Criminal Law
May - July 2014

A videotape from a breath test site that lacks the audio portion of the reading of Miranda rights and the informed consent law does not satisfy the requirements of S.C. Code Ann. Sec. 56-5-2953(A)(2) (2006).
State v. Sawyer, Op. No. 27393 (S.C. Sup. Ct. filed June 4, 2014) (Shearouse Adv. Sh. No. 22 at 24).

March - May 2014

When conducting a Horizontal-Gaze Nystagmus test, an individual’s head must be shown in the video recording for the sobriety test to be properly recorded under S.C. Code Ann. Sec. 56-5-2953(A).
State v. Gordon, Op. No. 5226 (S.C. Ct. App. filed April 23, 2014) (Shearouse Adv. Sh. No. 16 at 71).

Homicide by child abuse
A trial court has no power to suspend a sentence imposed on a person convicted of homicide by child abuse under S.C. Code Section 16-3-85(A)(1).
Richardson v. State, Op. No. 5212 (S.C. Ct. App. filed March 26, 2014) (Shearouse Adv. Sh. No. 12 at 95).

The Gambling Cruise Act
The Gambling Cruise Act does not authorize the Catawba Indian Nation to offer video poker on its reservation in contravention of the existing statewide ban on video gambling devices.
Catawba Indian Nation v. State, Op. No. 27374 (S.C. Sup. Ct. filed April 2, 2014) (Shearouse Adv. Sh. No. 13 at 37).

October 2013 - January 2014


The General Assembly’s 2008 amendment to S.C. Code Subsection 56-5-2950(A) (which replaced the three-hour videotaping requirement for blood alcohol testing with a two-hour requirement for completing blood alcohol testing) was intended to apply prospectively.
State v. Hilton, Op. No. 5178 (S.C. Ct. App. filed October 30, 2013) (Shearouse Adv. Sh. No. 46 at 23).

Post-conviction relief
The S.C. Supreme Court reversed the S.C. Court of Appeals’ holding in State v. Watkins, Op. No. 2011-UP-091 (S.C. Ct. App. filed March 8, 2011), that created a rule requiring a trial judge to grant a recusal motion made during a new trial arising from a post-conviction relief hearing in which the judge also presided. In overruling the Court of Appeals’ holding, the Court emphasized that a criminal defendant may still ask the judge who heard his PCR to recuse herself from the retrial of the matter for any reason for which recusal may be sought.
State v. Watkins, Op. No. 27334 (S.C. Sup. Ct. filed December 4, 2013) (Shearouse Adv. Sh. No. 51 at 14).

June - September 2013

Pursuant to S.C. Code Section 24-21-645, inmates convicted of a violent crime must only convince two-thirds of the parole board members participating in their hearings to be granted parole.
Barton v. SCDPP, Op. No. 27281 (S.C. Sup. Ct. filed July 3, 2013) (Shearouse Adv. Sh. No. 30 at 24).

April - June 2013

Doctrine of duplicity
Because of the distinct risks created by duplicitous indictments, a duplicitous indictment is defective and entitles a defendant to relief if it results in prejudice to the defendant.
State v. Samuels, Op. No. 27255 (S.C. Sup. Ct. filed May 22, 2013) (Shearouse Adv. Sh. No. 23 at 92).

Pursuant to Section 56-5-2953 of the S.C. Code, a 20-minute pre-test video recording is not required when an arrestee refuses a breath test.
State v. Hercheck, Op. No. 27258 (S.C. Sup. Ct. filed May 29, 2013) (Shearouse Adv. Sh. No. 24 at 46).

In pari delicto
Under certain circumstances, the doctrine of in pari delicto can be abrogated for reasons of public policy and allow for the recovery of gambling losses.
Proctor v. Whitlark, Op. No. 5131 (S.C. Ct. App. filed May 15, 2013) (Shearouse Adv. Sh. No. 22 at 44).

