State v. Lemire

Decision Date16 October 2013
Docket NumberOpinion No. 5177,Appellate Case No. 2009-143752
PartiesThe State, Respondent, v. Leo David Lemire, Appellant.
CourtSouth Carolina Court of Appeals
Appeal From York County

William H. Seals, Jr., Circuit Court Judge


Leland B. Greeley, of Leland B. Greeley, P.A., of Rock Hill, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Kevin S. Brackett, of York, for Respondent.


Leo David Lemire appeals his convictions for second-degree lynching, conspiracy, and pointing and presenting a firearm. We affirm.


Lemire's sister, Kerriann Larmand, owned and operated a locksmith franchise known as Pop-A-Lock, which provided roadside assistance and locksmith services to residential, commercial, and automotive customers. On April 30, 2009, Mrs. Larmand and her husband, co-defendant Francis Larmand (Larmand), became suspicious that Pop-A-Lock service calls were being intercepted, and they set up a "mystery shopper call" in an attempt to identify the culprit.1 Lemire accompanied Larmand to the location where service was requested, but when no one responded, the two drove to the home of Ryan Lochbaum, a former Pop-A-Lock employee who was terminated for misconduct the previous October. Larmand testified that he drove to Lochbaum's house to see if Lochbaum had a Pop-A-Lock magnet on his car or if any Pop-A-Lock employees were at his house.

Upon arriving at Lochbaum's home, Larmand exited his truck, leaving Lemire inside, and found Lochbaum socializing with neighbors in the driveway. After a heated discussion with Lochbaum, Larmand began to return to his truck. Lochbaum followed Larmand until he saw that Lemire was now outside the truck and walking towards him with a large handgun. Lochbaum then attempted to disarm Lemire, and a struggle ensued among Lochbaum, Lemire, and Larmand. After some neighbors joined the scuffle, Lochbaum was able to wrestle away the gun. Larmand and Lemire subsequently fled the scene. The police stopped Larmand's truck later that night and arrested Lemire for pointing and presenting a firearm. Larmand was arrested the following day.

Lemire was indicted for criminal conspiracy for the purpose of committing the crime[s] of lynching and/or pointing or presenting a firearm, second-degree lynching, and pointing and presenting a firearm.2 Larmand was charged with the same offenses, and the two were tried together.

During trial, the court charged the jury in part, "It is permissible to infer that all persons present as members of a mob when an act of violence is committed haveaided and abetted the crime and are actually guilty as principals." Lemire objected, arguing the permissive inference in the charge amounted to improper burden shifting. The trial court overruled Lemire's objection.

After over an hour of deliberation, the jury sent the trial court a note asking, "If we think one is guilty of a charge, do we have to automatically vote that the other party is also guilty of the charge?" In response, the trial court responded by recharging the jury on the law of second-degree lynching, pointing and presenting a firearm, and criminal conspiracy. Approximately two and one half hours later, the jury sent a second note inquiring, "Not close on verdict . . . Can we have a copy printout of the statute of the three charges?" Rather than provide a printed copy of the statutes for the respective charges, the trial court gave the jury a written copy of the entire jury charge. Lemire objected, arguing the physical copy of the charge could allow a single juror to "use the written charge to cite and to overcome what the jury has heard in their minds." The trial court overruled Lemire's objection, summoned the foreperson to the courtroom, and stated, "Madam foreperson, we have had [sic] printed out for the jury of [sic] the three charges. What I am going to do is send you back the charge that I have read." After further deliberation, the jury convicted both Lemire and Larmand of all charges. Lemire appealed.3


I. Did the trial court err in submitting its entire written charge to the jury?

II. Was Lemire entitled to directed verdicts on the charges of second-degree lynching and conspiracy?

III. Did the trial court err in charging the jurors that they could infer all persons present as members of a mob at the time the act of violence is committed are guilty as principals?


"In criminal cases an appellate court sits to review errors of law only." State v. Bacons, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "An appellate court will not reverse the trial court's decision regarding jury instructions unless the trial court abused its discretion." Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). "An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." Id.

