South Carolina Criminal Defense Blog

South Carolina's Rule 404(b)

The general rule, in South Carolina, rule of evidence 404(b), is that prior bad acts are never admissible as evidence to prove a defendant's propensity to commit the crime he or she is charged with. The exception, however, is that prior bad acts may be "admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent."

Another underlying question bearing on the admissibility of any evidence is whether its probative value is outweighed by its prejudicial effect (Rule 403). Even if a piece of evidence is useful to prove some fact or other, it must be excluded if it would tend to cause the jury to convict based on something other than the facts of the case in front of them. For example, if a person is charged with armed robbery, the prosecutor should not be able to tell the jury that they have committed another armed robbery in the past - knowledge of this fact would make it more likely that the jury would convict the person, and yet has nothing to do with the facts of the case at hand.

The "common scheme or plan" exception, under Rule 404(b) and State v. Lyle, may possibly be the most abused, and confused, rule of evidence in South Carolina. Numerous appellate opinions over the years have contradicted one another and confused the issue, making it possible for the exception to swallow the rule, with judges allowing clearly prejudicial facts into evidence as a "common scheme or plan," despite no relation or connection between the past event and the current charges.

State v. Wallace

State v. Wallace, argued by C. Rauch Wise of Greenwood, S.C. and decided by the South Carolina Court of Appeals in 2005, was the first well reasoned opinion that analyzed State v. Lyle and its underlying facts and followed its reasoning. The comments to S.C. Rule of Evidence 404(b) note that S.C.'s rule is different from the federal rule in that the S.C. rule limits the admission of evidence to those purposes enumerated in State v. Lyle:

First, unlike the federal rule which does not limit the purposes for which evidence of other crimes may be admitted, the South Carolina rule limits the use of evidence of other crimes, wrongs, or acts to those enumerated in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).

Evidence of prior bad acts is inadmissible to prove the specific crime charged unless the evidence tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other; or (5) identity of the person charged with the present crime. Lyle, 125 S.C. at 416, 118 S.E. at 807; Rule 404(b), SCRE (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”).

Under Lyle, a common scheme or plan is one "embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other."

In Lyle, the Defendant was charged with forgery, and during the trial the state introduced evidence that the Defendant had forged other checks on that same day as well as on prior occasions. The S.C. Supreme Court held that the forgeries committed on the same day were admissible to rebut the Defendant's alibi defense. However, the forgeries that were committed on other dates in other locations, even though all were committed in exactly the same way, were not admissible, because there was no connection between the offenses making them a "continuous transaction."

In Wallace, the defendant was on trial accused of sexually molesting his stepdaughter, and the trial court allowed the state to present testimony that the defendant had also molested the victim's sister on prior occasions. The trial court ruled that the testimony was admissible under Lyle as a common scheme or plan and that the probative value of the testimony outweighed its prejudicial effect, and limited the sister's testimony to include only acts which were similar to those committed on the victim.

The Court of Appeals reversed, holding that, per Lyle, it is not sufficient that a prior crime be similar to the one at hand, but a connection must be established between the two. The Court goes on to analyze two New York cases which also held that a connection must be established, People v. Molineux, 61 N.E. 286 (N.Y. 1901) and People v. Romano, 82 N.Y.S. 749 (N.Y. App. Div. 1903), that were also relied on by the court in Lyle.

If the only thing that is required to admit prior bad acts is sufficient similarity between the two crimes, then the probative v. prejudicial analysis is turned on its head. Anytime a defendant has committed a similar offense in the past, it can be admitted to prove a common scheme or plan, intent, motive, or absence of mistake under 404(b). And yet, the more similar a prior bad act is to the conduct that is in front of the jury, the more prejudicial it is - the more likely it is that the jury will convict based on, "well, if he did it once he would do it again."

The S.C. Supreme Court has granted cert in Wallace.

State v. Gaines

Monday, in State v. Gaines, the South Carolina Supreme Court decided another prior bad acts case, admitting the evidence of a prior act under State v. Lyle.