Feb. - April 2013

Grand larceny
A property owner's testimony regarding the value of damaged or stolen property is alone sufficient to support a conviction for grand larceny.
State v. Brown
, No. 27231 (S.C. Sup. Ct., March 13, 2013) (Shearouse Adv. Sh. No. 12).

Dec. 2012 - Feb. 2013

Rule 609
Pursuant to Rule 609, for a conviction of armed robbery to constitute a crime of dishonesty, there must be further affirmative statements or acts of deceit beyond the basic crime itself. 
State v. Broadnax, No. 5071 (S.C. Ct. App., Jan. 9, 2013) (Shearouse Adv. Sh. No. 2).

Oct. - Dec. 2012

Playing Texas Hold’em for money inside a residence falls within the meaning of gambling under S.C. Code Section 16-19-40. Whether an activity is considered gaming/gambling is not dependent upon the relative roles of chance or skill, but whether there is money or something of value wagered on the game's outcome.
Town of Mt. Pleasant v. Chimento, No. 27197 (S.C. Sup. Ct., Nov. 21, 2012) (Shearouse Adv. Sh. No. 42).

First-degree burglary
For purposes of first-degree burglary, S.C. Code Sections 16-25-20(D) and 16-11-311(A) set forth no exception, exclusion or requirement that would preclude an intent to violate an order of protection from qualifying as an intent to commit a crime. 
State v. Gilliland, No. 5053 (S.C. Ct. App., Nov. 21, 2012) (Shearouse Adv. Sh. No. 43).

July - Oct. 2012

Due process
Failure to produce a photo lineup at trial does not amount to a due process violation if the claimant fails to establish that the lineup possessed an exculpatory value before it was lost and fails to demonstrate that he could not have obtained other evidence of comparable value by other means.
State v. Bland, No. 5002 (S.C. Ct. App., July 18, 2012) (Shearouse Adv. Sh. No. 24)

Juvenile “adjudication” is the equivalent of a “conviction” under S.C. Code Section 24-21-940 for purposes of entitlement to seek a pardon from the S.C. Department of Probation, Parole and Pardon Services.
Doe v. State, No. 27159 (S.C. Sup. Ct., Aug. 15, 2012) (Shearouse Adv. Sh. No. 28)


Evidence that a claimant, sentenced to voluntary manslaughter for the death of a spouse, had also suffered criminal domestic violence may satisfy the requirements for early parole eligibility under S.C. Code Section 16-25-90.
State v. Hawes, No. 5001 (S.C. Ct. App., July 18, 2012) (Shearouse Adv. Sh. No. 24)

Trial by jury
A right to a trial by jury is validly waived when there is a complete record showing that the petitioner knowingly and voluntarily waived that right.
Moore v. State, No. 27173 (S.C. Sup. Ct., Sept. 26, 2012) (Shearouse Adv. Sh. No. 34)

Wiretap Act

The S.C. Legislature intended the consent provision in the Wiretap Act to encompass the vicarious consent of a parent on behalf of a minor child.
State v. Whitner, No. 27142 (S.C. Sup. Ct., July 11, 2012) (Shearouse Adv. Sh. No. 23)

May - June 2012

Sex offender registry
Failure to provide actual notice of the 2006 amendment to S.C. Code Section 23-3-460, the Sex Offender Registry statute, violates due process and equal protection rights.
State v. Binnarr, No. 27122 (S.C. Sup. Ct., May 9, 2012) (Shearouse Adv. Sh. No. 16)

Sexually Violent Predator Act
The Sexually Violent Predator Act does not require a defendant’s most recent offense to be classified as sexually violent, and if the defendant had previously been convicted for a sexually violent offense, he is subject to the Act’s required mental health evaluation.
In the Matter of the Care and Treatment of Bobbie Manigo, No. 27134 (S.C. Sup. Ct. June 20, 2012) (Shearouse Adv. Sh. No. 21)

