State v. Devin J. Johnson ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Devin Jamel Johnson, Appellant.
Appellate Case No. 2019-000938
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 5950
Heard April 7, 2022 – Filed November 9, 2022
REVERSED
Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Senior Assistant Attorney General W. Edgar Salter, III,
of Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.
KONDUROS, J.: Devin Jamel Johnson appeals his conviction of murder. He
contends the trial court erred in admitting into evidence his statement to law
enforcement, removing a juror midtrial, and instructing the jury on accomplice
liability. We reverse.
FACTS/PROCEDURAL HISTORY
On June 8, 2011, at 10:18 p.m., Akeem Smalls (Victim) was shot while in the
courtyard breezeway of Building C at Georgetown Apartments in Charleston
County, South Carolina. He died a short time later as a result of being shot. When
Victim was shot, he was just outside of an apartment where Sharmaine Johnson
lived at the time. Sharmaine1 was Johnson's sister and Victim's girlfriend. At the
time of the shooting, Victim owed Johnson $420.
All four of the fired shell casings discovered at the crime scene were identified as
9mm FC Luger casings. Officers discovered an unfired FC 9mm bullet with
Johnson's fingerprint on it in a drawer of a nightstand in Sharmaine's apartment.
Officers interrogated Johnson regarding Victim's shooting. During the
interrogation, Johnson initially denied being in Charleston at the time of the
shooting. After a few hours of interrogation, Johnson admitted he had been at
Georgetown Apartments at the time Victim was shot. Johnson also indicated
someone named Creep 2 was with him at the time of the shooting. Johnson stated
he saw the shooting, claiming a person named Dee shot Victim and that Johnson
and Creep fled the scene out of fear.
Subsequently, officers obtained a search warrant for Johnson's cell phone records,
including his historical cell site location information. Verizon provided Johnson's
cell phone records, which included call history logs and text messages. The
company also supplied cell site location data for outgoing and incoming calls. A
grand jury subsequently indicted Johnson for murder and possession of a weapon
during the commission of a violent crime.
At trial, the State requested the trial court charge the jury "'the hand of one is the
hand of all' . . . because it 'ha[d not] been able to identify a co-defendant.'" State v.
Johnson, 418 S.C. 587, 591, 795 S.E.2d 171, 173 (Ct. App. 2016) (alteration in
original). "The court denied the request, stating it did not 'buy' the State's rationale
that the evidence showed two individuals were involved in the crime." Id. The
1
Sharmaine is also referred to as Shay in the record.
2
Johnson told the officers he did not know Creep's last name or contact
information but described a tattoo he had. He gave the officers the name of
another person who knew Creep and through that person officers located a person
known as Creep. However, officers did not believe this was the person Johnson
claimed was with him when Victim was shot.
court explained that all of the testimony presented indicated Johnson was the
shooter. Id. After deliberations began, "the jury asked, '[I]f the other individual
pulled the trigger, can the defendant still be guilty?'" Id. at 592, 795 S.E.2d at 173
(alteration in original). The trial court determined its prior decision not to charge
"the hand of one is the hand of all" was incorrect; Johnson disagreed. Id. at 592,
795 S.E.2d at 173-74. "[T]he trial court offered [Johnson] the opportunity to
reargue his closing argument before [it] recharged the jury," but Johnson declined
and moved for a mistrial. Id. at 592-93, 795 S.E.2d at 174. The trial court charged
the jury on "hand of one, hand of all" and mere presence. Id. at 593, 795 S.E.2d at
174. After the recharge, Johnson asserted the evidence did not support the new
charge. Id. The jury convicted Johnson of both offenses—murder and the
possession of a weapon during the commission of a violent crime. Id. at 590, 795
S.E.2d at 172.