Gaines was charged with criminal solicitation of a minor, as a result of conversations with a cop pretending to be a 13 year old girl in an AOL chatroom. At Gaines' trial, the judge allowed the state to introduce evidence of a prior incident where Gaines chatted with a Pennsylvania cop posing as a 12 year old girl (Gaines was not charged in connection with the earlier incident).

Evidence of other crimes, wrongs, or acts is generally not admissible to prove the defendant’s guilt for the crime charged. Such evidence is, however, admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent. Rule 404(b), SCRE; State v. Pagan, 369 S.C. 201, 631 S.E.2d 262 (2006); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). To be admissible, the bad act must logically relate to the crime with which the defendant has been charged. If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing. Id.; State v. Beck, 342 S.C. 129, 135-36, 536 S.E.2d 679, 682-83 (2000). Even if prior bad act evidence is clear and convincing and falls within an exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Rules 403, 404(b), SCRE; State v. Gillian, 373 S.C. 601, 646 S.E.2d 872 (2007); State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001) . . .

Where there is a close degree of similarity between the crime charged and the prior bad act, both this Court and the Court of Appeals have held prior bad acts are admissible to demonstrate a common scheme or plan.

The future of prior bad acts and Wallace

The S.C. Supreme Court's opinion in Gaines does not bode well for Wallace. Gaines analyzes the issue solely in terms of whether the prior act is similar to the offense at hand, and makes no mention of Lyle's requirement that the two acts be connected. If the Court wished to follow Lyle and require a connection between the two offenses, they could have done so and still affirmed - as Justice Pleicones pointed out in his concurrence, the prior act should have been admissible anyway in order to rebut the defendant's claimed entrapment defense. But they did not.

Other jurisdictions have stated exceptions that allow admission of prior offenses when the defendant is charged with sex crimes against children. Until Wallace, our appellate courts have created an unstated exception allowing the admission of prior offenses when a defendant is charged with sex crimes against children. Bad facts make for bad law. The danger in our Supreme Court making an unstated exception for sex crimes against children to the rule against propensity evidence is that the exception will bleed into every other type of trial.

I believe that Wallace should be affirmed, but if the S.C. Supreme Court is not going to recognize, in Wallace, the requirement of a connection between two offenses before it is admissible under Lyle, I hope that they will create an exception for cases involving sex crimes against children, rather than allowing this mess to potentially deprive every defendant of a fair trial.

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In State v. Spoone, released last week, the South Carolina Supreme Court upheld (on PCR) a plea agreement in which the defendant agreed to waive his right to appeal, PCR or any other review of his guilty plea or sentence.

Pursuant to a written plea agreement, petitioner James William Spoone pled guilty to murder, first degree burglary, and possession of a weapon during the commission of a violent crime. Prior to the guilty plea, the State issued a notice of its intent to seek the death penalty. In accord with the plea agreement, the trial court sentenced petitioner to life without parole for the murder and a consecutive life term for the burglary.[1]

The plea agreement expressly stated the following:

[Petitioner] agrees to waive any and all appeals, PCR applications, federal habeas petitions and any and all other methods of review of this guilty plea and sentence.

Thus South Carolina follows in the footsteps of the federal courts, allowing prosecutors to deny any review of guilty pleas or sentences as part and parcel of what is often a contract of adhesion. Although this practice is not yet as widespread in our state as it is in some federal circuits, our Supreme Court has given the green light if prosecutors wish to go this route.

When faced with a case where a defendant has a choice of significant additional prison time or signing a plea agreement that waives the right to appeal or PCR, what should a defense attorney do? I believe this type of agreement is unethical and should not be entered into by defense attorneys or offered by prosecutors, nor should it be stamped with the approval of judges or appellate courts. Is it a choice left to the client, or should the defense attorney refuse to participate in such agreements?

The Court's holding, following a brief review of federal law and precedents from other states, is that waiver of review of a guilty plea and sentence is enforceable if it is knowing and voluntary.

