The Courtney Law Firm

Is Lifetime satellite monitoring without judicial review constitutional?

admin — Mon, 03 Jun 2013 19:25:36 +0000

On May 22, 2013 The Supreme Court of South Carolina found unconstitutional a provision in §23-3-540(C) and (H), commonly known as Jessica’s Law. That law mandates that “when an individual has been convicted of engaging in or attempting criminal sexual conduct with a minor in the first degree (CSC-First) or lewd act on a minor, the court must order that person placed on satellite monitoring.” It also mandates that when a person has been convicted of these crimes and violates probation, “the individual must remain on monitoring for as long as he is to remain on the sex offender registry, which is for life.”
In the case before the Court, State v. Jennifer Rayanne Dykes, Appellate case number 2010-160047, the defendant had pled guilty to lewd act on a minor for her relationship with a fourteen year old female. She was sentenced to fifteen years imprisonment, suspended upon the service of three years and five years’ probation. After her release from prison, she was put on probation and notified of the satellite monitoring if she violated her probation.
After violating probation (which did not involve re-offending as a sexual predator) the state recommended partial revocation of her probation and mandatory lifetime satellite monitoring. She objected to the sentence based on constitutional grounds, but the court found it was statutorily mandated to impose the sentence. She appealed on the grounds that under the fourteenth amendment no person shall be deprived of life, liberty, or property without due process of law. The statute in question imposes a lifetime sentence of satellite monitoring, and there is no judicial review of the sentence. This means there is no option for the judge to impose it or limit it. The defendant must be on monitoring for the rest of her life.
The Court looked at the provision of this statute and found that “lifetime imposition of satellite monitoring implicates a protected liberty interest to be free from permanent, unwarranted governmental interference.” After reviewing the statute, they found the monitoring requirement to be constitutional, but found “the complete absence of any opportunity for judicial review to assess a risk of re-offending, which is beyond the norm of Jessica’s Law, is arbitrary and cannot be deemed rationally related to legislature’s stated purpose of protecting the public from those with a high risk of re-offending.” The Court further stated, “the only provision invalidated…is the portion…that prohibits only those convicted of CSC-First and lewd act on a minor from petitioning for judicial relief from satellite monitoring.”
In essence what the Court said in this decision is not that a person cannot be made to be on satellite monitoring for life, but that since the legislature’s intent was to protect society from predators and not to punish the offenders, there must be a mechanism for courts to review each case to decide whether that particular offender is highly likely to re-offend. If so, then lifetime monitoring is available. If not, the court may decide that monitoring for only a set timeframe is needed, and can be discontinued if the offender has not re-offended in that time.
If you have any questions or comments about this blog, please feel free to contact me on my blog, website (www.jimcourtneylaw.com) or call me at my office at 843-822-9800. I look forward to any comments or questions you might have. If you have any other questions, please feel free to look over my blog for answers to other questions you might have about criminal law and notable cases.

Directed Verdicts: what they are and why they are so hard to get.

