Heard November 18, 2014
Appeal From Charleston County. J. C. Nicholson, Jr., Circuit Court Judge.
Jenny L. Barwick, of Greenville, and Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Deborah R.J. Shupe, both of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.
[412 S.C. 405] FEW, C.J.
Rakeem D. King appeals his convictions for attempted murder, armed robbery, and possession of a firearm during the commission of a violent crime. We find the trial court erred by (1) charging the jury that a specific intent to kill is not an element of attempted murder and (2) allowing hearsay testimony as to the number of shots King fired. These errors require reversal of King's conviction for attempted murder. However, we find the court's errors caused King no prejudice as to his convictions for armed robbery and possession of a firearm during the commission of a violent crime, and we affirm those convictions. We remand for a new trial for attempted murder.
I. Facts and Procedural History
On November 26, 2010 at 4:06 a.m., a customer called Yellow Cab requesting to be picked up at 1808 Carlton Street in North Charleston. The operator recorded the customer's telephone number from Yellow Cab's caller identification. At 4:11 a.m., Yellow Cab dispatched Dario Brown to that location. Brown was familiar with the Carlton Street area because his aunt had lived at 1809 Carlton--directly across the street from 1808 Carlton.
Brown testified he expected the customer to be his cousin because he lived in the area, and Brown had picked him up at the same location and time of night in the past. Brown saw a person coming from the yard of 1809 Carlton--his aunt's old house, which was abandoned at the time. When the person got into the back of the cab, Brown realized it was not his [412 S.C. 406] cousin. Brown turned around, looked the man in the face, and asked why he came from the abandoned house. Brown and the man began to argue about whether the man lived at 1809 Carlton.
Brown testified he drove toward the dead-end of Carlton Street so he could make a U-turn and take the man to his destination. Brown stated that before he reached the end of the street, " I heard his cocking a pistol. When I looked back he had raised the gun to my face and told me to give him the money." Brown handed the man " give away money." The man told Brown it was not enough, however, and pointed the gun at the back of Brown's head. Brown testified, " I made an attempt to move [the gun] with my elbow and my forearm trying to move it out of the way telling him he doesn't have to rob me." The man demanded more money. Brown opened the door to the cab and had " one foot on the ground and [his] other foot on the brake." Brown testified the gun was " [s]till placed at the back of my neck." With his hands over his head, Brown " gave him a look in his eye" and testified the man " looked as if he was going to shoot me." When Brown tried again " to move the gun away from [his] face," the man shot Brown in the arm.
Brown testified he jumped from the cab and ran toward the dead-end of Carlton Street. " I look[ed] back and I [saw] him in
pursuit behind me" --" maybe two steps behind me." Brown explained he tried to jump over a fence at the end of the street, " but my arm gave out so I kind of flipped head first over [the fence] and landed on my back." Brown testified, " When I hit the ground . . . he was . . . holding the gate with one hand and reaching over with his other hand with the gun in it." Brown testified the man fired another shot at him. Brown crawled behind a van, and the man fired more shots. Brown testified the man was " [s]till outside the gate saying that he is not going to shoot me anymore if I just give him the money." Brown stated, " I want to say in all I heard maybe six or seven shots but I can't be exact."
Brown eventually called the police from his cell phone. Officer Jennifer Butler testified she arrived at 4:21 a.m. and saw Brown's empty cab " that had run into a pole on the side of the road." Shortly thereafter, she made contact with [412 S.C. 407] Brown and called emergency medical services. She did not see anyone else. After Brown was taken to the hospital, Officer Butler and a detective walked door-to-door " in the immediate area . . . to speak with the people to see if they heard anything or happened to see anything." Over King's hearsay objection, Officer Butler testified she " learned there was more than one shot" --" [a]pproximately three or four shots" were fired.
Kelly Murphy--a crime scene technician--testified she found " a .25 auto shell casing" in the cab. Murphy also testified she and four other officers searched the Carlton Street area for two hours and found no other shell casings. Murphy conceded on cross-examination that " if there were shells there [I] needed to find them," and " if there were any of those anywhere [I] would have collected those."
Three days later, officers showed Brown a photographic lineup without a photograph of King, and Brown did not identify anyone from the lineup. Officers then traced the number recorded by the Yellow Cab operator and learned the phone was registered to a person who had given a falsified address. Using DMV records, officers located King, who had the same date of birth and a very similar address to those used to register the phone. Officers then prepared a second photographic lineup with a photograph of King, and Brown identified King as the man who shot and robbed him.
The jury found King guilty of attempted murder, armed robbery, and possession of a firearm during the commission of a violent crime. The trial court sentenced King to thirty years in prison for armed robbery and five years for possession of a firearm, with those sentences to run consecutive. For the attempted murder conviction, the trial court sentenced King to ten years in prison, concurrent with the other sentences.
II. Jury Charge
King argues the State must prove as an element of attempted murder that King acted with specific intent to kill Brown. We agree, and thus we find the trial court erred when it charged the jury, " A specific intent to kill is not an element of attempted murder but it must be a general intent to commit serious bodily harm."
[412 S.C. 408] Section 16-3-29 of the South Carolina Code (Supp. 2014) defines attempted murder: " A person who, with intent to kill, attempts to kill another person with malice aforethought, either expressed or implied, commits the offense of attempted murder." Because the crime is defined by statute, we first look to the language of the statute to determine what the Legislature intended the elements of the crime to be--including the level of intent required. See Guinyard v. State, 260 S.C. 220, 227, 195 S.E.2d 392, 395 (1973) (" The power of the Legislature to declare what acts shall constitute crimes . . . includes the power to make the commission of the act criminal without regard to the intent or knowledge of the accused . . . . Therefore, whether knowledge and ...