Johnson appealed, arguing the trial court erred in "instructing the jury concerning
'the hand of one is the hand of all' because the evidence did not support the
instruction" and the timing of the instruction prevented Johnson from addressing
the theory in his closing argument, "rendering the trial fundamentally unfair." 3 Id.
at 588, 795 S.E.2d at 171-72. This court reversed his convictions, finding the trial
court's decision to later give the charge fundamentally prejudiced Johnson because
he "crafted his closing argument in reliance on the trial court's adamancy" during
the charge conference that it would not give the charge. Id. at 598, 795 S.E.2d at
177. The court addressed only that issue because it was dispositive. Id. at 590,
795 S.E.2d at 172.
The State retried Johnson beginning on April 1, 2019. 4 At the outset of the trial,
the court held a Jackson v. Denno 5 hearing on the admissibility of Johnson's
3
Johnson also argued "the trial court erred in (1) admitting text messages and
historical cell service location information obtained from his cellular service
provider by a search warrant" and (2) admitting his statement to investigators.
Johnson, 418 S.C. at 588, 795 S.E.2d at 171.
4
In between the time this court issued the remittitur following the first appeal and
beginning of this trial in April 2019, a second trial began. At oral argument, both
parties were unclear as to what transpired at the second trial other than the State
believed it ended in a mistrial.
5
378 U.S. 368 (1964).
statement to David Osborne.6 Johnson argued the statement was not admissible
because it was involuntary due to a combination of factors: the length of time of
the interview, his repeated requests for cigarettes, and references investigators
made about his daughter. Following testimony from Osborne, the trial court found
the statement admissible.
At trial, Tenika Elmore testified that at the time of Victim's death, she and Johnson
lived together in Orangeburg. Elmore provided that at that time, she worked in
North Charleston and Johnson would occasionally drive her or ride with her to
work in her car, a blue 2008 Toyota Camry. The Camry was missing both
passenger-side hubcaps. On the day of the shooting, Elmore, Johnson, and
Johnson's six-year-old daughter traveled in Elmore's car to Charleston for Elmore
to work. Johnson and his daughter dropped Elmore off, and she worked all day.
Johnson was alone when he picked her up after work. Elmore believed he was
supposed to pick her up at 11 p.m., but she said he was late, which was normal.
After Johnson and Elmore picked up Johnson's daughter from his mother's house,
they stopped at a gas station on the way back to Orangeburg. Elmore identified
Johnson in photos shown to her during her testimony and confirmed that on that
night, he was wearing the clothing shown in the photos. The video surveillance
from the gas station showed Johnson wearing a white tank top 7 and dark pants on
the evening of the crime.
Osborne testified that during law enforcement's investigation of Victim's killing,
officers were interested in one portion of video surveillance from Georgetown
Apartments showing a car backing into a parking spot and two men exiting the
vehicle and walking toward Building C. Osborne indicated that about a minute
before the shooting occurred, the two individuals walked towards the breezeway,
which was the location of the shooting. The shooting occurred outside of the
camera's view. Osborne provided that seconds after the shooting, the two
individuals ran back to the car and fled the complex in it. He testified the pair was
in a hurry when they came back to the car. He explained the vehicle depicted in
the surveillance video was a blue Toyota Camry consistent with the color, make,
and model of Elmore's car and both cars were missing the passenger side hubcaps.
He provided he could tell the vehicle in the video was missing hubcaps because of
6
Osborne was a detective for the Charleston Police Department at the time of
Victim's killing and investigated the case, which included interrogating Johnson.
At the time of trial, he was no longer a detective; he was an assistant solicitor.
7
The officers referred to the shirt shown in the video as a white tank top or "wife
beater."
the difference in shininess around the wheel area on the two sides of the car.
According to Osborne, the driver of the car wore a white tank top and black pants.
Osborne testified the only people that could be seen on the videos entering the
breezeway area was a man with a dog and the two individuals from the car. He
believed the breezeway was the only way to get to the interior of the apartment
building without going through an apartment. Osborne was unsure if someone
could come in from the pool area. On cross-examination, Osborne acknowledged
many cars shown on the security video of the parking lot of the apartment complex
had backed into parking spaces. He also agreed the apartment complex security
cameras had several blind spots.
