasonably make the quantum leap from outer
clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the
degradation its subject may reasonably feel, place a search that intrusive in a category of its
own demanding its own specific suspicions.
2.
Kolle v. State, 690 S.E. 2d 73 (SC 2010)
FACTS
On July 12, 2003, Officer Vincent Canfora received a phone call at approximately 11:30
p.m. concerning a complaint about loud music at the Myrtle Beach apartment where Kolle
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was staying. When he arrived between 11:45 p.m. to 12:00 a.m., Officer Canfora heard
music coming from inside the apartment. As he knocked on the door, he observed “fresh
damage” to the door, which appeared to be forced entry marks. Although the door seemed to
be open, Officer Canfora knocked on it for approximately five to ten minutes while
announcing he was a police officer. Receiving no response, he then knocked on the window
beside the door. Because there were lights on in the apartment and no one answered his
knocks, Officer Canfora “presumed that there may be something wrong inside the apartment
... that somebody was in the residence, maybe injured or incapacitated.”
Based on his assessment of the situation, Officer Canfora called for a back-up officer to
assist him with making an entry into the apartment. Lance Corporal Steven Atwood
responded to the scene within three minutes of receiving Officer Canfora's call. The two
officers then decided to enter the apartment by pushing on the door. Upon entering, the
officers announced themselves as police officers and asked if anyone inside the residence
needed assistance. Once inside, the officers conducted a protective search of the residence.
During this protective search, Officer Canfora observed a small plate with a moderate
amount of what appeared to be cocaine, partially covered by a saltine cracker, drying under
an elevated oscillating fan. The officers also noticed a large steel press used for processing
and manufacturing cocaine as well as other materials commonly used for processing or
cutting cocaine. Finding no one in the apartment, the officers seized the small amount of
cocaine-like substance and returned to the police department. After the substance field-tested
positive for cocaine, Officer Canfora completed an application for a search warrant for the
apartment based on the cocaine seized during the initial entry. According to Officer Canfora,
he and another narcotics officer prepared the warrant at approximately 12:30 a.m.
After obtaining the search warrant from a municipal judge, Officer Canfora returned to the
residence at approximately 12:43 a.m. with his lieutenant and another narcotics officer in
order to execute the warrant. As the officers knocked on the door, Sharon Hakes opened the
door. Once inside, the officers presented Hakes, Jessica Everhart, and Kolle with a copy of
the search warrant. During the subsequent search, Officer Canfora discovered a bag of flour
in a kitchen cabinet that contained approximately sixty-three grams of cocaine.
As a result, the officers arrested Kolle, Hakes, and Everhart.FN1 Shortly thereafter the officers
also arrested Willis Holmes, the resident named on the apartment lease.
FN1. Hakes and Everhart gave statements in which they identified Kolle as the primary
participant in the drug activity.
Subsequently, the Horry County grand jury indicted Kolle for trafficking cocaine in an
amount of more than 28 grams but less than 100 grams. In response to the charge, Kolle's
public defender filed a discovery motion with the solicitor's office. Ultimately, this requested
information was turned over by the solicitor's office to plea counsel, a private attorney
retained by Kolle. In addition to the public defender's discovery motion, plea counsel filed a
motion in which he requested “any and all search warrants applied for and a copy of all
dispatch logs from the North Myrtle Beach Police Department.”
Based on his review of the discovery information, plea counsel moved to suppress evidence
seized pursuant to the search warrant. After a hearing, the trial judge denied this motion on
the ground there were exigent circumstances to justify the officers' entry into the apartment.
Additionally, the judge ruled the officers saw the cocaine in plain view. As a result, the
judge concluded the search was valid.
On the day of this ruling, Kolle pled guilty to trafficking cocaine in an amount greater than
28 grams but less than 100 grams. The plea judge sentenced Kolle to seven years in prison.
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Kolle did not appeal his plea or sentence. Four months after the plea proceeding, Kolle filed
a PCR application. In this application, Kolle alleged he was being held in custody unlawfully
based on the following grounds: the trafficking charge arose out of an unlawful search and
seizure; the plea judge lacked subject matter jurisdiction due to an invalid indictment; and he
did not receive all of the discovery materials that he was entitled to pursuant to Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
In terms of plea negotiations, plea counsel testified that prior to the suppression hearing the
State offered Kolle a sentence of ten years suspended upon the service of five years with
three years probation.FN3 Plea counsel admitted that he told Kolle the offer was not “a good
deal,” but that it would remain open even after the suppression hearing. He acknowledged
that the offer did not remain open and was significantly less than the seven-year sentence
Kolle received.
Following the hearing, the PCR judge granted Kolle's application and ordered a new trial. In
reaching this conclusion, the PCR judge found that plea counsel's failure to point out the
discrepancies between the officers' testimony and the documentary evidence constituted
ineffective assistance. Specifically, the PCR judge believed that had plea counsel raised
these issues at the suppression hearing, this information “would have resulted at the very
minimum suppressing the evidence gained in the search warrant to sustain the evidence on
the trafficking charge.”
Additionally, the PCR judge found plea counsel was deficient in failing to properly advise
Kolle regarding the State's plea offer. Because plea counsel misadvised Kolle not to plead
guilty prior to the suppression hearing, which in turn resulted in the withdrawal of the State's
negotiated sentence, the PCR judge found that these facts “undermined the willful and
voluntary nature of [Kolle's] plea.”
The fact that Kolle did not own or lease the apartment that was searched does not negate his
standing to challenge the search and subsequent seizure. Following the decisions of the
United States Supreme Court, this Court has definitively held that an overnight guest has a
reasonable expectation of privacy, the legal prerequisite to confer standing on an individual.
Here, there was evidence that Holmes, the person who leased the apartment, befriended
Kolle and permitted him to stay for an extended period of time at the residence. Accordingly,
Kolle had a reasonable expectation of privacy in the apartment and, thus, had standing to
challenge the search.
Cognizant of this Court's recent pronouncements regarding guilty plea challenges and its
standard of review, there is evidence to support the PCR judge's determination that plea
counsel was ineffective in advising Kolle to plead guilty.
Initially, we agree with the PCR judge's decision that plea counsel was deficient in failing to
procure pertinent discovery materials, in particular the call/dispatch logs and the search
warrant. If plea counsel had these materials, he could have effectively cross-examined the
officers at the suppression hearing and pointed out the time discrepancies and the following
additional discrepancies: (1) the arrest warrant affidavit, the incident reports, and the search
warrant refer to the drug evidence as crack cocaine as opposed to powder cocaine; and (2)
the investigative report and the affidavit in support of the search warrant do not reference the
“fresh damage” or “forced entry” to the apartment door as testified to by Officer Canfora to
justify the exigent circumstances for entry into the apartment. Had plea counsel adequately
attacked the credibility of the officers, there is a reasonable probability this would have
influenced the trial judge's decision regarding the existence of exigent circumstances, i.e.,
affected the outcome of the suppression motion.
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“A defendant who enters a plea on the advice of counsel may only attack the voluntary and
intelligent character of the plea by showing that counsel's representation fell below an
objective standard of reasonableness and that there is a reasonable probability that, but for
counsel's errors, the defendant would not have pled guilty, but would have insisted on going
to trial.”
3.
State v Herring, #26750, (SC 2009)
Holdings: The Supreme Court, Waller, J., held that:
(1)
officer's look into defendant's garage window at 2:00 a.m. was justified by exigent
circumstances;
(2)
supporting affidavit provided probable cause justifying a search warrant; and
(3)
South Carolina Law Enforcement Division (SLED) search warrant, obtained by
facsimile, was valid.
FACTS
Herring was charged with the January 29, 2006, shooting of an employee of Chastity's Gold
Nightclub (Chastity's), a strip club in Columbia. The facts giving rise to the shooting are as
follows.
After golfing in Aiken with friends on the day of January 28, 2006, at which he had
consumed numerous beers, Herring stopped by a bar for a few drinks on the way home, and
then returned home around 7:30 p.m. Herring had a couple more drinks at his home with a
golfing buddy before the friend left. Herring laid down intending to go to sleep, but got up
and decided to go a Forest Acres restaurant. When the restaurant was closed, Herring
changed his mind and went to Platinum Plus, a Columbia strip club. He had a drink and paid
a dancer for a lap dance and left Platinum Plus. On his way home, he decided to stop by
Chastity's on River Drive; he arrived shortly after 11:00 p.m. According to Herring, he
ordered a drink at the bar, but he has very little recall of any events for several hours
thereafter.
According to witnesses and employees of Chastity's, Herring purchased a drink and paid for
a $30.00, three minute lap dance from a dancer named Mia. After the lap dance, Herring paid
Mia for a $300 dance in what was known as the Champagne room.
Mia took Herring to the Champagne room and told him to wait while she went to freshen up.
A bouncer, Carl Weeks, went to check on Herring a few minutes later and found him naked
and masturbating on the sofa. The bouncer told Herring he could not do that and told him he
would have to leave. When Herring did not move, the bouncer got the manager, John
Johnson (John John). When they returned, Herring was dressed. Weeks told Herring he
would either have to leave, or they would call police and have him arrested for solicitation of
prostitution. According to Weeks, Herring responded, “No. I will fucking shoot you.” John
John and a bouncer named Donnie Hawkins escorted Herring to the front door at 11:57 p.m.
John John walked outside with Herring and used a two-way radio to call Herring's license
plate number out to Weeks, who was standing in the doorway, as Herring drove away.
Weeks and Hawkins watched as Herring backed up his black SUV, and fumbled with his
glove compartment with his right hand. Herring slowly pulled away, putting down the
passenger side windows as he went. Hawkins, Weeks and John John had just gone inside
when they saw Herring's vehicle coming back down River Drive toward Chastity's.
According to Hawkins, John John was right inside the door. Hawkins saw a flash of light
come from the side of the vehicle, and heard John John say, “Oh shit!” John John fell to the
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floor, having been hit in the left ear by a bullet that came through the front door. He died a
short while later at the hospital.
Upon arriving at the scene of Chastity's, police were given Herring's license tag number,
which was registered to his office address in Columbia. Police patrolled the office parking
lot, but did not find the vehicle. They then determined Herring's home address and went
there at 2:10 a.m. on January 29, 2006. A police officer, seeing a light on in the garage,
peeked in the garage window to see if the suspect was there. Although the suspect was not
there, the officer did see the vehicle, which they realized was Herring's. They knocked on the
door and rang the doorbell several times and, receiving no answer, they returned to the
police station and obtained a search warrant for the home.
Police went back to Herring's residence at approximately 4:00 a.m. to execute the search
warrant. They rang the doorbell several times but received no answer. They entered forcibly,
announcing they were police with a search warrant. Officer Linfert testified that he saw
Herring in the hallway and recognized him from the photo on his driver's license. Linfert told
Herring to get down on the ground, but Herring ran back down the hall toward a bedroom.