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In Miller v. S.C., the S.C. Supreme Court granted post conviction relief based on trial counsel's failure to effectively pursue Miller's claim of third party guilt. Although it was not a part of the Court's holding, Miller's attorney also failed to retain an expert on eyewitness identification which may have been a separate ground for PCR (if Miller's PCR attorney had not also failed to retain an eyewitness identification expert for the PCR hearing).

This case is a perfect example of what is wrong with reliance on eyewitness identifications and coerced testimony by snitches. Miller was charged with armed robbery, based on his girlfriend's testimony and a single eyewitness. The girlfriend's car was used in the robbery, and when police questioned the girlfriend she gave them information that implicated Miller as the robber. The police then showed a photo array which included Miller's photo to the victim, who identified Miller as the robber.

Open and shut, right? Here are the problems in the case:

- the girlfriend had three armed robberies pending already
- her co-defendants in those three armed robberies was Miller's nephew
- the girlfriend had tried to blame Miller in one of those armed robberies, until police discovered it was impossible because Miller was in jail at the time of the robbery
- the girlfriend's car was used in all four robberies
- the description initially given by the victim matched Miller's nephew, including his facial hair
- the police did not include a photo of Miller's nephew in the photo array shown to the victim
- in exchange for testifying against Miller, the girlfriend was offered a plea deal to accessory instead of to armed robbery (armed robbery in state court carries ten - thirty years)

Although the trial judge allowed Miller's attorney the opportunity to introduce evidence of third-party guilt, Miller's attorney failed to effectively cross-examine the girlfriend on the use of the same car and the similarities of the gun used in the prior three robberies committed by the girlfriend and Miller's nephew. Miller did not take the stand and no witnesses were called in his defense. Given that third party guilt and an eyewitness identification were Miller's only defenses at trial, Miller's attorney should have obtained an expert in eyewitness identification to explain its pitfalls to the jury.

I believe that, absent a compelling reason, the defendant has to take the stand and tell the jury his story. It does not matter that the law says the jury can't hold a defendant's silence against him and it does not matter how many times the judge cautions the jury not to take it into consideration - the jury will hold it against him. They will think: if he didn't have something to hide, he would have taken the stand.

Whenever possible, other witnesses have to be found to corroborate the defendant's testimony or to counter the state's witnesses. Once the defendant has taken the stand and testified, at that point you have lost last closing argument and there is no reason not to call as many additional witnesses as you can. If you can get a jury to understand reasonable doubt and the fact that the burden of proof is on the government that is well and good, but you have to assume they will not hold the government to their burden and they often don't. They want to hear why your client is not guilty.

In each PCR that I have handled, the recurring issue that stood out when reading the transcripts is that the trial attorney did not give the jury a theory of the case. This is not grounds for PCR, although maybe it should be. If the defense lawyer does not give the jury the defendant's theory of the case and tell the defendant's story, the jury has no framework to operate from except the prosecution's theory of the case.

In this case the prosecution failed, by using unreliable testimony coerced with the promise of freedom, and by not recognizing or not caring about the problems with the eyewitness identification. The defendant's own attorney failed, by not presenting Miller's defenses to the jury. The PCR Court failed, by not correcting the potential injustice when it came before it. But the South Carolina Supreme Court got it right, and Miller now has the opportunity to have a jury hear his defenses and make an informed decision on his guilt or innocence.

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"No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).

In State v. Brannon, the S.C. Court of Appeals held that for a person to be convicted of resisting arrest, there must first be an arrest. Seems like common sense, but there are many scenarios where people are charged with resisting arrest despite no valid arrest having occurred. In Brannon, police walked up to the defendant who they suspected was breaking into cars, said "stop, police," and the defendant ran. Officers gave chase and caught him, but once he was physically caught he did resist.

It is not against the law in South Carolina to "resist" an investigatory detention - for an individual to be considered under arrest they must be "physically touched for the purpose of restraint," or have "submitted to a show of authority at the time of . . . flight."

