State v. Shawn Wyatt (Case No. 2016-001303)

Kershaw Correctional Institute Officer Joe Schnettler was at his post in a watch tower when he observed a man run from the woods to the fence surrounding the prison. Schnettler watched the man throw eight packages over the fence, and then run back into the woods. During the incident Schnettler radioed other prison officers and announced each time the man threw another package over the fence. Schnettler described the suspect as a “white man” wearing “long jean shorts and a dark shirt.” A few minutes later, Kershaw Correctional Institute Officer Brenda Lippe was driving to work when she passed a man walking away from the prison on Highway 601. When Lippe arrived at work, she heard about the incident at the fence, and told the correctional officer in charge of contraband that she had seen a man walking away from the prison on Highway 601. She described him as “a light skinned black gentleman with a nice neat haircut, black shirt and . . . charcoal-colored shorts.” The correctional officers informed the Lancaster County Sheriff’s Office that there was a “black male wearing a black shirt and jean shorts” walking on Highway 601 who may have been involved with a contraband incident at the prison. Soon after, Deputy Charles Kirkley saw Wyatt walking along Highway 601 and detained him. Schnettler left the prison and drove to the side of the road where Kirkley was holding Wyatt, and Schnettler positively ID’d him. Wyatt was then driven to the prison, where Lippe positively identified Wyatt as the man she had seen walking on Highway 601 a few minutes earlier.

Wyatt was convicted for attempting to furnish contraband to a prisoner and possession with intent to distribute cocaine, cocaine base, and marijuana. He argues on appeal that the trial court erred by not suppressing the two eyewitness identifications (Schnettler and Lippe). During the pre-trial suppression hearing, the State appeared to concede that the show-up identification procedure was suggestive. However, the Supreme Court notes that the first prong of Neil v. Biggers requires a trial court to consider whether the procedure, even if suggestive, was necessary under the circumstances. The Supreme Court states that courts in other cases have denied suppression under the first prong of Biggers because the circumstances of the case rendered suggestive police procedures necessary. In the present case, the Supreme Court holds that the show-up identification was necessary because (1) it allowed the officers to quickly determine whether Wyatt was the suspect, or whether he should be released, (2) the officer who detained Wyatt initially lacked probable cause to formally arrest him – and that probable cause was supplied by Schnettler’s identification, and (3) providing a formal lineup would not have been workable under the circumstances.

Regarding Lippe’s identification, the Court holds that any issues with the identification did not affect the outcome of trial. The Court notes that Lippe did not witness the crime, and her testimony proved only a fact already established conclusively: that Wyatt was walking away from the prison on Highway 601 just before 6:00 a.m.

U.S. v. Julian Zuk (No. 16-4727)

In this appeal, the government challenges as substantively unreasonable the sentence imposed by the district court on Julian Zuk. Zuk was indicted on seven counts for transmitting, receiving, and possessing child pornography. The undisputed evidence shows that before his arrest, Zuk amassed more than 13,800 photographs and more than 470 videos, a large proportion of which depicted the sadistic treatment of young children. He also communicated on a daily basis with a 16-year-old who was sexually abusing his 5-year-old cousin and even directed the 16- year-old to abuse the child in specific ways.

Pursuant to a plea agreement, Zuk pleaded guilty to one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Because the Sentencing Guidelines’ recommendation for Zuk’s relevant conduct substantially exceeded 240 months’ imprisonment, which was the maximum sentence for possession, the 240-month term became the Guidelines’ recommended sentence. Following a lengthy sentencing hearing during which Zuk’s recently diagnosed autism spectrum disorder was explained, the district court sentenced Zuk to time served of 26 months, reciting Zuk’s disorder as the “primary driver” behind the sentence.

On appeal, the government argues that the time-served sentence Zuk received is substantively unreasonable because it creates unwarranted sentence disparities and fails to provide just punishment or adequate deterrence in light of the seriousness of Zuk’s offense conduct. The government claims that Zuk is a pedophile, a sadist, and a recidivist who possessed more than 13,000 images of child pornography and who directed a 16-year-old boy’s sexual abuse of his five-year-old cousin for Zuk’s sexual gratification. The government further points out that Zuk’s time-served sentence is lower than the sentence advised by the Sentencing Guidelines for a child-pornography possession offense with no aggravating factors.