He followed Herring to the bedroom, and saw Herring pull a gun from a nightstand and point
it in his direction. Officer Linfert yelled at him to drop the gun and then fired one shot at
him. Other officers also opened fire, and Herring was hit in the arm. Herring called 9-1-1 and
told them he believed there were intruders in his home. After talking with the 9-1-1 operator,
Herring surrendered upon realizing the “intruders” were indeed police officers.
Herring initially told police he had not left the house after returning home from Aiken; he
did not recall going to Chastity's. When police told him of the video tape which showed him
entering and leaving Chastity's, he remembered only being at the bar, having a drink, and a
gunshot firing; the next memory he had was of police bursting into his home. He
subsequently began remembering more details, such as paying for a lap dance from a light
skinned black woman.
Bullet fragments removed from John John's head conclusively matched a .357 Magnum
Ruger owned by Herring; the Ruger was found under some clothing in his bedroom closet
during a SLED search of the home. Gunshot residue was found on the passenger side of
Herring's vehicle. A jury convicted Herring of murder and pointing and presenting a firearm.
ISSUES
Did the trial court err in denying Herring's motions to suppress evidence found during the
search of his residence?
Did the trial court err in allowing lay witnesses to testify as to their opinion of what could be
seen on a videotape which recorded Herring as he exited Chastity's?
1.
Search Warrants/Suppression Of Evidence
Herring contends the trial court erred in denying his motion to suppress evidence
seized by police during the searches of his home and automobile. We disagree.
a.
Initial Search
Herring contends the initial peek by police into his garage (when his black
SUV was seen), was an illegal search, which thereby led to the issuance of a
search warrant. Accordingly, Herring asserts the subsequent search of his
home was the impermissible fruit of the illegal garage search, and that police
otherwise had no basis upon which to search the residence. Herring also
contends the subsequent SLED search of his home was illegal inasmuch as it
11
a) resulted from the two prior illegal searches, and b) the SLED warrant was
invalid as it was not issued in compliance with S.C.Code Ann. § 17-13-140.
For numerous reasons, we find the evidence seized by police was properly
admitted.
Regarding the initial search, Herring contends that when police crossed the
curtilage of his yard and peered into his garage windows, it constituted an
illegal search. The trial court agreed with Herring and held Officer Linfert's
peek into Herring's garage violated Herring's expectation of privacy.
However, the trial court found that since no evidence was seized as a result
of that search, there was nothing to suppress; it therefore went on to address
the validity of the other searches, which it found permissible.
Initially, as discussed below, we disagree with the trial court's conclusion that
Officer Linfert's initial peek into the garage window constituted an illegal
search. Regardless, however, we find the peek into the window did not lead
to discovery of any further evidence, such that it was not “fruit of the
poisonous tree” and therefore did not taint the subsequent searches.
As noted previously, prior to going to Herring's residence, police responded
to a shooting at Chastity's nightclub at which the manager of the club was
shot and killed. While at Chastity's, police were given a description of
Herring's black SUV, as well as the corresponding South Carolina license
plate number which was written down by witnesses. Police watched the
video that showed the suspect as he entered and departed from the nightclub,
and police were given a color photograph of the suspect from the video.
Police obtained Herring's identifying information from the license tag
number. When they went to the registered address for the vehicle, a business
office, there was no black SUV in the parking lot. Officer Linfert checked the
Department of Motor Vehicle’s website for other addresses listed for
Herring, which revealed his home address. Based upon this information,
police went to the address at approximately 2:00 a.m. Officer, seeing a light
on in the garage, peeked in the garage window to see if the suspect was there.
Although the suspect was not there, Linfert saw the black SUV, and
recognized it as the suspect's vehicle. Police knocked on the door and rang
the doorbell several times; receiving no answer, they returned to the police
station and obtained a search warrant for the home.
Under the circumstances presented, we find the exigencies of the situation
justified Officer Linfert's look into Herring's garage at 2:00 a.m. It is
undisputed that police had knowledge of Herring's identity, his residence, the
make and model of his vehicle, and his license tag number. Officer Linfert
testified that upon arriving at the home, he saw a light on in the garage and
therefore looked through the window to see if the suspect was inside. Police
officers were looking for a suspected murderer whom they knew was likely
to be armed with a deadly weapon.
We find it was objectively reasonable for Officer Linfert to take precautions
to protect his own safety, and the safety of the officers around him, by
looking into the garage to see if the suspect was there. When nobody was in
the garage, police followed proper procedure by knocking on the door and
ringing the doorbell. Receiving no answer, they stationed men at the house
and went to obtain a warrant. Given the exigent circumstances then and there
12
presenting, we find Officer Linfert's minimal intrusion was objectively
reasonable and did not constitute a Fourth Amendment violation. Cf. Chimel
v. California.
Moreover, Officer Linfert's peek into the garage yielded no evidence against
Herring. Police already had knowledge of the make, model and license plate
number of the vehicle the suspect drove; they knew the automobile was
registered to Herring, and they knew his residential address was 406
Alexander Circle. Officer Linfert's observation of the vehicle in the garage
yielded no evidence that further inculpated Herring. We find the trial court
erred in holding this initial “search” violated Herring's Fourth Amendment
rights; the de minimis intrusion to secure the officers' safety did not
necessitate suppression.
b.
Search of residence
Herring next asserts the subsequently issued warrant was defective such that
the search conducted by the Richland County Sheriff's Department (RCSD)
was illegal. He contends the affidavit supporting the warrant failed to connect
his residence to the crime at Chastity's; he also contends the information in
the affidavit was false because the officer who prepared the affidavit did not
actually appear before the magistrate but, instead, sent another officer. We
find the warrant was supported by probable cause and was properly issued.
The affidavit states that deputies responded to Chastity's to find the victim,
John Johnson, who had been shot in the head and who subsequently died
upon arrival at the hospital. Witnesses at Chastity's described the suspect, the
clothing he was wearing, the car he was driving as a black Toyota
Forerunner, and gave the license tag number of SC 1891. Department of
Motor Vehicle records indicated the car was registered to Dewain Herring, of
1361 Landmark Drive, which was a closed business. A search of Richland
County records provided an additional address for Herring at 460 Alexander
Circle. Based upon this information, the affidavit lists the property sought as
“firearms, ammunition, burgundy sweater, white turtleneck shirt, khaki pants,
eyeglasses, black 1996 Toyota Forerunner, SC/EU1891, and any and all other
evidence associated to a shooting incident.”
We find the affidavit sufficient to establish probable cause for police to look
for Herring, a murder weapon, and the Toyota Forerunner at his known
residence.
Herring asserts the RCSD warrant was defective because, notwithstanding
the affidavit contained the name of Officer Linfert at the top, it was actually
Officer Davis who appeared before the Magistrate. However, Officer Linfert
clarified that the reason his name was listed is that Officer Davis did not have
a search warrant form on his computer, and the form was typed by Linfert on
his computer and his name was automatically inserted at the top; Linfert
simply forgot to change the name to Davis. Officer Davis personally
appeared before the magistrate and swore to the information; he was familiar
with the information and background of the case, having been to Chastity's
and having interviewed the witnesses. We find the fact that Linfert's name
was at the top of the affidavit did not vitiate the validity of the warrant. State
v. Shupper, 263 S.C. 53, 207 S.E.2d 799 (1974) (typographical error did not
affect validity of search warrant). Accordingly, we find the evidence seized
13
during the RCSD's search of the residence was properly admitted by the trial
court.
c.
SLED Search
Finally, Herring challenges the search performed by SLED. He contends the
SLED warrant, which was obtained by facsimile, was invalid; he also asserts
the methodology employed, which was authorized by an order of the Chief
Justice, violates the search warrant statute, S.C.Code Ann § 17-13-140. We
find the trial court properly upheld SLED's search of the residence.
SLED was called in to investigate after the sheriff's deputies wounded
Herring during their attempt to arrest him at the home. SLED obtained a
warrant using the telephone procedure set forth in the Chief Justice's order of
July 2001. Agent Lawrence testified that he had prepared the search warrant,
and faxed it to Magistrate McDuffie, who was in bond court. The Magistrate
swore him over the phone. Although SLED was not directly investigating the
murder, they were investigating the shooting by police officers, and were
looking for firearms, cartridges, blood, projectiles, blood, and any evidence
relating to a shooting incident at that address. As a result of the search, they
found the khaki pants, white turtle neck, burgundy sweater Herring was
wearing at the time of the shooting, and two weapons, a Smith and Wesson
.357 revolver and a Ruger .357 pistol. The Ruger was in the bedroom closet
under some clothes.
(Emphasis supplied). Herring asserts the statute requires the affiant appear
before the magistrate in person. We disagree.
Contrary to Herring's contention, the language does not state an affidavit
must be sworn in person. It only requires the affidavit be sworn. Officer
Lawrence, who prepared the affidavit, was sworn over the telephone by the
Magistrate. We find this complies with the literal terms of the statute such
that there was no defect in the warrant.
Recently, however, we recognized that there is a “ ‘good faith’ exception to
the statute's [S.C.Code Ann. 17-13-140] requirements where the officers
make a good faith attempt to comply with the statute's affidavit procedures.”
State v. Covert, 382 S.C. 205, 675 S.E.2d 740 (2009), citing McKnight. FN6
We find the present circumstances give rise to such a good faith exception. It
was 4:00 in the morning, and SLED agents were attempting to obtain a
warrant to investigate a shooting by Richland County Sheriff's deputies of a
prominent Columbia attorney. We hold the officers made a good faith
attempt to comply with the affidavit procedures, and accordingly, we affirm
the trial court's ruling.
2.
Lay Opinions Regarding Videotape
Herring next contends the trial court should not have allowed lay witnesses to testify
as to what they could see on the videotape of Herring exiting Chastity's, because they
did not personally observe the events in question but only viewed them on a tape; he
also asserts reversible error in the denial of his motion for a mistrial.
Three witnesses testified as to their interpretations of a video, depicting the outside
of Chastity's at 12:05:05-12:05:06 a.m. on the night in question (which is the precise
14
time when John John was shot). Two witnesses, Donald Hawkins (a bouncer), and an
Officer Gwyn, testified they saw a flash of light coming from the vehicle. The third
witness, Officer Linfert testified he saw a shot fired from the vehicle, later clarifying
that “obviously we saw the video where the shot was fired from inside the vehicle.”