Osborne testified about the statement Johnson gave to him. Osborne indicated that
for the first four hours of the interview, Johnson claimed he was in Orangeburg at
the time Victim was shot. Osborne provided that during the interview, he left the
room and allowed Johnson to use Osborne's cell phone. Osborne stated that after
Johnson talked on the phone with his mother and Elmore, his story began to
change—he admitted being at Georgetown Apartments and indicated he saw the
shooting. Based on Johnson's statements, Osborne opined Johnson admitted to
being the driver of the vehicle seen in the video.
Robert Holmes testified that he and Victim sold marijuana provided to them by
Johnson. Holmes stated Victim stole marijuana valued at about $1,000 from
Johnson. Holmes testified that about a week before the shooting, Johnson was
looking for Victim and was unhappy with him. On cross-examination, Holmes
acknowledged he had told Osborne that Victim had taken $500 worth of marijuana
but later gave Johnson money for the marijuana. Holmes also admitted he told
Osborne that Victim thought everything was fine between Johnson and himself
after that.
Vanessa Morton testified that while watching the news on television, she learned
law enforcement was looking for her son Diangelo Bumcum. She indicated she
immediately called the police, who then came to her house. She provided
Bumcum did not try to run, despite knowing the police were coming and he
willingly went with them. Morton told police she would help them search her
house and gave the police the clothing her son had been wearing. Police arrested
Bumcum for Victim's murder. Morton testified police arrested her son because he
was the last person seen with Victim. The charges against Bumcum were later
dismissed, and he was released several months after his arrest. Morton identified
her son in a photo from about ten minutes before the shooting and indicated he was
wearing a white tank top.
Bumcum testified that on the night of Victim's killing, he saw Victim on the porch
outside an apartment in Building C of Georgetown Apartments. Bumcum
provided he stopped to talk with Victim and their conversation was friendly. On
cross-examination, he testified he went inside the apartment to use the restroom.
He then left to go to another apartment building in the complex and about thirty to
forty-five minutes later, learned Victim had been killed. Bumcum testified he
worked at Jiffy Lube performing car services around the time period Victim was
killed.
Detective Craig Kosarko testified that at the same time Osborne was questioning
Johnson, he was questioning Bumcum. Detective Kosarko stated that at the end of
the interview, he collected the shirt Bumcum was wearing during the interview
because Bumcum stated he wore it on the day of the shooting. Osborne also
participated in Bumcum's interrogation at times. Osborne testified that after
talking to Bumcum, he looked at the video from the apartments again and observed
someone walking from Building C to Building D about ten minutes before the
shooting. He testified that due to the video quality, he had difficulty identifying
details of the person's face but the body type of the person shown on the video was
consistent with Bumcum's. He indicated the person did not appear to be walking in
a hurry. Osborne testified that Bumcum's shirt tested positive for particles of lead,
which Osborne attributed to Bumcum's job. Osborne testified that lead is one of
three types of particles that need to be detected to identify gunshot reside; the other
two being antimony and barium. Osborne provided that all three substances must
be present to have a positive test result for gunshot reside. Osborne provided that
lead is prevalent in brake pads and Bumcum worked at Jiffy Lube. However,
Osborne indicated he never asked Bumcum about it.
Osborne also testified that during the interrogation of Johnson, Detective Kosarko
showed Johnson a picture of Bumcum. Osborne indicated that Johnson first stated
he did not know the person in the photo. However, Osborne provided that later in
the interview, once Johnson admitted being at the apartment complex, he identified
Bumcum as the shooter.
Detective Kosarko testified that a series of text messages from Johnson to Terry
Stevens from the day Victim was killed showed Johnson was attempting to get
Stevens to help him with something. At 4:37 p.m., Johnson texted "i go wet dude
ass up da nite." The final message to Stevens, at 9:34 p.m. stated, "i cnt wait on u i
gotta handle my bizz."
Detective Kosarko also testified the phone records showed that on the night Victim
was killed, ten phone calls were placed to and from Johnson's phone number
between 9:01 p.m. and 10:02 p.m. and no phone calls were placed between 10:03
p.m. and 10:34 p.m. Additionally, twelve phone calls were placed between 10:35
p.m. and 11:40 p.m. Detective Kosarko indicated that the phone records also
showed Johnson called his sister, Victim's girlfriend, twice at 9:30 p.m. on the
evening of the crime. The phone records show the person placing those two calls
dialed *67 before dialing the number, which Detective Kosarko explained would
prevent the phone number from displaying on the phone of the person receiving the
call. The two phone calls lasted twelve seconds and twenty-eight seconds.