admin — Wed, 22 May 2013 17:11:57 +0000

A directed verdict is a home run for a defense attorney. It means the defendant doesn’t even have to put on a defense to the charges, because the judge agrees there is not enough credible evidence to convict the defendant. I have been fortunate enough to win a directed verdict in a trial, but for those of you who want to know more, a recent South Carolina Court of Appeals case is illustrative.
In the case of State v. Richard Brandon Lewis, Appellate Case No. 2011-187128, the defendant had been charged with aiding and abetting homicide by child abuse. In that case, Lewis had been at the home of Ashley Hepburn, which she shared with her mother and her mother’s boyfriend. Ashely had a baby girl as well.
During the particular evening, the baby had been fussy, and the defendant had fought with Hepburn, so he went to watch television in the living room, which Hepburn went to bed. Lewis later checked on the baby, which was fine at the time. After asking Hepburn to watch a movie with him in the living room, he went back there to watch alone after she declined. Later he heard the baby cry, and Hepburn stomped down the hall to the baby’s room. He heard the baby cry a little more, then heard the crying “as being broken up with short pauses, like she could have been shaken.” However, he was not in the room at the time. A little while later he checked on the baby before going to bed, and found her face down with her head against the crib bars. She also had blood around her mouth. They then called 911.
Lewis was interviewed by the police on several occasions, and did change his story somewhat about what he thought happened to the baby. At first he told police he thought the baby had a seizure. Hepburn, in her first statement to police, implicated Lewis in the crime, saying he was the only person who could have hurt the baby. When shown the second statement of Lewis, she conceded that his version was all true, though she didn’t remember hurting her baby.
It was established at trial that Lewis was not in the room when the baby was attacked, and did help seek medical treatment as soon as he found out about the injuries. The defense attorney moved for a directed verdict, and it was denied. An appeal was filed, which leads to this case.
The appeals court examined the trial court record, using the case of State v. Zeigler, 364 S.C. 94, 102, 610 S.E.2d 859, 863 (Ct. App. 2005) as the yardstick to measure what is required to rule a directed verdict is necessary. In that case the rule established is that a directed verdict is necessary “when the evidence merely raises a suspicion that the accused is guilty.” It continued that “suspicion implies a belief or opinion as to guilty based upon facts or circumstances which do not amount to proof.” Also, from another case, “under accomplice liability theory, 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.” State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010). In that case it was also established that presence where the crime occurred is not enough. Failure to act is not enough to be held liable.
Because the state could not show he did something to help with the crime, the fact he was at the house and gave an inconsistent statement at first, does not rise to the level of aiding and abetting. Therefore the court should have granted his directed verdict motion.
Now you can see how hard it is to get a directed verdict, because it doesn’t take much to get over the standard and have a true question for the jury to decide. If you have any questions or comments about this or any other blog post, please feel free to leave a comment here or give my office a call at 843-822-9800. I welcome any responses or suggestions.

Double Jeopardy and Contempt of Court

admin — Wed, 15 May 2013 14:38:59 +0000

In a recent case heard in the South Carolina Court of Appeals, an interesting concept has come up. It is the idea that if you are held in contempt by the court for a certain action, that double jeopardy attaches and you cannot be prosecuted for the same crimes that you were found in contempt of court.
Most people understand that criminal contempt sanctions are usually less severe than the punishment for the crime one is accused of committing. This might be a way to avoid a more harsh punishment, if it worked.
In the case of State v. Robert Steve Jolly, Appellate case No. 2011-190688, Jolly executed a scheme to defraud people out of their property by having distressed homeowners transfer their property to him, then paying their mortgage payments to him. The scheme caused at least forty-five foreclosure actions against victims. This also caused a backlog of cases at the master-in-equity’s office. His actions, and subsequent actions in filings and in court hearings caused him to be sanctioned for criminal contempt of court by “orchestration of the aforementioned scheme, his conduct in the Foreclosure Actions, and his conduct before the Court at the April 16 hearings has interfered with judicial proceedings, exhibited disrespect for the Court, and hampered the parties and witnesses..(and) were calculated to obstruct, degrade, and undermine the administration of justice.”
Jolly was indicted for one count of the unauthorized practice of law and five counts of obtaining property by false pretenses. He moved to dismiss the indictments arguing double jeopardy would be violated due to his contempt of court sanctions. The Court granted his motion and the State appealed.
The test for whether two offenses are separate or the same (and thus double jeopardy attaches) has long been settled. This was determined in the case of Blockburger v. United States, 284 U.S. 299, 304 (1932). “Under the Blockburger test, a defendant may be convicted of two separate crimes arising from the same conduct without being placed in double jeopardy where his conduct consists of two distinct offenses.” Simply put, the elements of both must be the same. If there is one element that is different from the two offenses, they are separate crimes.
In this case, the crimes charged are criminal contempt and unauthorized practice of law and five counts of obtaining property by false pretenses. The Appeals Court ruled, “the offense of obtaining property by false pretenses does not require any interference with judicial proceedings that is calculated to obstruct, degrade, and undermine the administration of justice. In comparison, the commission of criminal contempt does not require the obtaining from another person by false pretenses real property with the intent to cheat and defraud a person of that property.” Since the two offenses do not have the same elements, there is no double jeopardy. Jolly’s case was reversed and remanded so he could be tried on the indictments.
This is a great example of how double jeopardy works and why. This guy thought the contempt sanctions would help him escape from the indictments against him. If he had a lawyer, he could have saved himself a lot of time and aggravation and probably a contempt sanction. If you have any questions or comments, please feel free to contact me at 843-822-9800 or comment on my blog post.

