State v. Devin J. Johnson

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.

Devin Jamel Johnson, Appellant.

Appellate Case No. 2019-000938

Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2025-UP-059
Heard April 7, 2022 – Filed February 19, 2025

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Assistant Attorney General William Joseph Maye, all of
Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.
PER CURIAM: Devin Jamel Johnson appeals his conviction of murder. Johnson
has twice been convicted of the murder of Akeem Smalls. This court reversed his
first conviction. State v. Johnson, 418 S.C. 587, 795 S.E.2d 171 (Ct. App. 2016).
Johnson was retried and again convicted of murder. Johnson appealed his second
conviction to this court. State v. Johnson, 438 S.C. 110, 882 S.E.2d 190 (Ct. App.
2022), rev'd and remanded, 444 S.C. 442, 908 S.E.2d 102 (2024). On appeal,
Johnson argued the trial court erred in admitting into evidence his statement to law
enforcement following his interrogation, removing a juror and replacing him with
an alternate juror midtrial, and instructing the jury on accomplice liability. Id. at
114, 882 S.E.2d at 192. Following oral argument, this court reversed that
conviction, finding the trial court had erred in instructing the jury on accomplice
liability. Id. at 199-200, 882 S.E.2d at 128-30. This court did not address
Johnson's remaining arguments because our decision on the accomplice liability
jury instruction was dispositive. Id. at 130 n.13, 882 S.E.2d at 200 n.13. The State
filed a petition for writ of certiorari, which our supreme court granted. The
supreme court reversed this court's decision and found the trial court had not erred
in instructing the jury on accomplice liability. State v. Johnson, 444 S.C. 442, 908
S.E.2d 102 (2024). The supreme court remanded the case to this court to decide
Johnson's remaining issues on appeal.1 Id. at 453, 908 S.E.2d at 108. We now
consider those two issues. We affirm.

1. The trial court did not abuse its discretion by finding Johnson voluntarily
provided a statement to law enforcement at the end of an interrogation and thus not
suppressing the statement. "On appeal, the trial [court's] ruling as to the
voluntariness of [a] confession will not be disturbed unless so erroneous as to
constitute an abuse of discretion." State v. Anderson, 440 S.C. 124, 138, 889
S.E.2d 615, 622 (Ct. App. 2023) (first alteration in original) (quoting State v.
Myers, 359 S.C. 40, 47, 596 S.E.2d 488, 492 (2004)). "An abuse of discretion
occurs when the conclusions of the trial court either lack evidentiary support or are
controlled by an error of law." State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262,
265 (2006). "Our role when reviewing a trial court's ruling concerning the
admissibility of a statement upon proof of its voluntariness is not to reevaluate the
facts based on our view of the preponderance of the evidence." State v. Breeze,
379 S.C. 538, 543, 665 S.E.2d 247, 250 (Ct. App. 2008). Instead, our standard of
review is limited to deciding whether any evidence supported the trial court's
ruling. Id. Accordingly, we will not reverse the trial court's findings on a

1
On remand now, we decide this case without oral argument pursuant to Rule 215,
SCACR.
statement's voluntariness unless those findings are so erroneous they demonstrate
an abuse of discretion. Id.

