THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
LeQuint Johnson, Appellant.
Appeal from Lee County
R. Ferrell Cothran, Jr., Circuit Court
Judge
Opinion No. 26902
Heard October 5, 2010 - Filed December 13,
2010
REVERSED
Appellate Defender Robert M. Pachak, of South Carolina Commission on Indigent Defense, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, and Solicitor Cecil Kelly Jackson, of Sumter, for Respondent.
JUSTICE PLEICONES: Appellant was convicted of two counts of murder, armed robbery, and unlawful possession of a weapon, and received consecutive life sentences for the murders, thirty years for armed robbery, and five years for the weapons charge. Appellant was tried jointly with Sharod Frazier. On appeal, appellant contends the trial court erred in denying appellants mistrial motion, made after a States witness committed a Bruton-type[1] error. We agree and reverse.
FACTS
The States primary witness was Sammy Baker a/k/a Supercat. Supercat testified about his activities on November 16-17, 2004. In relevant part, he testified that he took his friend Rashad Sharice Thomas a/k/a Rock to meet up with Rocks friend, co-defendant Frazier a/k/a Shy. Eventually they picked up Shys cousin, appellant LeQuint Johnson a/k/a Q. Supercat did not know appellant. Rock testified that Supercat, Shy, and appellant were together when they dropped him off at his home around 9 pm on the 16th. He did not see or hear from them again.
Supercat testified that he, Shy, and appellant went to Nasty Cats club, a/k/a The Barn, where Supercat saw his friend Tyrone Dinkins, a/k/a Good Buddy. Supercat followed Good Buddy, with Shy and appellant riding as passengers, to St. Charles Road where people raced their cars and bet on the races. The racing continued until 1 or 1:30 am November 17, when the racers decided to return to Nasty Cats club. Shy and appellant stayed in Supercats car while at St. Charles Road, and apparently no one saw them there just as no one had seen them earlier at Nasty Cats club. Bud Reames, an older man riding as a passenger with Good Buddy, stayed in that car as well.
When the racers returned to Nasty Cats, Supercat testified he and Good Buddy went in the bar but that Shy and appellant stayed in the car. The club was closing, so Supercat and Good Buddy drove to the Shell Station to buy gas. A videotape from the Shell Station shows Supercat and Good Buddy there around 2 am on the morning of the 17th, although there was testimony that the time might be off by an hour.
After riding around in their cars for a while, Supercat testified he challenged Good Buddy to a race. Good Buddy said to follow him, but that he had to stop and do something under his hood before he could race. Supercat testified Good Buddy pulled over and Supercat pulled in behind him. Supercat testified he got out of his car to help Good Buddy, who was out of his car, when gunshots rang out. Supercat testified he saw Shy standing by Good Buddy. When the gunfire ended, Shy told Supercat to get in the car and drive, while appellant, also armed and outside the car, told Shy they needed to kill Supercat. As Supercat drove, Shy threatened Supercats sister, and then proceeded to count money. Supercat testified that he met up with Shy later at the Piggly Wiggly where Shy, who told Supercat he was a Blood, threatened Supercat. A witness testified she observed this long conversation and that Supercat looked fearful.
At 6:40 am on November 17th, an officer was dispatched to check out a report of a black male (Good Buddy) lying on the ground on the drivers side of a parked car in which a second black male (Reames) was observed seated in the passengers seat. A SLED crime scene investigator testified that the man on the grounds pants pocket was turned inside out, and change was scattered around the body and on top of it. Good Buddy was known to carry a good deal of cash. It was clear the two men had been shot to death.
The forensic pathologist testified Good Buddy had eight gunshot wounds from a 0.22. Reames, Good Buddys passenger, had been shot twice with a 0.38 or a 0.357 magnum. Their time of death was estimated to have been 5 am.
