State v. Mitchell

• Decision Date: 22 May 2008
• Docket Number: No. 4395.,4395.
• Citation: 662 S.E.2d 493,378 S.C. 305
• Parties: The STATE, Respondent, v. Hercules E. MITCHELL, Appellant.
• Court: South Carolina Court of Appeals

662 S.E.2d 493

378 S.C. 305

The STATE, Respondent, v. Hercules E. MITCHELL, Appellant.

No. 4395.

Court of Appeals of South Carolina.

Heard April 8, 2008.

Decided May 22, 2008.

Rehearing Denied June 26, 2008.

Deputy Chief Attorney for Capital Appeals Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, all of Columbia; and Solicitor David Michael Pascoe, Jr., of Orangeburg, for Respondent.

THOMAS, J.

Hercules E. Mitchell appeals his convictions for murder, attempted armed robbery, and possession of a firearm during the commission of a violent crime, arguing the trial judge made several erroneous evidentiary rulings. We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

The victim, David Martin, lived close to his father, Nathaniel Martin, in a mobile home and ran Nathaniel's farm for a living. There was evidence that David sold marijuana and cocaine out of his mobile home.

On March 2, 2003, around 11:00 p.m., Thomas Anthony, a family friend who was staying with David at the time, knocked on Nathaniel's window and told him David had been shot. Nathaniel and his wife went to David's mobile home, where they found him lying on the floor. Unable to elicit any response from David, they called 911.

According to Nathaniel, Anthony, who was deceased when the matter came to trial, informed him three persons were involved in the incident. Two of the participants were males wearing masks, neither of whom Anthony could identify. Anthony did, however, identify the third participant as Bridgett Darby. Darby used to rent the mobile home where David was residing at the time of his death.

Officers then located and arrested Darby. On March 3, 2003, at 1:33 p.m., Darby gave a written statement implicating herself and naming Kelvin Johnson and Terrance James.¹ In the statement, Darby said the three "talked about getting together to do to David Martin's house to rob him." Darby further stated the three only intended to take marijuana from David and then flee the scene without injuring him. She further maintained the shooting was an accident and she learned about it only after the three later met at her home. In addition to giving the written statement, Darby also told police that both Kelvin Johnson and Terrance James were from Columbia.

Darby then accompanied police officers to Columbia to help them find Kelvin Johnson and Terrance James. Officers consulted Richland County authorities, but were still unable to locate either individual. They then confronted Darby about the accuracy of her information. At 8:00 p.m. the same day, Darby gave a second statement, this time naming Mitchell instead of Terrance James as the third accomplice.

Police apprehended seventeen-year-old Kelvin Johnson during the early morning hours of March 4, 2003. About eight or nine hours later, Johnson gave a written statement in which he admitted he had panicked and shot David when he saw David reach for a gun. In the statement, Johnson also implicated Mitchell, specifically noting (1) Mitchell had helped in supplying the guns that they used to rob David; (2) following the incident, he, Darby, and Mitchell checked into the Southern Lodge; and (3) the three divided the money they had seized from David during the robbery. Two days later, Mitchell voluntarily submitted to police custody.

In October 2004, the Orangeburg County Grand Jury indicted Mitchell for the offenses of murder, attempted armed robbery, and possession of a weapon during the commission of a violent crime. A jury trial in the matter commenced December 13, 2005.

At trial, Darby testified for the State, giving information consistent with her second statement and acknowledging she was serving sentences for accessory after the fact and armed robbery because of her participation in the incident. She testified she and Mitchell worked together, were romantically involved, and had discussed robbing David Martin before the incident took place. Darby also admitted a rifle used in the incident belonged to her uncle; however, she also stated she did not know how a pistol believed to be the murder weapon was acquired.