Johnson contends his statement given at the end of a five-hour-long interrogation
by law enforcement was involuntary because during the interrogation he was
denied cigarettes unless he cooperated and was told he would never see his
daughter again. A statement is involuntary when the circumstances surrounding it
overbore the suspect's will. Id. at 544, 665 S.E.2d at 250. To determine
voluntariness, "the trial court must examine the totality of the circumstances
surrounding the statement." Id. In that examination, the trial court may consider
the following factors: "the crucial element of police coercion; the length of the
interrogation, its location, [and] its continuity; [and] the defendant's maturity,
education, physical condition, and mental health." State v. Miller, 375 S.C. 370,
385, 652 S.E.2d 444, 452 (Ct. App. 2007) (citations omitted) (quoting Withrow v.
Williams, 507 U.S. 680, 693 (1993)). Additional factors the trial court can
consider include the "background, experience, and conduct of the [defendant]; [the
defendant's] age; [the] length of custody; police misrepresentations; . . . threats of
violence; and promises of leniency." Id. at 386, 652 S.E.2d at 452. "Coercive
police activity is a necessary predicate to finding a statement is not voluntary." Id.
"A statement may not be 'extracted by any sort of threats or violence, [or] obtained
by any direct or implied promises, however slight, [or] obtained by the exertion of
improper influence.'" Id. (alterations in original) (quoting State v. Rochester, 301
S.C. 196, 200, 391 S.E.2d 244, 246 (1990)). However, "[f]ew criminals feel
impelled to confess to the police purely of their own accord without any
questioning at all. . . . Thus, it can almost always be said that the interrogation
caused the confession." State v. Johnson, 422 S.C. 439, 457, 812 S.E.2d 739, 748
(Ct. App. 2018) (omission in original) (quoting State v. Von Dohlen, 322 S.C. 234,
244, 471 S.E.2d 689, 695 (1996), overruled on other grounds by State v. Burdette,
427 S.C. 490, 832 S.E.2d 575 (2019)). "[P]olice may use some psychological
tactics in eliciting a statement from a suspect. . . . These ploys may play a part in
the suspect's decision to confess, but so long as that decision is a product of the
suspect's own balancing of competing considerations, the confession is voluntary."
Id. at 457, 812 S.E.2d at 748-49 (omission in original) (quoting Von Dohlen, 322
S.C. at 244, 471 S.E.2d at 695); see also id. at 457, 812 S.E.2d at 749 (explaining
statements that a defendant's daughter "would think he was a cold-blooded killer
who only survived because [he] ran out of bullets" did not amount to a "tangible
threat related to children or family members," which would render a confession
involuntary, because those statements were "more akin to a psychological tactic
than actual coercion").
The trial court found law enforcement did not coerce Johnson into making a
statement. At the end of his interrogation, Johnson made a statement only after
law enforcement allowed him to speak by phone with both his mother and
girlfriend. The trial court found any coercion of Johnson arose solely from the
people he spoke with during the phone calls. Johnson's comments to law
enforcement and demeanor during these calls, which are observable on the video of
the interrogation, and testimony from one of the detectives who conducted the
interrogation support the trial court's finding Johnson's conversations with his
mother and girlfriend influenced him to make a statement admitting he had some
involvement in the shooting. When the evidence about a confession conflicts, the
trial court must first find whether the statemen is valid. Von Dohlen, 322 S.C. at
243, 471 S.E.2d at 695. "On appeal, the conclusion of the trial [court] as to the
voluntariness of a confession will not be reviewed unless so erroneous as to show
an abuse of discretion." Id. Because the record contains evidence to support the
trial court's finding as to voluntariness, we affirm the trial court's denial of
Johnson's motion to suppress his statement to law enforcement. See State v.
Hillary, 441 S.C. 239, 251-52, 892 S.E.2d 541, 547 (Ct. App. 2023) ("Given our
'any evidence' standard of review and the existence of an uncontradicted audio
recording of the interview, our task here is narrow and straightforward. If the
actions and statements of the officers as captured on the recording can support the
[trial] court's view that the confession was voluntary under our state's precedents,
we should affirm. Put another way, reversal would be proper only if the events on
the recording cannot support the [trial] court's ruling.").

2. The trial court's decision to dismiss a juror and replace him with an alternate
juror midtrial did not prejudice Johnson and thus does not warrant reversing his
conviction. "A decision on whether to dismiss a juror and replace [the juror] with
an alternate is within the sound discretion of the trial court[] and . . . will not be
reversed on appeal absent an abuse of discretion." State v. Bell, 374 S.C. 136, 147,
646 S.E.2d 888, 894 (Ct. App. 2007). "An abuse of discretion occurs when the
conclusions of the trial court either lack evidentiary support or are controlled by an
error of law." Pagan, 369 S.C. at 208, 631 S.E.2d at 265.

