Robert M. DudekRobert M. DudekChief Appellate DefenderChief Appellate Defender

Commission on Indigent DefenseCommission on Indigent Defense1330 Lady St., Suite 4011330 Lady St., Suite 401

Columbia, SC 29201Columbia, SC 29201

Kingston PlantationKingston Plantation

September 27, 2010September 27, 2010

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

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

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

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

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

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

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

The child was “lifeless.” Navy The child was “lifeless.” Navy said he performed CPR three said he performed CPR three times before calling 911. The times before calling 911. The child later died at the hospital.child later died at the hospital.

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

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

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

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

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

Following the Following the MirandaMiranda warnings, warnings, Navy gave his second statement Navy gave his second statement in writing at 11:40 a.m. Navy in writing at 11:40 a.m. Navy now told the police thatnow told the police that

(A)(A) he could not get the child to he could not get the child to be be quiet;quiet;

(B)(B) Navy popped him in the Navy popped him in the middle of middle of the back causing the back causing the child to cry the child to cry “one time real “one time real loud;”loud;”

(C)(C) Navy noticed the child could Navy noticed the child could not not get his breath; get his breath;

(D)(D) When Navy returned When Navy returned upstairs and upstairs and the child was the child was having trouble having trouble breathing, breathing, Navy panicked;Navy panicked;

(E)(E) When Navy and Terry got When Navy and Terry got back back upstairs the child was upstairs the child was not not breathing;breathing;

(F)(F) Navy said he hit the child Navy said he hit the child with an with an open hand and didn’t open hand and didn’t hit him hard hit him hard enough “trying to enough “trying to kill him or kill him or nothing;”nothing;”

(G)(G) Navy admitted he was Navy admitted he was frustrated frustrated because the child because the child was crying.was crying.

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

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

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

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

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

The Court noted that The Court noted that SeibertSeibert looked to:looked to:

(1)(1) the completeness and detail the completeness and detail of of the question and answers in the question and answers in the the first round of the first round of the interrogation;interrogation;

(2)(2) the timing and setting of the the timing and setting of the first first questioning;questioning;

(3)(3) the continuity of police the continuity of police personnel; personnel;

(4)(4) the degree to which the the degree to which the interrogator’s questions interrogator’s questions

treated treated the second round as the second round as continuous continuous with the first;with the first;

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

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

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

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

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

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

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

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

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

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

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

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

The decedent, Anderson, was The decedent, Anderson, was last seen alive on December 30, last seen alive on December 30, 2003 at a party in a Columbia 2003 at a party in a Columbia hotel. His body was found in a hotel. His body was found in a Newberry pond on December 31, Newberry pond on December 31, 2003.2003.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Taylor further contended the Taylor further contended the anonymous tip in a high-crime anonymous tip in a high-crime area did not rise to reasonable area did not rise to reasonable suspicion. The state argued suspicion. The state argued Bellamy had reasonable suspicion Bellamy had reasonable suspicion because of:because of:

(1)(1) The anonymous tip;The anonymous tip;(2)(2) The area was known for drug The area was known for drug

related offenses;related offenses;

(3)(3) Taylor’s close conversation Taylor’s close conversation with with another individual was another individual was typical of typical of criminal activity;criminal activity;

(4)(4) Taylor’s companion departed Taylor’s companion departed towards the woods when towards the woods when

the the officers approached; officers approached; and,and,

(5)(5) Taylor got on his bicycle and Taylor got on his bicycle and pedaled towards the officer pedaled towards the officer

“like “like [he was] not going to [he was] not going to stop.”stop.”

Holding: Holding: The officers lacked The officers lacked reasonable suspicion to stop reasonable suspicion to stop Taylor.Taylor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The circuit court granted the The circuit court granted the motion for disqualification.motion for disqualification.

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

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

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

““The determination of whether a The determination of whether a party may immediately appeal party may immediately appeal an order issued before or during an order issued before or during trial is governed primarily by trial is governed primarily by South Carolina Code section 14-South Carolina Code section 14-3-330.”3-330.”

14-3-330 provides an order is 14-3-330 provides an order is directly appealable if it affects “a directly appealable if it affects “a substantial right made in an action substantial right made in an action where such order (a) where such order (a) in effect in effect determines the actiondetermines the action and and prevents a judgment from which an prevents a judgment from which an appeal might be taken or appeal might be taken or discontinues the action, or (b) discontinues the action, or (b) grants or refuses a new trial.”grants or refuses a new trial.”

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

The Court in The Court in State v. McKnightState v. McKnight, 287 , 287 S.C. 167, 337 S.E.2d 208 (1985) S.C. 167, 337 S.E.2d 208 (1985) concluded a pretrial order granting concluded a pretrial order granting the suppression of evidence that the suppression of evidence that significantly impaired the significantly impaired the prosecution of the State’s case prosecution of the State’s case could be directly appealed by the could be directly appealed by the State under section 14-3-330 (2)(a).State under section 14-3-330 (2)(a).

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

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

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

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

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

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

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

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

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

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

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

The defense was not allowed to The defense was not allowed to impeach Murdaugh with nine impeach Murdaugh with nine allegedalleged incidents of preparing incidents of preparing false returns, holding these prior false returns, holding these prior bad acts were not probative of bad acts were not probative of her credibility her credibility under Rule under Rule 608(b), SCRE608(b), SCRE..

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

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

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

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

State v. BrewingtonState v. Brewington, 267 S.C. 97, , 267 S.C. 97, 226 S.E.2d 249 (1976).226 S.E.2d 249 (1976).

The Court held that “as a general The Court held that “as a general rule, rule, anythinganything having a having a legitimate tendency to throw light legitimate tendency to throw light on the accuracy, truthfulness, and on the accuracy, truthfulness, and sincerity of the witness may be sincerity of the witness may be shown and considered in shown and considered in determining the credit to be determining the credit to be accorded his testimony, and on accorded his testimony, and on cross-examination, any fact may cross-examination, any fact may be elicited which tends to show be elicited which tends to show interest, bias, or partiality of the interest, bias, or partiality of the witness.”witness.”