In response to Herring's objections to this testimony, the trial judge issued a curative
instruction to the jury in each instance, to the effect that the witness could not give an
opinion as to whether or not the flash was a gunshot, and that the jury should strike
any such inference from its memory. The trial court instructed the jury that “you are
the only ones who can draw from conclusions from what you saw on the tape and his
testimony in this regard.” He stated, further:
It's the same instruction I gave you with regard to another witness that looked at the
same video and saw what he thought was-one said a light, one said a shot. That's an
opinion. Just take it at that. Nobody saw the shot fired based on the testimony we've
heard so far. It's all from the video. You are going to have the video. You can look at
it. You can determine whatever you choose to determine from it.
As to Gwyn's testimony, the trial court re-instructed, “this witness has repeated
something that another witness said regarding a light or a flash. You are not to
interpret that as any evidence of a gunshot wound again or a gunshot. It is your
responsibility to see what you see on the video, if you see anything. This witness has
merely told you what he thinks he saw.”
We find the trial court's curative instructions sufficient to cure any prejudice, such
that there was no error in denying Herring's motions for a mistrial. State v. Kelsey,
331 S.C. 50, 502 S.E.2d 63 (1998) (grant of a mistrial is an extreme measure which
should be taken only where an incident is so grievous that prejudicial effect can be
removed in no other way); Dawkins, supra.
Herring's convictions and sentences are affirmed.FN7
AFFIRMED.
4.
State v. Corley, SC Ct. of Appeals, OP# 4544. Decided May 14, 2009
In the early morning hours of September 24, 2006, Officer Nicholas Futch with the
Greenwood City Police Department was conducting surveillance of a residence on Owen
Street that was known to have a high level of drug activity. …, he observed a man approach
the location in his vehicle. The man exited his vehicle, walked to the rear of the residence,
remained there for less than two minutes, and then returned to his vehicle and left. Officer
Futch followed behind this vehicle in his patrol car for a brief period, and initiated a traffic
stop when the individual failed to use a turn signal. Officer Futch approached the vehicle, …,
requested the driver's license, insurance, and registration from the driver, who was identified
as Corley. The officer observed Corley was nervous and short of breath, avoided eye contact
with him, and appeared fidgety.
Officer Futch asked Corley to step out of his car due to safety concerns based on Corley's
nervousness. …Officer Futch engaged Corley in conversation about where he had just
been. Corley told the officer he had been at the home of a friend, Beth Cronnick. Officer
Futch had personal knowledge Cronnick did not live at the house Corley had just left, … At
that time, Officer Futch advised Corley he knew he was being dishonest and that he had
observed Corley leave a house he knew to have high drug activity. He then asked Corley if
he had gone to the residence to purchase illegal drugs, and Corley responded that he
had. Corley indicated the substance was crack cocaine, and that he did not have it on him,
15
but that it was in his vehicle in the cup holder. Officer Futch retrieved a small off-white
rock-like substance from the cup holder and placed Corley under arrest for possession of
crack cocaine.
The officer did not give Corley his registration and license back until after the arrest and he
issued Corley a verbal warning for the traffic violation subsequent to the arrest. From the
time Corley's vehicle came to a stop until he was placed under arrest was likely only five to
seven minutes. Officer Futch acknowledged that when Corley left the residence, it was his
intent to stop him because he was suspicious Corley was involved in a drug
transaction. Officer Futch agreed that he had all the things he needed to write Corley a ticket
for the traffic violation, but instead proceeded to ask Corley questions about his observations
at the residence. Officer Futch did not advise Corley of his Miranda rights prior to
questioning him during the traffic stop.
Corley moved to suppress the evidence asserting State v. Fowler, 322 S.C. 263, 471 S.E.2d
706 (Ct. App. 1996), …Insufficient reason to believe he had committed any crime other than
the traffic violation, …the inquiry from the officer went beyond the purpose of the initial
stop with this further detention violating his fourth amendment rights… the inquiries of the
officer amounted to custodial interrogation because he was not advised of his Miranda rights,
his statements and the evidence obtained as a result thereof should be suppressed.
The State argued: …in the case cited by Defendant the traffic stop was completed before the
questioning, as the officer had already returned the defendant's license and registration and
issued the citation. …The State further distinguished Fowler, arguing the facts were stronger
to support reasonable suspicion of drug activity in this case…The State also maintained it
was not necessary that Corley be advised of his Miranda rights because the questioning
occurred during a routine traffic stop.
The trial court determined it was not going to get into whether there was probable cause for
the traffic stop because, based on the testimony of the officer, the real reason for the stop was
the suspected drug activity. Accordingly, the court found the question was whether the
officer had probable cause to stop Corley in consideration of what he observed at the house
in regard to drug activity.
Noting that Officer Futch was conducting surveillance on a drug house, the time was 2:50 in
the morning, and Corley went to the back of the house and stayed for approximately two
minutes before leaving, the court determined there was probable cause to stop Corley on that
basis and therefore denied Corley's motion to suppress
In Affirming Corley’s conviction the Court of Appeals found Fowler to be distinguishable.
Although both involved areas of high drug activity, the house in Fowler was only a
suspected drug house while the residence in this case was a known drug house where several
cases had been made and search warrants executed. Additionally, while observing this
known drug house, the officer observed Corley walk to the rear of the residence, remain for a
very short period of time, and then promptly return to his automobile. This all occurred in
the early morning hours. Finally, in Fowler the officers acknowledged they stopped Fowler
to do a field interview as part of a pro-active mission to prevent crime and that Fowler, who
lived only three blocks from where he was first seen that night, "did not do anything to make
the police believe he was armed or involved in drug activity. To the contrary, Officer Futch
testified he was suspicious Corley was involved in illegal drug activity based on his
observations of him at the known drug house”.
16
First, the law is clear that the police may, in an investigative detention, briefly detain and
question a person upon a reasonable suspicion, short of probable cause for arrest, that the
person is involved in criminal activity.
Our courts make no distinction based upon the subjective intentions of an officer in making a
traffic stop, and evidence that the police were more interested in apprehending a drug target
does not factor into a probable cause analysis in an otherwise valid stop… even though a
motorist in a routine traffic stop may be detained and is not free to leave, such a motorist is
not "in custody" for Miranda purposes…While, without question, Officer Futch's intentions
were to stop Corley and question him regarding possible drug activity, the detention of
Corley at the time of questioning was not to such an extent as to be analogous to an arrest,
but was akin to a Terry stop, for which no Miranda warnings are required. As in United
States v. Sullivan, there is no indication here that the officer said anything or conducted
himself in a way to suggest Corley was under arrest or was being detained as if he were
under arrest. Id. at 132. Accordingly, we hold Corley was not in custody for purposes of
Miranda while being questioned by Officer Futch.
E.
MIRANDA AND SIXTH AMENDMENT
1.
Maryland v. Shatzer, 130 S.Ct. 1213 (2010)
In 2003, a police detective tried to question respondent Shatzer, who was incarcerated at a
Maryland prison pursuant to a prior conviction, about allegations that he had sexually abused
his son. Shatzer invoked his Miranda right to have counsel present during interrogation, so
the detective terminated the interview. Shatzer was released back into the general prison
population, and the investigation was closed. Another detective reopened the investigation in
2006 and attempted to interrogate Shatzer, who was still incarcerated. Shatzer waived his
Miranda rights and made inculpatory statements. The trial court refused to suppress those
statements, reasoning that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
378, did not apply because Shatzer had experienced a break in Miranda custody prior to the
2006 interrogation. Shatzer was convicted of sexual child abuse. The Court of Appeals of
Maryland reversed, holding that the mere passage of time does not end the Edwards
protections, and that, assuming, arguendo, a break-in-custody exception to Edwards existed,
Shatzer's release back into the general prison population did not constitute such a break.
The United States Supreme Court held that the return to the general prison population
constituted a break in custody for Edwards.
In addition, because the Edwards presumption has been established by opinion of the Court,
the Court held it appropriate for the Court to specify the period of release from custody that
will terminate its application. See County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct.
1661, 114 L.Ed.2d 49. The Court concluded that the appropriate period is 14 days, which
provides ample time for the suspect to get reacclimated to his normal life, consult with
friends and counsel, and shake off any residual coercive effects of prior custody.
2.
Montejo v Louisiana, 129 S.CT 2079 (2009)
Montejo was arrested for murder and given his Miranda rights. He waived and eventually
confessed to the murder. At a preliminary hearing required by Louisiana law two days later,
petitioner Montejo was charged with first-degree murder, and the court ordered the
appointment of counsel. Later that day, the police read Montejo his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and he agreed to go along on a trip to
locate the murder weapon. During the excursion, he wrote an inculpatory letter of apology to
the victim's widow. Upon returning, he finally met his court-appointed attorney. At trial, his
17
letter was admitted over defense objection, and he was convicted and sentenced to death.
Affirming, the State Supreme Court rejected his claim that the letter should have been
suppressed under the rule of Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d
631, which forbids police to initiate interrogation of a criminal defendant once he has
invoked his right to counsel at an arraignment or similar proceeding. The court reasoned that
Jackson's prophylactic protection is not triggered unless the defendant has actually requested
a lawyer or has otherwise asserted his Sixth Amendment right to counsel; and that, since
Montejo stood mute at his hearing while the judge ordered the appointment of counsel, he
had made no such request or assertion.
The United States Supreme Court affirmed. The Court specifically overruled Jackson,
finding that the Court has already taken substantial other, overlapping measures toward the
same end. Under Miranda's prophylactic protection of the right against compelled selfincrimination, any suspect subject to custodial interrogation has the right to have a lawyer
present if he so requests, and to be advised of that right. 384 U.S., at 474, 86 S.Ct. 1602.
Under Edwards' prophylactic protection of the Miranda right, once such a defendant “has
invoked his right to have counsel present,” interrogation must stop. 451 U.S., at 484, 101
S.Ct. 1880. And under Minnick's prophylactic protection of the Edwards right, no subsequent
interrogation may take place until counsel is present, “whether or not the accused has
consulted with his attorney.” 498 U.S., at 153, 111 S.Ct. 486.
F.
BATSON
State v Edwards, 384 S.C. 504, 682 S.E. 820 (SC 2009)
Chief Justice Toal.
In this case, Petitioners, who were tried jointly, appeal their criminal convictions on the grounds that
the trial court erred in quashing the first jury panel based upon a violation of Batson v. Kentucky,
476 U.S. 79 (1986). The court of appeals affirmed the trial court, and Petitioners filed a writ of
certiorari asking this Court to review and reverse the court of appeals decision.
FACTUAL/PROCEDURAL BACKGROUND
Petitioners Jason, Maceo, and Jonais Edwards, all brothers, were tried jointly for the murders of Joe
Woods and Jimmy Robinson in January 2006. During jury selection, the trial court was not able to
impanel an entire twelve member jury because it ran out of venire persons during the selection
process. During the selection process, Petitioners had used sixteen of a possible twenty preemptory
strikes to strike nine Caucasian and seven African American potential jurors.
