TABLE OF CONTENTS........................................................................................................... 1

TABLE OF AUTHORITIES....................................................................................................... 2

ISSUE PRESENTED................................................................................................................ 3

STATEMENT OF THE CASE.................................................................................................. 4

ARGUMENT............................................................................................................................... 5

State v. Dasher, 278 S.C. 395, 297 S.E.2d 414 (1982)....................................................... 7

State v. Hughes, 346 S.C. 339, 552 S.E.2d 35 (Ct. App. 2001)......................................... 8

State v. Lynn, 120 S.C. 258, 113 S.E.74 (2002)................................................................... 7

State v. Simmons, 279 S.C. 165, 303 S.E.2d 857 (1983)................................................... 8

State v. Smith, 139 S.C. 315, 137 S.E. 739 (1912).............................................................. 7

State v. Smith, 316 S.C. 53, 447 S.E.2d 175 (1993)............................................................ 8

State v. Taylor, 348 S.C. 152, 558 S.E.2d 917 (Ct. App. 2001).......................................... 8

Tucker v. Catoe, 346 S.C. 483, 552 S.E.2d 712 (2001)....................................................... 7

Respondent has shown no reason why the trial judge’s decision to grant Johnson a new trial was not a reasonable exercise of his discretion, given the overall weakness of the State’s case and the likelihood that the jury had inferred the State’s key witnesses had all passed polygraph tests to validate their trial testimony.

For purposes of this Brief of Respondent, counsel for Rorey Jamar Johnson adopts the “Statement of the Case” contained in the State’s Brief of Petitioner at pp. 2-14, with the exception of the first paragraph of Subsection B (“How the issue was raised before the Trial Court”), as it presents the identity of the killer as uncontested – that is, it essentially begs a central issue before the Court.

Rorey Jamar Johnson stood trial for the murder of Gregory Whitaker, who was shot in the neck as he sat in his car in a high–crime area, probably while attempting to buy drugs. By its own admission, the State’s case against Johnson depended primarily upon the testimony of three unsavory individuals who had themselves initially been charged with Whitaker’s murder. Crystal Marion, who implied that she had ultimately passed a polygraph test in connection with her trial testimony, testified that Johnson shot Whitaker. App. p. 39, line 3 – p. 40, line 5; App. p. 44, lines 18–23. Alton Henderson also claimed that Johnson was the shooter. App. p. 143, lines 16–20. Finally, Michael Jones testified that he heard a gunshot, then saw Johnson with a gun. App. p. 182, line 16 – p. 183, line 11.

Two defense witnesses testified that Alton Henderson admitted he was Whitaker’s killer. Norman Stearn, who was in jail with Henderson, stated, “I heard him say he had done it.” App. p. 232, lines 6–16. Stearn continued:

App. p. 233, lines 8–15. Henderson confided to Stearn that he planned to pin the murder on Johnson. App. p. 232, lines 17–20. Jeremiah Hicks, who was also incarcerated with Henderson, testified that he overheard Henderson admit to killing Whitaker. App. p. 242, lines 12–24.

The following exchange occurred during the Solicitor’s examination of key State’s witness Crystal Marion:

App. p. 44, lines 15–23. The State argues in its Brief, “[T]o suggest that [Marion’s polygraph testimony] inured to the State’s benefit by enhancing her credibility is beyond any reasonable comprehension.” Brief of Petitioner, p. 19. In fact, the clear implication of this testimony was that Marion ultimately passed a polygraph after she gave the police a third and final statement, which was mirrored by her testimony at trial. Because the jury did not ask to rehear Marion’s testimony, as they did with Alton Henderson and Michael Jones, the State argues, “It is a reasonable inference that Ms. Marion’s testimony at that point may not have been critical to their assessment of guilt as the other witnesses.” Brief of Petitioner, pp. 23-24. An even more reasonable inference is that the jury had already concluded that Marion had passed a polygraph test in connection with her trial testimony.

The State also labels the further implication that the jury might have concluded that all three key State’s witnesses had taken and passed polygraph tests “baseless speculation.” Brief of Petitioner, p. 22. Once again, in fact this implication is both reasonable and natural, given that the three were known police characters with disreputable pasts. Since one had taken and by implication ultimately passed a polygraph in connection with her trial testimony, this conclusion is anything but baseless. (Does the State know whether or not the remaining two witnesses took polygraphs?)