The Fourth Circuit notes that the downward variance in this case amounted to 214 months, approximately 90 percent of the sentence recommended by the Guidelines. Such an extensive variance, the Fourth Circuit concludes, is not justified by the consideration that the district court gave to the sentencing factors set forth in § 3553(a). Specifically, the Court agrees with the government’s argument that the district court gave undue weight to Zuk’s autism diagnosis, and there was not a demonstrable link between such diagnosis and Zuk’s alleged conduct. Bearing these considerations in mind, the Fourth Circuit vacates the district court’s sentence and remands for resentencing.


US v. Blain Salmons

Blain Salmons Jr. pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). This crime carries a base offense level of 14, see U.S.S.G. § 2K2.1(a)(6)(A), unless the defendant has a prior conviction for a crime of violence, in which case the base offense level rises to 20. The term “crime of violence” is defined with reference to U.S.S.G. § 4B1.2(a).

Salmons had previously been convicted of West Virginia aggravated robbery. At sentencing, the district court found that this constituted a crime of violence for the purposes of calculating the applicable guideline range. With this prior conviction, the district court determined that Salmons’ advisory guideline range was 30-37 months. Had the district court found that Salmons’ prior conviction did not qualify as a crime of violence, his advisory range would have been 15-21 months. The district court ultimately imposed a sentence of 12 years and 1 day. On appeal, Salmons argues that the district court erred by concluding that his prior conviction for aggravated robbery subjected him to an increased guideline range under U.S.S.G. § 2K2.1(a)(4)(A).

The Fourth Circuit holds that it is “clear that West Virginia aggravated robbery qualifies as a crime of violence under the aforementioned 4B1.2(a)(1) definition.” The Court notes that at the time of Salmons’ conviction, aggravated robbery was defined as “the successful or attempted commission of a robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever.” W. Va. Code § 61-2- 12 (1961). On these grounds, the Fourth Circuit affirms the lower court’s judgment, finding “no need to belabor discussion of a district court decision so soundly anchored in both law and common sense.”

State v. Collier

Derek Vander Collier appeals his conviction for second- degree burglary, arguing the trial court improperly limited his closing argument, erred in allowing the State to play recordings of two police interviews, and should not have allowed a witness to identify him in front of the jury.

  1. During trial Justin Kirkman, an eyewitness to the burglary, testified for the State. During his testimony, the defense pointed out several inconsistencies between his testimony and his prior statements to police. The State attempted to rehabilitate Kirkman with prior consistent statements, and defense counsel objected. The trial court indicated that it would allow the State to introduce Kirkman’s prior consistent statements if the defense intended to argue that Kirkman was fabricating his testimony and was “lying to save himself from going back to jail” (it was revealed on cross exam that Kirkman was on probation for unrelated charges). Defense counsel informed the court that the defense would not present such an argument, and consequently the State was prohibited from introducing Kirkman’s prior statements. During closing argument, however, defense counsel made this very argument, stating, “You tell me who has got motivation. Justin Kirkman has motivation, already convicted felon[,] already on probation.” The State objected, and the trial court prohibited counsel from making this argument again, pursuant to its prior ruling. The Court of Appeals holds that the trial court did not abuse its discretion in limiting counsel’s closing argument in this way. The Court further notes that any error on the part of the trial court would be harmless, in particular because counsel’s remarks were not stricken from the record, nor was the jury instructed to ignore or disregard the argument.
  2. Next, Collier challenges the introduction of two custodial statements he made, in which he implicated himself in the burglary at issue in this case. Specifically, Collier argues that he was under the influence of crack cocaine when one of the statements was made, and that he wouldn’t have made the subsequent statements but-for the first statement. The Court of Appeals quickly dispenses with this issue, holding that the trial court did not abuse its discretion in admitting the statements at trial.
  3. Finally, Collier argues the trial court should not have allowed Kirkman to identify him before the jury because the pretrial identification procedure was unduly suggestive. Specifically, Collier argues that he was the only person depicted in the lineup who, like the person Kirkman confronted, wore a hooded sweatshirt. The Court of Appeals rejects this argument, noting that there was no evidence of suggestive police tactics. Further, the Court notes that the trial court properly weighed the applicable factors in allowing Kirkman to make an in court identification of Collier during trial. Bearing this in mind, the Court holds that Kirkman’s identifications of Collier did not mandate reversal of his conviction.