The Court of Appeals relies on U.S. Supreme Court cases which hold that an arrest for Fourth Amendment purposes requires an application of force or submission to a show of authority. In California v. Hodari D., 499 U.S. 621 (1991), for example, Hodari ran when he saw the police and, just before he was tackled and handcuffed, tossed a rock of crack cocaine. The USSCT held that the evidence was not the product of an illegal seizure and therefore was admissible in court, because Hodari was not seized until the moment he was tackled by the police.

In County of Sacramento v. Lewis, 523 U.S. 833 (1998), a fleeing motorcycle crashed and a pursuing police car ran over one of the riders, killing him. The USSCT held that, because the contact of the police car with the motorcycle rider was accidental, there was no Fourth Amendment seizure (and therefore no police liability to the dead riders' estate). The pursuit itself was not a seizure.

More recently, in Brendlin v. California, 551 U.S. , 127 S. Ct. 2400 (2007), the USSCT held that 1) a passenger in a car has standing under the Fourth Amendment; and 2) that a person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.

To say that "stop, police" constitutes an arrest for purposes of the resisting arrest statute, which is how some lower courts have been treating this statute, but does not constitute an arrest for purposes of excluding drugs that were tossed or for purposes of police liability, is inconsistent and defies the plain language of the statute. S.C. Code Sec. 16-9-320(A) says:

It is unlawful for a person knowingly and wilfully to oppose or resist a law enforcement officer in serving, executing, or attempting to serve or execute a legal writ or process or to resist an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned not more than one year, or both.

And an "arrest" is defined by Black's Law Dictionary as:

1. A seizure or forcible restraint. 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.” Black’s Law Dictionary 104 (7th ed. 1999).

Applying this analysis to Brannon's facts, he was not placed under arrest until he was physically touched by the officer, at which point he did not resist. Running from the officer's commands to "stop" amounted only to avoidance of the officers, not resisting arrest.

Brannon was also convicted and sentenced for breaking into a motor vehicle, and, although the opinion is not clear on this, it appears there was independent proof of that charge. What often happens is law enforcement will approach an individual who then runs, the police chase and eventually tackle them, place them under arrest for "resisting arrest," and then find drugs during the search incident to arrest. The cop is then good and pissed off, and the person is charged with resisting arrest, possession of drugs, assaulting an officer (because the officer scraped his knee while tackling the person), and anything else that the officer can think of.

There are now two main things to look for in resisting arrest cases. First, although I don't recommend it to anyone, it is well established that you have the right to resist an unlawful arrest. If the initial arrest was unlawful, you can resist the arrest and, if the court agrees with you, anything that is found on your person after the arrest may be excluded from evidence as the product of an unlawful seizure.

Second, under Brannon, always consider the possibility that there was no arrest to begin with. If a person runs from the police, they have not submitted to the officer's show of authority and until such time as there is physical contact by the police officer, there has been no arrest. The police cannot bootstrap themselves into making a case by charging someone with resisting arrest and then searching incident to the arrest for resisting arrest. There must be a valid reason to arrest the person, and then there must be an actual arrest.

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In the Spartanburg Herald Journal today was an op-ed piece by myself and by Senator Kevin L. Bryant, on the U.S. Supreme Court's decision in Kennedy v. Louisiana. I point out, in a reproduction of this post from June, that the enactment of South Carolina's child rape death penalty statute was a stunning example of bad politics controlling legislation. Despite the fact that there is a national consensus against the death penalty in non-homicide cases (there has not been an execution in a non-homicide case since 1963), it serves none of the traditional purposes of the criminal justice system, and there is an enhanced danger of wrongful convictions in child rape cases, railing against child-rapists is a tested and proven way to get attention and votes. It's right up there with tougher penalties for DUI and drug crimes.

Senator Bryant, who "led the fight for the inclusion of the death penalty sentencing in South Carolina's version of Jessica's Law," calls the majority of the Supreme Court "arrogant," and rails about how the liberal justices are "legislating from the bench," saying: "I did not seek office to take orders from unelected men and women who offer their prescriptions for society from behind a black robe, and I think the vast majority of my constituents elected me to represent them, not do the bidding of the judiciary."