Detective Kosarko further testified about a series of text messages between
Johnson and his mother the day following the shooting. Johnson's mother texted
him asking if he was alright and he responded: " I want to b[e] alrite sha[y] got it
all twist up rite now but i kno[w] [yo]u prayin[g]." Later that same day Johnson's
mother texted him, "How you mean you want to alright[]. Deal with [yo]urself,
maintain your cool let them figure it out you had[ ]nothing to do with it." One
minute later, Johnson's mother sent him another text that stated: "Clear all [yo]ur
texts."
Elmore testified that "to wet somebody up" means "[t]o shoot them." On cross-
examination, when asked if she had stated that "wet or to get wet" also "means to
get drunk or intoxicated," she responded, "That's an interpretation, yes."
Additionally, she confirmed she had not "heard [Johnson] say get wet meaning to
stab or shoot somebody." She agreed Johnson used that term to mean intoxicated.
Holmes testified that "to wet somebody up" means to shoot the person. On cross-,
redirect, and recross-examination, he explained the terms wet and "wet up" are two
different things; that getting wet means to get drunk or intoxicated, whereas
wetting someone up means to shoot that person. Additionally, Osborne testified
that based on his experience, to wet somebody up means "you're going to shoot
somebody," explaining "when you shoot somebody multiple times, they bleed and
then they get wet." Osborne also clarified, "Wet somebody up is different than get
wet. Get wet is getting high. Wet somebody up or wet them up is shoot
somebody." Detective Kosarko also stated that to wet somebody up meant to shoot
or kill someone, describing "when you shoot somebody, their clothes get wet from
the blood."
During the State's case, an issue arose with a juror; initially, the trial court was
concerned the juror possibly had fallen asleep and later, the juror informed the
court he knew one of the witnesses who had testified. 8 After the court spoke to the
juror and the parties argued about whether the juror should be excused, the trial
court stated it was excusing the juror because the State provided it would have
exercised a preemptory challenge if the juror had indicated during voir dire he
knew one of the witnesses.
Prior to the trial court charging the jury, Johnson asked the trial court if it planned
to charge the jury on accomplice liability. The trial court stated it was going to
charge the jury on "what is the hand of one." Johnson replied he was objecting to
that language being included in the charge.
Following closing arguments, the trial court charged the jury. The charge included
the following language:
Now, in conjunction with the crime of murder, I would
charge you of this principle of law. It's called the hand of
one is the hand of all.
If a crime is committed by two or more people who are
acting together in committing a crime, the act of one is
the act of all. A person who joins with another to
accomplish an illegal purpose is criminally responsible
for everything done by the other person which occurs as
a natural consequence of the acts or act done in carrying
out the common plan or purpose. If two or more people
are together, acting together, assisting each other in
committing the offense, the act of one is the act of all.
Now, prior knowledge that a crime is going to be
committed without more is not sufficient to make a
person guilty of the crime. Mere knowledge or merely
being present by another person and the crime is
committed, that's not sufficient to convict a person of the
crime.
In order to convict the defendant -- even if the defendant
was present when it is committed, is not sufficient to
8
The juror knew the witness by a different last name than the one the trial court
listed during voir dire.
convict. You must -- guilt is -- to convict the defendant
as a principal, a principal is proven by showing an actual
or constructive presence at the scene as a result of a prior
arrangement. Therefore, finding a prior arrangement,
plan or common scheme is necessary for a finding of
guilt as a principal.
The State must prove beyond a reasonable doubt by
competent evidence that the theory of the hand of one is
the hand of all. A principal in a crime is one who either
actually commits the crime or who is present aiding,
abetting or assisting in committing the crime.
