State v. Morris , 376 S.C. 189 ( 2008 )

Justice PLEICONES.

I concur in the majority’s decision to affirm appellant’s convictions and sentences, but write separately because I view several of the issues differently than does the majority. I have addressed the issues in the same order.

I agree that appellant was not entitled to immunity because he was not compelled to provide the State with self-incriminating information. State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994). I do not join that part of the majority opinion which advises investigators to impart Miranda warnings where they are not otherwise required

I agree that the jury instruction given in this case did not misstate the scienter requirement in a securities fraud prosecution. See State v. Thompkins, 263 S.C. 472, 211 S.E.2d 549 (1975)(knowingly means actual knowledge, but one can not avoid “knowing” by shutting one’s eyes to what would otherwise be obvious). Unlike the majority, I would not find that a review of the evidence is in order. As I view appellant’s complaint, it is not that the charge was not warranted by the evidence, but rather that it misstated the scienter requirement. Finally, I would not engage in the harmless error analysis undertaken at the conclusion of section II of the opinion, as I would find no error in the charge given.¹²

As to the testimony of the State’s expert, I agree with the majority that we should affirm the trial court’s ruling that the expert was qualified. See Smith v. Haynsworth, 322 S.C. 433, 472 S.E.2d 612 (1996).

As to appellant’s contention that the trial court erred in not permitting his expert to testify to a law firm’s alleged conflict of interest, I would affirm as the proffered testimony was simply not relevant. Rule 402, SCRE.

I agree that the Bankruptcy Examiner’s Report was properly excluded from evidence.

I agree that the trial judge did not err in refusing to dismiss the indictment, which is couched in the language of the statute. E.g., State v. Means, 367 S.C. 374, 626 S.E.2d 348 (2006) qualified on other grounds Talley v. State, 371 S.C. 535, 640 S.E.2d 878 (2007). In my view, appellant’s contention that the evidence did not show a statutory violation is one to be addressed at trial at the directed verdict stage, not a defect apparent on the face of the indictment warranting the indictment’s dismissal.

Finally, I agree with the majority’s decision to affirm the denial of appellant’s continuance request, and to affirm the denial of his directed verdict motion.¹³

For the reasons given above, I concur in the majority’s decision affirming appellant’s convictions and sentences.

12 . This is not to suggest that I would endorse the instruction as a model charge.

13 . I note that the directed verdict is contested not on the basis that the State failed to prove in some counts that there was a ''sale” of securities as defined by the statute, but on the ground that the State failed to prove appellant possessed the requisite intent.