Tough words, and yet another beautiful sound-byte for the public. We don't need liberal judges to tell us what is constitutional or not, our esteemed president could have told us that. The Senator leaves us with a reminder that elections are in November: "Our only protection against an encroaching judiciary lies in our ability to select the president who appoints its members. Please remember that in November."

I'm not disputing that Bryant's view is shared by many, and it is what the masses want to hear. It is good politics, but good politics makes for bad law. When this bill was being debated, South Carolina's defense bar and prosecutors joined together in opposing it as unconstitutional, and yet our legislature disregarded their advice and passed the law anyway.

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In State v. Mekler and State v. Light, both opinions released this week, the South Carolina Supreme Court held that involuntary manslaughter and self defense are not mutually exclusive, and that in a murder case both should be submitted to the jury if there is any evidence to support them.

Voluntary and involuntary manslaughter are confusing concepts which are often misunderstood, even by lawyers and judges. Manslaughter is the unlawful killing of a person, without malice. The definitions vary somewhat from state to state, but In South Carolina, voluntary manslaughter requires 1) legal provocation, which is some act by the victim such as an unprovoked attack, and 2) "sudden heat of passion" in response to the provocation.

Involuntary manslaughter is the unintentional killing of a person, either 1) while engaged in an unlawful activity, but not one which would ordinarily cause death or great bodily harm, or 2) while engaged in a lawful activity but with a reckless disregard for the safety of others.

To have the judge charge the jury on self defense in South Carolina, four elements have to be supported by the evidence:

(1) the defendant must be without fault in bringing on the difficulty;
(2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury;
(3) if his defense is based upon his belief of imminent danger, the defendant must show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life; and
(4) the defendant had no other probable means of avoiding the danger.

If there is any evidence at all to support the lesser included offenses of voluntary or involuntary manslaughter, or the complete defense of self defense, the trial judge must instruct the jury on them, and evidence of a struggle between a defendant and a victim over a weapon is sufficient for an involuntary manslaughter instruction.

In State v. Light, the defendant testified that he was confronted by his girlfriend, who was holding a .22 rifle in one hand and a long strand of brown hair in the other, screaming and accusing Light of having another woman in the house. Light testified that the victim had been acting jealous and following him for weeks before the incident, and there was conflicting testimony from Light and from the State's experts that would have supported a finding by the jury that 1) he took the gun from her and shot her as she crouched or knelt down; or 2) that he took the gun from her and unintentionally shot her after he jerked the gun away and stumbled back; or possibly that 3) the gun went off as she held it, but after he tried to knock it out of her hands.

The judge charged the jury on murder, voluntary manslaughter, and accident, but refused to give jury charges on involuntary manslaughter and self defense. The Supreme Court reversed and ordered a new trial, because there was some evidence at trial to support all of the theories - when there is any evidence of each theory, it is up to the jury to weigh the evidence and decide, not the judge.

Mekler was a more sympathetic defendant by far. She testified that she was sitting on her porch with the victim's wife when the victim came into the yard yelling at his wife and holding a knife, which he said was for Mekler's dog that was barking. Mekler picked up her shotgun, pointed it at the victim and pulled back the hammer while holding it at her waist, and testified that the gun went off unintentionally as she pulled back the hammer. She consistently testified that she did not intend to pull the trigger, and that testimony appeared to be uncontradicted, yet the judge refused to charge involuntary manslaughter and she was convicted of murder.

Although the trial judge did give a self defense instruction, the conviction was overturned because no involuntary manslaughter instruction was given - there was evidence to support self defense or involuntary manslaughter and all theories that the evidence supported should have been submitted to the jury. It sounds as if there was also evidence to support a charge of defense of others, since the testimony indicated that the victim was coming after his wife and not the defendant, but there is no mention of whether this was requested by the defense.

The jury instruction for involuntary manslaughter makes a huge difference - if convicted of murder, the minimum sentence that can be imposed is 30 years (85%, no parole), but involuntary manslaughter carries a sentence of 0 - 5 years.