"The trial court has the solemn duty to ensure 'that every juror is unbiased, fair[,]
and impartial.'" State v. Rowell, 444 S.C. 109, 113, 906 S.E.2d 554, 556 (2024)
(quoting State v. Gulledge, 277 S.C. 368, 370, 287 S.E.2d 488, 489 (1982),
overruled on other grounds by Rowell, 444 S.C. at 116, 906 S.E.2d at 557). "By
allowing parties to reject a certain number of jurors who cannot be challenged for
cause, the peremptory strike right enhances the fairness of the trial process, which
in turn elevates public confidence in our justice system." Id. at 114, 906 S.E.2d at
556. "Should jurors give false or misleading answers during voir dire, the parties
may mistakenly seat a juror who could have been excused by the court, challenged
for cause by counsel, or stricken through the exercise of a peremptory challenge."
State v. Coaxum, 410 S.C. 320, 327, 764 S.E.2d 242, 245 (2014), overruled on
other grounds by Rowell, 444 S.C. at 116, 906 S.E.2d at 557. "Where a party
claims a juror has withheld material information in response to a voir dire
question, the trial court must determine, preferably after a hearing, whether the
juror's withholding suggests bias." Rowell, 444 S.C. at 115, 906 S.E.2d at 557.

During trial, the State raised a concern a juror might have fallen asleep during
testimony, and the trial court stated it had noticed the same. The trial court stated
it would wait until the end of the trial to determine how the parties wanted to
address it. Later in the trial, while testimony on behalf on the State was still
ongoing, that same juror informed the court he knew a witness who had already
testified. During voir dire, the juror had not responded when the trial court read a
list of names and asked prospective jurors to indicate if they were related to or
socially or casually acquainted with any of those people. When the trial court
informed the parties of the juror's disclosure, it provided the juror stated he "just
didn't recognize her." The State asserted it would have used a peremptory strike on
the juror if it had known of the relationship during voir dire, even though the juror
indicated the relationship would not influence him. The State provided that it
generally did not seat jurors who knew a witness. While Johnson argued the State
initially indicated off the record it would not have used a peremptory challenge on
the juror, the State later stated on the record it would have used a peremptory
challenge if it had learned of the relationship during voir dire. 2 The trial court
removed the juror and replaced him with an alternate juror. After the conclusion of
testimony, the trial court made further statements about the removal of the juror,
describing how the juror's sleeping impacted the court's decision to remove that
juror. The court explained that if the juror was asleep while the witness he knew
testified, the juror might have relied on his prior relationship to decide what weight
to give that witness's testimony during deliberations, instead of his observations of
that witness during her testimony. The court noted it found that witness's
demeanor unusual.

"We grant 'broad deference' to the trial [court's] credibility conclusions in claims of
jury misconduct." State v. Tucker, 423 S.C. 403, 415, 815 S.E.2d 467, 473 (Ct.
App. 2018) (quoting State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 628 (2000)).
"Leaving credibility determinations in jury misconduct claims to trial [courts]

2
During jury selection, the State had used only one peremptory challenge.
means respecting their decision that they have enough evidence to weigh it at all
. . . ." Id. at 414, 815 S.E.2d at 472-73.

Recently, the supreme court simplified a trial court's determination in deciding
what action to take when a juror has failed to disclose information during voir dire.
See Rowell, 444 S.C. at 115-16, 906 S.E.2d at 557 ("[W]hen a juror untruthfully
answers or fails to answer a material voir dire question, the juror's bias may not be
presumed, and a new trial may be ordered only when prejudice is proven by
showing the concealed information reveals a potential for bias and would have
made an objectively material difference in the moving party's use of a peremptory
strike or resulted in a successful challenge for cause."). Whether the juror
concealed information intentionally or unintentionally no longer matters. See id. at
116, 906 S.E.2d at 557 (overruling "the 'intentional versus unintentional'
framework erected by the line of cases that began with . . . Gulledge and includes
Coaxum" (citation omitted)).