Unlike the trial judge, counsel for the State did not have the opportunity to observe the trial as it unfolded. See Tucker v. Catoe, 346 S.C. 483, 552 S.E.2d 712 (2001). The State does not contend that the judge made an error of law, but that his ruling was without evidentiary support. However, it is clear that the judge carefully weighed the State’s evidence against Johnson and the jury’s reaction to that evidence before granting a new trial. It should also be noted that this judge had never before in his career on the bench granted a new trial motion. App. p. 320, lines 20–23. He stated at the time:

App. p. 321, line 10 – p. 322, line 3. The mere fact that the State can posit inferences more favorable to their position is, in the final analysis, irrelevant.

In the first place, inasmuch as the order granting Johnson a new trial was based on the judge’s determination that the polygraph testimony had tainted the State’s entire case, which was not that strong to begin with, it may not even be appealable. The State has no right to appeal an order granting a new trial when the order is based “upon the evidentiary facts,” such as where, as in this case, “improper evidence [has] been admitted at the trial.” State v. Lynn, 120 S.C. 258, 113 S.E.74 (2002); see, also, State v. Dasher, 278 S.C. 395, 297 S.E.2d 414 (1982), and State v. Smith, 139 S.C. 315, 137 S.E. 739 (1912).

Second, while the State addresses the issue as the granting of a mistrial, the judge actually granted a new trial after he had denied the mistrial motion. See State v. Taylor, 348 S.C. 152, 558 S.E.2d 917 (Ct. App. 2001), which discusses the difference between a mistrial and a new trial. The grant or refusal of a new trial is within the sound discretion of the trial judge. State v. Simmons, 279 S.C. 165, 303 S.E.2d 857 (1983). His ruling in that regard will not be disturbed on appeal absent a clear abuse of discretion. State v. Smith, 316 S.C. 53, 447 S.E.2d 175 (1993). “An abuse of discretion occurs when a trial court’s decision is unsupported by the evidence or a control by an error of law.” State v. Hughes, 346 S.C. 339, 552 S.E.2d 35, 36 (Ct. App. 2001).

Looking at the big picture, the only relief granted by the judge was a new trial where the key State’s witness would be prevented from implying that she – and by further implication the other two crucial State’s witnesses – had passed a polygraph test in connection with her trial testimony. The judge granted Johnson a new trial against the following background: (1) the dubious credibility of the State’s key witnesses; (2) the lack of physical evidence connecting Johnson with the crime; and (3) the fact that the jury had interrupted their deliberations to ask for instructions on accomplice liability. All of these circumstances illustrate that the judge exercised sound discretion in granting Johnson a new trial. The State can advance no reason to overturn this decision other than its own dissatisfaction with the result.

If the Court does not dismiss the State’s appeal on procedural grounds, it should affirm the Court of Appeals (and the trial judge) and remand the case for a new trial.

The undersigned attorney hereby certifies that a true copy of the Brief of Respondent in the above referenced case has been served upon Donald J. Zelenka, Esquire, at the Rembert Dennis Building, 1000 Assembly Street, Room 519, Columbia, SC 29201, this 25th day of January, 2007.

                                                                        Joseph L. Savitz, III
                                                                        Chief Attorney
                                                                        ATTORNEY FOR RESPONDENT

Division of Appellate Defense                                                                                              Joseph L. Savitz, III, Chief Attorney
1330 Lady Street, Suite 401                                                                                           Wanda H. Carter, Deputy Chief Attorney
Post Office Box 11589
Columbia, South Carolina 29211-1589
Telephone:   (803) 734-1343
Facsimile:      (803) 734-1397

Donald J. Zelenka
Assistant Deputy Attorney General
Office of the Attorney General
PO Box 11549
Columbia, SC 29211

Enclosed please find two copies of the Brief of Respondent in the above entitled case, which I have filed today with the South Carolina Court of Appeals.

Should you have any questions concerning this matter, please do not hesitate to contact me.

Enclosed please find a copy of the Brief of Respondent in your case, which I have filed with the South Carolina Court of Appeals.

Should you have any questions concerning this matter, please do not hesitate to contact me.

Q.	In fact, you ultimately gave the police three statements about this incident; is that correct?
A.	[Yes.]
Q.	And it was during this… final statement when you told the complete truth on this matter; is that correct?
A.	Well, the second statement was the truth as well, but… they kind of made me feel like I was lying because I didn’t pass the polygraph test.