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The Wisconsin Supreme Court has decided that a person can be charged with sexual assault, even if their victim is dead. The three men were charged with attempted sexual assault, but the lower court dismissed the charges, saying that there was no state law prohibiting necrophilia.

The men went to the cemetery with shovels, a crowbar, a tarpaulin, and a box of condoms, which the men had purchased that evening on their way to the cemetery.

My first reaction was, how could there not be a law prohibiting necrophilia? The next reaction is feeling sick thinking how sad is it that we even need a law to tell people don't have sex with corpses.

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In Williams v. State, the South Carolina Court of Appeals held last month that registration as a sex offender is a collateral consequence of a kidnapping conviction, and therefore cannot be grounds for post conviction relief.

South Carolina's sex offender registry laws require that a conviction of kidnapping will automatically result in classification as a sex offender unless the judge makes a specific finding on the record that the crime did not involve a sex offense.

Williams pled guilty to kidnapping, two counts of armed robbery, possession of a stolen motor vehicle, failure to stop for a blue light, and possession of a gun by a person under the age of twenty-one. The petitioner filed a PCR petition asking for relief based on the attorney's failure to advise him that a plea to kidnapping would result in sex offender status and based on the attorney's failure to request a finding by the judge that Williams was not a sex offender.

It would make more sense for the legislature to have permitted a requirement of registration as a sex offender if there was a finding that the crime involved a sex offense, rather than making registration automatic. There are not a lot of facts in the appellate opinion, but it does not sound like this was a sex offense. Making registration automatic leaves the door open for too many mistakes - lawyers and even judges are not always going to know about the requirement, or are not going to think about it during the plea.

The Court found that Williams' attorney was not ineffective, because counsel cannot be ineffective, for purposes of PCR, for failing to advise a client as to any collateral consequence. Williams undoubtedly feels that his lawyer was ineffective, now that he is faced with the prospect of being pegged as a sex offender for the rest of his life, having his picture, name, and address on the internet, living with residency restrictions, and possibly having to wear a GPS monitor.

Although sex offender classification is a collateral consequence and he will not be granted a new trial, Williams should have other options for removal from the sex offender registry - if there was no sex offense involved in his case, possibly the prosecutor could have consented to re-open his case for the sole purpose of allowing the judge to make a finding of no registration on the record. If that is not possible, Williams could file suit requesting a declaratory judgment that there was no sex offense involved in his crime.

Williams' case reminds us of why it is so very important to get it right the first time. It is much easier than fixing mistakes later on down the road.

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Since the June 25th decision of Kennedy v. Louisiana, a military statute has been “discovered” that permits capital punishment for child rape in court martial. No lawyer mentioned this statute in brief or oral argument, and no justice mentioned the law in the opinion of the court. Many bloggers and writers have debated whether this statute changes the national consensus against the death penalty. Somehow, the more interesting question is how did no one know this law existed?

When the statute was passed in Congress the provision was on the 129th page of a 420 page omnibus authorization bill. The provision was neither mentioned nor debated by any legislator.

This bill has been approved by the president for over two years and no attorney ever seemed to know it was there.

Mistake in fact is a valid defense against a crime. You cannot steal what you believe to be yours. Mistake in law is not a valid legal defense. You can be convicted of DUI even if you do not know the legal BA level. You see, every Tom, Dick and Harry is on notice of all statutes and all case law no mater how complicated. This leads me to believe that the law is kind to those who know it.

The UCMJ statute makes me wonder who really knows the law. Nine of the most brilliant legal minds, all their law clerks, and professional SCOTUS attorneys missed this law. Perhaps the most valuable thing we can glean from this controversy is your legal writing professor was right. It’s embarrassing not to know legal precedent.

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Roadblocks in my opinion are unconstitutional. Period. The National Motorists Association says it best:

We oppose the use of roadblocks, period. The only justification for stopping citizens under a roadblock scenario is to warn them of an unseen peril that could cause injury or death to an unsuspecting motorist. So-called "sobriety check points," or seat belt checks, or the myriad of other excuses the government concocts to harass and intimidate its citizens through the use of roadblocks are, in our opinion unconstitutional and in direct contradiction to any honest definition of freedom.

