The State, Respondent,
Jonathan K. Hill, Appellant. Appeal From Greenville County
Opinion No. 4867
REVERSED AND REMANDED
Deputy
Chief Appellate Defender Wanda H. Carter, of Columbia, for Appellant. Attorney
General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mark
R. Farthing, Office of the Attorney General, all of Columbia; Solicitor William
W. Wilkins, III, of Greenville, for Respondent. WILLIAMS, J.: Pursuant to Anders v. California[1],
Jonathan K. Hill (Hill) appeals his convictions for two counts of armed
robbery, two counts of conspiracy to commit armed robbery, and one count of
resisting arrest.[2]
After review, this court ordered the parties to brief the issue of whether the
circuit court erred in denying Hill's motion for a new trial after the jury
mistakenly received two statements made by Hill during deliberations that were
not admitted into evidence during trial. We find the circuit court erred and
accordingly reverse. FACTS On
the evening of January 31, 2002, and the early morning hours of February 1,
2002, the La Quinta Inn and the Hampton Inn (the motels) were both robbed in
Greenville County. Hill and his co-conspirators, Damian Taylor (Taylor) and Melvin
Warren (Warren), were arrested after fleeing from police pursuit. A grand jury
indicted Hill for two counts of armed robbery, two counts of conspiracy to
commit armed robbery, and one count of resisting arrest. Taylor and Warren pled guilty and agreed to
testify against Hill in exchange for a deal on pending charges. Hill
proceeded to trial from February 3-5, 2003. At a pre-trial Jackson v. Denno[3] hearing, the State admitted two written statements made by Hill to the
Simpsonville Police Department and the Greenville County Sheriff's Office. In
his statements, Hill admitted to being a passenger in a Ford Escort (the
vehicle) that was used to commit the armed robberies. Hill explained he lived
in the same neighborhood as Taylor and Warren and knew they had a reputation
for committing robberies. Hill also indicated Taylor and Warren wanted him to
ride with them and to "work with them." Hill stated he remained in
the vehicle while Taylor and Warren went inside the motels. The
circuit court held Hill's written statements were voluntarily given at the Jackson
v. Denno hearing. However, the State did not offer Hill's statements into
evidence at trial. The
State presented several witnesses during its case-in-chief. Marvin Somarriba, an employee of
the La Quinta Inn, testified he heard a "noise at the door" and
"two guys running" on the evening of January 31, 2002. Somarriba
testified that one of the robbers placed a gun against his head and took $30
and credit cards from his wallet, and that the other robber took approximately
$120 from the cash drawer. Furthermore, Somarriba stated the robbers wore dark
clothing and dark ski masks. Rangar
Borei, an employee of the Hampton Inn, testified two men wearing dark ski masks
and dark clothing entered the Hampton Inn during the early morning hours of
February 1, 2002. Borei stated one of the robbers placed a gun against his
nose. The
robbers took approximately $178 from the cash drawer as well as Borei's wallet,
which contained $15, credit cards, and Borei's driver's license and Social
Security card. Officer
William Kennedy of the Mauldin Police Department was on patrol when he heard a
robbery had occurred over the Simpsonville Police Department's scanner. Subsequently,
Officer Kennedy observed the vehicle speeding with its bright headlights on,
prompting him to activate his blue lights and follow the vehicle to a Bi-Lo
parking lot. Officer Kennedy stated the vehicle did not completely stop, the
occupants in the vehicle were "rummaging around," and the occupant in
the rear seat of the vehicle appeared to be wearing a red shirt. Shortly after
the vehicle entered the parking lot, Officer Kennedy stated the vehicle
accelerated "very fast" and made a left turn onto West Butler Road. At
this point, Officer Kennedy pursued the vehicle. During the pursuit, the
vehicle "slid off" into a dirt area, and the three occupants exited
the vehicle and ran into the woods. Officer Kennedy identified Taylor as the
driver of the vehicle and Warren as the front passenger and further indicated
that Taylor and Warren were wearing dark clothing. Officer
Brian Lewis of the Mauldin Police Department assisted Officer Kennedy in the
police chase. He testified that Taylor, the driver of the vehicle, and the
vehicle's front passenger were wearing dark clothing; whereas, the passenger in
the rear seat was wearing a red shirt. However, Officer Lewis testified Taylor
was wearing black baggy pants and no shirt when he was captured. Officer
Harold Harris of the Greenville County Sherriff's Office arrested Warren and
testified that Warren had a black ski mask, Borei's wallet, driver's license,
and credit cards in his pockets. In