The Pitfalls of the Alford Plea

admin — Fri, 10 May 2013 15:36:32 +0000

In an opinion filed this week in the South Carolina Supreme Court (Opinion No. 27250), we see the benefits and the pitfalls of a defendant pleading guilty in an “Alford” plea. For those who are not familiar with what that is, basically it is a plea bargain where the defendant’s position is that he wants to take the plea bargain, but still maintain his innocence.
In this case, State v. John Herndon, Appellate Case No., 2011-184909, the defendant was arrested for criminal sexual conduct with a minor in the first degree. While he maintained his innocence, he took the plea bargain under Alford. He was convicted of assault and battery of a high and aggravated nature, and sentenced to ten years, suspended to five years probation, which included a provision that he successfully complete sex abuse counseling. If he failed to comply with probation, he would have to register as a sex offender for life if he did not successfully complete the counseling.
Mr. Herndon began the sex abuse counseling. This counseling required that he admit the abuse he committed on the victim and submit to three polygraph examinations about the abuse. Herndon actually did do two of the polygraph examinations, but refused to do the third one, saying he did not want to admit guilt because he had not been convicted of a sex offense.
Herndon was given a probation citation and terminated from the sex abuse counseling. He was brought back to court where the court continued his probation and ordered Herndon to complete the counseling. He failed to comply with that order by continuing to refuse to admit his guilt in counseling, which was a requirement of the counseling. He was again brought back to court, where he argued that he was not given adequate notice that he would have to admit guilt as part of his counseling. The court ordered that he register as a sex offender for life and he appealed. The crux of the issue here is that Herndon felt that with an Alford plea, he was able to maintain innocence. As the court stated, “The primary thrust of the Alford decision is that a defendant may voluntarily and knowingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit he participated in the acts constituting the crime.” United States v. Morrow, 914 F.2d 608, 611 (4th Cir. 1990). In this case, the court reasoned, “the Alford plea does not create a special category of defendant exempt from the punishment applicable to her conviction. Thus, circuit courts are under no duty to provide notice to Alford defendants any differently than the notice provided to defendants entering a standard guilty plea, or those defendants adjudicated guilty.”
The defendant gets to “save face” by using an Alford plea, but it is legally the same as a guilty plea. The criminal record shows a conviction just as if he had pled guilty. The punishment is the same, so refusing to comply with probation will bring the same punishment regardless of why. This is something every defendant should keep in mind if they hope to use an Alford plea.

DUI: Blood samples and the need for search warrants

admin — Fri, 19 Apr 2013 16:55:47 +0000

Those of us who handle DUI cases watched this case (Missouri v. McNeely) closely for the potential effects on how DUI cases are investigated. The Supreme Court of the United States (SCOTUS), in an opinion written by Justice Sotomayor, has ruled in this case on the need for a warrant when the officer wishes to obtain a blood sample and the suspect refuses to give one. Before I give away the ending, lets talk about this case.
In Missouri, a police officer (I believe it was a trooper) stopped the defendant a little after 2 a.m. because he was speeding and crossed the centerline several times (a big no-no). McNeely admitted to having a couple of beers, and the officer noted “blood shot eyes, slurred speech, and the smell of alcohol on his breath.” The officer had him do field sobriety tests, which he did poorly on, and asked him to blow into a portable breath-test device, which he declined to use. McNeely was arrested and while on the way to the station, he told the officer he was going to refuse to use the breath-testing device at the station as well. The officer then detoured and took McNeely to the nearest hospital for a blood test. The officer read a standard consent form to McNeely, who refused again. Without attempting to get a warrant, the officer instructed hospital personnel to obtain the sample. Lab testing showed McNeely’s BAC to be .154 %, which is well over the .08% legal limit.
This case hinges on this important point: the officer did not attempt to get a warrant before having the sample taken, and he admitted in court he could have gotten a warrant, and that a system was in place to help him get a warrant as quickly as possible. Missouri argued that the fact that alcohol is metabolized out of the bloodstream at a steady rate almost as soon as a person stops drinking (it decreases by about .015 to .02 % per hour once alcohol is fully absorbed) was enough of an emergency (or exigent circumstance in legal speak) for the officer to be justified to get the sample without taking the time to get the warrant. They further argue that there should be a per se exception to the necessity for a warrant for obtaining blood samples in DUI cases, because metabolism in effect destroys the evidence. That means, basically, they wanted a legal rule that in DUI cases, officers don’t need warrants to get a blood sample because it is being destroyed while the warrant is being sought.
Okay, here it is, what we all were waiting for: the SCOTUS ruled that there is no emergency in a run of the mill DUI such that the officer can’t get a warrant in time. However, they also did not say that officers must always get a warrant in these cases. It has been settled law in Schmerber v. California, 384 U.S. 757 (1966) that officers may in some circumstances obtain a blood sample without a warrant in a DUI investigation if “he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of the evidence.” Id., at 770. Pointedly, the Court says that if there is a car accident, the officer must attend to the investigation of the wreck too, and that it is too much of a burden to make the officer get a warrant in a case like that. The official ruling then, in this case, is that the Court must look at the totality of the circumstances to decide if an officer should have gotten a warrant. The Court found that in today’s age with cell phones, email and standard forms, it should not take much time to get a warrant in many cases, so the evidence will still be relatively intact. In other cases, where the officer is out in the country, far from a judge or paperwork to get a warrant quickly, the warrant is not as necessary. “In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”
So there it is, the state did not get a per se exception in warrants for blood samples in DUI investigations, but it was not told that it had to get a warrant in every case, either.