Since the United States Supreme Court does not yet agree, we will have to settle for requiring law enforcement to jump through hoops to demonstrate that their roadblocks are not really for the purpose of general crime control. The S.C. Supreme Court in State v. Groome, decided June 30, held law enforcement to the standards required by Brown v. Texas, City of Indianapolis v. Edmond, and Michigan State Police v. Sitz, and upheld the suppression of evidence by the trial court on the basis that the roadblock was violative of the Fourth Amendment.

In Brown v. Texas in 1979, the U.S. Supreme Court held that a Texas statute allowing police to detain citizens and require them to identify themselves violated the Fourth Amendment because it allowed the detentions without any reasonable suspicion of criminal conduct. It also set forth a three part balancing test for determining the constitutionality of seizures by law enforcement: 1) a weighing of the gravity of the public concerns served by the seizure; 2) the degree to which the seizure advances the public interest, and 3) the severity of the interference with individual liberty.

In 1990 the U.S. Supreme Court held in Michigan State Police v. Sitz that the Brown v. Texas balancing test applies to roadblocks, and, although it reversed the Michigan Court of Appeals and found the roadblock valid, it arguably upheld the requirement that "the degree to which the seizure advances the public interest" must be demonstrated by showing the "effectiveness" of the roadblock.

In City of Indianapolis v. Edmond in 2000, the U.S. Supreme Court held that a checkpoint whose primary purpose is to detect evidence of ordinary criminal wrongdoing is unconstitutional.

In Groome, the S.C. Supreme Court held that there was sufficient evidence for the trial court to find that the primary purpose of the roadblock was crime suppression rather than merely a driver's license checkpoint, in that:

1) the checkpoint was conducted by the Directed Patrol Unit, which is assigned specifically to deal with crime suppression issues;

2) a K-9 patrol unit with a nationally certified drug dog team was participating; and,

3) the State presented no evidence as to the plan, procedures, or duration of the roadblock, nor was any evidence of a protocol introduced and as the Supreme Court noted in Edmond, without such information “law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they include a license or sobriety check.”

The Court held that even if the purpose of the roadblock was not general crime suppression, the roadblock was invalid under Brown v. Texas' second requirement because no empirical data was presented at trial to support the effectiveness of the roadblock.

One thing that is disappointing about this case is that the Court did not rule (possibly because the attorneys did not raise the issue) that our State Constitutional protections are separate and independent grounds for their holding. On remand the Michigan Court of Appeals re-affirmed their original ruling in Michigan State Police v. Sitz, and found the checkpoint to be unconstitutional, this time under the Michigan Constitution instead of the Federal Constitution.

Judge Hill was the trial judge, and he as well as the S.C. Supreme Court deserve praise for having the courage to rule against the government in preserving our constitutional rights. However, all roadblocks should be declared unconstitutional, in violation of the South Carolina Constitutional right to freedom from unreasonable search and seizure and as a violation of the right to privacy which is guaranteed by the S.C. Constitution.

Roadblocks are one of the most arrogant and disgusting violations of our privacy and freedom, and Groome, if the U.S. Supreme Court does not overturn it, will help "to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field."

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In the much anticipated District of Columbia v. Heller, released today, the United States Supreme Court struck down D.C.'s ban on handguns.

The Court held that the Second Amendment protects an individual's right to keep and to bear arms, and is not limited to possession of firearms in connection with service in militias. The Court indicates that the right to bear arms is connected with the right to self defense.

D.C.'s requirement that lawful firearms in the home be disassembled or bound by a trigger lock was also declared unconstitutional, because such a requirement would make it impossible for citizens to use the firearm in self defense.

The Court's opinion, written by Scalia, takes care to note that the Second Amendment right is not unlimited, and that prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding possession of firearms in sensitive places such as schools or courthouses, and laws regulating the sale of firearms are constitutional.

