UP-113 - State v. Hinson
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THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Jamaal Hinson, Appellant.
Appellate Case No. 2011-203569
Appeal From Richland County
DeAndrea G. Benjamin, Circuit Court Judge
Unpublished Opinion No. 2014-UP-113
Heard November 14, 2013 – Filed March 19, 2014
AFFIRMED
Chief Appellate Defender Robert M. Dudek, of
Columbia, and Reid T. Sherard, of Nelson Mullins Riley
& Scarborough, LLP, of Greenville, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka, and
Solicitor Daniel E. Johnson, all of Columbia, for
Respondent.
PER CURIAM: Appellant Jamaal Hinson appeals his conviction for murder,
arguing the trial court erred in: (1) removing a juror who unintentionally
concealed his affiliation with a witness; and (2) declining to instruct the jury on
involuntary manslaughter. We affirm.
FACTS/PROCEDURAL HISTORY
This case arises from the shooting death of Anthony Salley (Victim) at the
Vineyard Crossing subdivision in Blythewood, South Carolina. Earlier on the day
of the shooting, Appellant exchanged threats with Victim and Victim's friend,
Richard Thomas, as he drove by Victim's house. Appellant testified that he
subsequently armed himself with a gun because he knew Thomas regularly carried
a gun. According to Appellant, he later approached Victim's driveway in an
attempt to complete a drug transaction with his friend, Devan Bailey. Upon
Appellant approaching the driveway, an altercation immediately began between
Appellant and Victim. At some point during the altercation, Appellant drew his
gun; however, Victim successfully knocked the gun from Appellant's hand. The
two men then engaged in a fist-fight, which Appellant admittedly "won." After
winning the fight, Appellant immediately retrieved his weapon. As Victim got up
off the ground, he sustained a fatal gunshot wound to the abdomen from
Appellant's gun. Appellant claimed that he was startled when Victim moved and
faced him and that the gun fired accidentally.
The case proceeded to trial on November 14, 2011. During voir dire, the trial
judge read the name of every anticipated witness and asked each witness present to
stand upon hearing his or her name called. After reading the names from the
witness list, the trial judge asked potential jurors the following questions:
Question 1: [I]s there anyone related by blood or
marriage or has [sic] a close personal or social
relationship with any of the witnesses I have called?
Question 2: Does any member of the jury panel know of
any reason whatsoever why he or she should not serve as
a juror in this case with particular emphasis placed on
your ability to be fair and impartial to both the State and
the Defendant? If so please stand.
Juror 226, Guy Rodgers, did not respond to either question, and was subsequently
placed on the jury.
On the second day of trial, the State called Jarrod Crudup as a witness regarding
Appellant's whereabouts the night of the shooting. Crudup was not present in the
courtroom on the first day of trial when the trial judge read the names on the
witness list to potential jurors. Crudup testified that he knew Victim because they
lived in the same neighborhood. Crudup also stated that he "knew of" Appellant
through friends and that Appellant entered his house "uninvited" on the day of the
shooting.
At the beginning of the third day of trial, the trial judge informed counsel that she
had spoken to Juror 226, who had informed her that he had not recognized the
names of any of the witnesses because he did not know them, but recognized some
of their faces from playing basketball with them at a local gymnasium. After the
trial judge made this announcement, Juror 226 stated that his acquaintance with
some of the witnesses would not affect his ability to be fair and impartial. The
State then inquired, "which witnesses?" In response, Juror 226 indicated the only
witness he had knowledge of was Crudup. When specifically questioned as to
whether his knowledge of Crudup would affect his ability to be fair and impartial,
Juror 226 answered "No. I don't even know him."
After Juror 226 left the courtroom, the State asked that he be removed from the
jury, expressing concern that Juror 226 had a close connection with a friend of
Appellant. The State went on to assert that had it known about Juror 226's
connection to Crudup, the matter would have been a consideration in their use of
strikes. The trial judge recognized that Juror 226 did not intentionally conceal his
relationship with Crudup. Nevertheless, the trial judge removed Juror 226 from
the jury "out of an abundance of caution," citing Juror 226's initial disclosure that
he knew of "some of the witnesses."
At the conclusion of trial, the jury found Appellant guilty of murder. The trial
judge sentenced Appellant to thirty years' imprisonment. This appeal followed.
LAW/ANALYSIS
I. Juror Dismissal
Appellant argues the trial court committed reversible error in removing Juror 226
when it was uncontested that Juror 226 did not intentionally conceal his knowledge
of the identity of a witness during voir dire. We disagree.