Vindictive Prosecution: What does it take to prove it?

admin — Wed, 17 Apr 2013 17:25:25 +0000

In a recent case in the South Carolina Court of Appeals, an interesting point of law came up that I thought I would share on vindictive prosecution. As a former prosecutor, I can’t count the number of times defendants accused me of this, and many actually believe it when they accuse a prosecutor of this, but we should really know what we are talking about before leveling accusations. With that in mind, lets review State v. Teresa Blakely, Appellate Case No. 2011-196627.
Ms. Blakely was married to Houston Fuller, but was also in a relationship with Kim Alexander. Alexander’s brother got wind that that Fuller had made derogatory comments about his sister, and went to confront Fuller. In the confrontation, Fuller was killed. Blakely, her daughter, and her daughter’s boyfriend were there at the time. Blakely pretended to call 911, but did not in reality. After checking for a pulse, she helped Alexander’s brother dispose of the body, and then dropped him off at a convenience store.
Blakely was tried for murder and found not guilty. She was then indicted for accessory after the fact to a felony. Blakely moved to quash the indictment due to multiple violations of due process. The trial court denied her motion and she was convicted.
Blakely appealed based on vindictive prosecution, arguing the State could have originally indicted her for both murder and accessory after the fact but only indicted her for the second charge after she exercised her right to a jury trial and was acquitted.
The Court noted that accessory after the fact is sort of a special case, and “a person cannot be both a party to a crime and an accessory after the fact.” Vergara v. State, 695 S.E.2d 215, 218 (Ga. 2010). Basically, if you did it, you can’t also be an accessory to it. Because of that, double jeopardy does not attach for accessory after the fact.
In order for the Court to find there was vindictiveness in the prosecution of a case, they must find “They inquiry…is not focused solely on the presence or absence of actual vindictive motive, but includes whether the action taken, which exposes the accused to an increased punishment, poses such a reasonable likelihood of vindictiveness as to require a presumption of vindictiveness.” State v. Fletcher, 322 S.C. 256, 260-261, 471 S.E.2d at 704 (Ct. App. 1996). Boiled down, they mean it has to look a lot like the prosecutor was being vindictive, and not just because the defendant could get more time.
In the case we are discussing, the Court found the only indication of vindictiveness by the prosecutor was the timing of the direct indictment. On this point, they flat out ruled that this was not enough to prove an improper motivation by the prosecutor, since the evidence showed there was probable cause to believe the crime had occurred. Therefore, no actual prosecutorial vindictiveness. That leaves Blakely only presumptive prosecutorial vindictiveness. That means she would have to prove “a reasonable likelihood that retaliation was a motive behind bringing the additional charges” Patrick v. State, 349 S.C. 203, 209, 562 S.E.2d 609, 612 (2002). The Court found that “exercise of one’s choice to proceed with a jury trial rather than a bench trial does not compel a special presumption of prosecutorial vindictiveness whenever additional charges are brought after a jury trial is demanded.” United States v. Rogers, 18 F.3d 1425, 1430-31 (8th Cir. 1994). The Court then stated “The fact that Blekely exercised her right to a jury trial on the first charge is, standing alone, insufficient to prove such a reasonable likelihood of vindictiveness as to required a presumption of vindictiveness.” The new charge was filed after she was acquitted, but before she filed an appeal or asked for post conviction relief.
Was the prosecutor mad that she was acquitted of murder? Your guess is as good as mine, but in order to show that the prosecutor was being vindictive one must go quite a way to prove it to the court, as this case highlights. If you have any questions or comments, on this case or one of your own, please feel free to call me at 843-822-9800 or visit my website at www.jimcourtneylaw.com