The right to keep and bear arms, under Scalia's analysis, is not a right that is granted by the Constitution - it is a pre-existing right, and what is guaranteed by the Constitution is that the government will not infringe on that right. The right to keep and bear arms guarantees to all citizens the right to defend ourselves, and is connected to our natural right to self-preservation.

A primary purpose of the Second Amendment was to give the people a check on their government, and prevent the government from disarming its citizenry, as England had done in an attempt to maintain control of its people even as it abused them. When elements of our government become tyrannical and oppressive, the knowledge that most citizens have within their homes some form of firearm should give the government pause in remembrance of 1776. Scalia's reasoning indicates this as well:

During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric . . . Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.

Post-ratification commentary included the following from William Rawle in 1825:

“The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121–122.20

South Carolina's equivalent, found in Article I, Section 20 of the S.C. Constitution, also indicates the purpose of the freedom to keep and bear arms by including in its context the provisions that armies are dangerous to liberty in times of peace, that the military power of the State will always be subordinate to the civil authority, and that no solders will be quartered in person's homes without consent.

The Court rejected District of Columbia's argument that handguns could be banned so long as the possession of other firearms such as rifles is allowed, because the handgun is "the quintessential self-defense weapon," and it is "the most preferred firearm in the nation to keep and use for protection of one's home and family."

Much of the commentary since the case was released laments the narrow holding, which is limited to declaring unconstitutional a ban on handguns for the purpose of self defense in the home, and declaring unconstitutional any requirement that would render handguns kept in the home inoperable. Much litigation will likely follow this decision, to fine-tune the questions left unanswered by Heller, but I believe the decision was rightly and necessarily limited to the facts of this particular case. The Court decided the issues that were placed before it and could do no more.

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Posted In: Appellate Opinions

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Following todays decision in Kennedy v. Louisiana, according to the State.com, South Carolina's Attorney General tells prosecutors to ignore the law and proceed with death penalty prosecutions:

But McMaster says South Carolina prosecutors planning death penalty cases against child rapists should proceed. He says by the time that case is appealed, there should be different justices on the U.S. Supreme Court or more states will have passed similar laws.

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Posted In: Appellate Opinions , Ethics

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In April of this year, the United States Supreme Court decided in Baze v. Rees that Kentucky's three drug cocktail lethal injection procedure was not cruel and unusual punishment under the Eighth Amendment.

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In Kennedy v. Louisiana, released today, the United States Supreme Court held that the Eighth Amendment bars imposition of the death penalty where the crime does not result in the victim's death.

Only six states including South Carolina currently have statutes providing for the death penalty in child rape cases. The enactment of South Carolina's statute was a perfect example of bad politics controlling legislation. In the wake of some horrific and high profile child rape cases followed by the media, some legislator decides that it will be great PR to campaign for the death penalty for these monsters. Once the legislation has been introduced, no politician wants to vote against it because hey, it is pretty good PR, and you are either for it or you are in favor of the child rapists which certainly does not win you any votes.

Although the politicians and some victims advocates speak out about how they want the death penalty for child rapists, and it makes a good sound byte during election time, the SCOTUS points out that there is a national consensus against the death penalty for child rape. Since the Court's 1972 decision in Furman, nine states have permitted capital punishment for adult or child rape, and yet no person has been executed for any non-homicide offense since 1963. Louisiana is the only state that has sentenced a person to death for child rape, resulting in today's opinion in Kennedy.

Despite rape's permanent and devastating impact on a child, "in terms of moral depravity and of the injury to the person and to the public, [non-homicide crimes including child rape] cannot compare to murder in their severity and irrevocability."

The Court looks at whether the death penalty for child rape would serve the purposes of retribution and deterrence. Looking at retribution, the death penalty will not lessen a rape victim's hurt, given that capital cases require a long-term commitment to testify for the prosecution over a period of many years. By enlisting a child victim to assist in seeking the death penalty over the course of years "forces a moral choice on the child, who is not of mature age to make that choice."

The goal of deterrence is not furthered, because "evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of non-reporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member." Also, by making the punishment for murder the same as the punishment for rape, it gives the rapist an incentive to kill the victim.

The Court takes note of the "relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, in