addition, Officer Robert Smith of the Greenville County Sheriff's Office
testified his canine tracked Hill to a creek bed. In the process of tracking
Hill, Officer Smith discovered a white t-shirt that appeared to be covered in
blood, a black tennis shoe, and a New York Yankees hat. Smith noted Hill was
wearing a red t-shirt while hiding in the creek bed and that "a wad of
unfolded loose cash" was retrieved after Hill was searched. On
cross-examination, Officer Smith indicated that Hill did not have a black ski
mask in his possession after he was arrested. Officer
Ralph Bobo of the Simpsonville Police Department testified he took photographs
of the contents inside the vehicle, which included a black coat and a white shirt
located in the rear seat. Officer Bobo also stated that he took photographs of
the ski mask and Borei's wallet that were found on Warren after his arrest. Officer
Bobby Alexander of the Greenville County Sheriff's Office conducted an inventory
search of the vehicle. Officer Alexander noted that a black hooded leather
coat, a gray fleece sweatshirt, a football jersey, and a dark colored ski mask
were located in the back seat of the vehicle. Co-conspirators
Taylor and Warren testified on behalf of the State. Taylor stated that he
drove the vehicle and that Hill and Warren agreed to ride to a drug area with
the intention of robbing a drug dealer; however, they were unsuccessful. At
this point, Taylor stated they changed their plans and agreed to go to the La
Quinta Inn with the intent of robbing the motel.[4] Taylor testified he
remained in the vehicle while Hill and Warren robbed the motels. During
cross-examination, Hill questioned Taylor regarding his written police
statement in which Taylor indicated that Hill was unaware of the armed robbery
plan and thought they were just riding around. Taylor clarified his statement
and claimed he told Hill about the robbery plans after Hill entered the
vehicle. According to Warren, Hill agreed to participate in the robbing of the
motels. Warren stated Hill accompanied him inside both of the motels and
participated in the robberies while Taylor remained in the vehicle. Warren
also testified he took off his black coat while in the woods and that Hill wore
the black coat that was located in the rear seat of the vehicle. On
cross-examination, Warren admitted he lied in his police statement when he told
the police that he remained in the vehicle while Taylor and Hill robbed the
motels. Both Taylor and Warren testified Hill wore a black ski mask and
gloves. After
the State's case-in-chief, Hill testified in his own defense. Hill stated he
agreed to ride with Taylor and Warren on the belief that they were going to a
party and to meet some girls. According to Hill, Taylor parked the car by the
La Quinta Inn. Hill stated Taylor and Warren subsequently entered the La
Quinta Inn. Soon thereafter, Taylor and Warren returned to the vehicle, and
Warren came back with a credit card. After leaving the La Quinta Inn, Hill
testified they went to a mall, and Warren unsuccessfully attempted to purchase
clothing and jewelry with the credit card stolen from the La Quinta Inn. After
leaving the mall, Warren drove to a gas station and purchased gas and beer. Upon
leaving the gas station, Hill claimed Taylor parked near a wooden fence and
informed him that he and Warren "would be back." Again, Hill
asserted he remained in the vehicle and Taylor and Warren returned approximately
four to five minutes later. Hill also claimed he did not observe Taylor and
Warren with any ski masks or weapons upon exiting the vehicle. During his
testimony, Hill averred he did not agree to commit nor have any knowledge of
the robbery plans. Hill stated Taylor and Warren threw clothes in the rear seat and he remembered seeing a black coat in the vehicle
that belonged to Warren; however, Hill denied observing any ski masks in the
rear seat. Hill also indicated that Taylor and Warren did not tell him about
the robberies, and he was only aware that the police were pursuing the
vehicle. However, Hill acknowledged on cross-examination that he was aware
Taylor and Warren had committed robberies in the past, but repeatedly denied
having knowledge about their plans to rob the motels. The
jury found Hill guilty of two counts of armed robbery, two counts of conspiracy
to commit armed robbery, and one count of resisting arrest. The circuit court
sentenced Hill to concurrent sentences of thirty years, five years, and five
years, respectively. After
the jury was dismissed and Hill was sentenced, the circuit court judge went
into the jury room to speak with the jurors. According to the circuit court
judge, the foreman informed him that Hill's written statements were submitted
to the jury during deliberations, and the jury considered these statements as important