Inconsistent police report and testimony at trial.

admin — Wed, 10 Apr 2013 14:34:23 +0000

A recent Court of Appeals case highlights an area of evidence that is often overlooked. In the case of State v. Mario Tynes, (Appellate Case No. 2010-162946), the defendant was arrested after Horry County Police pulled over the vehicle he was in after a citizen had called in saying a vehicle matching that vehicle’s description was traveling on Arrowhead Blvd. occupied by several black males who were waving guns in the air. A search of the car revealed large bags of marijuana and two firearms.
At trial, the police testified about the stop and what they found, and the defendant alleged that the police were inconsistent in their statements at trial and the reports they made at the time of the arrest. In addition, the defendant alleged that the fact that one of the officers was not sequestered, meaning separated from the proceedings, and may have heard the first officer testify, tainted his testimony. In essence, since the officer heard the other officer testify at a suppression hearing, he altered what his testimony would have been to conform to what the first officer said on the stand.
While the Court of Appeals case does not highlight exactly what the inconsistent statements were that the defendant was alleging, the Court nonetheless ruled that “inconsistencies between the police report and the officers’ testimony do not necessarily warrant reversal of the trial court’s finding that the search of the vehicle was lawful.” In fact, according to State v. Morris, 395 S.C. 600, 608, 720 S.E.2d 468, 471 (Ct. App. 2011), “The appellate court’s task in reviewing the trial court’s factual findings on a Fourth Amendment issue is simply to determine whether any evidence supports the trial court’s findings.”
The trial court was given the task of deciding whether there was probable cause to search the vehicle in the first place. The challenge was made and suppression hearing held to decide if there was probable cause for the stop in the first place. While I have not reviewed the trial court transcripts, it would seem the trial court found there was probable cause to stop the vehicle, and to subsequently search the vehicle without a warrant, due to exigent circumstances. In some instances, a defendant has good issues to go to trial with, and in some instances, if there is a deal offered, it should be considered.

DUI and video tape in South Carolina…a recent case.

admin — Thu, 04 Apr 2013 17:51:23 +0000

Many people in South Carolina are unaware of a specific law here which requires that all DUI arrests be videotaped. According to § 56-5-2953(B) “Failure by the arresting officer to produce the video recording required by the section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if the arresting officer submits a sworn affidavit certifying that the video recording equipment at the time of arrest or probable cause determination, or video equipment at the breath test facility was in an inoperable condition, stating which reasonable efforts have been made to maintain the equipment in operable condition…”
This particular statute is immensely important in my view, for both defendants and police alike. This is because sometimes defendants are accused of crimes they have not committed, and a videotape is helpful in showing what the police saw at the time of arrest. It is also helpful for police, because they are occasionally accused of improper actions or faulty investigations, and the tape will show if they have acted properly.
A recent South Carolina Court of Appeals case is helpful to shine a light on this statute and how important it is in DUI law. In the case of City of Greer v. Shawn P. Humble, Appellate case No. 2012-207550, Humble was arrested for DUI in Greenville County. The arrest was not videotaped due to faulty equipment in the officer’s car. The officer submitted an affidavit as required certifying that the camera was inoperable and “reasonable efforts had been made to maintain the equipment in an operable condition.”
The way the statute read before it was revised, this affidavit would have sufficed. However, with the rewording of the statute, the state now requires officers to indicated which specific measures were taken to make the camera operable.
Cases have been tried which directly deal with this provision. Most notably, Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 341, 713 S.E.2d 278, 282 (2011), stating “a law enforcement agency’s failure to comply with provisions of section 56-5-2953 is fatal to the prosecution of a DUI case” (at 346). The word “fatal” is as strong as it gets. The legislature meant for it to be that strong, to protect both defendants and police alike. A further discussion in Roberts explains: “despite the potential significance of videotaping oral confessions, the Legislature has not required the State to do so. By requiring a law enforcement agency to videotape a DUI arrest, the Legislature clearly intended strict compliance with the provisions of section 56-5-2953 and, in turn, promulgated a severe sanction for noncompliance.” (393 S.C. At 349, 713 S.E.2d at 286).
A DUI case is a serious matter, and may not seem like it, but it is an intricate case that can have long range repercussions on your ability to work or drive. At the very least, know that if you get pulled over, you are being recorded and should act accordingly. For more information on this or other criminal law topics, visit my website at www.jimcourtneylaw.com, or call 843-822-9800.