United States v. Lacresha Slappy

After serving a prison term, Slappy began serving a term of supervised release. Approximately one year later, Slappy’s probation officer filed a motion for revocation of Slappy’s supervised release, arguing numerous violations. At the revocation hearing, the Judge sentenced Slappy to the maximum punishment for these violations, while not specifically addressing a number of Slappy’s non-frivolous arguments in favor of a more lenient sentence. The Fourth Circuit notes that although the “court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence, . . . it still ‘must provide a statement of reasons for the sentence imposed.'” In light of that, the Fourth Circuit holds that the district court’s failure to address Slappy’s arguments in favor of a within-policy-statement-range sentence constitutes procedural error.

Accordingly, we apply Carter here and hold that a district court, when imposing a revocation sentence, must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if the court rejects those arguments, it must explain why in a detailed-enough manner that this Court can meaningfully consider the procedural reasonableness of the revocation sentence imposed.

The Fourth Circuit concludes by holding that the district court’s error was not harmless. Consequently, Slappy’s sentence was vacated, and the case was remanded.

Read the full opinion here.

State v. Robert Prather

Prather was convicted of murder based on an incident that took place at the victim’s residence. Prather, the victim, and two other individuals were at the apartment drinking. In the course of events, the victim ended up being beaten and he died from his injuries. Prather denied involvement, and claimed that one of the other individuals had beaten the victim earlier that night, and that the victim and that individual had engaged in sexual acts earlier in the night as well. A responding officer claimed that Prather admitted to beating the victim. Prather denied making this statement. At trial, the State was permitted to present rebuttal testimony in the form of an expert who opined that the crime was committed by two individuals, based on the way that the victim’s body was left “staged.” The COA held that the trial court abused its discretion in permitting this testimony because it did not rebut Prather’s testimony. The court’s error was not harmless, and therefore Prather’s conviction was reversed. 

Read the full opinion here.

State v. Robert Lee Moore

Appellant was convicted of attempted murder. The victim in this case was found shot in a Taco Bell parking lot. Officers who responded to the scene searched the victim’s car and found several cell phones, one of which belonged to the defendant. An investigating officer removed the SIM card from the defendant’s phone in order to determine the telephone number associated with the phone. This information led police to the defendant. The investigator later got a search warrant for the phone, and a more thorough search of the phone’s data was conducted.

Appellant moved to suppress the fruits of the SIM card search, and was denied. On appeal, he argues that the SIM card search violated his Fourth Amendment rights, and that the subsequent search warrant was insufficient because it was conclusory. The COA rejects both of these arguments. As to the SIM card search, the Court likened this case to two cases decided in Georgia and in the Fourth Circuit, both of which rejected the notion that a phone’s number is subject to Fourth Amendment protections. The court further holds that the warrant affidavit was sufficient, and not conclusory.

Read the full opinion here.

State v. Lance Miles

Appellant was convicted for trafficking in illegal drugs.

1) Appellant argued that the court erred in instructing the jury that the defendant didn’t have to know that the drugs in question were Oxycodone. Defendant was caught with a package containing Oxycodone, and when questioned by a law enforcement officer about their contents, he said he knew there were drugs in the package, but he did not know what kind. Appellant claimed it was error to instruct the jury that “the State does not have to prove that the Defendant knew that the drugs in the package were [o]xycodone, just that he knew that the package contained illegal drugs.” COA held that the requisite intent for drug trafficking – “knowingly” – does not require the State to prove that a defendant knew the specific type of illegal drug that he was trafficking. The State need only prove that a defendant knew or was willfully ignorant that he was dealing with contraband drugs.

