State v. Buckmon, 25375.

Citation555 S.E.2d 402,347 S.C. 316
Decision Date13 November 2001
Docket NumberNo. 25375.,25375.
PartiesThe STATE, Respondent, v. Michael Paul BUCKMON, Appellant.
CourtUnited States State Supreme Court of South Carolina

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Derrick K. McFarland, all of Columbia, and Solicitor Barbara R. Morgan, of Aiken, for respondent.

Deputy Chief Attorney Joseph L. Savitz, III, and Assistant Appellate Defender Eleanor Duffy Cleary, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.

Justice MOORE.

Appellant appeals his convictions for murder, attempted armed robbery, and criminal conspiracy. We affirm in part and reverse in part.

FACTS

One December night, around 10:00 p.m., the unresponsive body of Minh Chapman (the victim) was found. The victim's body was found in the driver's seat of her car, which was parked outside the China Express Restaurant where she was manager. The victim's purse, containing approximately $1,400 of the restaurant's receipts, was beside her on the front car seat. After the police and rescue squad arrived, the victim was transported to the hospital. Initially, because there was no evidence of violence at the scene, she was thought to have suffered a heart attack. Later it was determined she had died from a single gunshot wound to the chest.

At trial, the fingerprint expert testified he was unable to positively identify anyone in this case.1 No fingerprints were discovered on a spent shell casing found near the car. Further, no fingerprints were found on a .25 caliber semi-automatic pistol the police recovered from the home of the mother of Maurice Benning, one of appellant's co-defendants. The firearms examiner testified the fired shell casing found at the scene came from the pistol that was recovered. However, the examiner could not conclusively determine whether the .25 caliber bullet recovered from the victim's body had been fired by the recovered pistol.

A witness, Shirley Collins, testified she saw three people, sometime between 9:55 p.m. and 10:05 p.m., crossing the road in front of her while driving on the night of the murder. She testified the three people, whose race and sex she could not identify, were wearing dark clothes and were traveling in the direction of the China Express.

Temetrius Williams testified she drove appellant, Tunzy Sanders, and Benning around on the night of the murder. She drove them to a parking lot near the China Express to drop them off, but since it was raining they decided not to stay. She then drove the three to Jermaine Walker's house. She could not remember what they were wearing.2 Previously, Temetrius had made a statement to police which consisted of the following: When she arrived at appellant's house, appellant said he would bring her some money. She agreed to drive appellant, Sanders, and Benning, who were wearing black clothes and carrying walkie-talkies, to town. She parked her car at the House of Pizza, where they exited the car and then returned shortly thereafter. Upon returning, Benning stated, "Y'all can use it but please return it because it ain't mine." Thereafter, she dropped them off at Walker's house around 7:50 p.m. During this time, they said, "we're going to get some cheese tonight." In her statement, Temetrius told the police that cheese meant money.

Maurice Odom, who was imprisoned at the time, testified solely for the purpose of impeaching Temetrius. He testified he informed the police Temetrius had told him appellant had placed a gun to her head the night of the victim's murder and that all three men were wearing black clothes.

Jermaine Walker testified Temetrius dropped appellant, Sanders, and Benning off at his house. He stated the three had on "regular like blue jeans and shirts, dark clothes." Walker testified they stayed until about 9:30 or 10:00 p.m. While there, they stated they were going to "get a lick," which he took to mean there was going to be a burglary or a robbery. He could not remember who made that comment. When they left, Walker testified, they stated they were going to a friend's house and they walked in the direction of the China Express, which is the same direction in which the friend lived. Walker further stated that appellant also lived in that same direction.

A cellmate of Benning testified he and Benning discussed the China Express crime.3 He testified Benning told him the following: (1) there were two pistols, (2) he was "out to get paid that night," (3) he was the look-out, (4) he said take her out if necessary, (5) he ran after the victim was shot, (6) he kept his mother's gun but threw the other gun away, (7) a few other places had been "cased" that night but without luck.4 Two other jailhouse informants testified about conversations they had with Sanders concerning the China Express crime. Both informants testified Sanders told them he planned to rob the victim and had shot and killed the victim. The testimony was only considered as it related to Sanders.

At the close of the State's case, appellant's directed verdict motion on all of the charges was denied. Appellant was convicted of murder, attempted armed robbery, and criminal conspiracy, and was sentenced to consecutive terms of life imprisonment for murder, twenty years for attempted armed robbery, and five years for criminal conspiracy.5 Following the jury's verdict, appellant's motion for a new trial was denied.

ISSUE
Did the trial court err by failing to direct a verdict of acquittal on the charges against appellant?

DISCUSSION

On appeal from the denial of a directed verdict, we must review the evidence in the light most favorable to the State. State v. McHoney, 344 S.C. 85, 544 S.E.2d 30 (2001). A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. Id. If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, we must find the case was properly submitted to the jury. Id. Accordingly, a trial judge should grant a directed verdict motion when the evidence merely raises a suspicion the accused is guilty. State v. Lollis, 343 S.C. 580, 541 S.E.2d 254 (2001). See also State v. Ballenger, 322 S.C. 196, 470 S.E.2d 851 (1996)

(trial court should grant directed verdict motion where jury would be speculating as to guilt of accused or where evidence is sufficient only to raise mere suspicion of guilt). "Suspicion" implies a belief or opinion as to guilt based upon facts or circumstances which do not amount to proof. State v. Lollis, supra.

Murder and attempted armed robbery convictions

No direct evidence was adduced at trial linking appellant to the crimes of murder and attempted robbery. The State's case depended entirely on circumstantial evidence. When a directed verdict motion is made in a criminal case where the State relies exclusively on circumstantial evidence, the trial judge must submit the case to the jury if there is any substantial circumstantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced. State v. Lollis, supra; State v. Martin,

340 S.C. 597, 533 S.E.2d 572 (2000). In reviewing a directed verdict motion, the trial judge is concerned with the existence of evidence, not with its weight. State v. McHoney, supra; State v. Lollis, supra.

The circumstantial evidence relied upon by the State is not substantial and merely raises a suspicion of guilt. The key pieces of circumstantial evidence relied upon by the State are: (1) Temetrius's written statement that a comment was made about getting some "cheese;" (2) Walker's testimony that a comment was made about getting a "lick;" (3) the fact appellant, Sanders, and Benning were together at least until they left Walker's house, around 9:30 or 10:00 p.m., and walked in the direction of the China Express; and (4) Shirley Collins's testimony that she saw three people running towards the China Express around 10:00 p.m.

Even viewing the circumstantial evidence in the light most favorable to the State, the evidence does not reasonably tend to prove appellant's guilt. While appellant was seen leaving Walker's residence and walking with Sanders and Benning towards the direction where the China Express was located, appellant's home was also located in that same direction. Additionally, while Collins testified she saw three individuals running towards the China Express, she stated she could not identify their race or their sex. None of the...

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