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Criminal Procedure

August - October 2014

Post-Conviction Relief

When a PCR applicant seeks relief on the basis of newly discovered evidence following a guilty plea, relief is appropriate only where the applicant presents evidence showing that: (1) the newly discovered evidence was discovered after the entry of the plea and in the exercise of reasonable diligence, could not have been discovered prior to the entry of the plea; and (2) the newly discovered evidence is of such weight and quality that, under the facts and circumstances of that particular case the “interest of justice” requires the applicant’s guilty plea to be vacated.
Jamison v. State, Op. No. 27454 (S.C. Sup. Ct. filed October 22, 2014) (Shearouse Adv. Sh. No. 42 at 12).

Missing Witness Rule

A party’s invocation of the missing witness rule should be limited to fact witnesses and should not be applied to opinion witnesses, particularly psychiatric experts. The S.C. Supreme Court reiterated the fact that witnesses must be under the control of the party failing to call them (e.g. an agent, employee, relation or associate).
In the Matter of the Care and Treatment of Gonzalez, Op. No. 27443 (S.C. Sup. Ct. filed September 3, 2014) (Shearouse Adv. Sh. No. 35 at 31).


May - July 2014

Sentencing
When the Department of Corrections (Department) decides its original recordation of a sentence is erroneous, it must afford the inmate formal notice of the amended sentence and advise him of his opportunity to be heard through the grievance procedure. Further, the Department is generally confined to the face of the sentencing sheets in determining the length of a sentence, but may refer to the sentencing transcript if there is an ambiguity in the sentencing sheets.
Tant v. SCDOC, Op. No. 27392 (S.C. Sup. Ct. filed May 28, 2014) (Shearouse Adv. Sh. No. 21 at 32).


December 2013 - February 2014

Search incident to a lawful arrest
The trunk of a vehicle may be considered part of the passenger compartment and may therefore be searched pursuant to a lawful arrest when the trunk is reachable without exiting the vehicle.
Robinson v. State,
Op. No. 27357 (S.C. Sup. Ct. filed February 26, 2014) (Shearouse Adv. Sh. No. 8 at 25).


June - September 2013

Ineffective assistance of counsel
The holding in Martinez v. Ryan that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance [of counsel] at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective,” is limited to federal habeas corpus review and is not applicable to state post-conviction relief actions. 132 S. Ct. 1309, 1320 (2012).
Kelly v. State, 2013-06-20-01 (S.C. Sup. Ct. dated June 20, 2013).

Search
“[T]he opening of the door of an occupied vehicle is an intrusion, however slight, that generally constitutes a search for purposes of the Fourth Amendment.”
McHam v. State, Op. No. 27287 (S.C. Sup. Ct. filed July 17, 2013) (Shearouse Adv. Sh. No. 32 at 60).

Seizure
Off-topic questioning by a law enforcement officer during the course of a traffic stop does not constitute a separate seizure for purposes of the Fourth Amendment, so long as the off-topic questioning does not measurably extend the duration of the stop.
State v. Provet, Op. No. 27297 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 44).


Dec. 2012 - Feb. 2013

Post-conviction relief
In the context of PCR allegations involving juror misconduct, the standard five-pronged newly discovered evidence test set forth in Clark v. State, 315 S.C. 385, 434 S.E.2d 266 (1993), has no application and should not be used as the basis for summary dismissal. If a claim is timely raised, a new trial is warranted on the basis of juror misconduct if it is shown that the juror intentionally concealed information, and 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. See State v. Woods, 345 S.C. 583, 587-89, 550 S.E.2d 282, 284 (2001).
McCoy v. State, No. 27214 (S.C. Sup. Ct., Feb. 6, 2013) (Shearouse Adv. Sh. No. 6).

Searches
A court can consider an incorporated affidavit along with the search warrant for purposes of satisfying the Fourth Amendment’s particularity requirements.
State v. Cheeks, No. 27211 (S.C. Sup. Ct., Jan. 16, 2013) (Shearouse Adv. Sh. No. 3).

Sentencing
South Carolina’s juvenile waiver procedure does not implicate Apprendi v. New Jersey, 530 U.S. 466 (2000), because the decision to waive a juvenile to general sessions court in no manner determines the juvenile's guilt, innocence or punishment—only the forum in which the case is to be tried.
State v. Rice, No. 27210 (S.C. Sup. Ct., Jan. 16, 2013) (Shearouse Adv. Sh. No. 3).


Oct. - Dec. 2012

Miranda warnings
Pre-custodial Miranda warnings and waivers may be sufficient to make re-advisement unnecessary during a subsequent custodial interrogation, but courts should apply a totality-of-the-circumstances assessment to each case.
State v. Samuel, No. 5046 (S.C. Ct. App., Nov. 14, 2012) (Shearouse Adv. Sh. No. 41).

Sentencing

A circuit court must consider an out-of-state burglary conviction when determining the sentencing range for third degree burglary.
State v. Donahue, No. 5052 (S.C. Ct. App., Nov. 21, 2012) (Shearouse Adv. Sh. No. 42).

Thirteenth juror doctrine
A trial court may grant a new trial when, based on its view of the facts, the evidence does not justify the verdict.
Rivera v. Newton, No. 5055 (S.C. Ct. App., Nov. 21, 2012) (Shearouse Adv. Sh. No. 43).


