795 S.E.2d 171
S.C. Ct. App.2016Background
- In June 2011 two men entered an apartment complex courtyard and shot Akeem Smalls; Smalls had an unpaid loan from Devin Johnson’s sister’s boyfriend.
- Two days later Johnson at first denied being in Charleston but ultimately admitted being at the scene with another person identified as “Creep.”
- Police obtained Johnson’s phone records and historical cell-site location information by warrant; Johnson was indicted for murder and weapon possession.
- Surveillance video showed a blue Toyota Camry (matching the victim’s girlfriend’s car) backing into a spot, two men exiting, walking toward the building, running back, and fleeing.
- At charge conference the trial court refused to give an accomplice-liability instruction (“the hand of one is the hand of all”), telling defense counsel the court would not give that charge; defense tailored closing argument to that assurance.
- After an hour of deliberations the jury asked whether Johnson could be guilty if the other individual pulled the trigger; the court then reversed course, gave the accomplice-liability and mere-presence instructions, offered but did not secure reargument, and Johnson objected and moved for mistrial. The court convicted; the appellate court reversed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Johnson) | Held |
|---|---|---|---|
| 1. Warrant for phone records and historical CSLI admissibility | Warrant supported probable cause; records admissible. | Warrant invalid; records should be excluded. | Not reached (dispositive issue was 4). |
| 2. Admission of defendant’s custodial statement | Statement was voluntary and admissible. | Statement should have been excluded. | Not reached. |
| 3. Court’s giving “the hand of one is the hand of all” charge | Charge appropriate given two-person presence and conduct. | No evidentiary support for accomplice instruction. | Not reached on the merits. |
| 4. Timing of the accomplice instruction and opportunity to reargue | Late instruction cured by offering reargument; no prejudice. | Court’s pre-argument assurance not to charge induced defense strategy; giving the new charge after closings was fundamentally unfair and prejudicial. | Reversed: court’s eleventh-hour charge after promising not to give it was fundamentally unfair and prejudicial; reversal required. |
Key Cases Cited
- State v. Jones, 343 S.C. 562 (S.C. 2001) (altering a promised jury instruction after closing argument is fundamentally unfair when the defense relied on the court’s representation)
- People v. Clark, 453 Mich. 572 (Mich. 1996) (trial court’s mid- or post-argument change in jury instructions can be prejudicial; reargument may be inappropriate and reversal required)
- United States v. Oliver, 766 F.2d 252 (6th Cir. 1985) (omitting an element after defense tailored closing to that omission leaves defense unable to reargue effectively; reversal required)
- Moore v. State, 848 S.W.2d 920 (Tex. Crim. App. 1993) (defense legitimately relied on trial court’s written instructions in closing; later changing the instruction prejudiced the defendant)