The State made a Batson motion on the grounds that Petitioner's strikes were racially motivated, and
the trial court heard the motion, despite the fact that a full jury was not yet impaneled. The trial court
granted the State's Batson motion, holding that jurors 19, 50, and 131 were struck on racially
cognizable grounds. The trial court quashed the first jury, and a new jury was selected. Jurors 50 and
131 were selected for the second jury, and the case proceeded to trial.
The jury found Petitioners Jason and Maceo Edwards guilty of murder and found Petitioner Jonais
Edwards guilty of accessory after the fact of murder. Petitioners appealed their convictions and
sentences, and the court of appeals affirmed. State v. Edwards, 374 S.C. 543, 649 S.E.2d 112
(Ct.App.2007). This Court granted Petitioners' petition for a writ of certiorari to review the
following question: Did the trial court err in quashing the first jury panel based upon a violation of
Batson v. Kentucky, 476 U.S. 79 (1986)?
18
LAW/ANALYSIS
Petitioners assert that the court of appeals erred in upholding the trial court's decision to grant the
State's Batson motion. We agree.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
prohibits the striking of a venire person on the basis of race or gender. State v. Hicks, 330 S.C. 207,
211, 499 S.E.2d 209, 211 (1998). When one party strikes a member of a cognizable racial group or
gender, the trial court must hold a Batson hearing if the opposing party requests one. See State v.
Haigler, 334 S.C. 623, 629-30, 515 S.E.2d 88, 90-91 (1999) (explaining the proper procedure for a
Batson hearing). The proponent of the strike must offer a race or gender neutral explanation. Id. The
opponent must show the race or gender neutral explanation was mere pretext, which is generally
established by showing the party did not strike a similarly situated member of another race or
gender. Id. Under some circumstances, the explanation given by the proponent may be so
fundamentally implausible the trial judge may determine the explanation was mere pretext, even
without a showing of disparate treatment. Id.
Petitioners initially challenged juror 50 on the grounds that he was a newspaper editor and might
have knowledge of or have written a story about the case. Petitioners challenged juror 131 on the
grounds that she worked for the Department of Motor Vehicles (DMV) and interacted with law
enforcement on a regular basis.
The State argued in its Batson motion that both explanations were pretext for racial prejudice on the
grounds that there was no evidence that juror 50 ever wrote an article about the case and that striking
all DMV employees was so broad as to be evidence of pretext. The trial court ruled that the
explanations given for jurors 50 and 131 were not racially neutral, but the court did not specifically
articulate its reasoning. The court of appeals upheld the trial court, finding that “the record contains
sufficient justification to conclude there was no abuse of discretion.”
We find that the explanations given for jurors 50 and 131 were race neutral and that the trial court
committed clear error in granting the State's Batson motion. Employment is a well-understood and
recognized consideration in the exercise of peremptory challenges. State v. Williams, 379 S.C. 399,
402-03, 665 S.E.2d 228, 230 (Ct.App.2008); State v. Ford, 334 S.C. 59, 65, 512 S.E.2d 500, 504
(1999) (holding place of employment is a race-neutral reason for a strike); State v. Adams, 322 S.C.
114, 125, 470 S.E.2d 366, 372 (1996) (finding type of employment is a race-neutral reason for a
strike). Petitioners' stated concerns that juror 50 was a journalist and juror 131 was a state employee
who interacted regularly with law enforcement are race neutral reasons to strike. The State bore the
burden of demonstrating that these proffered explanations were pretext for racial discrimination. We
find no evidence that the State met this burden and the trial court clearly erred in finding otherwise.
CONCLUSION
For the forgoing reasons, we reverse the opinion of the court of appeals and remand for a new trial.
G.
ALLEN CHARGE
State v Williams, 690 S.E. 2d 62 (2010)
Around 10:00 a.m. on September 3, 2003, Appellant entered a Bi-Lo grocery store in Greenville
where his former girlfriend, Maranda Williams (Victim), worked. Appellant accosted Victim and
forced her into an office in the bakery/deli. Victim called 911 from her cell phone. During the
ninety-minute phone call, hostage negotiators tried to convince Appellant to release Victim. When
Victim attempted to escape Appellant chased, shot, and killed her. Hearing the shots, law
enforcement entered the store and apprehended Appellant. Shortly after his arrest, Appellant gave a
statement in which he confessed to the crimes for which he was later charged.
19
Appellant was tried and found guilty of murder, kidnapping, and possession of a firearm during the
commission of a violent crime. …
…After motions, closing arguments, and charges, the jury deliberated from 3:50 p.m. to 7:00 p.m. on
Friday, February 18, 2005. The jury resumed deliberations the next morning at 9:30. Shortly before
11:55 a.m., the foreman sent the trial judge a note which stated: “[the] jury is at 9 for death
imposition, 3 for life imprisonment. Please refer to instruction about what procedure to follow to
resolve.”
The judge, out of the presence of the jury, indicated that he intended to give an Allen charge.FN4
Defense counsel moved for a mistrial arguing that because the jury indicated its division as to a life
versus death sentence the judge was required to end the jury's deliberations and impose a sentence of
life without parole. The solicitor disagreed, noting the jury had voluntarily revealed its voting
division, thus the judge was not required to impose a sentence of life imprisonment.
FN4. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (establishing the
charge used to encourage a deadlocked jury to reach a verdict).
III.
Allen Charge Not Coercive
Alternatively, Appellant argues that the trial judge's Allen charge was unconstitutionally
coercive. We disagree.
Because we find the trial judge properly charged Appellant's jury with an Allen charge, the
question before us is whether the charge was coercive. “Whether an Allen charge is
unconstitutionally coercive must be judged in its context and under all the circumstances.' ”
Tucker, 346 S.C. at 490, 552 S.E.2d at 716 (quoting Lowenfield, 484 U.S. at 237, 108 S.Ct.
546). This Court has explained:
In South Carolina state courts, an Allen charge cannot be directed to the minority voters on
the jury panel. Instead, an Allen charge should be even-handed, directing both the majority
and the minority to consider the other's views. A trial judge has a duty to urge, but not
coerce, a jury to reach a verdict. It is not coercion to charge every juror has a right to his own
opinion and need not give up the opinion merely to reach a verdict.
Green v. State, 351 S.C. 184, 194, 569 S.E.2d 318, 323 (2002) (citations omitted).
In Tucker, we adopted the standard set by the United States Supreme Court in Lowenfield to
determine whether an Allen charge is unconstitutionally coercive. In Lowenfield, the
Supreme Court set forth the following factors to be considered:
(1)
the charge did not speak specifically to the minority juror(s);
(2)
the judge did not include in his charge any language such as “You have got to reach a
decision in this case;”
(3)
there was no inquiry into the jury's numerical division, which is generally coercive;
and
(4)
while the jury returned a verdict shortly after the supplemental charge, which
suggests a possibility of coercion, weighing against this is the fact that trial counsel
did not object either to the inquiry into whether the jurors believed further
deliberation would result in a verdict, nor to the supplemental charge.
Applying these factors, we found the Allen charge in Tucker was unconstitutionally
coercive. Id. at 494, 552 S.E.2d at 718. Specifically, this Court concluded: (1) viewed as a
whole, the jury charge was directed to the minority juror; (2) Tucker's jury was told of the
20
importance of a unanimous verdict; (3) even though the jury informed the trial judge of their
numerical split, the judge failed to instruct the jurors not to disclose their division in the
future; and (4) Tucker's jury returned a verdict approximately an hour and a half after
receiving the Allen charge. Id. at 492-94, 552 S.E.2d at 717-18.
In this case, defense counsel took exception to the judge's Allen charge on the ground that it
deviated from counsel's proposed instruction. Defense counsel's proposed Allen charge
stated:
By law I cannot tell you where to go from here, but I suggest that you continue
deliberations in an attempt to reach a verdict. I can tell you that each of you have a
duty to consult with one another and to deliberate with a view to reaching an
agreement that does not do violence to any one of your individual judgments. Each
of you as jurors must decide the case for yourself after impartial consideration of the
evidence with your fellow jurors. During the course of your continued deliberations
each of you should not hesitate to re-examine your own views and change your
opinion if convinced that your opinion is erroneous. Each juror who finds himself or
herself to be in the minority should consider their views in light of the opinions of
the jurors of the majority. Those in the majority must consider their views in light of
the minority. No juror should surrender their honest conviction for the mere purpose
of returning a unanimous verdict.
In response to defense counsel's exceptions, the trial court noted that the charge issued
covered “basically the same thing” as the submitted Allen charge. The trial judge also
referenced counsel's concern that the jury be instructed that they should not surrender their
convictions just to get a unanimous vote. The trial judge read the following portion of his
original charge: “Ladies and gentlemen, you have stated you are unable to agree on a verdict
in this case. As I instructed you earlier, the verdict of a jury must be unanimous.” The judge
then stated, “I am not going to charge that. I'm taking that sentence out.” The trial judge then
instructed the jury:
Mr. Foreman, Ladies and Gentlemen of the jury, you've stated you've been unable to
reach a verdict in this case. When a matter is in dispute, it isn't always easy for even
two people to agree. So, when 12 people must agree, it becomes even more difficult.
In most cases absolute certainty cannot be reached or expected. You should consult
with one another, express your own views, and listen to the opinions of your fellow
jurors. Tell each other how you feel and why you feel that way. Discuss your
differences with open minds. Therefore, to some degree it can be said jury service is
a matter of give and take.
Every one of you has the right to your own opinion, the verdict you agree to must be
your own verdict, a result of your own convictions. You should not give up your
firmly held beliefs merely to be in agreement with your fellow jurors. The minority
should consider the majority's opinion and the majority should consider the
minority's opinion. You should carefully consider and respect the opinions of each
other and evaluate your position for reasonableness, correctness, and partiality. You
must lay aside all outside matters and reexamine the question before you base[d][on]
the law and the evidence in this case.
I, therefore, ask you to return to your deliberations with the hope that you can arrive
at a verdict.
Defense counsel again objected to the trial judge's charge. Relying on this Court's opinion in
State v. Hughes, 336 S.C. 585, 521 S.E.2d 500 (1999), FN6 counsel claimed that his proposed
21
charge “specifically identifies to the jurors that they have the right and specifically
essentially an obligation to deal with their own views in this case and not to agree simply to
agree.” The trial judge denied counsel's motion and explained that his charge covered
defense counsel's concern by charging the jury to maintain their own convictions.
FN6. In Hughes, this Court determined an Allen charge was an “even-handed admonition to
both the minority and majority jurors” where it stated: “Each juror who finds himself or
herself to be in the minority should reconsider their views in light of the opinions of the
jurors of the majority and, conversely each juror finding themselves in the majority should
give equal consideration to the views of the minority.” Hughes, 336 S.C. at 597-98, 521
S.E.2d at 507.