Shy and appellant were tried jointly. Pre-trial, appellant sought a severance because Shy had made a statement to the police which implicated himself and another person (Knock). Alternatively, appellant sought suppression of Shys statement. In this statement, Shy stated that he and Knock were present when Supercat and another friend talked about getting Good Buddy. According to the statement, Shy and Knock were in Supercats car when they went to a gas station, then followed Good Buddy and pulled him over. Supercat got out of the car and let loose (i.e. shot) both people in Good Buddys car, using a 0.22 on Good Buddy and a 0.38 on the old guy (i.e. Reames). Shy admitted he and Knock took money from Good Buddys pockets after Supercat killed him. Shy did not identify Knock.
The trial judge denied both appellants motion for a severance and his request that Shys statement not be admitted at their joint trial. The State suggested that Shys statement could be redacted to eliminate the references to Knock. At some point the trial judge apparently ruled that Shys statement, with the two references to Knock redacted, would be admitted.[2]
Prior to the introduction of Shys statement, the trial judge gave the jury this charge:
Ladies and gentlemen, youre going to see the document in evidence that I have admitted. Certain portions of that document contain information that is not admissible in this case. Information that is not admissible, you should not consider in your deliberations. So dont - the fact that you see a certain part of it has been struck out, you should not consider that in any way. You will see those portions that are admissible in this case in your deliberations. So those that have been redacted have nothing to do and are not admissible to this evidence in this case.
Sheriffs Investigator J.D. Dellinger testified to this statement given to him by Shy Frazier:
I met Supercat in Churchwood. I was on my way to work, but I stopped and began to talk to Supercat. I didnt go to work because I left with Supercat. We drove around for a while talking about who we going to rob for this day. We went to Nasty Cats Barn, then Supercat met Seneca. They talked for a while on how they were going to get Good Buddy. Supercat stopped talking, then got in the car and told me to drive off. I did.
We went to this gas station, then we followed Good Buddy. We pulled him over. Supercat jump out, talk for a second, then let loose on both people. Me stayed in the car while Supercat let loose on both people. Then me jumped out the car and got the money out of Good Buddys pockets. The gun Supercat had used on Good Buddy was a .22 revolver and he used a .38 revolver on old guy.
(bold representing points at where the words and Knock were covered up with black magic marker).
Investigator Dellinger continued to testify to his observations at the scene, and towards the end of his testimony the following exchange occurred between Investigator Dellinger and the solicitor:
Q. Now, was [appellant] arrested?
A. Yes, sir, he was.
Q. And the arrest of [appellant], how did that come about?
A. Based on our investigation.
Q. Based on your investigation. And what else?
A. Im not sure I understand.
Q. The conversation with Sammy Baker [Supercat]?
A. Mr. Baker [Supercat] and Mr. Frazier [Shy].
Q. Okay.
Appellant immediately moved for a mistrial, arguing that the judges redaction charge coupled with Investigator Dellingers testimony that his conversation (i.e., the one leading to the statement) with Shy led to appellants arrest effectively violated Bruton by allowing Shy, a non-testifying codefendant, to inculpate appellant. Since Shy did not testify, appellant was denied the ability to confront or cross-examine him in violation of the Confrontation Clause and the hearsay rules. The judge found the error did not rise to the level requiring a mistrial.
ISSUE
Did the trial judge err in denying appellants mistrial motion?
ANALYSIS
The denial of a mistrial motion following improper testimony by a States witness is a matter resting in the trial courts sound discretion, and will be overturned on appeal only where there is an abuse of discretion amounting to an error of law. State v. Crawley, 349 S.C. 459, 562 S.E.2d 683 (2002). We find such an error here.
This case presents an unusual Bruton-type issue. Under Bruton, a non-testifying co-defendants confession that inculpates another defendant is inadmissible at their joint trial, even if the jury is instructed that the confession can only be used as evidence against the confessor. However, such a confession may be admissible if the confession is redacted in a way that removes any reference to the non-testifying codefendant. Richardson v. Marsh, 481 U.S. 200 (1987); Gray v. Maryland, 523 U.S. 185 (1998).