I. Submission of the Written Charge to the Jury

On appeal, Lemire argues the trial court's decision to send the entire charge in written form to the jury during deliberation was in error because (1) the jury did not request the entire charge but only the statutes pertaining to the charges, (2) the foreperson was given only a single copy of the charge while the remaining jurors remained sequestered in the jury room, (3) the remaining jurors were neither instructed about their rights to read the instructions in their entirety nor admonished not to take portions of the charge out of context, and (4) there was an increased likelihood of prejudice because the written charge was provided when the jurors were struggling to reach a verdict. We disagree.

A. Jury Only Requested the Statutes

"A trial court may, in its discretion, submit its instructions on the law to the jury in writing." State v. Turner, 373 S.C. 121, 129, 644 S.E.2d 693, 697 (2007). Furthermore, a party disputing the submission of the written charge must show prejudice to obtain relief on this ground. Id. A trial court should use this practice sparingly and only when it will aid the jury and not prejudice the defendant. State v. Covert, 382 S.C. 205, 210, 675 S.E.2d 740, 743 (2009). In any event, "[i]t is never appropriate . . . to give only part of the charge to the jury." Id. We hold the trial court acted within its discretion in sending a written copy of the entire charge to the jury during its deliberation.

Here, pursuant to the prohibition in Covert, the trial court was not at liberty to provide the jury with written copies of only selected portions of its instructions.4 The trial court could either recite the requested portions to the jury or, as was done here, send a written copy of the entire charge to the jury. At trial, Lemire never advocated that the trial court should reinstruct the jury verbally on the requested written statutes. Thus, the court did not abuse its discretion when it simply chose the other valid alternative as permitted by Covert. Recognizing that trial courts must exercise restraint in employing this practice, we nevertheless hold its use here was proper, especially considering the trial court had already re-charged the jurors orally on the relevant statutes when they made their first inquiry during the deliberation. See 75A Am. Jur. 2d Trial § 978 (2007) (observing that a written copy of the court's charge can be provided to the jurors provided the presiding judge has first read the instructions to them).

B. Single Copy of the Charge Given to the Foreperson

We further hold Lemire has failed to establish reversible error from the trial court's decisions both to supply the jury with only one copy of the written charge and to give that copy to the foreperson for delivery to the jury room. First, Lemire did not request the court provide a separate copy for each juror. Furthermore, we have found no authority, nor has Lemire cited authority, for the proposition that it is error for a trial court to furnish a single copy of its written instructions to the jury during deliberation.5

Additionally, there is no discussion in the record between the trial court and Lemire concerning the trial court's decision to summon only the foreperson to receive the written jury instructions. Because Lemire never objected at trial to the summoning of the foreperson only and never requested the entire jury be present to receive the written charge, this argument is not preserved for appellate review. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A party may not argue one ground at trial and an alternate ground on appeal."); see also Kennedy v. S.C. Retirement Sys., 349 S.C. 531, 532-33, 564 S.E.2d 322, 323 (2001) ("'Preserving issues for appellate review is a fundamental component of appellate practice. South Carolina appellate courts do not recognize the plain error rule.'" (quoting Jean H. Toal, Shahin Vafai & Robert Muckenfuss, Appellate Practice in South Carolina 55 (1999))).6

Setting aside the rules of preservation, further, we find Lemire was not prejudiced by the court furnishing the foreperson with a single copy of the charge. Lemire argues in his brief that the prejudice is "readily apparent as the record reflects that the jury sent out a note that said 'Reached a verdict on three charges, deadlocked on the remaining.' Obviously the jury has not carefully read the jury instructions or had taken some of the instructions out of context." We do not agree that the note evidences prejudice. We fail to see how the note is indicative that jury confusion was caused by the trial court's instructions. A number of explanations could exist for the wording of this note. To assume that the note is a sign of prejudice, as Lemire argues, is speculative. See Green v. State, 351 S.C. 184, 196, 596...

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