We find the Allen charge in the instant case was not coercive. First, unlike Tucker, the
charge was not directed at the minority jurors. Instead, it evenly addressed both the majority
and minority jurors and urged them to consider each other's views. See Green, 351 S.C. at
195, 569 S.E.2d at 323-24 (finding Allen charge was not coercive and did not focus on the
position of the minority juror). Second, the trial judge's charge did not include language such
as “You have got to reach a decision in this case.” Rather, the charge instructed the jurors to
resume their deliberations “with the hope you can arrive at a verdict.” Third, there was no
inquiry into the jury's numerical division. Here, without solicitation the jury disclosed its
numerical division to the trial judge who then informed the trial attorneys. In contrast to
Tucker where there was one holdout juror, the judge here did not direct his Allen charge to
the three minority jurors despite his knowledge of the jury's numerical split. Finally, the jury
deliberated for approximately three hours and forty-five minutes after being given the Allen
charge, which was significantly longer than the Tucker jury. We believe the extended
deliberations would appear to weigh against any allegation that the charge was coercive.
Viewing the Allen charge in the context of the specific circumstances of the case, we find it
was not coercive.FN7 Furthermore, a careful review of the trial judge's charge compared with
defense counsel's proposed charge reveals the charge was a correct statement of the law and
covered the substance of defense counsel's proposed charge. See State v. Austin, 299 S.C.
456, 458, 385 S.E.2d 830, 831 (1989) (stating, “[I]f the trial judge refuses to give a specific
charge, there is no error if the charge actually given sufficiently covers the substance of the
request.”).
FN7. Although we find no reversible error in the Allen charge in this case, we take this
opportunity to caution trial judges against using the following language: “with the hope that
you can arrive at a verdict.” Because jurors are not required to reach a verdict after
expressing that they are deadlocked, we believe this language could potentially be construed
as being coercive. Furthermore, to alleviate problems in future cases where the jury is
deadlocked, we would advise trial judges to instruct the jurors not to disclose their numerical
division.
H.
PROBABLE CAUSE
Lapp v State, #4665, (SC CtApp Mar. 2010)
PER CURIAM: This appeal arises from the suspension of Amy Lynn Lapp's driver's license by the
Department of Motor Vehicles (Department) for refusing to submit to a breath test as required under
Section 56-5-2950 of the South Carolina Code (2006). The Division of Motor Vehicle Hearings
(DMVH) sustained the suspension and the Administrative Law Court (ALC) affirmed. On appeal,
Lapp argues that the ALC erred in upholding the DMVH's determination that probable cause existed
to arrest her for driving under the influence (DUI). She also contends that her arrest was unlawful
under Section 56-5-6170 of the South Carolina Code (2006). We affirm.
22
FACTUAL/PROCEDURAL BACKGROUND
On November 4, 2007, Officer Trevor Simmons of the Mount Pleasant Police Department was
dispatched to the scene of an automobile accident. Upon arriving at the scene, he observed Lapp
sitting in her vehicle. Officer Simmons questioned Lapp, who admitted that she had struck two
vehicles. Having detected a "strong odor" of alcohol coming from Lapp, Officer Simmons asked
Lapp to perform a field sobriety test. Lapp refused. After advising Lapp of her Miranda rights,
Officer Simmons arrested Lapp for DUI and transported her to the Mount Pleasant Police
Department for a breath test.
While at the Mount Pleasant Police Department, Lapp was again informed of her Miranda rights.
She was also advised of her implied consent rights as set forth in Section 56-5-2950. Lapp
subsequently refused to submit to the breath test, and her driver's license was suspended pursuant to
Section 56-5-2951(A) of the South Carolina Code (2006).
A few days later, Lapp requested an administrative hearing with the DMVH to challenge her
suspension. The DMVH upheld her suspension, and she appealed to the ALC. The ALC affirmed the
DMVH's decision, and this appeal followed.
ISSUES ON APPEAL
Did the ALC err in affirming the DMVH's finding that probable cause existed to arrest Lapp for
DUI?
Was Lapp's arrest unlawful under Section 56-5-6170 of the South Carolina Code (2006)?
LAW/ANALYSIS
I.
Probable Cause
Lapp argues that the ALC erred in affirming the DMVH hearing officer's finding of probable
cause. We disagree.
The fundamental question in determining the lawfulness of an arrest is whether there was
"probable cause" to make the arrest. "The term 'probable cause' does not import absolute
certainty." Rather, probable cause exists "when the circumstances within the arresting
officer's knowledge are sufficient to lead a reasonable person to believe that a crime has been
committed by the person being arrested." State v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216,
220 (2006).
In ascertaining the presence of probable cause, "all the evidence within the arresting officer's
knowledge may be considered, including the details observed while responding to
information received." "Whether probable cause exists depends upon the totality of the
circumstances surrounding the information at the officers [sic] disposal." An officer may
lawfully arrest for a misdemeanor not committed within his presence where the facts and
circumstances observed by the officer give him probable cause to believe that a crime has
been freshly committed. State v. Martin, 275 S.C. 141, 145-46, 268 S.E.2d 105, 107 (1980);
Fradella v. Town of Mount Pleasant, 325 S.C. 469, 475, 482 S.E.2d 53, 56 (Ct. App. 1997).
In Martin, a police officer was dispatched to the scene of a reported accident. When he
arrived, he found two damaged vehicles parked on the side of the road and a group of fifteen
to twenty people gathered at the scene. The defendant, who was "highly intoxicated,"
admitted to being the driver of one of the vehicles. Based upon those facts, the South
Carolina Supreme Court held that the defendant's warrantless arrest was lawful.
Here, Officer Simmons was dispatched to the scene of an automobile accident. Upon
arriving at the scene, he observed Lapp sitting in her vehicle. Lapp, who smelled strongly of
23
alcohol, admitted to Officer Simmons that she had struck two vehicles. When Officer
Simmons asked Lapp to perform a field sobriety test, she refused. Under these
circumstances, we find that Officer Simmons had probable cause to arrest Lapp for
DUI. Because Lapp was still sitting in her vehicle at the scene of the accident, it was
reasonable for Officer Simmons to conclude that the accident had recently occurred and that
Lapp had freshly committed the crime of DUI.
Although Lapp contends that the Department failed to prove that she was "materially and
appreciably impaired," an implied consent hearing "is not a trial in regard to the guilt or
innocence of the defendant on a DUI charge." Summersell, 334 S.C. at 369, 513 S.E.2d at
625.
The pertinent question here was not whether Lapp was guilty of DUI, but merely whether
probable cause existed to arrest her for that offense. Id. at 368-69, 513 S.E.2d at 625. A
finding of probable cause may be based upon less evidence than would be necessary to
support a conviction.
In this case, the DMVH hearing officer's finding of probable cause was consistent with
holdings from other jurisdictions. See Miller v. Harget, 458 F.3d 1251, 1260 n.5 (11th Cir.
2006) ("[T]he fact that Mr. Miller was driving a vehicle, an odor of alcohol emanated from
its interior, and his refusal to submit to a field sobriety test was sufficient to give Officer
Harget probable cause to arrest."); Summers v. Utah, 927 F.2d 1165, 1166 (10th Cir. 1991)
(holding that undisputed facts regarding plaintiff's operation of his vehicle, the officer's scent
of alcohol emanating from the vehicle, and plaintiff's refusal to take a field sobriety test
adequately supported magistrate's conclusion that DUI arrest was lawful).
For these reasons, we conclude that the ALC did not err by affirming the DMVH hearing
officer's determination that probable cause existed to arrest Lapp for DUI.
II.
Section 56-5-6170
Lapp also contends that her DUI arrest was unlawful under Section 56-5-6170 of the South
Carolina Code (2006) because Officer Simmons failed to testify that Lapp violated any
traffic laws. We disagree.
Section 56-5-6170 provides in pertinent part:
No police officer in investigating a traffic accident shall necessarily deem the fact that an
accident has occurred as giving rise to the presumption that a violation of a law has occurred.
Arrests and criminal prosecution for violation of this chapter shall be based upon evidence of
a violation of the law.
S.C. Code Ann. § 56-5-6170 (2006).
As a threshold matter, it does not appear that this issue is preserved for review. To be
preserved for appellate review, an issue must have been: (1) raised to and ruled upon by the
trial court, (2) raised by the appellant, (3) raised in a timely manner, and (4) raised to the trial
court with sufficient specificity. S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372
S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007).
Here, Lapp did not specifically argue to the DMVH hearing officer that the arrest was
unlawful under Section 56-5-6170. Although Lapp's attorney argued in closing that Lapp's
arrest was unlawful and that "there was no testimony given to any impairment in [Lapp's]
driving," he did not expressly reference Section 56-5-6170. Moreover, neither the DMVH
hearing officer nor the ALC mentioned Section 56-5-6170 in their decisions. Therefore, we
conclude that this issue is not preserved for the court's review. Cf. Allendale County Bank v.
24
Cadle, 348 S.C. 367, 377-78, 559 S.E.2d 342, 347-48 (Ct. App. 2001) (finding issue was not
preserved for review where it was not specifically raised to the trial court).
Furthermore, even if this issue were preserved, Lapp's argument fails on the merits. Officer
Simmons arrested Lapp based on his reasonable belief that she had committed the offense of
DUI. Unquestionably, DUI constitutes "a violation of the law." See S.C. Code Ann. § 56-52930(A) (Supp. 2009) ("It is unlawful for a person to drive a motor vehicle within this State
while under the influence of alcohol to the extent that the person's faculties to drive a motor
vehicle are materially and appreciably impaired . . . .") (emphasis added). Moreover, as
discussed above, Lapp's arrest was predicated upon more than just the fact that an accident
had occurred. In addition to testifying about Lapp's admission regarding the accident, Officer
Simmons testified that Lapp smelled strongly of alcohol and that she refused field sobriety
testing. Accordingly, we conclude that Officer Simmons did not violate Section 56-5-6170
by arresting Lapp for DUI.
CONCLUSION
For the foregoing reasons, the ALC's order is AFFIRMED.
I.
DRUG CASES
1.
State v Oglesby, 681 S.E. 2d 620 (2009)
A confidential informant (CI) met with law enforcement officers in Clover, South Carolina
for the purpose of making a controlled purchase of crack cocaine from Oglesby. The CI
called Oglesby to purchase fifty dollars worth of crack cocaine. An electronic listening
device (the wire) was inserted in the lining of the CI's purse. The CI and Oglesby met at a
location within half a mile of a community park. The CI gave Oglesby fifty dollars, and
Oglesby gave the CI 0.41 grams of crack cocaine. Oglesby was charged with distribution of
crack cocaine and distribution of crack cocaine within the proximity of a public park or
playground.