When a person does an act in the presence of and with
the assistance of another, the act is done by both. Where
two or more are acting with a common plan or scheme or
intent are present at the commission of the crime, it does
not matter who actually commits the crime. All are
guilty.
And of course, as with any other aspect, the State has to
prove each of those facts that we just discussed beyond a
reasonable doubt. That means you are firmly convinced.
After the trial court charged the jury, Johnson objected:
I just wanted to note on the record that we are objecting
to the hand of one/hand of all charge.
We don't believe that the State has presented any
evidence that the person that . . . Johnson was with that
night was the shooter. I think the evidence that they
presented exclusively in this case was the fact that . . .
Johnson was the shooter, and I will say that I believe I
gave a softball to . . . Osborne when I asked him whether
or not he would serve a murder warrant on the person
once he found out who he was and he did say no, that is
tricky because he's a passenger and I would want to find
out his involvement in this case before I did that.
So I think even their own State's witness said we don't
have enough to say he's involved or not, and that's why I
think the [c]ourt should have declined to read that hand
of one/hand of all charge.
The trial court responded:
And while I agree with you that certainly there was a lot
of indication of that in this particular case, I truly believe
the hand of one/hand of all is most appropriate,
especially with the fact that we have -- well, the
evidence.
Of course, we have the evidence, if the jury believes it, of
course, that . . . Johnson -- in taking instruction that the
State has presented that he was intending to go kill him,
go shoot him. Whether he died or not, I don't know if
that was necessarily it. Probably making him bleed I
think was what the typical literal statement of the
vernacular, but that part of it and then getting somebody
to assist him, that seems to imply I want to get somebody
and maybe he didn't want to do it himself. Maybe he
wanted somebody else to be the shooter, but he was
going to assist. So I believe all of that really falls into
that accomplice part of being participating and so I
respect your position, but I think it's appropriate under
the evidence of this case.
During deliberations, the jury sent a note that asked: "Does the 'hand of one' apply
to the possession of a weapon during the commission of a violent crime?" In
response, the trial court provided the jury with the following additional instruction:
If the State has proved beyond a reasonable doubt that
the murder has been committed, then in order to have a
conviction for the hand of one/hand of all, the State
would also have to prove beyond a reasonable doubt that
. . . Johnson had possession of a firearm at the time that
that murder was committed.
In other words, hand of -- you can't -- assuming just for
the sake that there were two people and three people,
whatever, the person -- in order to be convicted, the hand
of one doesn't apply to anything but the murder. It does
not apply to the -- to the firearm possession. You have to
prove actual possession of that in order to return a verdict
of guilty.
After returning to deliberations, the jury convicted Johnson of murder but acquitted
him of the weapons charge. The trial court sentenced him to thirty-six years'
imprisonment, with credit for time served of 2,604 days. Johnson filed a motion
for a new trial, arguing the trial court erred in charging the jury on accomplice
liability. Following a hearing, the trial court denied the motion. This appeal
followed.
STANDARD OF REVIEW
"In criminal cases, the appellate court sits to review errors of law only." State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court "is
bound by the trial court's factual findings unless they are clearly erroneous." Id."An appellate court will not reverse the trial [court's] decision regarding a jury
charge absent an abuse of discretion." State v. Commander, 396 S.C. 254, 270,
721 S.E.2d 413, 421-22 (2011) (quoting State v. Mattison, 388 S.C. 469, 479, 697
S.E.2d 578, 584 (2010)). "An abuse of discretion occurs when the conclusions of
the trial court either lack evidentiary support or are controlled by an error of law."
State v. Scott, 414 S.C. 482, 486, 779 S.E.2d 529, 531 (2015) (quoting State v.
Laney, 367 S.C. 639, 643-44, 627 S.E.2d 726, 729 (2006)).
LAW/ANALYSIS
Johnson argues the trial court violated his due process rights by instructing the jury
on the theory of accomplice liability, specifically the hand of one is the hand of all
because the State presented no evidence Johnson acted in concert with another.9
We agree.