The State then called Johnson to the stand. Johnson had previously pled guilty to and was sentenced for murder, armed robbery, and possession of a weapon during the commission of a violent crime. Outside the presence of the jury, Johnson complained to the trial judge that the solicitor's office had "forced" him to appear at Mitchell's trial and threatened him with additional time in prison if he did not "come up here and make this man be guilty." In response, the trial judge advised Johnson that (1) both the State and the defense had the right to subpoena witnesses and any witnesses who refused to answer questions while on the stand could be held in contempt of court and sentenced to six months; (2) untruthful answers could result in perjury charges, for which the sentence could be five years; and (3) when Johnson pled guilty to the charges for which he was sentenced, he gave a statement under oath adopting the statement that he had previously given to the police about the incident.

When the jury returned to the courtroom, Johnson, after some prodding, affirmed to tell the truth. When the solicitor began to question him, Johnson was uncooperative, giving unresponsive answers and again accusing the State of forcing him to appear in court. When Johnson persisted in refusing to answer the solicitor's questions, even after the trial judge warned him of the consequences, the trial judge sentenced him for contempt and ordered officers to remove him from the courtroom.

The State moved to introduce Johnson's statement through its next witness, Captain Rene Williams of the Orangeburg County Sheriff's Office. During an in camera hearing, the trial judge, over objections from the defense, found Johnson had given his statement freely and voluntarily. When the State asserted the statement was admissible as a prior inconsistent statement as a result of Johnson's denying it on the stand, defense counsel argued the prejudicial effect would outweigh the probative value of the statement and cross-examination was not possible because Johnson had already been removed from the proceedings. Counsel further asserted: "They're asking us to admit a blanket statement that says that there's some culpability of my client, and I have no opportunity to test the credibility other than to ask the officers who assisted in getting the statement."

The solicitor then asserted Johnson's statement was admissible under Rules 804(a)(2) and (b)(3) of the South Carolina Rules of Evidence, which permit the admission of a statement against interest as an exception to the hearsay rule when a witness persists in refusing to testify despite a court order to do so. In response, defense counsel stated he stayed with his objection. The trial judge accepted the State's argument and allowed the solicitor to publish Johnson's statement through Captain Williams.

After Williams testified, the State called Kenny Kinsey, who at the time of the incident was a sergeant in the Central Investigative Division of the Orangeburg County Sheriff's Office. Kinsey testified he interviewed Darby after she was arrested. He also noted that although Darby initially implicated Johnson and Terrance James as well as herself, she later revealed that Johnson and Mitchell were her accomplices.

On cross-examination, Kinsey claimed Terrance James "was a fictitious name" that Darby had given authorities to protect Mitchell. Defense counsel then attempted to refer to an Orangeburg telephone directory, prompting the solicitor to request an in camera hearing. During this hearing, Kinsey explained on cross-examination that after previous attempts to locate Terrance Johnson in Richland County proved futile and both Darby and Johnson named Mitchell as the third participant, he did not check Orangeburg County sources, including the local telephone book, to determine if anyone by the name of Terrance James could be found in the area. Upon further cross-examination, Kinsey acknowledged there was a directory listing for a "Terrance A. James" in Springfield, a town in Orangeburg close to the crime scene, as well as various listings for "Terry James" and "T.A. James" in Lexington and Richland Counties.

The solicitor argued against allowing the jury to hear evidence about the telephone book listings, contending this was impermissible evidence of third-party guilt that would only confuse the jury. The trial judge agreed and did not allow the defense to introduce either the telephone books or "any evidence that there's somebody somewhere named Terrance James." The trial judge, however, did allow defense counsel to question Kinsey about what he did and did not do during the course of his investigation.

On December 15, 2005, the jury convicted Mitchell of all three offenses, and the trial judge sentenced him accordingly. This appeal followed.

LAW/ANALYSIS

I. Admission of Kelvin Johnson's Statement

Mitchell first contends the trial judge committed error in admitting the statement Johnson made to law enforcement while in police custody. We agree.

The Confrontation Clause of the Sixth Amendment of the United States Constitution requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In South Carolina, not only is this right applicable to state prosecutions under the Fourteenth Amendment, it is specifically mandated by the State Constitution. State v. Green, 269 S.C. 657, 661, 239 S.E.2d 485, 487 (1977) (citing S.C. Const. art. I, § 14).

In 1987, the South Carolina Supreme Court noted the Confrontation Clause did not prevent the use of hearsay evidence in...