Feb. - May 2012

Attempted criminal sexual conduct
As long as a defendant has specific intent to commit a sexual battery on a victim between the ages of 11 and 14 years old, coupled with some overt act toward the commission of the offense, an actual minor victim is not required for the prosecution of attempted criminal sexual conduct.
State v. Green, No. 2710 (S.C. Sup. Ct., Apr. 4, 2012) (Shearouse Adv. Sh. No. 12)

Constructive possession
Where a defendant had no dominion or control over drugs because they were found in a public place, the jury should not be charged on constructive possession of the drugs.
State v. Fripp, No. 4956 (S.C. Ct. App., Mar. 21, 2012) (Shearouse Adv. Sh. No. 11)

Criminal Solicitation of a Minor
S.C. Code Ann. Section 16-15-342, Criminal Solicitation of a Minor, is constitutional as it is neither overbroad nor vague.
State v. Green, No. 27108 (S.C. Sup. Ct., Apr. 4, 2012) (Shearouse Adv. Sh. No. 12)


The exclusion remedy is not available if excluding the evidence would not deter police misconduct when a search incident to arrest is executed pursuant to binding appellate precedent.
Narciso v. State, No. 27104 (S.C. Sup. Ct., Mar. 14, 2012) (Shearouse Adv. Sh. No. 10)

Guilty pleas

The petitioner’s inability to watch the videotape of his drug transaction prior to his guilty plea did not prevent him from pleading guilty freely, voluntarily and knowingly, and thus did not entitle him to post-conviction relief for ineffective counsel.
Hyman v. State, No. 27105 (S.C. Sup. Ct., Mar. 14, 2012) (Shearouse Adv. Sh. No. 10)

Inferred malice
Per State v. Belcher, a jury instruction that malice can be inferred from the use of a deadly weapon is erroneous when evidence of mitigation is presented at trial along with limited or nonexistent evidence of malice.
State v. Miller, No. 4965 (S.C. Ct. App., Apr. 25, 2012) (Shearouse Adv. Sh. No. 14)

Possession of a firearm
A nexus between firearm possession and drug trafficking is required for the crime of possession of a firearm during the commission of a crime.
State v. Whitesides, No. 27110 (S.C. Sup. Ct., Apr. 4, 2012) (Shearouse Adv. Sh. No. 12)

Post-conviction relief
If the defendant’s counsel fails to investigate a possible alibi witness, where testimony that would have been presented at trial does not meet the legal definition of an alibi, then the defendant fails to establish the prejudice prong of the Strickland test for ineffective counsel.
Walker v. State, No. 4946 (S.C. Ct. App., Feb. 22, 2012) (Shearouse Adv. Sh. No. 7)


Only when there is a necessary finding of facts that the failure to pay money is willful may a court revoke a defendant’s probation.
State v. Coker, No. 4945 (S.C. Ct. App., Feb. 22, 2012) (Shearouse Adv. Sh. No. 7)

Securities fraud
Because the legislature did not specify it in the statute, the Court has the authority to determine the mens rea required for a violation of S.C. Code Section 35-1-501(3) That mens rea is “intentional or severely reckless.”
State v. Sterling, No. 27096 (S.C. Sup. Ct., Feb. 29, 2012) (Shearouse Adv. Sh. No. 8)

Sex Offender Registry Act
To satisfy due process, a convicted sex offender must have actual notice of the 2006 change to S.C. Code Section 23-3-460, imposing an additional registration requirement, to be convicted of violating S.C. Code Section 23-3-470. But where a convicted sex offender fails to re-register annually, there is no due process violation as actual notice would have been provided at that time.
State v. Latimore, No. 27102 (S.C. Sup. Ct., Mar. 14, 2012) (Shearouse Adv. Sh. No. 10)

Subject matter jurisdiction
A proceeding in magistrate court is not a nullity if commenced without the issuance of a warrant, as the court may still have subject matter jurisdiction per the statutory intent behind S.C. Code Ann. Section 56-7-10.
Bayly v. State, No. 27109 (S.C. Sup. Ct., Apr. 4, 2012) (Shearouse Adv. Sh. No. 12)