In State v. Woods, 345 S.C. 583, 550 S.E.2d 282 (2001), our supreme court
addressed whether a post-verdict discovery that a juror had an affiliation with a
victims' rights organization warranted a new trial. The court in Woods set forth the
following test for the removal of a juror for concealment of information inquired
into during voir dire:
When a juror conceals information inquired into during
voir dire, a new trial is required only when the court
finds the juror intentionally concealed the information,
and that the information concealed would have supported
a challenge for cause or would have been a material
factor in the use of the party's peremptory challenges.
Id. at 587, 550 S.E.2d at 284 (emphasis added). The court explained "intentional
concealment occurs when the question presented to the jury on voir dire is
reasonably comprehensible to the average juror and the subject of the inquiry is of
such significance that the juror's failure to respond is unreasonable." Id. at 588,
550 S.E.2d at 284. "Unintentional concealment, on the other hand, occurs where
the question posed is ambiguous or incomprehensible to the average juror, or
where the subject of the inquiry is insignificant or so far removed in time that the
juror's failure to respond is reasonable under the circumstances." Id.
In State v. Stone, our supreme court cited to Woods in holding that the trial court
abused its discretion by removing a juror and replacing her with an alternate. 350
S.C. 442, 448-49, 567 S.E.2d 244, 247-48 (2002). In Stone, the State called the
defendant's aunt as a witness during the penalty phase of a capital trial. Id. at 448,
567 S.E.2d at 247. Once the witness took the stand, one of the jurors realized she
knew the witness. Id. Although the witness's name had been announced at the
beginning of the voir dire, the juror did not know the witness's name. Id. The
juror indicated she had lived down the street from the witness some five or six
years earlier, but they were casual acquaintances only. Id. She further stated that
her acquaintance with the witness would not affect her ability to be fair and
impartial. Id. In spite of the juror indicating that she could be impartial, the trial
court removed the juror and replaced her with an alternate. Id. Our supreme court
recognized that Woods was distinguishable in that it dealt with a new trial matter;
nevertheless, it found Woods "instructive," noting:
It is patent here that [the juror's] failure to disclose her
acquaintance with [the witness] was innocent. Moreover,
we find her scant acquaintance would neither have
supported a challenge for cause nor would it have been a
material factor in the state's exercise of its peremptory
challenges. [The juror] clearly indicated her former
acquaintance with a witness whose name she did not
even know, would not have affected her in any way
Id. at 448-49, 567 S.E.2d at 247-48.
The court in Stone ruled that the trial court abused its discretion in removing the
juror because neither of the two Woods criteria supporting removal were present.
Id. at 449, 567 S.E.2d at 248. In State v. Burgess, this court cited to Stone in
affirming the trial court's decision not to remove a juror. 391 S.C. 15, 19-20, 703
S.E.2d 512, 514 (Ct. App. 2010), cert. denied (May 25, 2012). The Burgess court
noted the lack of either of the Woods criteria "would have independently rendered
the trial judge's removal of the Stone juror erroneous." Id. at 19, 703 S.E.2d at 514.
On appeal, Appellant argues this court should find the trial court abused its
discretion in removing Juror 226 because it is uncontested that the first Woods
criterion was absent. Appellant further contends that pursuant to Stone, the
erroneous removal of a juror is per se reversible error. The State argues that
Appellant's reliance on Stone is misplaced because, although Stone recognized
legal error in a similar factual scenario, Stone did not indicate a prejudice inquiry is
not required when dealing with a juror's unintentional concealment during voir
dire.
Stone does not necessarily support Appellant's assertion that the removal of a juror
who unintentionally concealed information inquired into during voir dire requires
automatic reversal. In Stone, the appellant challenged his conviction on several
grounds, including the dismissal of a juror who unintentionally concealed her
acquaintance with a witness and indicated such acquaintance would not affect her
ability to be fair and impartial. 350 S.C. at 448, 567 S.E.2d at 247. Although the
court in Stone determined that the removal of the juror was an abuse of discretion,
this determination was not crucial to its ultimate holding. The Stone court held the
trial court's failure to instruct the jury on mitigating circumstances, as well as the
trial court's failure to give a parole ineligibility charge "require[d] reversal." Id. at
450, 452, 567 S.E.2d at 248, 249.
Neither Stone nor Burgess address whether the erroneous removal of a juror who
unintentionally concealed information during voir dire requires automatic reversal.