During the trial, the State introduced the recording recovered from the wire. Oglesby
objected to the entire recording, arguing segments of the recording were inaudible and the
audible portions could be taken out of context. The trial court admitted the recording into
evidence and allowed the jury to hear it. Oglesby was found guilty of both charges. The trial
court sentenced Oglesby to twelve years imprisonment for each charge, the sentences to run
concurrent. This appeal followed.
Oglesby contends the trial court committed reversible error in denying his motion to
suppress the recording in violation of his right to completeness based on Rule 106, SCRE.
Specifically, Oglesby argues the whole recording, including the audible and inaudible
portions, should have been excluded.
Citing U.S. v. Stone, h 960 F.2d 426, 436 (5th Cir.1992) the court held that poor quality and
partial unintelligibility do not render recordings from an electronic listening device between
an undercover government agent and a defendant inadmissible unless the unintelligible
portions are so substantial as to render the recording as a whole untrustworthy.
2.
State v Hatcher, 681 S.E. 2d 925 (2009)
On October 6, 2006, a confidential police informant purchased forty dollars worth of crack
cocaine from Hatcher. Two police officers followed the informant and maintained visual
contact with him as he traveled to meet Hatcher. The informant wore a concealed
microphone and made the purchase with money the police provided. The drugs were tied up
in two small plastic baggies, which the informant concealed in his mouth before leaving
25
Hatcher's home. Maintaining one-way radio contact with police, the informant left Hatcher's
home by a different route than he had arrived, met his police contacts, and delivered the
drugs to them.
Officer Jeffrey Locklear accepted the drugs from the informant, placed the baggies in a
plastic evidence bag, sealed the bag, and wrote certain identifying information on it. At trial,
Officer Locklear testified he placed the evidence bag in a “BEST kit” plastic bag for
processing by the State Law Enforcement Division (SLED). Officer Locklear transported the
BEST kit to SLED. Agent Marjorie Wilson, a SLED chemist, testified she received the
BEST kit from SLED's Log-In Department, processed the drugs, and returned them in a
newly sealed bag to SLED's Log-In Department. Officer Locklear testified the evidence was
returned to him in a heat-sealed bag that he brought to trial.
At trial, Hatcher objected to the admission of the drugs into evidence because the State failed
to establish a complete chain of custody. The trial court overruled Hatcher's objection, noting
the drugs remained sealed in the bags identified by the witnesses and a substantial chain of
custody was established. The jury convicted Hatcher of both offenses and the trial court
sentenced him to fifteen years' imprisonment on each count to run concurrently. This appeal
followed.
Hatcher argued that there had not been any testimony about where the drugs were located inbetween the alleged buy on October 6, 2006, and when it was transported to SLED, nor had
there been any testimony about where at SLED it was kept. Therefore there was not a
complete chain of custody.
The court agreed and reversed the conviction.
J.
PROBATIVE VALUE VS. PREJUDICIAL EFFECT
1.
State v. Holland, 682 S.E.2d 898, S.C.App., (2009)
Lemond Holland (Holland) seeks review of his convictions for murder, assault and battery
with intent to kill, and possession of a weapon during the commission of a violent crime.
Holland challenges the trial court's admission of testimony about his possession of a handgun
prior to the incident…
Shortly after midnight on December 30, 2005, Brandt Koehler (Koehler) and his girlfriend,
Yessica Caruthers (Caruthers), went to McCatz Tavern and Bar in North Myrtle Beach.
Before leaving the bar, Koehler became involved in a verbal altercation with Holland.
….there was no physical contact between the two men. … Koehler and Caruthers left the
bar through the south exit. (Bennick), the bar's manager and bartender, witnessed Holland
watching Koehler and Caruthers exit. Holland then exited the bar through the north door.…
Bennick and Raphael Walke (Walke) followed Koehler and Caruthers to try to prevent
another altercation in the parking lot. Bennick testified that Koehler took off his shirt while
facing Bennick and Walke, as if preparing for an altercation. Bennick assured Koehler that
nothing was going on and told him to get in his car. Koehler and Caruthers then proceeded to
get into Caruthers' car.
Carlos Adams (Adams) realized that Holland was still agitated over his verbal altercation
with Koehler, and, therefore, Adams followed Holland out of the bar's north door in an
attempt to determine what was happening. According to Adams, Holland went to his car,
reached inside, and then locked the door. He then ran toward the passenger side of Caruthers'
car, where Koehler was sitting. Caruthers was attempting to drive out of the parking lot.
Holland began banging on the car's passenger side window and pulling on the passenger
door. Caruthers testified that Holland was pointing a gun at Koehler through the window.
26
Bennick never saw a gun, but he testified that the banging on the window sounded like metal
hitting glass. Adams testified that while he did not see Holland pull anything out of his car
that night, a few weeks earlier Holland had shown him a semi-automatic gun that he had in
his car. Caruthers got out of her car and went around to the passenger side of the car, yelling
for Holland to stop hitting her car. Holland continued to pull on the passenger door. Both
Caruthers and Walke tried to pull Holland away from the car, but they were unsuccessful.
Bennick then saw the passenger door open, but he was unsure whether Holland was able to
pull the door open or whether Koehler opened the door himself. Holland and Koehler then
grabbed each other and locked arms, moving about fifteen to twenty feet away from
Caruthers' car. According to Bennick, Koehler had his head down at this time, while it
appeared that Holland was hitting Koehler over the head. Then, three shots were fired. After
the third shot, Koehler fell to the ground. Holland then ran to his car and drove away.
Koehler received a gunshot wound to the head that led to his death, and Walke received a
gunshot wound to his leg. Holland was charged with murder, possession of a weapon during
the commission of a violent crime, and assault and battery with intent to kill (ABIK).
At trial, defense counsel objected to the State's questioning of Adams about his observation
of a weapon in Holland's possession weeks prior to the incident. Counsel initially argued that
the testimony was not relevant, and the trial court overruled the objection. After a break in
the trial, defense counsel asserted that he was making his objection pursuant to Rule 403,
SCRE, on the ground the testimony's prejudicial effect outweighed its probative value. The
trial court allowed Adams to answer the question, and Adams testified that a few weeks prior
to the incident, Holland had shown him a semi-automatic gun that he kept in his car.
Rule 403, SCRE, states, “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
“Unfair prejudice means an undue tendency to suggest [a] decision on an improper basis.”
State v. Gilchrist, 329 S.C. 621, 627, 496 S.E.2d 424, 427 (Ct.App.1998). The determination
of whether the danger of unfair prejudice outweighs the probative value of evidence must be
based on the entire record and will turn on the facts of each case. State v. Lyles, 379 S.C.
328, 338, 665 S.E.2d 201, 206 (Ct.App.2008). The trial court's determination should be
reversed only in exceptional circumstances. Id. at 357, 543 S.E.2d at 593.
Here, Adams' testimony concerning Holland's storage of a semiautomatic gun in his car
within weeks prior to the incident was consistent with the ballistic evidence gathered by
investigators after the shooting. Further, it solidified Caruthers' identification of Holland as
the person who possessed the weapon used to kill Koehler and injure Walke.
Therefore, Adams' testimony was indispensable in proving the elements of all three charges
against Holland - possession of a weapon during the commission of a violent crime, murder,
and ABIK.
The trial court acted within its discretion in determining that the probative value of Adams'
testimony outweighed any danger that the jury might base its decision on improper
considerations….
In any event, there is nothing in Adams' testimony concerning the handgun from which the
jury could infer a prior bad act on Holland's part. The testimony did not indicate that
Holland's mere possession of the handgun was illegal, that Holland had used the gun to
commit any bad acts prior to the incident, or that Holland had a criminal record involving
weapon-related offenses. Notably, during oral arguments, Holland's counsel conceded that
27
there was no negative inference that could be drawn from the mere possession of a weapon
unaccompanied by any other act.
Further, even if a prior bad act could be inferred from the testimony, this evidence solidified
Caruthers' identification of Holland as the person who possessed the weapon used to kill
Koehler and injure Walke. The probative value of this identification evidence outweighed
any prejudicial effect. Hence, it was admissible under both Rule 403 and Rule 404(b),
SCRE, which provides that evidence of other crimes, wrongs, or acts may be admissible to
show identity. FN3 Therefore, Adams' testimony did not constitute improper character
evidence.
FN3. Rule 404(b), SCRE, states, “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible to show motive, identity, the existence of a
common scheme or plan, the absence of mistake or accident, or intent.”
CONCLUSION
Accordingly, Holland's conviction is AFFIRMED.
2.
State v Wiles, 679 S.E.2d 172, S.C. (2009)
Background: Defendant was convicted in the Circuit Court, Saluda County, William P.
Keesley, J., of assault and battery of a high and aggravated nature (ABHAN) and failure to
stop for a blue light. He appealed, and the Court of Appeals affirmed. Defendant petitioned
for a writ of certiorari, which was granted.
Justice Waller:
Petitioner Shawn Wiles was indicted for assault and battery with intent to kill (ABIK),
failure to stop for a blue light, and possession of a stolen vehicle. A jury convicted him of
assault and battery of a high and aggravated nature (ABHAN) and failure to stop for a blue
light.
We affirm as modified.
FACTS
On December 26, 2003, a state trooper clocked two vehicles traveling 101 mph on Highway
25 in Edgefield County. The first vehicle was a pickup truck, and the second was a …1997
Ford Crown Victoria driven by petitioner. Putting on his blue light and siren, the trooper
gave chase. The truck lost control and veered off the road. The Ford then pulled over, but as
the trooper approached it, the car turned around and headed back on the highway. The highspeed chase again ensued with the trooper and another highway patrol vehicle pursuing
petitioner. The trooper testified that petitioner turned onto Route 378 toward Saluda and
drove at speeds over 120 mph while passing other cars on the road in an unsafe manner. A
few miles outside the city of Saluda, the trooper's supervisor directed him to terminate the
chase because of safety concerns. However, Saluda County Sheriff's deputy Frank Daniel
was at that same time responding to the call about the chase. Deputy Daniel was in an
intersection waiting to make a left turn onto Route 378 when petitioner ran a red light and
crashed into Deputy Daniel's car.
The force of the collision with the deputy's car propelled the Ford into a nearby building.
Petitioner and his female passenger exited the car, and went into the building. A SWAT team
responded to the scene, and eventually petitioner was located in the building hiding above
28
the ceiling tiles. Petitioner was unarmed, and the SWAT team apprehended him without
further incident.
At trial, evidence was admitted that approximately one week before the chase petitioner had
escaped from a South Carolina prison.FN3 A Department of Corrections (DOC) investigator
interviewed petitioner when he was reincarcerated. According to the investigator, petitioner's
thoughts while driving 140 mph were that “he was about to be killed or would end up killing
someone in the process of trying to get away from the police.” On cross-examination, the
DOC investigator acknowledged petitioner had told him that he panicked when he saw the
trooper and he did not intentionally try to ram into the deputy's car.