Ineffective counsel: What does it take to overturn a conviction?

admin — Fri, 22 Mar 2013 15:14:29 +0000

In the latest South Carolina Supreme Court case, we find an appeal of a conviction based on ineffective assistance of counsel. Most people, including lawyers, do not understand what is involved with an appeal of this type. That is because there are virtually no lawyers who will just sit there and let their client be convicted of a crime. The lawyer will do his best for the client, but sometimes clients get convicted. That makes an appeal of this type very technical in nature, because the appellant lawyer must show evidence that the client was prejudiced due to the actions, more more often, inactions, of the trial lawyer.
In Sigmon v. State, South Carolina Supreme Court opinion 27233, Sigmon was convicted of two counts of murder and sentenced to death. He directly appealed his case, and the convictions were upheld. He then filed for post conviction relief (PCR), stating his lawyer failed to properly preserve various issues for appeal, failed to adequately present evidence of his mental state, and attempted to blame the victims for the crimes. All of these factors, according to Sigmon, caused him to suffer prejudice as a result of the lawyer’s deficient performance. His post conviction relief was denied as well, and he appealed to the South Carolina Supreme Court.
They granted certiorari to hear the appeal, and ruled on several factors. First, did the PCR court err in failing to find trial counsel ineffective when they failed to object to the solicitor’s reference to his own opinion of the death penalty during his closing statement? The Court found that the statements made by the solicitor, must not “appeal to the personal biases of the jurors not be calculated to arouse the jurors’ passions or prejudices, and its content should stay within the record and reasonable inferences to it.” Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002). The Court found in reviewing the trial transcript and testimony that the solicitor’s statements did not go that far, but instead emphasized the jurors’ responsibility in the penalty phase but did not influence them in a particular decision.
Second, did the PCR court err in finding trial counsel was not ineffective for failing to argue that the trial court was required to charge the jury on the statutory mitigating factor of the age and mentality of the defendant at the time of the crime? Sigmon argued that the lawyer should have objected to the judge not instructing the jury on the mitigating factor of intoxication as a factor in why he committed the murders and how it could affect his level of guilt. The Supreme Court, however, found “there is evidence of probative value supporting the PCR court’s finding that Sigmon was not intoxicated at the time of the murders.
Lastly, did the PCR court err in failing to find trial counsel ineffective for failing to object to the trial court’s charge on non-statutory mitigation? “A non-statutory mitigating circumstance is one that is not provided for by statute, but it is one which the defendant claims serves the same purpose. That purpose is to reduce the degree of his guilty in the offense.” However, the Court noted the trial court’s jury instruction included the instruction: “whether the defendant should be sentenced to life imprisonment for any reason, or for no reason at all… In other words you may choose a sentence of life imprisonment if you find a statutory or non-statutory mitigating circumstance, or you may choose a sentence of life imprisonment as an act of mercy.” The Court found that while the trial court did not specifically tell the jury what non-statutory factors to consider, it was clear in telling them they could use any factor in considering the death penalty.
In this case, Sigmon’s convictions were affirmed, as was his death sentence. This case is a good example of how complicated an appeal based on ineffective counsel can be. “I got convicted, so my lawyer was ineffective” is not the test the Court goes by in order to determine if a lawyer has done his job. The defendant must show how the lawyer was ineffective, and it must be specific. The defendant must be able to show how he was prejudiced by the lawyer being ineffective.