Shys confession was redacted to eliminate his references to Knock; there is, however, no evidence that appellant is known as Knock. On the other hand, the redacted confession clearly has had a name eliminated from it, and the jury was charged about this omission. Investigator Dellingers statement that appellants arrest was based in part on Dellingers conversation with Shy, the same conversation in which Shy gave his confession, effectively told the jury that Shys unredacted statement named appellant. This evidence violated the hearsay rules as well as appellants Sixth Amendment Confrontation Clause rights.
The State argues this is not truly a Bruton error, citing United States v. Akinkoye, 185 F.3d 192 (4th Cir. 1999). In Akinkoye, the codefendants confessions were retyped and the phrase another person substituted in each. The fourth circuit held the redacted statement did not facially implicate the other defendant. Akinkoye is inapposite: the issue here is not the redacted statement itself, but rather whether the statement when combined with Investigator Dellingers reluctant identification of Shy as having implicated appellant in the crime was an error requiring that the court grant a mistrial. The State also argues harmless error based upon the trial judges limiting instruction that the jury not consider anything removed from the redacted statement. This type of instruction cannot mitigate a Confrontation Clause violation. Bruton, supra.
There is no overwhelming evidence against appellant, as only Supercats testimony places him at the scene and identifies him as a participant. Investigator Dellingers inadvertent slip strongly implied that Shys statement named appellant along with me as present and participating, when in fact appellant was not even named in that statement.
Appellant has demonstrated both constitutional error and prejudice. The trial court erred in denying his mistrial motion.
CONCLUSION
Appellants convictions are
REVERSED.
BEATTY, KITTREDGE and HEARN, JJ., concur. TOAL, C.J., dissenting in a separate opinion.
CHIEF JUSTICE TOAL: I respectfully dissent. While I believe error was committed at the trial court level, I do not believe that error is preserved for our review. The majority's opinion holds that the specific redaction created a Bruton violation. In my opinion, Fraziers statement should not have been redacted to begin with. The effect of the majority's opinion is to bring Bruton in through the back door. The purpose of the United States Supreme Courts holding in Bruton was to prevent a defendant from being implicated by the statements or confession of a non-testifying co-defendant.
In my mind, there is nothing in Fraziers statement that implicates Johnson. To the contrary, Frazier stated that he and Knock were seated in Bakers car at the time of the shooting. Frazier's description of Knock at the Jackson v. Denno hearing did not fit the description of the defendant. Frazier stated that Knock had braids. At that same hearing, Officer Dellinger admitted that when he interviewed Johnson shortly after the murders, "[h]is hair was cut short." According to the trial testimony of Baker, Johnson and Frazier are cousins. However, Frazier's testimony regarding the identity of Knock does not reflect a familial relationship. Frazier stated that Knock "stay on the back street near the man who sell juice and other things . . . ." Referring to how he knew Knock, Frazier stated, "I just got out in June and he get out in August. When asked directly by defendants counsel to whom he was referring when he used the name Knock, Frazier elusively stated that [i]ts a person, and then denied that person was Johnson. Therefore, Frazier's statement, in its original form, did not implicate Johnson. Had the full statement been before the jury, Officer Dellinger's testimony would not have implicated Johnson. It was the redaction itself that implicated Johnson, and therefore I do not believe these facts square with Bruton.
During a pre-trial hearing, defense counsel motioned the judge to either sever the trial or to rule Frazier's statement wholly inadmissible. The trial judge denied both these motions and instead chose to redact any reference to Knock contained in Frazier's statement. Why defense counsel did not then object to the redaction of an exculpatory statement is a mystery; however, that mystery may be better solved in a post-conviction relief hearing. This issue is not preserved, nor does it properly raise a Bruton issue. Therefore, I would affirm the conviction.
[1] Bruton v. United States, 391 U.S. 123 (1968).
[2] Whether this redaction was necessary or appropriate is not before the Court.