State v. Johnson
| Decision Date | 09 November 2022 |
| Docket Number | 5950,Appellate Case 2019-000938 |
| Parties | The State, Respondent, v. Devin Jamel Johnson, Appellant. |
| Court | South Carolina Court of Appeals |
Heard April 7, 2022
Appeal From Charleston County R. Markley Dennis, Jr., Circuit Court Judge
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.
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.
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. Sharmaine[1] 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 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 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 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...
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