Waiver of PCR allegations
A waiver of the right to appeal PCR allegations may not be entered into knowingly and voluntarily where a petitioner has a limited command of the English language and there is no evidence that the petitioner understood the waiver, either in the language of the Consent Order or in “plain language.”
Narciso v. State, No. 27104 (S.C. Sup. Ct., Mar. 14, 2012) (Shearouse Adv. Sh. No. 10)

Jan. - March 2012

If it can be demonstrated that an unlawful game could have been played on a video machine at any time in the past, an Order of Destruction can be issued to destroy the machine. The burden of proof is solely on the owner of the machine to show why it should not be destroyed.
Union County Sheriff's Office v. Henderson, No. 27077 (S.C. Sup. Ct., Dec. 19, 2011) (Shearouse Adv. Sh. No. 45)

Mental illness of a defendant does not automatically preclude a jury from deciding whether the defendant is guilty of a crime.
State v. Senter, No. 4924 (S.C. Ct. App., Dec. 21, 2011) (Shearouse Adv. Sh. No. 46)

Post-conviction relief
A petitioner is not necessarily entitled to post-conviction relief if the attorney did not adequately communicate with the petitioner and did not prepare the petitioner for trial if the attorney performed other suitable trial preparation, such as meeting with the petitioner prior to trial to discuss discovery and meeting with third parties to discuss defenses.
Smith v. State, No. 4938 (S.C. Ct. App., Feb. 8, 2012) (Shearouse Adv. Sh. No. 5) 

Search and seizure
A defendant does not have an expectation of privacy on a porch in an apartment complex that is not where he resides. Further, the police have reasonable cause to frisk a defendant when the police see a weapon on the defendant’s body. Thus, such a search does not violate the Fourth Amendment.
State v. Robinson, No. 4942 (S.C. Ct. App., Feb. 15, 2012) (Shearouse Adv. Sh. No. 6)

Oct. 2011 - Jan. 2012

Assault and battery of a high and aggravated nature/criminal sexual conduct 
There are three types of cases in which the evidence can support an inference that the defendant is guilty of assault and battery of a high and aggravated nature (ABHAN) instead of criminal sexual conduct (CSC): (1) there is evidence the defendant committed ABHAN by an unlawful sexual touching in the course of attempting CSC and there is conflicting evidence as to whether the defendant accomplished sexual battery; (2) there is evidence the defendant committed a non-sexual ABHAN, such as in a fight, and in addition to evidence to support CSC, there is evidence the two never had sex; and (3) there is evidence the defendant committed a non-sexual ABHAN contemporaneous with CSC, but there is evidence that instead of CSC, the two had consensual sex.
State v. Gilmore, No. 4903 (S.C. Ct. App., Nov. 2, 2011) (Shearouse Adv. Sh. No. 39).

Direct appeal 
Following a trial, counsel is required to make certain the defendant is made fully aware of the right to appeal. This explanation of appeal is not sufficient if it was made before the trial began. Absent an intelligent waiver by the defendant, counsel must either initiate an appeal or comply with the procedure in Anders v. California.
Clark v. State, No. 4915 (S.C. Ct. App., Dec. 7, 2011) (Shearouse Adv. Sh. No. 44).

Expert testimony 
A forensic pathology expert's opinion testimony as to cause and manner of death is admissible under Rule 702, SCRE, so long as the expert does not opine on the criminal defendant's state of mind or guilt or testify on matters of law in such a way that the jury is not permitted to reach its own conclusion concerning the criminal defendant's guilt or innocence. 
State v. Commander, No. 27062 (S.C. Sup. Ct., Oct. 31, 2011) (Shearouse Adv. Sh. No. 38).

The State failed to present sufficient circumstantial evidence of knowledge of the drugs when the drugs were out of sight, the defendant did not act nervous or make any suspicious movements, the defendant did not own or rent the car, the defendant did not know the driver of the car very well and the drugs were found deep inside the center console of the car. 
State v. Jackson, No. 4894 (S.C. Ct. App., Oct. 5, 2011) (Shearouse Adv. Sh. No. 35).