FN3. The record reflects that in a separate proceeding prior to the instant trial, petitioner pled
guilty to, and was sentenced for, the escape.
The jury convicted petitioner of the lesser included offense of ABHAN and failure to stop
for a blue light. The trial court sentenced petitioner to consecutive sentences of 10 years for
ABHAN, and three years for the failure to stop.
On appeal, petitioner argued the trial court erred in allowing evidence of petitioner's escape.
Finding the issue unpreserved, the Court of Appeals affirmed.
Evidence of Escape
Petitioner contends the evidence should have been excluded as improper evidence of prior
bad acts and because it was more prejudicial than probative. We disagree.
Evidence is relevant and admissible if it tends to establish or make more or less probable the
matter in controversy. See Rules 401 & 402, SCRE.
Evidence of other crimes, wrongs, or acts is generally not admissible to prove the character
of a person in order to show action in conformity therewith; however, such evidence may be
admissible “to show motive, identity, the existence of a common scheme or plan, the absence
of mistake or accident, or intent.” Rule 404(b), SCRE. The evidence admitted must logically
relate to the crime with which the defendant has been charged.
Stated differently, evidence which is “logically relevant to establish a material element of the
offense charged is not to be excluded merely because it incidentally reveals the accused's
guilt of another crime.” State v. Green, 261 S.C. 366, 371, 200 S.E.2d 74, 77 (1973); see also
State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996) (evidence of other crimes
which supplies the context of the crime, or is intimately connected with and explanatory of
the crime charged, is admissible as res gestae evidence).
Nonetheless, even where the evidence is shown to be relevant, if its probative value is
substantially outweighed by the danger of unfair prejudice, the evidence must be excluded.
See Rule 403, SCRE. Unfair prejudice means an undue tendency to suggest decision on an
improper basis. State v. Stokes, supra; State v. Beck, supra.
Here, the evidence of petitioner's escape was logically relevant for several reasons. First, the
evidence of escape shows his motive for fleeing from police; thus, it was relevant on the
failure to stop for a blue light charge. See Rule 404(b), SCRE. Second, the evidence that
petitioner was an escapee was relevant to his alleged intent on the ABIK charge. Id.; cf. State
v. Green, supra (where the Court held that evidence of appellants' escape from prison, and
their status as fugitives, was admissible on the issues of intent and common design in an
attempted armed robbery case). Finally, this evidence was also admissible under the res
gestae theory. See State v. Adams, supra. We agree with the State that the evidence of
petitioner's escape was “the first link in a chain of circumstances” which led to the criminal
29
charges in the instant case. State v. Green, 261 S.C. at 372, 200 S.E.2d at 77.
Further, we find this evidence was not unduly prejudicial. See Rule 403, SCRE; State v.
Stokes, supra; State v. Beck, supra.
Accordingly, the trial court did not err in admitting the evidence of petitioner's escape, and
the Court of Appeals' opinion is AFFIRMED AS MODIFIED.
3.
State v. Fonseca, 383 S.C. 640, 681 S.E. 2d 1 (Sc Ct App 2009)
FACTS
In 2007, Appellant was indicted on one count of committing a lewd act against a minor. The
original indictment alleged that “on or between August 1, 2001 and October 30, 2003,
[Appellant] willfully and lewdly [did] commit a lewd and/or lascivious act upon or with the
body of” Victim. The indictment alleged two separate offenses: one in 2003, in which
Appellant allegedly pushed Victim down and proceeded to rub himself in a sexual manner
against her; and an earlier incident in 2001, in which Appellant allegedly lay beside Victim
in bed and touched her beneath her underwear, rubbing her vagina, as well as exposing his
penis to her.
II.
Prior Bad Act
Appellant avers the trial court erred in allowing evidence of his prior 2001 “bad act”
under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), and Rule 404(b), SCRE. We
agree.
A.
Motive and Intent
Generally, “evidence of other distinct crimes committed by the accused may
not be adduced merely to raise an inference or to corroborate the
prosecution's theory of the defendant's guilt of the particular crime charged.”
Lyle, 125 S.C. at 415, 118 S.E. at 807. However, there are certain wellestablished exceptions to this general rule:
[E]vidence of other crimes is competent to prove the specific crime charged
when it tends to establish, (1) motive; (2) intent; (3) the absence of mistake
or accident; (4) a common scheme or plan embracing the commission of two
or more crimes so related to each other that proof of one tends to establish the
others; (5) the identity of the person charged with the commission of the
crime on trial.
Id.; Rule 404(b), SCRE (“Evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith. It may however, be admissible to show motive,
identity, the existence of a common scheme or plan, the absence of mistake
or accident, or intent.”).
Here, the trial court found the evidence of Appellant's prior bad act
admissible to show motive or intent under the Lyle exception and Rule 404.
Although Lyle does not distinguish between sexual offenses and non-sexual
offenses, the common trend in South Carolina is to apply the Lyle exceptions
differently to sexual offenses. Compare Lyle, 125 S.C. 406, 118 S.E. 803 (a
forgery case), to State v. Nelson, 331 S.C. 1, 501 S.E.2d 716 (1998) (a child
molestation case, distinguishing the application of the Lyle exceptions for
motive and intent from cases that were not sexual in nature).
30
The exceptions of motive and intent are closely related, especially in the
prosecution of a sex crime. Due to the unfortunate frequency in which this
issue arises, we take this opportunity to address the applicability of the
motive and intent exceptions of Lyle and Rule 404, SCRE, in the context of
sex crimes.
In Nelson, our supreme court noted there is little doubt the motivation behind
a sex crime is, at least in part, sexual gratification. Nelson, 331 S.C. at 10-11,
501 S.E.2d at 721. In finding evidence inadmissible to prove motive for the
sexual offense, the Nelson court stated:
[T]he motive for the alleged crimes involved in the present case [is] apparent.
A person commits or attempts to commit [a sexual offense] for the obvious
motive of sexual gratification. Since motive cannot be deemed to have been a
material issue at [defendant's] trial ... testimony [as to prior bad acts] was not
admissible to prove [intent].
As in Nelson, Appellant was accused of a sexual offense (lewd act on a
minor), and his motive was not made a material issue at trial. Therefore, we
find the introduction of the prior bad act under the motive exception provided
in Lyle and Rule 404 was error.
Similar reasoning is applicable to the exception of intent. See Nelson, 331
S.C. at 11, 501 S.E.2d at 721 (“In the trial of sex offenses, extrinsic evidence
of intent is admissible only in those cases where there is no challenge to the
occurrence of the physical contact itself, but the intent of the actor is at issue
because the nature of the contact is subject to varying interpretations”)
(quoting People v. Bagarozy, 132 A.D.2d 225, 236, 522 N.Y.S.2d 848, 854
(N.Y.App.Div.1987), wherein the court found intent was not an issue when
the appellant denied any sexual contact).
Thus, as in Nelson, because Appellant denies that the contact ever occurred,
intent was not made a material issue. Furthermore, because intent is an
element of most crimes, if we hold this evidence admissible, prior sexual acts
would be admissible to prove the required intent in all prosecutions of
subsequent sex crimes. Such is a thin disguise for impermissible character
evidence and would undermine the protections of Rule 404. Without motive
or intent being a material issue, it is error to admit prior bad acts as evidence
of the same in a sexual crime. Thus, it was error to allow evidence of the
2001 incident as evidence of motive or intent.
B.
Common Scheme or Plan
The State argues as an additional sustaining ground, the 2001 incident should be
permitted to show a common scheme or plan. We disagree.
The State provides no compelling argument of any similarities between the two
occurrences,FN2 or any argument to overcome the fact that the incidents are remote in
time. Accordingly, the State's argument is without merit. See State v. Cheeseboro,
346 S.C. 526, 546, 552 S.E.2d 300, 311 (2001) State v. Cheeseboro, 346 S.C. 526,
546, 552 S.E.2d 300, 311 (2001) (finding “[a] close degree of similarity or
connection between the prior bad act and the crime for which the defendant is on trial
is required to support admissibility under the common scheme or plan exception”
and remoteness between the two alleged acts is a factor to consider); State v. Kirton,
31
381 S.C. 7, 9, 671 S.E.2d 107, 117 (Ct.App.2008) (holding a common scheme or
plan requires similarity between the prior act and the charged act that increases the
probative value of the evidence); State v. Aiken, 322 S.C. 177, 180, 470 S.E.2d 404,
406 (Ct.App.1996) (noting the more similar the prior act is to the charged act, the
more likely the evidence will be admissible); State v. McClellan, 283 S.C. 389, 392,
323 S.E.2d 772, 774 (1984) (finding prior bad acts are admissible when close
similarity between the acts enhances the probative value of the evidence so as to
outweigh the prejudice); State v. Stokes, 279 S.C. 191, 193, 304 S.E.2d 814, 815
(1983) (holding to allow evidence as demonstrative of a common scheme or plan
requires more than merely the commission of two similar crimes); see also Kirton,
318 S.C. at 10, 671 S.E.2d at 117 (“The common scheme or plan exception ‘is
generally applied in cases involving sexual crimes, where evidence of acts prior and
subsequent to the act charged ... is held admissible as tending to show continued
illicit intercourse between the same parties.’ ”) (citing State v. Whitener, 228 S.C.
244, 265, 89 S.E.2d 701, 711 (1955)).
FN2. The State avers that the fact that both of the incidents occurred in Appellant's
marital home while his wife was in the other room, demonstrates that the Appellant
had a common scheme or plan to attack the victim while his wife was not present or
was in the other room.
Accordingly, the decision of the circuit court is, AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED.
4.
State v Clasby, 385 S.C. 148, 682 S.E. 2d 892 (SC 2009)
DISCUSSION
Clasby argues the trial judge erred in admitting B.C.'s testimony in which she described four
uncharged incidents of sexual misconduct involving Clasby. Because she was not indicted
for these acts, Clasby contends the evidence was inadmissible in that it did not rise to the
level of common scheme or plan evidence under Lyle. Specifically, Clasby asserts the prior
bad acts were “separate in time and had no connection with the incident from which she was
charged” and, thus, served only to show that she had a “propensity for child molestation.” If
the admission of this evidence is found to have been in error, Clasby claims its admission did
not constitute harmless error.
As a threshold matter, the trial judge must initially determine whether the proffered evidence
is relevant as required under Rule 401 of the South Carolina Rules of Evidence. Rule 401,
SCRE (“ ‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.”).
“To be admissible, the bad act must logically relate to the crime with which the defendant
has been charged.” State v. Gaines, 380 S.C. 23, 29, 667 S.E.2d 728, 731 (2008). “If the
defendant was not convicted of the prior crime, evidence of the prior bad act must be clear
and convincing.” Id.