In Coaxum, our supreme court acknowledged that because a juror's failure to
disclose had been unintentional, "the trial court likely would have been justified in
refusing to excuse [the j]uror." 410 S.C. at 330, 764 S.E.2d at 247. However, the
supreme court ultimately determined the trial court had not abused its discretion in
removing the juror because the trial court had conducted a "thorough inquiry" into
the State's "strategy in seating or striking prospective jurors." Id. The supreme
court explained that when "a juror's nondisclosure is unintentional, the trial court
may exercise its discretion in determining whether to proceed with the trial with
the jury as is, replace the juror with an alternate, or declare a mistrial." Id. at 328,
764 S.E.2d at 246 (emphasis added). The supreme court noted, "[T]he trial [court]
should exhaust other methods to cure possible prejudice before aborting a trial."
Id. at 327, 764 S.E.2d at 245 (quoting State v. Kelly, 331 S.C. 132, 142, 502 S.E.2d
99, 104 (1998)).

Even assuming the trial court abused its discretion in removing the juror in the
present case, to warrant a reversal of Johnson's conviction, he must show the trial
court's decision to remove the juror and replace the juror with the alternate juror
prejudiced him. See State v. Rogers, 263 S.C. 373, 382, 210 S.E.2d 604, 609
(1974) ("[T]he general principle that error must be prejudicial in order to be ground
for reversal applies to rulings on excusing a juror."); id. at 381, 210 S.E.2d at 608
(providing the trial court's discretion in "excusing jurors . . . will not be interfered
with unless it is clearly shown to have been abused to the actual prejudice of the
complaining party" (emphasis added) (quoting 50 C.J.S. Juries § 205)). Johnson
asserts the supreme court erred in Coaxum by requiring a defendant to show
prejudice to receive a new trial when a juror is removed against the defendant's
wishes. See Coaxum, 410 S.C. at 325-26, 331, 764 S.E.2d at 244, 247 (finding
when the trial court removed a juror at the State's request after an unintentional
nondisclosure, the defendant had to "show a prejudicial abuse of discretion" to
receive a new trial (emphasis added)). We are bound by the supreme court's
holding in Coaxum. See State v. Phillips, 416 S.C. 184, 194, 785 S.E.2d 448, 453
(2016) ("[I]t is incumbent upon the court of appeals to apply th[e supreme c]ourt's
precedent."). While Rowell overruled Coaxum as explained above to eliminate any
distinction by the trial court between intentional and nonintentional nondisclosure,
in Rowell the defendant did not learn of a juror's nondisclosure until after the jury
found him guilty. Rowell, 444 S.C. at 112, 906 S.E.2d at 555. The defendant
moved for a new trial, which the trial court denied. Id. The supreme court
remanded the case to the trial court for a hearing on the nondisclosure. Id. at 117,
906 S.E.2d at 558. Rowell explained that when a juror has not disclosed
information during voir dire, "a new trial may be ordered only when prejudice is
proven by showing the concealed information reveals a potential for bias and
would have made an objectively material difference in the moving party's use of a
peremptory strike or resulted in a successful challenge for cause." Id. at 115-16,
906 S.E.2d at 557. Accordingly, Rowell did not alter Coaxum's holding that on
appeal, to warrant reversal, the appellant must show the trial court's removal of a
juror prejudiced the appellant. Here, at the time of removal, Johnson wished to
proceed without removing the juror and the State wanted the juror removed. At no
point during trial, including following the removal, did either side argue for a new
trial. On appeal, Johnson seeks a new trial as the remedy for the error he alleges
the trial court made in removing the juror. Rowell does not impact the
"fundamental principle of appellate procedure . . . that a challenged decision must
be both erroneous and prejudicial to warrant reversal." In re Care & Treatment of
Gonzalez, 409 S.C. 621, 636, 763 S.E.2d 210, 217 (2014); see also State v.
Locklair, 341 S.C. 352, 365, 535 S.E.2d 420, 427 (2000) ("Error without prejudice
does not warrant reversal." (quoting State v. McWee, 322 S.C. 387, 393, 472
S.E.2d 235, 239 (1996)); State v. Patterson, 367 S.C. 219, 224, 625 S.E.2d 239,
242 (Ct. App. 2006) ("In order for an error to warrant reversal, the error must result
in prejudice to the appellant.").