However, it is well-recognized that most trial errors, even those that violate a
defendant's constitutional rights, are subject to harmless error analysis and do not
automatically require reversal of a conviction. State v. Mouzon, 326 S.C. 199, 204,
485 S.E.2d 918, 921 (1997). Our courts have determined "[t]here is no right to be
tried by a jury composed of particular individuals." State v. McDaniel, 275 S.C.
222, 224, 268 S.E.2d 585, 586 (1980); State v. Rogers, 263 S.C. 373, 382, 210
S.E.2d 604, 609 (1974). In accordance with this principle, South Carolina case law
concerning alternate juror participation directs the appellate court to determine
whether an alternate juror's participation affected the outcome of the trial. See
McDaniel, 275 S.C. at 223-24, 268 S.E.2d at 586 (stating the irregular procedure
employed by the trial court in excusing a juror and impaneling an alternate at the
conclusion of testimony on the basis that the juror was observed making improper
remarks and gestures was not sufficient to deprive the defendant of his right to a
jury trial, where the alternate juror had been approved by both sides at the
inception of trial, and there was no showing that defendant withdrew his approval
at the time of the substitution); State v. Williams, 321 S.C. 455, 459-60, 469 S.E.2d
49, 52 (1996) (finding "[a]s in McDaniel" there was no prejudice to the defendant
from the seating of an alternate juror where the trial court removed a juror who was
seen shaking the hand of a pastor who was seated at defense counsel's table and
who had assisted defense counsel in the case).
Even if the removal of Juror 226 was error pursuant to Stone and Burgess, we find
such error harmless. Here, the regular jurors and the alternate jurors were treated
similarly in all respects. Juror 226 was replaced with an alternate who was present
throughout the proceeding, heard the same evidence, and was subject to the same
instructions of law as the regular jurors. See S.C. Code Ann. § 14-7-1340 (1976 &
Supp. 2013) (providing alternate jurors "shall have the same opportunities for
seeing and hearing the proceedings in the case, and shall take the same oath as the
jurors already sworn and shall attend at all times the trial of the cause in company
with the other jurors"). Furthermore, Appellant does not contend that the alternate
was unqualified or had not been approved by both sides during voir dire. See S.C.
Code Ann. § 14-7-320 (Supp. 2013) (stating alternate jurors "must be drawn from
the same source, in the same manner, have the same qualifications, and be subject
to the same examination and challenge as the jurors already sworn"); see also
McDaniel, 275 S.C. at 224, 268 S.E.2d at 586.
II. Involuntary Manslaughter Charge
Appellant also argues the trial court erred in refusing to charge the jury on
involuntary manslaughter. We disagree.
Involuntary manslaughter is defined as (1) the unintentional killing of another
without malice but while engaged in an unlawful activity not naturally tending to
cause death or great bodily harm; or (2) the unintentional killing of another without
malice but while engaged in a lawful activity with reckless disregard for the safety
of others. State v. Mekler, 379 S.C. 12, 15, 664 S.E.2d 477, 478 (2008). A trial
court should refuse to charge the lesser-included offense of involuntary
manslaughter only where there is no evidence the defendant committed the lesser
offense. Id. at 15, 664 S.E.2d at 479.
Here, Appellant, a convicted felon, acted in violation of the law by carrying a
firearm. See S.C. Code Ann. § 16-23-500 (Supp. 2013). In addition to being in
unlawful possession of a firearm, there is no evidence to suggest Appellant was
without fault in bringing on the difficulty. Earlier on the day of the shooting,
Appellant exchanged murderous threats with Victim in front of Victim's house. In
spite of this contentious history, Appellant approached Victim's driveway while
carrying a gun. See State v. Smith, 391 S.C. 408, 414, 706 S.E.2d 12, 15-16 (2011)
(holding the trial court properly refused to charge the jury on involuntary
manslaughter where there was no evidence to indicate that the appellant lawfully
armed himself in self-defense given that the appellant engaged in a drug deal,
while armed with a loaded gun, knowing the victim owed him money from a
previous drug transaction); State v. Cabrera-Pena, 361 S.C. 372, 383-84, 605
S.E.2d 522, 528 (2004) (finding the appellant was not entitled to an involuntary
manslaughter charge because his conduct in arming himself with a deadly weapon
and waiting to confront the victim was not a lawful activity and, his conduct, in
turn, created the volatile circumstances that led to the victim's death).
Accordingly, the trial court did not commit error in denying Appellant's request for
a charge on involuntary manslaughter.
For the foregoing reasons, Appellant's conviction is AFFIRMED.
HUFF, GEATHERS, and LOCKEMY, JJ., concur.
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