July - Oct. 2012

Appeals
The ALC may not summarily dismiss an inmate’s appeal solely on the ground that the appeal involves the loss of the opportunity to earn sentence-related credits. The ALC must consider whether the appeal involves a state-created liberty or property interest. The loss of opportunity to earn sentence-related credits does not implicate a state-created liberty interest.
Stacy W. Howard v. S.C. Department of Corrections, No. 27170 (S.C. Ct. App., Sept. 12, 2012) (Shearouse Adv. Sh. No. 32)

Evidence
When a cooperating witness avoids a mandatory minimum sentence, a defendant must be allowed to present this information to the jury.
State v. Anthony Gracely, No. 27165 (S.C. Sup. Ct., Aug. 29, 2012) (Shearouse Adv. Sh. No. 30)

Evidence
When determining whether the probative value of a prior conviction substantially outweighs its prejudicial effect, trial courts are to consider: the impeachment value of the prior crime; the point in time of the conviction and the witness’s subsequent history; the similarity between the past crime and the charged crime; the importance of the defendant’s testimony; and the centrality of the credibility issue.
State v. Jason Ervin Black, No. 27176 (S.C. Sup. Ct., Oct. 3, 2012) (Shearouse Adv. Sh. No. 35)

Jury selection
A defendant's reason for striking a juror does not have to be reasonably specific or legitimate, only race-neutral.
State v. Jeremy McMillan, No. 5038 (S.C. Ct. App., Oct. 17, 2012) (Shearouse Adv. Sh. No. 37)


May - June 2012

Continuance
Denying a motion for a continuance, made so that testing on a piece of evidence can be obtained, is not an error when there was significant time to obtain the testing before the trial.
State v. Meggett, No. 4994 (S.C. Ct. App. June 27, 2012) (Shearouse Adv. Sh. No. 22)

Directed verdict
If substantial evidence was presented from which a jury can conclude that the defendant possessed intent to commit a crime, denying the defendant’s motion for a directed verdict as to the crime is proper.
State v. Meggett, No. 4994 (S.C. Ct. App. June 27, 2012) (Shearouse Adv. Sh. No. 22)

Evidence: expert affidavits

Per S.C. Code Section 15-79-125(A) and Section 15-36-100(B), an expert affidavit for a medical malpractice suit does not have to address causation, only breach of a standard of care.
Grier v. AMISUB, No. 27118 (S.C. Sup. Ct., May 2, 2012) (Shearouse Adv. Sh. No. 15)

Lesser-included offense
The mere existence of evidence that a defendant committed actions constituting only a lesser-included criminal offense does not warrant a jury charge on the lesser-included offense. Rather, the evidence must be sufficient to establish that the defendant committed only the lesser-included offense instead of the charged offense.
State v. Golston, No. 4984 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Lifetime satellite monitoring

Mandatory lifetime satellite monitoring with no possibility of relief for those who pose a low risk of reoffending and who are not under any term of probation, parole or similar restrictions violates substantive due process rights under the 14th Amendment.
State v. Dykes, No. 27124 (S.C. Sup. Ct., May 9, 2012) (Shearouse Adv. Sh. No. 16)

Mistrial
If a curative instruction is issued, denial of a mistrial for improper comments that a solicitor made in a criminal trial may not be error.
State v. McEachern, No. 4981 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Mistrial
Refusing to declare a mistrial where a witness makes reference to the defendant being on parole is not error if the defendant accepts the court’s curative jury instruction and does not contemporaneously move for a mistrial.
State v. Heller, No. 4990 (S.C. Ct. App. June 13, 2012) (Shearouse Adv. Sh. No. 20)

Post-conviction relief

Even if counsel inaccurately advises a defendant on the law, absent evidence that this advice prejudiced the defendant, the defendant is not entitled to PCR.
Goins v. State, No. 27126 (S.C. Sup. Ct., May 16, 2012) (Shearouse Adv. Sh. No. 17) 

Probation
Absent an order that probation is to run concurrently with parole, probation begins after parole concludes. 
State v. Ellis, No. 27127 (S.C. Sup. Ct., May 16, 2012) (Shearouse Adv. Sh. No. 17) 

Warrants
A uniform traffic ticket cannot be used to commence judicial proceedings in the magistrate court on a charge of criminal domestic violence, first offense, unless the offense was committed in the presence of a law enforcement officer, even if the offense was “freshly committed.” 
State v. Ramsey, No. 4983 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)


March - May 2012

DNA
In order to obtain a warrant for bodily intrusion, specifically DNA, the affidavit must contain information as to whether the police have other DNA evidence to which a suspect’s DNA profile could be compared.
State v. Jenkins, No. 4958 (S.C. Ct. App., Mar. 28, 2012) (Shearouse Adv. Sh. No. 11)

Miranda rights
The right to terminate interrogation at any time and to not answer further questions is not a required Miranda warning. 
State v. Hoyle, No. 4963 (S.C. Ct. App., Apr. 4, 2012) (Shearouse Adv. Sh. No. 12)

Probable cause
An affidavit to obtain a search warrant should provide a magistrate judge with facts to show why the police believe the suspect committed the crime, an indication as to where the police obtained the information provided and a conclusory assertion as to why that information or source is reliable in order to establish probable cause.
State v. Jenkins, No. 4958 (S.C. Ct. App., Mar. 28, 2012) (Shearouse Adv. Sh. No. 11)

Searches
A tracking device installed on a vehicle parked in a public parking garage without a warrant and used to monitor the vehicle's movements while on public streets constitutes an unlawful search. However, an intervening criminal act is sufficient to cure the taint from the unlawful search so that suppression of the evidence seized is not required.
State v. Adams, No. 4964 (S.C. Ct. App., Apr. 25, 2012) (Shearouse Adv. Sh. No. 14)