evidence. The circuit court judge questioned the bailiff and was shown the
exhibits, which included Hill's two written statements. Soon thereafter, the circuit court
informed the parties about the error, and Hill moved for a new trial. On
February 20, 2003, the circuit court conducted a hearing on Hill's motion for a
new trial and took the matter under advisement. On June 11, 2003, the circuit
court conducted a second hearing on Hill's motion for a new trial. In explaining
the inadvertent submission of Hill's statements, the circuit court judge stated,
"Apparently what happened is the State's Exhibits that I just referred to
got mixed in with the evidence that had been admitted and was submitted back
into the jury room not the first day when they deliberated but on the second
morning." The
circuit court judge orally denied Hill's motion for a new trial during the second
hearing and applied a harmless error analysis to consider if the admission of
Hill's statements contributed to the guilty verdict. The circuit court
concluded the admission of Hill's written statements was harmless because
"[Hill's] [in-court] testimony essentially tracks what's in the
statement. There's really not [anything] significant in the statement that wasn't
in his testimony." Additionally, the circuit court concluded that it
would have admitted Hill's statements into evidence if the State sought to introduce
this evidence at trial. The circuit court filed a written order denying Hill's
motion for new trial on February 9, 2007.[5] STANDARD
OF REVIEW In criminal cases,
the appellate court sits to review errors of law only. State v. Martucci, 380 S.C. 232, 246, 669
S.E.2d 598, 605-06 (Ct. App. 2008). This court is bound by the circuit
court's factual findings unless they are clearly erroneous. State v. Baccus,
367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). This court does not reevaluate
the facts based on its own view of the preponderance of the evidence but simply
determines whether the circuit court's ruling is supported by any evidence. State
v. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86 (Ct. App. 2007). LAW/ANAYLSIS Hill
contends the circuit court erred in denying his motion for a new trial because
the jury considered his written statements during deliberations. Hill alleges
the submission of his written statements was prejudicial and improperly
influenced the jury because (1) all twelve jurors were exposed to his
statements; (2) no curative instructions were given because the error was only
discovered after the jury verdict; (3) the weight of the evidence against Hill was
not overwhelming; and (4) Hill did not confess to the crime at trial. We
agree. It
is well settled that the grant or refusal of a new trial is within the sound
discretion of the circuit court. State v. Taylor, 348 S.C. 152, 159,
558 S.E.2d 917, 920 (Ct. App. 2001). Where there is no evidence to
support a conviction, an order granting a new trial should be upheld. State
v. Smith, 316 S.C. 53, 55, 447 S.E.2d 175, 176 (1993). However, where
there is competent evidence to sustain the jury's verdict, the circuit court
may not substitute its judgment for that of the jury. State v. Prince,
316 S.C. 57, 63, 447 S.E.2d 177, 181 (1993) The
Sixth and Fourteenth Amendments of the United States Constitution guarantee a
defendant a fair trial by a panel of impartial and indifferent jurors. State
v. Kelly, 331 S.C. 132, 141, 502 S.E.2d 99, 104 (1998). In a criminal
prosecution, the conduct of the jurors should be free from all extraneous or
improper influences. Unless the misconduct affects the jury's impartiality, it
is not such misconduct as will affect the verdict. Id. Relevant
factors a court should consider in determining whether outside influences have
affected the jury are the number of jurors exposed, the weight of the evidence
properly before the jury, and the likelihood that curative measures were
effective in reducing the prejudice. Id. at 141-42, 502 S.E.2d at 104. In State v. Rogers, 96 S.C. 350, 80 S.E. 620 (1914), our supreme court
confronted a similar factual situation concerning the discovery of the jury's
receipt of incompetent evidence after the jury rendered its verdict and was
dismissed from service. Rogers was convicted for willful and malicious injury
to the cars and engine of the Atlantic Coast Line Railroad Company and
endangering the lives of the train's passengers and crew. Rogers, 96
S.C. at 351, 80 S.E. at 620. During trial, the State offered an affidavit
signed by Rogers' wife. Id. Rogers objected to the affidavit, and the
trial court sustained the objection finding the affidavit inadmissible. Id. at 351-52, 80 S.E. at 620. After all the evidence was presented and the case
went to the jury, the trial court inadvertently submitted the affidavit to the
jury when he handed the indictment to the foreman. Id. at 352, 80 S.E.