Lesser-related offenses 
The Court adopted the U.S. Supreme Court's holding in Hopkins and held that a defendant is not entitled to a charge on lesser-related offenses. Charging on lesser-related offenses would diminish a proceeding's reliability by permitting the jury to convict the defendant of a crime the State never even sought to prove at trial. 
State v. Dickerson, No. 27048 (S.C. Sup. Ct., Oct. 3, 2011) (Shearouse Adv. Sh. No. 34).

Plea counsel was not deficient if she had no indication that the defendant's mental status tested at a level of mental retardation. 
Lee v. State, No. 4901 (S.C. Ct. App., Nov. 2, 2011) (Shearouse Adv. Sh. No. 39).

Probable cause 
The officer’s experience demonstrated that blunts are often hollowed to accommodate the smoking of marijuana. Similarly, the loose tobacco in the car indicated the blunts were recently hollowed in the car. Considering these factors in conjunction with the background odor of marijuana, the circumstances were sufficient to warrant a reasonable and prudent person to believe the party possessed marijuana, and the officers had probable cause to search anywhere in the vehicle where marijuana could be located. 
State v. Morris, No. 4872 (S.C. Ct. App., Nov. 2, 2011) (Shearouse Adv. Sh. No. 39).

Sentence length

Under ordinary circumstances, the S.C. Department of Corrections must determine the sentence imposed by the trial court from the sentencing sheets. If there is ambiguity in the sentencing sheets, SCDC may examine the transcript of record to determine the intent of the sentencing judge. 
Tant v. SCDC, No. 4897 (S.C. Ct. App., Oct. 26, 2011) (Shearouse Adv. Sh. No. 38).

Sex offender registry

The Court found that unlawful restraint in Pennsylvania was a similar offense to kidnapping in South Carolina, and since there was similarity in public policy behind both statutes, the conduct proscribed under unlawful restraint was also proscribed under the kidnapping statute. 
Lozada v. S.C. Law Enforcement Div., No. 27076 (S.C. Sup. Ct., Dec. 12, 2011) (Shearouse Adv. Sh. No. 44).

July - Oct. 2011

Suspension of sentences 
Section 24-21-410 of the S.C. Code does not give courts the authority to suspend sentences for crimes punishable by death or life imprisonment, including crimes that encompass lesser sentences than death or life imprisonment.
State v. Jacobs, No. 27015 (S.C. Sup. Ct., July 25, 2011) (Shearouse Adv. Sh. No. 25).

Right to jury trial
Ordering a definite 12-month incarceration if the petitioner fails to pay the court costs on time violates the petitioner's right to a jury trial.
DiMarco v. DiMarco, No. 27017 (S.C. Sup. Ct., Aug. 1, 2011) (Shearouse Adv. Sh. No. 25).

Rape shield statue
S.C. Code Section 16-3-659.1 (the rape shield statute) does not bar evidence of sexual conduct between the victim of a sexual crime and the accused, as long as that evidence is otherwise admissible.
State v. Tennant, No. 27027 (S.C. Sup. Ct., Aug. 15, 2011) (Shearouse Adv. Sh. No. 27).

Rule 106 
Rule 106, SCRE, does not require that the writings at issue, in this case a suicide note and a letter of apology to the victim, be created contemporaneously or in response to one another.
State v. Tennant, No. 27027 (S.C. Sup. Ct., Aug. 15, 2011) (Shearouse Adv. Sh. No. 27).

New trial 
The defendant was entitled to a new trial when the jury, during deliberations, mistakenly received two statements made by the defendant that were not admitted into evidence during trial. The submission of his written statements was prejudicial and improperly influenced the jury because all 12 jurors were exposed to his statements, no curative instructions were given because the error was discovered after the jury verdict, the weight of the evidence against the defendant was not overwhelming and the defendant did not confess to the crime at trial.

State v. Hill
, No. 4867 (S.C. Ct. App., Aug. 10, 2011) (Shearouse Adv. Sh. No. 27).