9
As a threshold matter, the State submits that Johnson's assertion of a due process
violation misunderstands the function of the Due Process Clause because the
appropriate inquiry is whether the trial court abused its discretion in giving an
accomplice liability instruction because this instruction is not required by the Due
Process Clause. The fact that Johnson mentioned that his due process rights were
"Generally, the trial [court] is required to charge only the current and correct law of
South Carolina." State v. Brown, 362 S.C. 258, 261, 607 S.E.2d 93, 95 (Ct. App.
2004). "The law to be charged must be determined from the evidence presented at
trial." Barber v. State, 393 S.C. 232, 236, 712 S.E.2d 436, 438 (2011) (quoting
State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001)). If any evidence
supports a jury charge, the trial court should grant the request. Brown, 362 S.C. at
262, 607 S.E.2d at 95. A charge is correct if it adequately explains the law and
contains the correct definition when read as a whole. State v. Brandt, 393 S.C.
526, 549, 713 S.E.2d 591, 603 (2011). "In reviewing jury charges for error, we
must consider the court's jury charge as a whole in light of the evidence and issues
presented at trial." Id. (quoting State v. Adkins, 353 S.C. 312, 318, 577 S.E.2d 460,
463 (Ct. App. 2003)). If jury instructions as a whole "are free from error, any
isolated portions [that] may be misleading do not constitute reversible error." State
v. Aleksey, 343 S.C. 20, 27, 538 S.E.2d 248, 251 (2000). "A jury charge [that] is
substantially correct and covers the law does not require reversal." Brandt, 393
S.C. at 549, 713 S.E.2d at 603.
"To reverse a criminal conviction on the basis of an erroneous jury instruction, we
must find the error was a prejudicial error." State v. Bowers, 436 S.C. 640, 646,
875 S.E.2d 608, 611 (2022). "Prejudicial error in a jury instruction is an error that
contributed to the jury verdict." Id. Should an appellate court find a jury charge
erroneous, the court must then decide if the charge affected the jury's deliberations,
contributing to the verdict. See id. If the appellate court has "any reasonable doubt
as to whether the erroneous charge contributed to the verdict," it must reverse the
conviction. Id. at 647, 875 S.E.2d at 611.
"[S]ome principles of law should not always be charged to the jury." State v.
Perry, 410 S.C. 191, 202, 763 S.E.2d 603, 608 (Ct. App. 2014); see also State v.
Burdette, 427 S.C. 490, 503, 832 S.E.2d 575, 583 (2019) (stating some matters
allowed during jury argument should not be included in the jury charge).
"Instructions that do not fit the facts of the case may serve only to confuse the
jury." State v. Blurton, 352 S.C. 203, 208, 573 S.E.2d 802, 804 (2002); see also id.
at 205, 208 n.1, 573 S.E.2d at 803, 804 n.1 (reversing a conviction even though a
jury charge was a correct principle of law because it "was not warranted by the
facts adduced at trial").
violated by the jury charge is of no matter. Johnson provides that the standard of
review applicable here is that of reviewing a jury charge and is for the abuse of
discretion. He does not mention due process again.
"The doctrine of accomplice liability arises from the theory that 'the hand of one is
the hand of all.'" State v. Reid, 408 S.C. 461, 472, 758 S.E.2d 904, 910 (2014)
(quoting 23 S.C. Jur. Homicide § 22.1 (2014)). "Under this theory, 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." Id. "A person must personally commit the crime or be present at the
scene of the crime and intentionally, or through a common design, aid, abet, or
assist in the commission of that crime through some overt act to be guilty under a
theory of accomplice liability." Id. at 472-73, 758 S.E.2d at 910. "Accordingly,
proof of mere presence is insufficient, and the State must present evidence the
participant knew of the principal's criminal conduct." Id. at 473, 758 S.E.2d at
910. "If 'a person was "present abetting while any act necessary to constitute the
offense [was] being performed through another," he could be charged as a
principal—even "though [that act was] not the whole thing necessary."'" Id.