at 620. Rogers
was convicted and sentenced by the circuit court. Rogers, 96 S.C. at
352, 80 S.E. at 620. After the trial court adjourned, the State and Rogers
discovered that the inadmissible affidavit was inadvertently submitted to the
jury. Id. Rogers appealed his conviction. Id. On appeal, our
supreme court reversed and granted Rogers a new trial. Id. at 353, 80
S.E. at 621. In regard to the specific issue relating to the submission of the
inadmissible affidavit to the jury during its deliberations, our supreme court
stated: The affidavit got to the jury after his honor had
ruled it incompetent, without any explanation on the part of the court that it
was incompetent, and to be disregarded, not denied by the father, who was
alleged to have attempted to improperly influence Hattie Rogers' testimony, and
unexplained by him or the defendant, and we cannot say that, taken with all of
the evidence in the case, it was not prejudicial to the defendant; but, on the
contrary, the jury might have arrived at the conclusion that they did by the
incompetent testimony, and we have no doubt, if it had been discovered before
his honor adjourned the court what had transpired, but that he would have set
the verdict aside, and granted a new trial. Id. In addition to Rogers,
we note the Washington Supreme Court's opinion in State v. Pete, 98 P.3d
803 (Wash. 2004), also provides guidance on the issue presented in this case.
Although not controlling, the Washington Supreme Court addressed the issue of
whether a jury's exposure to extrinsic evidence during deliberations warranted
a new trial where a police report contradicted the defendant's written
statement to the police. In Pete,
two Seattle police officers responded to an alleged assault and observed what
appeared to be the defendant attempting to take a case of beer from the
victim's hand. Id. at 804. After the police officers parked their car,
they observed the defendant taking the beer from the victim. Id. The
defendant was subsequently arrested, and the police found two beers in the
defendant's pocket and a case of beer close to where the defendant was
standing. Id. While in transport to the police station, the defendant
told an officer that "he only took some beer" from the victim and
that the co-defendant assaulted the victim. Pete, 98 P.3d at 805.
After arriving at the police station, the defendant signed a written statement
that indicated the victim offered him a beer as the co-defendant arrived. Id.
The defendant further explained the victim "handed" him the rest of
the beer and instructed him to walk away. Id. at 805. At this point,
the defendant indicated he walked away from the victim and did not look back to
ascertain what the co-defendant and the victim "were doing." Id. at 805, 807. At a pre-trial
hearing, the trial court held the police officer's report, which contained the
defendant's oral statement that "he only took some beer," and the
defendant's written statement that the victim offered him a beer and
"handed" him the rest of the beer were admissible. Pete, 98
P.3d at 805. However, the police report and the defendant's written statement
were not introduced into evidence at trial. Id. After the jury
reached a verdict, but before the verdict was rendered, the trial court
informed the parties the police report and the defendant's written statement
were mistakenly sent to the jury room. Pete, 98 P.3d at 805. After
this discovery, the bailiff retrieved the officer's statement and "grabbed"
a second document. Id. However, the second document had been properly
admitted into evidence. Id. Upon this discovery, the bailiff returned
the second document, retrieved the other piece of unadmitted evidence, and
instructed the jury to disregard the police report and the defendant's written
statement. Id. After the trial court explained the course of events,
the State and the defendant both agreed the verdict should be received and the
jury should be polled about their knowledge concerning the police report and
the defendant's written statements. Id. at 805. During polling,
the jurors indicated the bailiff told them to disregard the police report and
the defendant's written statement. Pete, 98 P.3d at 806. Nonetheless,
some members of the jury panel stated they saw and/or read the police report
and the defendant's written statement. Id. The defendant was convicted
of second-degree robbery. Id. The defendant
made a motion for a new trial and argued the mistaken submission of the police
report and his written statement to the jury was prejudicial. Pete, 98
P.3d at 806. The trial court denied the motion and held the error was harmless
because the documents were in the jury room for a brief period of time, the
jury was instructed to disregard the documents, and the statements in the
police report and the written statement were exculpatory. Id. Division
One of the Washington Court of Appeals affirmed and held there was no
reasonable ground to believe that the defendant was prejudiced by the
nonadmitted documents and the evidence presented at trial was sufficient to
sustain the conviction. State v. Pete, No. 50404-5-I, 2003 WL 21387208, at *3
(Wash. Ct. App. June 13, 2003). On appeal, the
Washington Supreme Court reversed the court of appeals' decision and granted
the defendant's motion for a new trial. Pete, 98 P.3d at 807. The
State argued the inadvertent submission of the police report and the
defendant's written statement to the jury was harmless error because the
evidence was "very strong" to sustain the conviction. Id.
