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Fishburne v. State

Supreme Court of South Carolina

July 31, 2019

Derrick Fishburne, Petitioner,
State of South Carolina, Respondent. Appellate Case No. 2016-002385

          Submitted June 17, 2019

          Appeal from Colleton County Edgar W. Dickson, Circuit Court Judge.


          Tristan Michael Shaffer, of Tristan M. Shaffer Attorney at Law, of Chapin, for Petitioner.

          Attorney General Alan McCrory Wilson and Assistant Attorney General Benjamin Hunter Limbaugh, both of Columbia, for Respondent.

          JAMES JUSTICE.

         This case stems from the post-conviction relief (PCR) court's denial of relief to Derrick Fishburne. Because the PCR court's order contains no findings of fact as to one of Fishburne's primary PCR claims, we remand this matter to the PCR court for the PCR court to issue an order setting forth adequate findings of fact and conclusions of law regarding Fishburne's unaddressed PCR claim. In doing so, we again stress that PCR orders must be prepared in compliance with section 17-27-80 of the South Carolina Code (2014) and Rule 52(a) of the South Carolina Rules of Civil Procedure.


         During the early morning hours of April 10, 2009, law enforcement responded to a 911 call reporting a shooting at Spirits Lounge in Walterboro. A patrol officer arrived on scene and observed a man (Victim) lying in a pool of blood on the pavement outside the front of the club. Victim was transported to the hospital, but he did not survive. An autopsy determined Victim's cause of death was six gunshot wounds.

         During law enforcement's investigation, two eyewitnesses identified Fishburne as the shooter. These eyewitnesses first identified Fishburne by name and subsequently identified him in a lineup. Law enforcement arrested Fishburne when he appeared at the local courthouse for roll call in an unrelated matter. Fishburne gave law enforcement a statement in which he denied being at the club on the night of the murder, claiming to have stayed the night at his girlfriend's house. This was not the truth. Fishburne's girlfriend told law enforcement he left her house around 12:45 a.m. (before the shooting occurred) and did not return until approximately 3:00 a.m. (after the shooting occurred). Another witness, Jarrod Frazier, testified he saw Fishburne at the club and thought Fishburne might have left before the shooting, but was not sure. In his written statement to law enforcement, Frazier stated he saw Fishburne leaving the club's parking lot in an SUV about 10-15 minutes before the shooting occurred. Frazier admitted on cross-examination he gave the exculpatory written statement to law enforcement so Fishburne "could get a bond."

         Fishburne was indicted for murder and possession of a weapon during the commission of a violent crime. At trial, Fishburne's trial counsel said the following during his opening statement to the jury-all relevant to one of Fishburne's underlying PCR claims:

I think the evidence will show that [law enforcement] made a decision that before the morning was out, once they had the name Derrick Fishburne, once they had that name, they had their guy. I think the evidence will show they picked him up from roll call on Friday, the next day. He was already in court. He might qualify as a usual suspect. He was an easy guy for them to get, because he was in court anyway. They picked him up from roll call on April the 10th, and they took him back to the Sheriff's Office Annex and they interviewed him. Now, because he had involvement with them before, I think the evidence will show he said, "I wasn't there." I think the evidence will show that there's a long video tape and you will have a chance to look at that.
He said, "I'm not saying anything," pretty much. "I wasn't there. I don't know what you're talking about." And at the end of the interview, they arrested him. One of the things he told me was, "I was at my girlfriend's house all night. I was at Lorinda Williams' -- Penny Williams' house," and I think the evidence will show that they went and checked with Penny, that he was not there. That he had, in fact, left the house at some time during a time when he could have been at the club, and I think the evidence will show from different witnesses, I think the State will be able to prove that he was, in fact, at the club. But they arrested him before they checked that out. I think the evidence will show that he was arrested at the end of that interview and they didn't check out Penny's story until later. It didn't check out. He told a lie.

         Further, during closing arguments, Fishburne's trial counsel argued:

[Fishburne] was rounded up and the testimony of Detective Williams was that they picked him up from roll call. He is one of the usual s us pect s. H e had b e en a t roll call, so he already had some trouble. They knew him. They took him from here and took him down to the station and Detective Williams told you, he was already under arrest at that time. He was under arrest for murder and it really didn't matter what he said.
One of the things also, what Detective Johnson said in the tape that you got to see is that [Fishburne's] brother is in prison. This is not a pretty fact, but it's the truth of the matter. The Fishburnes had trouble; it's a fact. So what does that mean to [Fishburne]? What does that mean to anybody being rounded up and taken down to the Sheriff's Office to get a statement? Do you think you're going to get a fair trial? He was already under arrest and it -- ...

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