(alterations in original) (emphases omitted) (quoting Rosemond v. United States,
572 U.S. 65, 72 (2014)).
In State v. Washington, 10 our supreme court determined the trial court erred by
instructing the jury on accomplice liability. 431 S.C. 394, 397, 848 S.E.2d 779,
781 (2020). The supreme court provided "an alternate theory of liability may not
be charged to a jury 'merely on the theory the jury may believe some of the
evidence and disbelieve other evidence.'" Id. at 409, 848 S.E.2d at 787 (quoting
Barber, 393 S.C. at 236, 712 S.E.2d at 438). The supreme court explained that
"[f]or an accomplice liability instruction to be warranted, the evidence must be
'equivocal on some integral fact and the jury [must have] been presented with
evidence upon which it could rely to find the existence or nonexistence of that
fact.'" Id. at 407, 848 S.E.2d at 786 (second alteration by court) (quoting Barber,
393 S.C. at 236, 712 S.E.2d at 439). The supreme court noted the record in that
case contained evidence the defendant was the shooter but also contained evidence
he was not the shooter. Id. Accordingly, the supreme court held that "[t]he
question becomes whether there was equivocal evidence the shooter, if not [the
defendant], was an accomplice of [the defendant]." Id.10
Johnson's brief mentions this court's Washington opinion and noted that the
supreme court had granted the petition for certiorari and heard arguments. No
opinion had been issued at the time of the filing of the briefs. Johnson provided
the supreme court's opinion to this court as a supplemental authority.
The supreme court examined the case of Wilds v. State, 11 in which this court
affirmed the finding that the trial court erred by giving an accomplice liability jury
charge. Washington, 431 S.C. at 409-10, 848 S.E.2d at 787. The supreme court
observed that this court in Wilds noted no evidence was presented that anyone
other than the defendant was the shooter. Washington, 431 S.C. at 409, 848 S.E.2d
at 787 (citing Wilds, 407 S.C. at 439-40, 756 S.E.2d at 390-91). The supreme court
in Washington posited that the jury, like the jury in Wilds, may have doubted the
testimony from the only possible accomplice that he did not shoot the victim. Id.
at 410, 848 S.E.2d at 787. However, the supreme court found to warrant an
accomplice liability jury instruction, some evidence must have been presented that
the possible accomplice shot the victim. Id. The supreme court held because
neither party presented such evidence, the trial court erred by giving the
accomplice liability jury instruction. Id. at 403, 410-11, 848 S.E.2d at 784, 787-88.
Recently, in State v. Campbell, this court decided whether an accomplice liability
instruction was improperly given. 12 435 S.C. 528, 868 S.E.2d 414 (Ct. App. 2021),
cert. granted, S.C. Sup. Ct. Order dated Sept. 8, 2022. In that case, this court
found the trial court had erred in giving the instruction and reversed the conviction.
Id. at 541, 868 S.E.2d at 421. This court provided:
Based on the evidence presented at trial, only Richardson
could have been [the defendant's] accomplice. On the
day of the shooting, Richardson rode with [the defendant]
from North Charleston to [the location of the shooting],
parked the car for [the defendant], and drove [the
defendant] back to North Charleston. Like in Wilds and
Washington, the jury could have doubted Richardson's
testimony that he was not involved in a common plan or
scheme with [the defendant] to carry out the shooting.
Nevertheless, neither party presented evidence that
Richardson and [the defendant] had joined together in a
common plan or scheme to carry out the shooting.
Indeed, Richardson testified he did not know [the
defendant] was going to drive to [the shooting location]
or why [the defendant] asked him to park the car on [a
particular s]treet.
11
407 S.C. 432, 756 S.E.2d 387 (Ct. App. 2014).
12
Johnson has provided this opinion as a supplemental authority.
Campbell, 435 S.C. at 540, 868 S.E.2d at 421.
This court further explained:
Even if Richardson's involvement was equivocal
evidence he and [the defendant] worked together to carry
out the shooting, the Record must have also contained
some evidence Richardson was the shooter for the
accomplice liability instruction to be proper; it did not.
Again, the jury could have doubted Richardson's
testimony that he was not the shooter. Still, while
security footage showed Richardson walking in [the
shooting location] around the time of the shooting, it also
showed him walking without a rifle, wearing a white T-
shirt and ball cap rather than a hoodie, and getting into
the gold Buick rather than a lime green car.