Namely, the State argued (1) two police officers caught the defendant and the
co-defendant robbing the victim; (2) the victim's statements corroborated the police
officers' observations; (3) the victim's inconsistent statement at the scene
compared to his in court testimony did not absolve the defendant from any
criminal activity because the victim stated "he thought [the defendant and
co-defendant] wanted to rob him;" and (4) the police report and the
defendant's written statement were exculpatory in nature. Id. In reversing the
court of appeals' decision, the Washington Supreme Court noted the police
officers' testimony regarding their observations that the defendant and
co-defendant were in the act of robbing the victim was to some extent refuted. Pete, 98 P.3d at 807. At trial, the victim testified he
"gave" beer to the defendant and the co-defendant so they would leave
him alone. Id. Moreover, the court concluded the police report was not
completely exculpatory because the defendant informed the officer that "he
only took some beer." Id. This statement, according to the court,
"may be considered inculpatory because it indicates that the defendant participated
in taking property from [the victim] while [the victim] was being assaulted by
[co-defendant]." Id. Additionally, the court further stated,
"[W]hen the two unadmitted statements are viewed together, they are
harmful to [the defendant] in the sense that they are contradictory and could
suggest to a jury that [the defendant] is a liar who cannot be believed." Id. In analyzing
whether the defendant was prejudiced by the inadvertent submission of the
police report and his written statements, the court noted (1) the defendant
denied any wrongdoing; (2) the defendant did not testify and instead relied on
the victim's testimony that the defendant did not speak or touch the victim,
and the victim voluntarily gave beer to the defendant; and (3) the victim had
problems remembering the events on the night in question. Pete, 98 P.3d
at 807. Based on the facts of the case, the court concluded the submission of
the police report and the defendant's written statement "seriously
undermined [the defendant's] defense and nothing short of a new trial can
correct the error." Id. Furthermore, the
Washington Supreme Court observed that even though the evidence was deemed
admissible at a pre-trial hearing, the State did not offer or admit the
evidence at trial. Pete, 98 P.3d at 808. The court pronounced: The jury's receipt of this extrinsic evidence after
the close of its evidence presented a "no win" situation for [the
defendant] because he was not able to object to or explain the extrinsic
evidence. Furthermore, his counsel was unable to cross-examine either the
transport officer or the officer who took [the defendant's] statement. The
fact that the bailiff instructed the jurors to not consider the extrinsic
evidence does not, in our view, mitigate the harmfulness of the error. Even if
the trial court had given the instruction, which would be the appropriate
practice, the same can be said. Id. In the present
case, we conclude the improper submission of Hill's two written statements to
the jury is reversible error. Although the circuit court ruled Hill's written
statements were voluntarily given, the State did not introduce Hill's
statements into evidence at trial. Thus, the entire jury panel was exposed to
evidence that had not been admitted during trial, thereby unduly prejudicing
Hill. Nevertheless,
the State contends despite any error in the inadvertent submission of Hill's
statements, such error is harmless based on the evidence presented at trial. In support of its argument that the admission of Hill's written statements
was harmless error, the State argues (1) Taylor and Warren's testimony
indicated that Hill actively participated in the commission of the armed
robberies; (2) Hill was seen in the back seat of the fleeing vehicle after an
officer attempted to stop the vehicle; (3) officers found a ski mask along with
a black coat linked to Hill; and (4) Hill fled from the police and was discovered
hiding in a creek bed. We disagree. Whether
an error is harmless depends on the circumstances of the particular case. State
v. Wiley, 387 S.C. 490, 497, 692 S.E.2d 560, 564 (Ct. App. 2010).
No definite rule of law governs this finding; rather, the materiality and
prejudicial character of the error must be determined from its relationship to
the entire case. Id. Error is harmless when it "could not
reasonably have affected the result of the trial." Id. "When
guilt has been conclusively proven by competent evidence such that no other
rational conclusion can be reached, [an appellate] court should not set aside a
conviction because of errors not affecting the result[]." State v.