Appealing a conviction when a directed verdict motion is denied

admin — Wed, 20 Mar 2013 14:28:12 +0000

In a Court of Appeals case filed this week in South Carolina, there is a good discussion of why a defendant my be entitled to a directed verdict with regard to a particular charge. In this particular case, the defendant had been convicted of lynching, conspiracy, and pointing and presenting a firearm in York County. It might help to set the scene for what happened.
The defendant, Francis Larmand, was angry with Ryan Lochbaum, who had worked for Larmand’s wife in a locksmith business. After being fired, Larmand’s wife began to suspect that Lochbaum was intercepting business phone calls and beating her business to the customer. Larmand set up a “sting” in order to catch him going to a bogus call. However, it did not work, and Lochbaum didn’t show. Larmand took his brother-in-law, Leo Lemire, who was present for the sting, with him to Lochbaum’s house.
At the residence, Lemire pulled a handgun on Lochbaum, and a struggle ensued. Lochbaum was able to wrestle the gun from Lemire, and Lemire and Larmand then left. Bystanders had called the police, and the police were able to pull over Larmand and Lemire a short distance from the scene. Lemire was arrested for pointing and presenting a firearm and taken into custody. Larmand was allowed to leave the scene, but was arrested the next day when he went to arrange bail for Lemire. Larmand was charged with second-degree lynching, conspiracy, and pointing and presenting a firearm.
At the close of his trial, Larmand made a motion for a directed verdict on all three charges, and the court denied the motion. He was convicted, and sentenced to ten years in prison for the lynching, and consecutive terms of five years for conspiracy and pointing and presenting a firearm. The court also denied his motion for a new trial, and he appealed.
The Court of appeals agreed to review the case, stating that “A motion for directed verdict is properly denied when there is any evidence, direct or circumstantial, that reasonably tends to prove the defendant’s guilt.” State v. Brandt, 393 S.C. 526, 542, 713 S.E.2d 591, 599 (2011).
With regard to the lynching, § 16-3-220 of the state code defines it as “any act of violence inflicted by a mob upon the body of another persona and from which death does not result…”. A mob is defined in § 16-3-230 as “the assemblage of two or more persons, without color or authority of law, for the premeditated purpose and with the premeditated intent of committing an act of violence upon the person of another.” The Court of Appeals found nothing in the record to support the contention by the prosecution that Larmand and Lemire had premeditated the attack and reversed the conviction. Driving together to the house was not enough to establish premeditation of any attack. Larmand and Lemire both agreed that Larmand did not know Lemire had a gun with him, told him to stay in the car when they arrived, and parked down the street to keep Lemire out of it.
On the conspiracy charge, § 16-17-410 of the South Carolina Code defines conspiracy as “ a combination between two or more persons for the purpose of accomplishing an unlawful object or lawful lawful object by unlawful means.” “The crime consists of the agreement or mutual understanding” State v. Horne, 324 S.C. 372, 381, 478 S.E.2d 289, 294 (Ct.App. 1996). As stated on the lynching charge, the only evidence the state presented was that both arrived at the same place together. They did not walk up together, Lemire was told to stay in the car, and there was no agreement as to how to proceed in the situation. The Court of Appeals reversed this conviction as well.
Lastly, on the pointing and presenting a firearm charge, the Court quickly reversed this charge as well. It was undisputed that Larmand never had possession of the firearm. He could still be convicted of that charge if found guilty of conspiracy. “The acts and declarations of any conspirator made during the conspiracy and in furtherance thereof are deemed to be the acts and declarations of every other conspirator and are admissible against all. Id. (quoting State v. Sullivan, 277 S.C. 35, 42, 282 S.E.2d 838, 842 (1981)). However, since there was no conspiracy proved, he could not be convicted of pointing and presenting a firearm.
In this case we see how a directed verdict is sometimes called for, but is still not given. Luckily, the lawyers for the defendant were diligent in their objections and were able to appeal this case to obtain the correct verdict for their client.