Consequently, Richardson does not meet the description
of the man seen by [a witness].
Id. at 541, 868 S.E.2d at 421.
This court determined because "neither party presented evidence that either [the
defendant] was working with the man seen by [the witness] or that Richardson was
the shooter," the trial court erred by giving an accomplice liability jury instruction.
Id.
"Generally, motive is not an element of a crime that the prosecution must prove to
establish the crime charged, but frequently motive is circumstantial evidence . . . of
the intent to commit the crime when intent or state of mind is in issue." State v.
Sweat, 362 S.C. 117, 124, 606 S.E.2d 508, 512 (Ct. App. 2004) (omission by
court) (quoting Danny R. Collins, South Carolina Evidence 319 (2d ed. 2000)).
The trial court here erred in giving the accomplice liability jury charge. The State's
theory of the case was that Johnson and the passenger in his car killed the Victim.
No eyewitness testified that he or she saw the Victim being shot. Johnson
provided in his statement to the police that he saw one person shoot Victim, and he
identified Bumcum as that shooter when law enforcement showed him a photo of
Bumcum. The record shows a car with two men in it backed into a parking space,
which Osborne suggested the individuals were "trying to get out in a hurry." The
two individuals walked together toward the crime scene, remained for a few
seconds, and quickly ran back to the car together and fled the complex. Osborne
opined Johnson and another male were the individuals in the vehicle seen in the
video. The car seen in the video is consistent with the car Johnson was known to
be driving that night. From the video, the clothing of the driver of the car matched
the clothing Johnson was wearing that night. Johnson admitted in his statement
that he was at the apartment complex and present at the shooting. Cell phone data
also placed Johnson at the complex. Further, Johnson admitted Creep was with
him at the time of the crime. The State's entire theory of the case was that Johnson
was the shooter.
The State presented evidence Victim owed Johnson a debt. The State also
introduced text messages that Johnson was going to wet someone up, which meant
to shoot or kill a person. The Record contains no evidence that Johnson recruited
anyone to actually shoot Victim; any evidence of recruiting as shown in the text
messages is to assist or accompany Johnson.
An accomplice liability charge was not proper because the evidence is not
equivocal as to whether Johnson or Creep was the shooter—all the evidence
presented only went to Johnson being the shooter; no evidence was presented of
Creep being the shooter. See Barber, 393 S.C. at 236, 712 S.E.2d at 439 ("Like a
lesser-included offense, an alternate theory of liability may only be charged when
the evidence is equivocal on some integral fact and the jury has been presented
with evidence upon which it could rely to find the existence or nonexistence of that
fact. We find the sum of the evidence presented at trial, both by the State and
defense, was equivocal as to who was the shooter. Thus, the charge on accomplice
liability was warranted."). Additionally, although the record contains little
evidence Bumcum was the shooter, to the extent that Bumcum could have been the
principal, the State presented no evidence Johnson was working with him.
The weapons charge of which the jury acquitted Johnson states it applies when "a
person is in possession of a firearm or visibly displays what appears to be a firearm
. . . during the commission of a violent crime and is convicted of committing or
attempting to commit a violent crime." S.C. Code Ann. § 16-23-490(A) (2015).
The record establishes Victim died from being shot with a firearm. For the jury to
acquit Johnson of the weapons charge, it must have found the State did not meet its
burden of proving Johnson actually shot Victim and therefore, only found him
guilty of murder due to the theory of accomplice liability. Therefore, the charge
prejudiced Johnson.
CONCLUSION
The trial court erred by charging the jury on accomplice liability and that error
prejudiced Johnson.13 Accordingly, Johnson's conviction of murder is
REVERSED.
WILLIAMS, C.J., and VINSON, J., concur.
13
Because this issue is dispositive, we need not reach Johnson's issues regarding
the voluntariness of his statement and the juror disqualification. Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (noting an appellate court need not review remaining issues when its
determination of a prior issue is dispositive of the appeal).