Kirton, 381 S.C. 7, 25, 671 S.E.2d 107, 115-16 (Ct. App. 2008) (citation
omitted). A comparison of
Hill's trial testimony and Hill's written statements implicates Taylor and
Warren's direct involvement in the commission of the robberies of the motels
and that Hill remained in the vehicle. Specifically, Hill's written statement
given to the Simpsonville Police Department provides in pertinent part: I know [Taylor and Warren] have been jacking
(robbing) people or places. I have heard they have robbed the Motel 6 where
[Warren's] girlfriend works there. [Warren] had a .380 pistol. [Taylor and
Warren] said it was stolen. They have tried to get me to ride with them
before. About nine p.m. [Taylor] and [Warren] came to my girlfriend's house. They
wanted me to go ride with them. They said if I wanted to go to work to work
with them . . . . We went to the La Quinta Inn and [Warren] went to some
white boys and bought a beer. They let them in the side door. Both [Taylor]
and [Warren] robbed the motel and we left and went to a mall . . . . [Warren]
attempted to use a credit card that was taken and it did not work. We left in
a white car. I thought we were going home. We drove to Simpsonville and
stopped at the gas station. . . . We parked in a white motel near the Hampton
Inn. [Warren] and [Taylor] got out of the car and went around a gate and went
into the Hampton Inn. They later came back and [Warren] said that he had went
back and got him. This meaning [Warren] had went back behind the counter and
robbed the clerk. [Warren] had the billfold which was taken from the clerk at the Hampton Inn.
[Taylor] was driving away. Then the police got behind us. He pulled over [to]
stop[] briefly. Then [Taylor] pulled onto the road again. We later went off
the road and I was later arrested by the police. I am sorry that these places
were robbed. (emphasis
added). Hill's statement
to the Greenville County Sheriff's Office provides in pertinent part: I have decided that I wanted to clear all this up
and get everything in the open. I told [Officer] Bobo about how I was involved
in the robbery at the Hampton Inn and who I was with. I also told him about a
robbery at the La Quinta Inn on 85 . . . . [Warren] and [Taylor] are involved
with some other people who are going around catching likcs (sic) on people.
Catching licks means robbing people or stealing something. Anything to come up
with money quick. Lately [Warren] and [Taylor] have been robbing motels and
that's who [I] was with when the Hampton Inn got robbed. Before we went to the
Hampton Inn we went to the La Quinta Inn . . . . I was sitting in the back
seat of the car we were in. It was a white Ford Escort. [Warren] got out of
the car and he walked up on a group of white guys in the parking lot. [Warren]
walked back to the car and said let me get a dollar so he could buy a beer from
one of the white guys. [Warren] walked back over and one of the white dudes
opened the back door, like on the end of the hallway, and let them in.
[Warren] went in with the white guys and came back a few minutes later and got
[Taylor] and [Warren and Taylor] went back into the motel. [Warren] and
[Taylor] were in there not even five minutes and they came running to the car.
I didn't see no money or gun but they had a wallet. [Warren] said we got to go
to the mall, we got to go to the mall. We went over to Haywood Mall. We went to
a store upstairs. It was a clothing store. [Warren] tried to buy a hooded
sweatshirt with a credit card out of the wallet, but it was declined. Then we
went over to a jewelry stand and [Warren] tried to buy something there. I
walked off and [Taylor] came over there by me. I was saying that they were
getting greedy and stop being greedy. [Warren] couldn't buy anything at the
jewelry store . . . . They went to the Hampton Inn in Simpsonville and hit it
and we ran . . . . This group that is hitting things is mainly [Warren] and
[Taylor] and whoever they could get to go with them. Hill's statement
to the Simpsonville Police Department reveals his knowledge that Taylor and
Warren wanted him to "ride with them" and to "work with
them." This phrase, in conjunction with the context of Hill's statement
to the Simpsonville Police Department, indicates that Taylor and Warren wanted
Hill to ride with them to participate in an armed robbery. However, at trial, Hill
testified he was unaware of any robbery plans and explicitly denied any
involvement in the robberies. In fact, Hill specifically stated he rode with
Taylor and Warren on the belief that they were going to a party and going to
meet some girls. When viewed
together, Hill's statement to the Simpsonville Police Department and his trial
testimony are contradictory and undermine Hill's credibility to the jury.
