State v. Devin Johnson (App. Case No. 2014-766, filed Nov. 16, 2016) South Carolina Court of Appeals win on Jury Charge and Argument Claim!
Outstanding advocacy by Susan Hackett of the Office of Indigent Defense! This is an interesting case. The victim was shot and killed. Having given conflicting statements, the appellant ultimately admitted to being present at the scene with another person who was never identified.
At the end of the evidence, the parties had a jury charge conference where they discussed which jury instructions would be given to the jurors. The State requested a charge on accomplice liability, or “hand of one, hand of all” because it “ha[d] not been able to identify a co-defendant.”
The judge firmly rejected this charge as detailed in the opinion. After lunch, the State requested the charge again. Again, the judge firmly rejected the charge:
THE COURT: That’s just bootstrapping, man. And you’ve presented this case, “I’ve got my shooter. I let this guy go.” But listen, if there’s evidence of that– the reason I’m not charging that is I find that there is absolutely no evidence to warrant it. I don’t know what the evidence may be after he testifies.”
Appellant didn’t testify.
In closing argument, defense counsel pressed its defense that Appellant wasn’t present at the scene, and that his statements to the contrary were not truthful.
Welp. An hour into the deliberations, the jurors sent out a note and asked the court, “[I]f the other individual pulled the trigger, can the defendant still be guilty?”
Based on this question, the judge then apologized to the State and decided that it was required to charge “the hand of one is the hand of all” and that its prior to decision not to give that charge was wrong. Understandably, defense counsel moved for a mistrial, and also objected to the judge’s giving the jury a supplemental jury instruction after they began deliberating.
The Court held “the trial court’s decision to give the charge after confirming it would not give the charge rendered the trial fundamentally unfair.” The Court stated that this case is similar to State v. Jones, 343 S.C. 562, 541 S.E.2d 813 (2001) in which the South Carolina Supreme Court held that, in that case, the Appellant had reasonably relied on a the [court’s] representation that [it] intended to give [a particular jury charge to the jury and its failure to do so rendered the trial fundamentally unfair.
The Court noted that making counsel re-argue his closing argument in light of the new jury instruction would have forced him to “shift theories.” This would have diminished counsel’s credibility with the jury. The Court ultimately holds that the decision to re-charge the jury with the accessory liability jury instruction was fundamentally prejudicial to Appellant because Appellant crafted his closing argument on reliance on the trial court’s adamancy that he would not give that charge.
A very fair result, in this humble author’s opinion.
And see Co-Defendant Kitties.