Johnson maintains instead of relying on Coaxum, this court should rely on the
supreme court's earlier decision in State v. Stone instead. See State v. Stone, 350
S.C. 442, 448-49, 567 S.E.2d 244, 247-48 (2002) (finding the trial court abused its
discretion by removing a juror who failed to disclose she knew a witness who
testified during the sentencing phase of a death penalty trial when the "scant
acquaintance would neither have supported a challenge for cause nor" affected the
State's exercise of its peremptory challenges). In Stone, a defendant convicted of
murder and other offenses and sentenced to death argued on appeal the trial court
had committed errors at both the guilt and sentencing phase. Id. at 444-52, 567
S.E.2d at 245-49. The supreme court affirmed his convictions but reversed the
death penalty sentence and remanded for a new sentencing proceeding. Id. at 444,
567 S.E.2d at 245. As to the defendant's allegations of error arising out of the guilt
phase of the trial, the supreme court found the trial court had not erred. Id. at 445-
47, 452, 567 S.E.2d at 246-47, 249. However, the supreme court found the trial
court committed multiple errors during the sentencing phase. Id. at 448-52, 567
S.E.2d at 247-49. As to the error in removing the juror, the supreme court found
the trial court had abused its discretion but did not state the error warranted
reversal. Id. at 448-49, 567 S.E.2d at 247-48. However, in regards to the
remaining errors at the sentencing stage, the supreme court found those errors,
which all pertained to jury instructions, required reversal. Id. at 449-52, 567
S.E.2d at 248-49. Accordingly, we do not read Stone as requiring a new trial
without first considering prejudice, even when a trial court abuses its discretion in
removing a juror.

In this case, Johnson made no allegation the alternate juror who replaced the
removed juror was not qualified or was treated differently from the other jurors.
See S.C. Code Ann. § 14-7-1340 (2017) (providing "alternate jurors . . . shall have
the same opportunities for seeing and hearing the proceedings[,] . . . take the same
oath as the jurors already sworn[,] and . . . attend at all times the trial"); S.C. Code
Ann. § 14-7-320 (2017) (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"). Accordingly,
Johnson has not shown any prejudice from the removal of the juror and
replacement with an alternate. See Coaxum, 410 S.C. at 331, 764 S.E.2d at 247
(finding because the jury was indisputably impartial after the juror's removal, the
defendant did not meet his burden for receiving a new trial); State v. Williams, 321
S.C. 455, 460, 469 S.E.2d 49, 52 (1996) (affirming the seating of an alternate juror
because the supreme court "discern[ed] no prejudice to [the defendant] from the
seating of the alternate juror"); State v. McDaniel, 275 S.C. 222, 223-24, 268
S.E.2d 585, 586 (1980) (affirming the trial court's replacing a juror with an
alternate juror approved by both sides at the start of trial when the defendant did
not withdraw that approval or move for a mistrial, holding the defendant made no
showing as to how the seating of the alternate prejudiced him); see also Palacio v.
State, 333 S.C. 506, 517, 511 S.E.2d 62, 68 (1999) ("[A] criminal defendant has no
right to a trial by any particular jury, but only a right to a trial by a competent and
impartial jury."); State v. Evins, 373 S.C. 404, 416, 645 S.E.2d 904, 910 (2007)
("[T]he right to serve on a jury. . . belongs to the potential juror, not a litigant.").
Therefore, we affirm the trial court's removal of the juror and replacement with an
alternate juror.

AFFIRMED.

WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.