2) Appellant next argued that he was entitled to a directed verdict based on the State’s failure to prove that he knowingly trafficked cocaine. However, based on the conclusions reached in the previous claim of error, the COA rejects this argument.

3) Appellant finally argues that his custodial statement regarding his knowledge about the contents of the package were admitted in violation of Missouri v. Seibert. The COA holds that this argument is not preserved, because trial counsel acquiesced to the admissibility of the statement. Additionally, trial counsel never argued that the statements were inadmissible because of a Seibert violation, therefore the trial court never addressed the issue below.

Read the full opinion here.

State v. Demario Thompson

Demario Thompson appealed his convictions for first-degree burglary and third-degree assault. This case stemmed from a disturbance and an apartment complex at 4:00 am in July 2014. Responding officers encountered the alleged victim, observing that her apartment door appeared to have been kicked in, she was visibly upset, and she had visible injuries (including strangulation marks on her neck). A neighbor told police that he heard “a whole bunch of commotion” coming from the victim’s apartment, and when he came outside he saw Thompson arguing with another neighbor. The manager of the apartment complex testified that she had previously sent Thompson a trespass notice, banning him from the complex. The State also presented the 911 audio, in which the victim says “he just kicked in my door,” and specified that she was referring to “Demario Thompson.” In his appeal, Thompson claims four errors.
  1.  Thompson argues that the trial court erred in admitting the trespass notice in the form of a letter from the apartment complex. Prior to trial, Thompson moved to suppress the letter, and that motion was denied. The COA says the letter was relevant regarding the first-degree burglary element of consent. The Court further rejects Thompson’s argument that the letter was hearsay, noting that the letter was a business record, because it was drafted by the complex manager in connection with her employment duties. The Court also dismisses Thompson’s argument that the letter was impermissible “prior bad act” evidence” (aka 404(b) evidence), stating “a person could be banned from an apartment for many reasons that do not include committing a prior bad act.” Lastly, the Court rejects Thompson’s argument that the letter should have been excluded under Rule 403, reiterating the letter’s relevance and lack of prejudicial character.
  2. Next, Thompson argues that the 911 recording was inadmissible, because it was not properly authenticated and it violated his right to confront witnesses. The Court dispenses with both of these arguments, holding that the calls were properly authenticated, and that they did not violate Thompson’s right to confront witnesses because the substance of the call was nontestimonial pursuant to Davis v. Washington, 547 U.S. 813 (2006).
  3. Next, Thompson argues that he should have been granted a directed verdict. The Court rejects this, noting the circumstantial evidence that Thompson entered the victim’s apartment without consent, and caused the victim’s injuries.
  4. Finally, Thompson argues that he should have been granted a new trial due to the cumulative effect of the three errors described above. The Court holds that there were no errors, thus the motion for new trial was properly denied.

State v. Courtney Thompson

State v. Robert Guinyard

The appellants were tried jointly and convicted of homicide by child abuse (HCA) and unlawful conduct towards a child.

1) Appellants argued that their motions for directed verdict were improperly denied. The COA rejected this argument, saying that there was substantial circumstantial evidence regarding both charged counts for both defendants (i.e. medical evidence showing injuries over time, a bloody shirt found in the defendants’ house, and the parents’ admitted presence during the fatal beating).

2) Appellants argued that the admission of graphic photos of the victim was error. The COA rejected this argument, holding that the pictures were not unfairly prejudicial under Rule 403.

Read the full opinion here.

State v. Hughes

Hughes was released from jail on unrelated charges, and soon after, his mother was found dead in her home. At trial, there was testimony that the victim feared Hughes. This testimony, according to the Court of Appeals, was admitted in error. The Court notes that “while the present state of the declarant’s mind is admissible as an exception to hearsay, the reason for the declarant’s state of mind is not.” The Court further notes that when a trial court admits these kinds of statements, it must “narrowly limit” them, “to declarations of condition – ‘I’m scared’ – and not belief – ‘I’m scared because [someone] threatened me.'” In other words, a witness may testify that the deceased was afraid, but not that the deceased was afraid of the defendant.

