State v. Kareem Harry, S. C. S. Ct., filed 7/19/17: An Important Case on the “Hand of One, Hand of All” accessory liability; Robust Dissent by Justice Hearn, joined by Chief Justice Beatty.
In its opinion, the South Carolina Supreme Court affirmed the Court of Appeals’ decision in this case. This opinion, however, has a robust dissent by Justice Hearn, and joined by Chief Justice Beatty. At issue is the evidence sufficient for the jury to be charged with accessory liability (or, “hand of one, hand of all”).
The facts are pretty simple– Harry owned a television that his on-again-off-again girlfriend sold to some guy she had a one-night stand with. This former girlfriend ended up getting kicked out of her apartment lease for drugs, and she told her ex to come get his stuff. At that point, Harry realized that his television was gone. The ex-girlfriend eventually told him who had it. Harry reached out to this guy to get it, but this guy (the eventual victim here), refused to turn it over or pay for it. On the way to get his television, Harry stopped in Myrtle Beach to pick up two buddies. By the way, all of these guys were drug dealers. One of these buddies– Castro– was known to always carry a gun, although no one saw him grab his gun on this occasion. The three of them went to where the victim lives. The victim was standing outside with a gun tucked into his waistband. After a loud altercation, Castro pulled out his gun and shot and killed the victim.
At the close of the State’s case, trial counsel moved for a directed verdict. That was denied. That’s the issue on this appeal.
The majority found that these following factors justified giving the jury instruction:
1) Harry had a history of violence and Victim had slept with Harry’s girlfriend and had stolen a television and drugs without paying for them;
2) Harry travelled to Myrtle Beach to pick up Castro “who was known to carry a gun” despite fact that television was not very heavy;
3) Victim was upset when he learned they were coming; he could not finish dinner;
4) They got out of car knowing that victim was armed;
5) Petitioner gave a head nod to Castro just prior to Castro’s firing shots;
6) Castro and Harry left their car running as they confronted victim;
7) They fled after shooting.
The dissent disagrees with the majority’s conclusion. In its view, the record does not contain any evidence of an illegal plan or purpose since Harry was just going to retrieve an item that lawfully belonged to him. Under the theory of hand of one, hand of all, “one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose.” State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010) (quoting State v. Condrey, 349 S.C. 184, 194, 562 S.E.2d 320, 324 (Ct. App. 2002)) (emphasis in opinion). As the dissent notes, there are no other cases it could locate where a defendant was convicted under similar circumstances. “Based on the record, I find no evidence Harry intended anything more than to retrieve his television nor is there any evidence he was aware of any illegal intent on Castro’s part in accompanying him.”
I think it’s a close case, but I tend to agree with the dissent on this one. The factors that the majority points to look like character-propensity evidence to me. In other words, because these people were drug dealers and at least one of them carried a gun (there’s nothing in the opinion to suggest he didn’t have a legal right to carry the gun), then they must have realized that the provocation would become violent. You have to wonder that if these were nuns, trying to retrieve a television set from a priest– or just college students– if the outcome would have been the same. But at the same time, I don’t think it’s wise to confront someone who is intentionally showing you that he has a gun. That kind of thing seems highly provocative. Seriously, he should have taken the ex-girlfriend to small claims court.
Anyway, this is an important opinion to be aware of, and shows that our high court is going to uphold the accessory liability jury charge under, in my opinion, fairly weak circumstances.