State v. Green
| Decision Date | 12 November 2020 |
| Docket Number | Appellate Case No. 2019-001435,Opinion No. 28001 |
| Citation | 432 S.C. 97,851 S.E.2d 440 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Fabian Lamichael GREEN, Petitioner. |
Appellant Defender Susan B. Hackett, of Columbia for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General W. Jeffrey Young, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody J. Brown, all of Columbia; Eighth Circuit Solicitor David M. Stumbo, of Greenwood; and Samuel M. Bailey, of Gilbert Law Firm, LLC, of Beaufort, all for Respondent.
We granted a writ of certiorari to review the court of appeals' decision in State v. Green , 427 S.C. 223, 830 S.E.2d 711 (Ct. App. 2019). We affirm as modified. We refer to the excellent court of appeals' opinion for the facts and legal issues. Petitioner Fabian Green was convicted of murder and desecration of human remains. Two issues were presented on direct appeal—a challenge to (1) the trial court's Rule 901(b)(4), SCRE, authentication determination concerning social media posts, and (2) the trial court's denial of Petitioner's motion for a mistrial based on an alleged improper communication between a bailiff and a member of the jury. Finding no abuse of discretion by the trial court on either issue, the court of appeals affirmed.
We have carefully reviewed Petitioner's challenges in light of the record and applicable law. For the reasons set forth by the court of appeals, we affirm the trial court's authentication determination and admission of the social media posts without further comment.
We do wish, however, to clarify the court of appeals' analysis concerning the bailiff misconduct issue. Like the court of appeals, we recognize a criminal defendant's right to a fair and impartial jury. U.S. Const. amend. VI ; S.C. Const. art. I, § 14. In the Sixth Amendment context, the Supreme Court of the United States has held that "any private communication, contact, or tampering ... with a juror during a trial about the matter pending before the jury is ... deemed presumptively prejudicial." Remmer v. United States , 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The Court in Remmer concluded: "The presumption is not conclusive, but the burden rests heavily upon the Government to establish ... that such contact with the juror was harmless to the defendant." Id. Our court of appeals found the "comments [by the bailiff] here triggered Remmer ." Green , 427 S.C. at 236, 830 S.E.2d at 717. We are not persuaded that the Remmer presumption of prejudice applied here.
We readily agree with the court of appeals that the State "overthrew" any presumption of prejudice, if it applied. In this regard, we join the court of appeals in commending the trial court for its "deft handling of this issue." The trial court questioned each juror and the bailiff, which proved "there was no reasonable possibility the [bailiff's] comments influenced the verdict." Id. Our unwillingness to categorically apply the Remmer presumption of prejudice stems from our view that not every inappropriate comment by a bailiff to a juror rises to the level of constitutional error. In Remmer , a juror was approached by a "person unnamed" and told "that [the juror] could profit by bringing in a verdict favorable to the [defendant]." 347 U.S. at 228, 74 S.Ct. 450. The federal district court, without holding a hearing, denied the defendant's motion for a new trial. Id. at 229, 74 S.Ct. 450. Ultimately, the Supreme Court recognized the presumption of prejudice from the highly improper juror contact and remanded to the federal district court "to hold a hearing to determine whether the incident complained of was harmful to the [defendant]." Id. at 229–30, 74 S.Ct. 450.
The attempted bribery of a juror in Remmer —conduct which goes to the heart of the merits of the case on trial—is a far cry from the circumstances presented in this case. The bailiff's actions here—though...
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