Because Hill's credibility was impermissibly impugned by evidence not admitted
at trial, this contradiction strongly suggested to the jury that Hill was
untruthful during his testimony and could not be believed. Due to the gravity
of this error, we conclude Hill's entire defense was prejudiced because his
credibility was substantially damaged. See State v. Outlaw, 307 S.C. 177,
180, 414 S.E.2d 147, 148 (1992) ("[E]rror which substantially damages
the defendant's credibility cannot be held harmless where such credibility is
essential to his defense.") (citation omitted); see also Pete, 98
P.3d at 807 (noting the inadvertent submission of contradictory evidence not
admitted at trial suggested to the jury that defendant was a liar). Additionally,
unlike many South Carolina cases in which a circuit court may issue a curative
instruction to cure the prejudicial effect of the jury's consideration of
extrinsic evidence, the circuit court was unable to issue a curative
instruction due to the timeframe when the error was discovered. Moreover, this
error was furthered compounded because the foreman of the jury informed the
circuit court that the jury considered Hill's statements to be important
evidence. Nevertheless, we note the holding in Rogers provides guidance
on the appropriate remedy. See Rogers, 96 S.C. at 353, 80 S.E.
at 621 (noting the jury's receipt of incompetent evidence without a curative
instruction could have caused the jury to rely on the improper testimony in
reaching its conclusion and thus a new trial was the appropriate remedy). Under the
circumstances of this case, the absence of a curative instruction, in
conjunction with the jury's belief that Hill's statements were considered
important evidence, precludes us from being able to unequivocally ascertain
whether the jury's verdict rested on the evidence presented at trial or whether
the verdict was improperly affected by Hill's written statements. See State v.
White, 371 S.C. 439, 445, 639 S.E.2d 160, 163 (Ct. App. 2006) ("A
curative instruction to disregard incompetent evidence and not to consider it
during deliberation is deemed to have cured any alleged error in its
admission.") (citation omitted); see also State v. Reese, 370
S.C. 31, 38, 633 S.E.2d 898, 901 (2006) ("Jurors are sworn to be governed
by the evidence, and it is their duty to consider the facts of the case
impartially.") overruled on other grounds by State v. Belcher, 385
S.C. 597, 685 S.E.2d 802 (2009). Finally, at the
second motion for a new trial hearing on June 11, 2003, the circuit court judge
indicated that it would have admitted Hill's written statements at trial.
However, the written statements were solely admitted into evidence for purposes
of the Jackson v. Denno hearing. Because the written statements were
not admitted at trial, and the jury was exposed to Hill's written statements
during its deliberations, Hill was denied the opportunity to object to or
explain his written statements. See Pete, 98 P.3d at 808 (noting
defendant was not able to object to or explain the extrinsic evidence when the
jury received the evidence after the close of evidence). Additionally, Hill
was unable to cross-examine Officer Bobo and Officer Smith regarding his
written statements.[6] Pete, 98 P.3d at 808 (finding defendant was denied the right to cross-examination
when the jury received extrinsic evidence after the close of all the
evidence). Based on the foregoing, we conclude the circuit court abused its
discretion in denying Hill's motion for a new trial as to his convictions for
armed robbery and conspiracy to commit armed robbery. CONCLUSION Accordingly, the circuit
court's decision is REVERSED and REMANDED. GEATHERS and
LOCKEMY, JJ., concur. [1] 386 U.S. 738 (1967). [2] In 1998 or 1999, Jonathan Hill changed his name to
Jonathan Green. However, because the initial case caption referred to
Appellant as Jonathan Hill, we refer to his former name for purposes of this
appeal. [3] 378 U.S. 368 (1964). [4] Taylor stated, "[We did] not actually discuss[]
[robbing the La Quinta], but it was understood by each one of us what was going
to go on." [5] Hill filed an application for post-conviction relief
(PCR) based on his trial counsel's failure to file a notice of appeal. On
April 7, 2005, Judge Larry Patterson conducted a PCR hearing. Judge Patterson
denied and dismissed the application without prejudice because Hill had a
pending motion for a new trial for which a written order had not yet been filed
by the circuit court judge. [6] Officer Wes Smith of the Greenville County Sheriff's
Office took Hill's written statement and testified at the Jackson v. Denno hearing. However, Officer Smith did not testify at trial. Officer Bobo's testimony
was limited to his actions in taking photographs at the scene where Hill,
Taylor, and Warren were arrested in the early morning hours of February 1,
2002.
In The Court of Appeals
John C. Few, Circuit Court Judge
Heard February 8, 2011 Filed August
10, 2011
4867 - State v. Hill
/opinions/HTMLFiles/COA/4867 .htm