TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................................... 1
 
TABLE OF AUTHORITIES....................................................................................................... 2
 
ISSUE PRESENTED................................................................................................................ 3
 
STATEMENT OF THE CASE.................................................................................................. 4
 
ARGUMENT............................................................................................................................... 5


TABLE OF AUTHORITIES

Cases

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

ISSUE PRESENTED

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.

STATEMENT OF THE CASE

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. 

ARGUMENT

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.

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:

[H]e said it was over some drugs.  The guy [Whitaker] wouldn’t buy the drugs.  So he pulled out a pistol and he was going to rob him.  And he wouldn’t give up the money.  And he shot him.

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:

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.

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 u