Despite the erroneous admission of this testimony, the Court declines to reverse Hughes’ conviction, because (1) the objection was not preserved, (2) Hughes elicited similar testimony, and (3) the remaining evidence of guilt was overwhelming.

The Court also addresses Hughes’ claim that the State’s closing argument – which was divided into two parts – was a due process violation in that it allowed the State to “sandbag” Hughes, and prohibit Hughes from having an opportunity to reply. The Court finds that “the bulk of the State’s closing argument was confined to content that had already been raised in Hughes’s closing argument.” The Court concluded that any error was harmless beyond a reasonable doubt.

Read the full opinion here.


Gonzalez v. State

Gonzalez filed a PCR action claiming that his trial attorney had a conflict of interests when he represented Gonzalez at trial. The PCR court denied relief, and the Court of Appeals affirmed that decision. The Supreme Court reverses.

The nature of the conflict that Gonzalez identifies is as follows: Gonzalez was charged with trafficking marijuana and methamphetamine. At the same time, Gonzalez’s mother’s boyfriend Dino Perez was charged with trafficking marijuana. Trial counsel represented both Gonzalez and Perez, simultaneously. After Gonzalez was tried and convicted for trafficking methamphetamine, he hired a new lawyer for his appeal. Appellate counsel immediately arranged for Gonzalez to provide authorities with information about Perez’s narcotics activities in order to obtain leniency for his remaining marijuana trafficking charge. The result of this arrangement was that Gonzalez was now a key witness against Perez – and Gonzalez’s attorney represented both parties.

The Court states that “prejudice is presumed if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interests affected his lawyer’s performance.” The Court concludes that the conflict affected trial counsel’s representation, in that trial counsel failed to advise his client of favorable options (i.e. providing the government with information about Perez) – options which were immediately exercised by Gonzalez once he was made aware of them by conflict-free counsel.

Read the full opinion here.


State v. Miama Kromah

Kromah was convicted for (1) infliction of great bodily injury upon a child, and (2) unlawful neglect of a child. On appeal, Kromah claimed that the trial court erred in permitting two State’s witnesses to testify about hearsay conversations that they had with the child victim (the child did not testify at trial). One State’s witness, a “forensic interviewer” who interviewed the alleged child victim, testified regarding her “compelling finding” of physical abuse. The witness was also qualified as an expert witness. The Supreme Court said the admission of this testimony was error, and that the witness’ statements were equivalent to that witness stating that she believed the child victim.

Despite the admission of this erroneous testimony, the Supreme Court affirmed the result, citing the overwhelming evidence of guilt, and finding the trial court’s error harmless beyond a reasonable doubt.

State v. Cheeks

Cheeks was convicted of trafficking crack cocaine. On appeal, Cheeks argues that (1) the search warrant authorized in his case was defective, and (2) the trial judge’s “strong evidence” charge was erroneous.

The Court quickly disposes of the search warrant issue, finding no error.

Turning to the “strong evidence” charge, the Court finds that the instruction is erroneous. Specifically, the charge states that “[a]ctual knowledge of the presence of crack cocaine is strong evidence of a defendant’s intent to control its disposition or use.” The Court holds that this language “largely negates the mere presence charge, and erroneously conveys that a mere permissible evidentiary inference is, instead, a proposition of law.” The Court instructs trial courts to refrain from providing this instruction in the future.

State v. Rice

In this case the Supreme Court considers whether a defendant can appeal from a contested waiver hearing after a guilty plea in general sessions. Rice, a fifteen-year-old was charged several violent crimes. There was a contested waiver from family court to general sessions court, which Rice lost. After the court sent Rice to general sessions for prosecution, he pled guilty to three counts of armed robbery and one count of assault with intent to kill and received a sentence of eleven years in prison. In pleading guilty, Rice raised no objection to the family court waiver. On appeal, Rice sought to resurrect his family court constitutional challenge to the waiver as violative of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Supreme Court holds that Rice waived his right to challenge the family court waiver, because all guilty pleas in South Carolina are unconditional (that is, they generally constitute a waiver of “nonjurisdictional defects”). The Court adds that even if the transfer to general sessions was invalid, it does not give rise to any jurisdictional error.

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