State v. Harry

¶1I respectfully dissent. Because the record contains no evidence of an illegal plan or purpose, I do not believe Appellant Harry’s conviction under the theory of “hand of one is the hand of all” can stand. Therefore, I would reverse the trial court’s denial of Harry’s motion for directed verdict.

¶2Harry contends the court of appeals erred in affirming the denial of his directed verdict motion, arguing that the State failed to produce substantial circumstantial evidence that he planned to confront or assault the Victim or otherwise intended any unlawful action that would foreseeably result in a homicide. I agree,

¶3A defendant is entitled to a directed verdict when the State fails to produce evidence tending to prove every element of the offense charged. State v. Brannon, 388 S.C. 498, 501, 697 S.E.2d 593, 595 (2010). In reviewing the denial of a directed verdict, “[t]he Court’s review is limited to considering the existence or nonexistence of evidence, not its weight.” State v. Bennett, 415 S.C. 232, 235-36, 781 S.E.2d 352, 353-54 (2016) (citing State v. Cherry, 361 S.C. 588, 593, 606 S.E.2d 475, 478-79 (2004)). “When the evidence submitted raises a mere suspicion that the accused is guilty, a directed verdict should be granted because suspicion implies a belief of guilt based on facts or circumstances which do not amount to proof.” Id. at 236, 781 S.E.2d at 353-54 (citing State v. Hepburn, 406 S.C. 416, 429, 753 S.E.2d 402, 409 (2013)). Moreover, when co-defendants are not tried jointly and both the appellant and his co-defendant testify in his defense, an appellate court must consider all the evidence in the record to determine whether the trial judge erred in denying the appellant’s motion for a directed verdict. State v. Phillips, 416 S.C. 184, 195-97, 785 *302S.E.2d 448, 453-54 (2016) (explaining the waiver rule adopted in Hepburn).

¶4Harry was charged with and convicted of murder based on the accomplice theory, commonly referred to as “hand of one is the hand of all.” Under this theory, “ ‘one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose.’ ” State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 584 (2010) (quoting State v. Condrey, 349 S.C. 184, 194, 562 S.E.2d 320, 324 (Ct. App. 2002)) (emphasis added). In order to be guilty under this theory a defendant must “be present at the scene of the crime and intentionally, or through a common design, aid abet, or assist in the commission of that crime through some overt act.” Id.(quoting State v. Langley, 334 S.C. 643, 648-49, 515 S.E.2d 98, 101 (1999)) (internal quotations omitted). Additionally, a defendant “ ‘must be chargeable with knowledge of the principal’s criminal conduct.’ ” Id. at 480, 697 S.E.2d at 584 (quoting State v. Leonard, 292 S.C. 133, 137, 355 S.E.2d 270, 272 (1987)); see also State v. Reid, 408 S.C. 461, 473, 758 S.E.2d 904, 910 (2014) (“[P]roof of mere presence is insufficient, and the State must present evidence the participant knew of the principal’s criminal conduct.”). This Court has explained that in order for a defendant to have the requisite knowledge:

“the alleged accomplice must have acted with the intention of encouraging and abetting the commission of the homicide, or, at least that the commission of the murder by the principal must have been a reasonably foreseeable consequence of the defendant’s actions.”

¶5Mattison, 388 S.C. at 484, 697 S.E.2d at 586 (quoting 40 Am. Jur. 2d Homicide § 26 (2010)) (emphasis added).

¶6I am troubled by the State’s application of the “hand of one is the hand of all” theory to this case. This theory of accomplice liability is most frequently utilized in the context of burglary or robbery cases in which there is typically strong circumstantial evidence of a plan to perpetrate an illegal act. See, e.g., Barber v. State, 393 S.C. 232, 234-36, 712 S.E.2d 436, 437-38 (2011) (Barber was convicted of criminal conspiracy, murder, and possession of a firearm during commission of a *303violent crime inter alia for planning and perpetrating a burglary with three other men, although there were only two weapons and it was uncertain which two of the defendants were actually armed and which one shot and killed the victim.); Rivera v. State, 382 S.C. 606, 608, 677 S.E.2d 596, 597 (2009) (Rivera was charged with murder and armed robbery under the “hand of one is the hand of all” theory where Rivera did not actively participate in the robbery and murder, but “accompanied the active participants to the scene with knowledge that they intended to commit the robbery.”). After an extensive review of the cases involving accomplice theory, I am unaware of any case in which a defendant was convicted under similar circumstances to those present in this case, ie., in the course of retrieving property which was rightfully his.