“Where there is a close degree of similarity between the crime charged and the prior bad act,
both this Court and the Court of Appeals have held prior bad acts are admissible to
demonstrate a common scheme or plan.” Gaines, 380 S.C. at 30, 667 S.E.2d at 731. “When
determining whether evidence is admissible as common scheme or plan, the trial court must
analyze the similarities and dissimilarities between the crime charged and the bad act
evidence to determine whether there is a close degree of similarity.” State v. Wallace, Op.
32
No. 26703 (S.C. Sup.Ct. filed August 17, 2009). “When the similarities outweigh the
dissimilarities, the bad act evidence is admissible under Rule 404(b).” Id.
“Even if prior bad act evidence is clear and convincing and falls within an exception, it must
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice to the defendant.” Gaines, 380 S.C. at 29, 667 S.E.2d at 731; see Rule 403, SCRE
(providing that evidence, although relevant, may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice);
We find the trial judge properly admitted the proffered evidence of the four incidents of
uncharged sexual misconduct committed by Clasby on B.C. prior to the June 1, 2004,
offenses for which she was indicted and tried. The alleged prior bad act evidence reveals a
close degree of similarity to the facts of the indicted charges.
The four prior incidents of sexual misconduct by Clasby reveal the same illicit conduct with
B.C. during periods of visitation prior to the June 1, 2004, indicted offenses.
Because a close degree of similarity exists between the crimes charged and the bad act
evidence, we hold the proffered evidence satisfied the established requirements for the
admissibility of evidence under the common scheme or plan exception.
K.
ACCESS TO COURTS
Hendricks v SCDOC, 385 S.C. 625, 686 S.E. 2D 191
Chief Justice Toal.
This Court certified this case for review pursuant to Rule 204(b), SCACR to review the
Administrative Law Court's (ALC) finding that Larry Hendricks (Appellant) was not entitled to
relief. We affirm.
FACTS/PROCEDURAL HISTORY
Appellant, an inmate at Ridgeland Correctional Institution, attempted to photocopy legal documents
he created.FN1 Appellant was informed that due to a change in policy he would not be allowed to
photocopy his documents. Appellant filed a Grievance Form against the South Carolina Department
of Corrections (SCDC) challenging the constitutionality of SCDC Policy GA-01.03, Inmate Access
to the Courts.FN2 SCDC Policy GA-01.03 states:
FN1. The Record does not state what type of documents Appellant wanted to copy, but Appellant
did note they were for the United States Supreme Court.
FN2. SCDC Policy GA-01.03 went into effect January 4, 2005.
1)
Inmates may not purchase photocopies of any materials contained in the law library
regardless of his/her ability to pay.
2)
Inmates may request photocopies of legal materials and documents to support a pleading.
Legal materials that may be copied to support a pleading include:
Disciplinary reports/forms;
Institutional or State Classification Committee reports/forms and;
Letters, forms, reports, and other documents received from SCDC or other outside officials,
that have answers or other information from personnel within SCDC that have to do with the
subject of the pleading.
33
3)
Materials and documents that will NOT be copied include:
Drawings, pictures, or photographs;
Documents that have been solely originated, generated, written, typed, or created by the
inmate (the inmate may copy the information by hand);
Transcripts of school, college or vocational training;
Magazine or newspaper clippings (unless they specifically relate to the pleading); and
Personal correspondence that is not related to the pleading.
4)
No copies of blank legal forms will be made.
SCDC Policy GA-01.03, Inmate Access to the Courts.
In his grievance, Appellant contended that “[t]here is no reasonable penological reason for this
policy, accept [sic] to hinder an inmate's access to the courts.” Appellant argued that not being able
to photocopy legal documents he generated unconstitutionally hindered his access to the courts.
Appellant's grievance was denied by the Institutional Grievance Coordinator and the Warden.
Appellant then made an internal appeal, which was denied based on SCDC Policy GA-01.03.
LAW/ANALYSIS
Appellant argues SCDC Policy GA-01.03 unconstitutionally hindered his meaningful access to the
courts. We disagree.
In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the United States Supreme
Court stated, “[O]ur decisions have consistently required States to shoulder affirmative obligations
to assure all prisoners meaningful access to the courts.” Bounds, 430 U.S. at 824, 97 S.Ct. 1491. The
Court in Bounds held that “the fundamental constitutional right of access to the courts requires
prison authorities to assist inmates in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate assistance from persons trained in the
law.” Id. at 828, 97 S.Ct. 1491. In determining whether meaningful access has been denied the
inquiry is “whether law libraries or other forms of legal assistance are needed to give prisoners a
reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to
the courts.” Id. at 825, 97 S.Ct. 1491.
“The requirement that an inmate alleging a violation of Bounds must show actual injury derives
ultimately from the doctrine of standing.” Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135
L.Ed.2d 606 (1996). “Because Bounds did not create an abstract, freestanding right to a law library
or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his
prison's law library or legal assistance program is subpar in some theoretical sense.” Id. at 351, 116
S.Ct. 2174. “Insofar as the right vindicated by Bounds is concerned ... the inmate therefore must go
one step further and demonstrate that the alleged shortcomings in the library or legal assistance
program hindered his efforts to pursue a legal claim.” FN4 Id.; see also Pellegrino v. Loen, 743
N.W.2d 140, 144-45 (S.D.2007) (finding no actual injury, thus no denial of meaningful access to the
courts).
FN4. Lewis gave examples of what might be construed as an injury that denies meaningful access to
the courts:
[A prisoner] might show, for example, that a complaint he prepared was dismissed for failure to
satisfy some technical requirement which, because of deficiencies in the prison's legal assistance
facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished
34
to bring before the courts, but was so stymied by inadequacies of the law library that he was unable
even to file a complaint.
Lewis, 518 U.S. at 351, 116 S.Ct. 2174.
In the present case, Appellant argues, “I have, almost twice, missed deadlines because of this and am
fearful that with the amount of litigation needed in my criminal case, I may miss a deadline because
of a policy that has not [sic] logical stated penological reason for its establishment.” Nowhere in the
record does Appellant state he suffered an actual injury due to SCDC Policy GA-01.03. Appellant
merely claims that he might be injured in the future by missing a deadline. This falls short of the
actual injury requirement demanded by Lewis.FN5 Because no actual injury has occurred, Appellant's
meaningful access to the courts has not been unconstitutionally hindered.
FN5. In this case, there was no actual injury to Appellant due to SCDC Policy GA-01.03. However,
we take this opportunity to caution SCDC that its policy not allowing inmates to make photocopies
when he or she is willing and able to pay is not reasonable. See Johnson v. Parke, 642 F.2d 377, 380
(10th Cir.1981) (“[W]hen numerous copies of often lengthy complaints or briefs are required, it is
needlessly draconian to force an inmate to hand copy such materials when a photocopying machine
is available and the inmate is able and willing to compensate the state for its use.”).
CONCLUSION
Because Appellant has not suffered an actual injury, we affirm the decision of the ALC.
L.
LEGISLATIVE UPDATE
1.
Preservation of Evidence Act (Salley Elliott)
Section 17-28-310 – provides definitions of terms used in the Act;
Section 17-28-320 – provides a list of crimes for which evidence must be preserved,
establishes the conditions under which it must be preserved (including chain of custody,
other documentation aimed at assisting others locate the evidence, and “under conditions
reasonably designed to preserve the forensic value of the physical evidence and biological
material”), and establishes the length of time that the evidence must be preserved as follows:
[P]hysical evidence and biological material must be preserved until the person is
released from incarceration, dies while incarcerated, or is executed for the offense
enumerated in subsection (A). However, if the person is convicted or adjudicated
on a guilty or nolo contendere plea for the offense enumerated in subsection (A), the
physical evidence and biological material must be preserved for seven years from
the date of sentencing, or until the person is released from incarceration, dies while
incarcerated, or is executed for the offense enumerated in subsection (A), whichever
comes first.
Section 17-28-330 – contains requirement of registration for evidence custodians after
convictions (begins on page numbered “14”);
Section 17-28-340 – contains provisions related to early destruction or release of evidence
(begins on page numbered “15”);
Section 17-28-350 – creates misdemeanor offense for evidence custodian who “wilfully and
maliciously destroys, alters, conceals, or tampers with physical evidence or biological
material that is required to be preserved pursuant to this article with the intent to impair the
integrity of the physical evidence or biological material, prevent the physical evidence or
biological material from being subjected to DNA testing, or prevent the production or use of
the physical evidence or biological material in an official proceeding;” and
35
Section 17-28-360 - provides that (1) unless there is an act of gross negligence or intentional
misconduct, the new law does not provide a basis for a civil lawsuit; and (2) failure of a
custodian of evidence to preserve physical evidence or biological material pursuant to this
article does not entitle a person to any relief from conviction or adjudication, but evidence of
the failure may be presented at a subsequent hearing or trial.
2.
South Carolina Reduction of Recidivism Act of 2010 (Ben Aplin)
Juveniles and adults who are on parole or probation must consent to be searched “without a
search warrant, with or without cause” as a condition of release or probation.
Immediately before each search or seizure conducted pursuant to this section, the law
enforcement officer seeking to conduct the search or seizure must verify with the
Department of Probation, Parole and Pardon Services or by any other means available to the
officer that the individual upon whom the search or seizure will be conducted is currently on
parole or probation or that the individual is currently subject to the provisions of his
conditional release. A law enforcement officer conducting a search or seizure without a
warrant pursuant to this section shall report to the law enforcement agency that employs him
all of these searches or seizures, which shall include the name, address, age, gender, and race
or ethnicity of the person that is the subject of the search or seizure. The law enforcement
agency shall submit this information at the end of each month to the Department of
Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of
searches or seizures without a search warrant must be reported by the Department of
Probation, Parole and Pardon Services to the State Law Enforcement Division for
investigation. If the law enforcement officer fails to report each search or seizure pursuant to
this subsection, he is subject to discipline pursuant to the employing agency's policies and
procedures.
In any instance in which a law enforcement officer has failed to make the reports necessary
to the State Law Enforcement Division for warrantless searches, then in the absence of a
written policy by the employing agency enforcing the reporting requirements, the otherwise
applicable state-imposed, one-day suspension without pay applies.
III.
SUMMARY
36
BIBLIOGRAPHY
CLASS TITLE:
Legal Update 2010-2011
LESSON PLAN #:
I0120
1.
Selected case law from the United States Supreme Court
2.
Selected case law from the South Carolina Court of Appeals
3.
Selected case law from the South Carolina Supreme Court
4.
The South Carolina Code of Laws
5.
Selected case law form the Fourth Circuit United States Court Appeals
37
STATUS (New/Revised):
New