September 8, 2016
From Charleston County R. Markley Dennis, Jr., Circuit Court
Appellate Defender Susan Barber Hackett, of Columbia, for
Attorney General Alan McCrory Wilson, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General
Donald J. Zelenka, and Senior Assistant Attorney General W.
Edgar Salter, III, all of Columbia; and Solicitor Scarlett
Anne Wilson, of Charleston, for Respondent.
Johnson appeals his convictions for murder and possession of
a weapon during the commission of a violent crime, arguing
the trial court erred in (1) admitting text messages and
historical cell service location information obtained from
his cellular service provider by a search warrant, (2)
admitting his statement to a police officer, (3) instructing
the jury concerning "the hand of one is the hand of
all" because the evidence did not support the
instruction, and (4) rendering the trial fundamentally unfair
because the timing of the hand of one instruction prevented
Appellant from addressing the theory in his closing argument.
2011, two males entered the courtyard breezeway of Georgetown
Apartments in Charleston and shot and killed Akeem Smalls
(Victim). At the time of the crime, Charmaine Johnson,
Appellant's sister, whom he visited regularly, lived in
Georgetown Apartments. Victim was Charmaine's boyfriend.
At some point prior to the shooting, Appellant had loaned
Victim $420.00, and Victim refused to pay him back.
days after the murder, officers interrogated Appellant
regarding the crime. During the interrogation, Appellant
initially denied being in Charleston at the time of the
crime; however, he eventually admitted to being at the scene
of the crime with another individual identified as
"Creep" around the time the crime occurred.
Subsequently, a magistrate issued the search warrant at issue
in this case, and officers proceeded to obtain
Appellant's cell phone records, including his historical
cell site location information. Thereafter, a grand jury
indicted Appellant for murder and possession of a weapon
during the commission of a violent crime, and he proceeded to
trial, Tenika Elmore testified that at the time of the crime,
she and Appellant lived together in Orangeburg. She stated
she worked in North Charleston and Appellant would
occasionally drive her to work in her car. Elmore owned a
blue 2008 Toyota Camry that was missing a rear passenger-side
hubcap. On the day of the crime, Appellant dropped her off at
work in the afternoon and picked her up at 11:15 that
evening. Appellant and Elmore stopped at a gas station in
Summerville on the way back to Orangeburg from Charleston.
Based on the video surveillance from the gas station and
Elmore's testimony, Appellant had dreadlocks and wore a
white tee shirt and dark blue jeans on the evening of the
David Osborne testified officers were interested in one
portion of the video surveillance from Georgetown Apartments,
which showed a blue Toyota Camry backing into a parking spot
with two men exiting the vehicle and walking toward Building
C. Investigator Osborne opined backing into a parking space
indicated "someone trying to get out in a hurry."
He testified the two individuals walked toward the scene of
the murder, which occurred outside of the camera's view,
ran back to the car a few seconds later, and fled the
complex. He explained the vehicle depicted in the
surveillance video was consistent with the color, make, and
model of Elmore's car, and the vehicle in the
surveillance video and Elmore's car were missing a rear
passenger hubcap. According to Investigator Osborne, the
driver of the car wore a white tank top and black pants. The
individuals in that car were the only two individuals of
interest on the video surveillance because everyone else
appeared to be "just normally walking around their
jury convicted Appellant as indicted, and the trial court
sentenced him to concurrent sentences of thirty-six
years' imprisonment for murder and five years'
imprisonment for possession of a firearm. This appeal
1. Did the trial court err in finding the magistrate had
probable cause to issue the search warrant for
Appellant's cell phone?
2. Did the trial court err in admitting Appellant's
statement to investigators?
3. Did the trial court err in charging "the hand of one
is the hand of all" because the evidence did not support
4. Did the timing of the "the hand of one is the hand of
all" jury charge render the trial ...