¶7Furthermore, I believe the facts in People v. Miller—an unpublished opinion from the California Fourth District Court of Appeal—are distinguishable and the court of appeals’ reliance on that case misplaced. See State v. Harry, 413 S.C. 534, 541-42, 776 S.E.2d 387, 391-92 (Ct. App. 2015) (citing Miller, No. E040249, 2008 WL 1899560 (Cal. Ct. App. April 30, 2008)). The defendant in Milleradmitted his purpose in going to the victim’s home was to confront the victim, fully anticipating there would be an altercation. There, the defendant Miller was angry with the victim for refusing to give Miller’s sister a quote on a new air conditioner. When Miller went to the victim’s house to confront him, the two argued loudly, cursing at one another, and eventually began fighting. During the altercation, Miller’s friend, Baillie, pulled his gun and fired seven shots, killing the victim and seriously injuring another bystander. A few days later, Miller turned himself in and gave a videotaped statement to the police. In his statement, Miller admitted that his purpose in going to the victim’s house was to confront the victim and he anticipated there would be an altercation. Additionally, Miller acknowledged he brought Baillie because he knew that Baillie and the victim were not on good terms and “Baillie would back him up if he needed help fighting [the victim].” Miller, 2008 WL 1899560 at *1-2.

¶8By contrast, Harry never admitted to having an illegal purpose in going to see the victim, but instead consistently maintained that his sole intent was to retrieve his television. See, e.g., Holliday v. Poston, 60 S.C. 103, -, 38 S.E. 449, *304450 (1901) (Gary, J., concurring) (stating the longstanding equitable principle “that if a stranger in possession of my property undertakes to sell it, and delivers it accordingly, it is at my option either to pursue the property in the hands of the holder” or to bring an action to recover the proceeds of the sale). Moreover, none of Harry’s alleged accomplices—including Bledsoe and Byrne who were witnesses for the State— testified that Harry expressed or indicated any plan other than to lawfully recover his television.

¶9Viewing the record in the light most favorable the State, I find the evidence at most establishes the following: (1) while he was only a few miles from the victim’s home, Harry learned Bledsoe had sold the television to the victim; (2) rather than driving there immediately, Harry drove out of his way to pick up his friend Castro from Byrne’s house;10 (3) Harry and Castro spoke for about 5 minutes in Byrne’s house; (4) as Harry was exiting the house, Castro invited Byrne to come along for a ride; (5) Castro retrieved his gun, unseen by either Harry or Byrne; (6) when they arrived at the victim’s house, Harry asked for the television and the victim refused to give him the television or any money; (7) Bledsoe began yelling at the victim, accusing him of stealing the television and lying; and (8) Harry attempted to calm Bledsoe and began walking her back to the truck when Castro shot the victim. While the testimony evidenced a plan between Harry and Castro, there is nothing illegal in requesting that a friend accompany you to recover your own property. Indeed, when pressed by the members of this Court at oral argument, the State was unable to articulate what illegal purpose Harry might have had. Instead, the State repeatedly asserted that it is illegal to recover personal property when doing so will result in a breach of the peace. However, this argument assumes, again without any evidentiary basis, that Harry intended or knew a *305breach of the peace would occur during his interaction with the victim. Moreover, even if Harry knew Castro carried a gun, that fact would still not be sufficient circumstantial evidence in my view to establish an illegal purpose.

¶10Based on the record, I find no evidence Harry intended anything more than to retrieve his television nor is there any evidence he was aware of any illegal intent on Castro’s part in accompanying him. Therefore, I respectfully dissent because I conclude Harry was entitled to a directed verdict.

¶11BEATTY, C.J., concurs.