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State v. Johnson

Court of Appeals of South Carolina

November 16, 2016

The State, Respondent,
v.
Devin Johnson, Appellant. Appellate Case No. 2014-000766

          Heard September 8, 2016

         Appeal From Charleston County R. Markley Dennis, Jr., Circuit Court Judge

          Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.

          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.

          GEATHERS, J.

         Devin 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. We reverse.

         FACTS/PROCEDURAL HISTORY

         In June 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.

         Two 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.

         At 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 crime.

         Investigator 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 apartment."

         The 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 followed.

         ISSUES ON 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 the instruction?
4. Did the timing of the "the hand of one is the hand of all" jury charge render the trial ...

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