State v. Justin Johnson, SC Court of Appeals, filed 1/31/18: Court of Appeals Addresses Sympathy Photographs and Cops using Skype.


A particularly brutal double murder ostensibly justifies finding significant errors to be harmless.

The opinion details the horrifying and sad details of this double-homicide case.  Warning: one of the victims was a 9-month old boy, the appellant’s son.  Because of the facts, the Court could not find its way to finding the significant errors in this case to be prejudicial.

First, the State introduced photographs of the victims prior to their untimely deaths. These pictures were not at all relevant to their deaths, but were entered into evidence to elicit sympathy for them.  The Court noted that it has reversed at least one case on this basis, State v. Langley, 334 S.C. 643, 515 S.E.2d 98 (1999).  As in Langley, identification wasn’t an issue in the case, and there was nothing in the photographs that served to make any fact more or less likely.  But, here, the error was harmless given the overwhelming evidence of guilt and could not “reasonably have affected the result of the trial.”  See State v. Chavis, 412 S.C. 101, 115, 771 S.E.2d 336, 343 (2015).

Also, the State, over objection, was allowed to have an officer testify via Skype.  Johnson argued that this violated his Sixth Amendment right to confront the witnesses against him.  The majority of courts in the country have adopted the test set forth in the United States Supreme Court case, Maryland v. Craig, 497 U.S. 836 (1990) which says that the right to face-to-face confrontation under the Sixth Amendment can only be modified “where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850.  This is a very important issue, and our Court, in this opinion, makes clear that (following the Fourth Circuit’s logic in United States v. Abu Ali, 528 F.3d 210 (2008)), the generalized conviction of a criminal offense is not sufficient to be allowed to use Skype.  There must be a very important public policy or exceptional circumstance to excuse the requirement of face-to-face confrontation.  Think:  terrorist attack, children victims, witness beyond subpoena power of the Court. The mere convenience of State witnesses is not going to cut it.  Here, the officer was in Montana and it was inconvenient to have him travel.  That’s not good enough, and the Court found error.  The problem, however, is that the error was harmless in light of the overwhelming proof of guilt, and the fact that the officer’s testimony was largely cumulative to other officer testimony.

As to other claims, the Court found that threatening the death penalty does not render a confession involuntary.  Also, cops can lie to you about their evidence and that will not render the confession involuntary.  Too, to prove the prejudice of being shackled, you have to show that jurors actually saw you shackled.

In all, a very important opinion as it reaffirms the impropriety of admitting sympathy-inducing photographs without a reason, and the impropriety of allowing State witnesses to use Skype for convenience sake.