State v. Harris

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Jermaine Harris, Appellant.

Appeal From Sumter County

 Howard P. King, Circuit Court Judge

AFFIRMED

Unpublished Opinion No. 2004-UP-065

Submitted January 12, 2004 – Filed February
5, 2004

Assistant Appellate Defender
Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan
McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney
General Donald J. Zelenka, Assistant Attorney General Melody J. Brown, all of
Columbia;  and Solicitor Cecil Kelly Jackson, of Sumter, for Respondent.

PER CURIAM:  Appellant Jermaine Harris was
convicted of murder, assault and battery with intent to kill, armed robbery,
and possession of a weapon during a crime of violence in connection with the
robbery of a convenience store that left one of the store’s owners dead and
the other injured.  He appeals, asserting error in the trial court’s exclusion
of extrinsic impeachment evidence and in its refusal to charge the jury on mere
knowledge. We affirm.

FACTS

Around 11:00 p.m. on December 21, 1999, Perry Loyd
and his wife were closing up the B & D convenience store they owned.  Mrs.
Loyd waited in their truck while Mr. Loyd locked the store’s door.  As he locked
the door, an individual holding a gun surprised him and told Mr. Loyd to “give
it up.”  The individual then fired two shots.  Mr. Loyd backed away from the
storefront and pulled out his gun.  A second individual then moved toward Mr.
Loyd, stumbled, and fired his gun at Mr. Loyd.  A third individual then came
around the side of the store, raised his gun, and fired two shots at Mr. Loyd,
hitting him directly below the knee.  Mr. Loyd was shot a total of six times
from three different guns.  Mrs. Loyd died from a gunshot wound to the head.

Mr. Loyd identified Rashaun Brooks as the first shooter,
Paris McLeod as the second shooter, and Harris as the third shooter.  All three
defendants were arrested shortly after the robbery upon Mr. Loyd’s positive
identification. 

At the residence where the three defendants were
arrested, the police also arrested Leroy Porter on separate and unrelated charges. 
Porter approached the investigating officers after he was arrested.  As a result
of the conversation, the officers went to Young Street in an attempt to locate
the guns used in the robbery.  After the first attempt failed, Officer Gardner
asked Porter to wear a hidden microphone and record a conversation with Rashaun
Brooks to get a lead on the location of the guns.  After reviewing the recorded
conversation, the police located a Mack 90 rifle that was positively connected
to the shells recovered from the scene.

At trial, Officer Gardner was asked on cross-examination
whether he previously stated that he had reached an agreement with Porter. 
Gardner denied having made such a statement.  The trial attorney representing
Paris McLeod then sought to introduce the testimony of John Davis to show that
Gardner, in fact, previously stated that a deal had been reached with Porter. 
The trial court sustained the solicitor’s objection that the testimony was improper
impeachment testimony.  All three defendants joined in the proposed impeachment
proffer. 

After hearing the proposed jury instructions, the
defense argued the trial court should charge that mere knowledge, in addition
to mere presence and mere association, was also insufficient to justify a conviction. 
The court denied the motion, and charged the jury on mere presence and association,
but not mere knowledge.  The jury found Harris guilty, and he was sentenced
to thirty years for murder, seven years consecutive for assault and battery
with intent to kill, five years concurrent for armed robbery, and five years
concurrent for possession of a weapon during a crime of violence.  This appeal
follows.

ISSUES

1.  Did the trial court err in refusing to allow extrinsic
impeachment evidence about whether an agreement had been entered into with Leroy
Porter? 

2.  Did the trial court err in refusing to instruct the
jury that mere knowledge was insufficient to establish guilt? 

LAW/ANALYSIS

Impeachment Evidence

Harris asserts the trial court erred in refusing to
admit extrinsic evidence contradicting the testimony of one of the State’s witnesses. 
We disagree. 

Rule 613(b), SCRE, provides, in part:

Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is advised of the substance of
the statement, the time and place it was allegedly made, and the person to whom
it was made, and is given the opportunity to explain or deny the statement.
If a witness does not admit that he has made the prior inconsistent statement,
extrinsic evidence of such statement is admissible.

Accordingly, “[e]very witness under cross-examination
may be asked whether he has made any former statements relative to the subject
matter of the action and inconsistent with his present testimony.”  Aakjer
v. Spagnoli, 291 S.C. 165, 170, 352 S.E.2d 503, 507 (Ct. App. 1987).  In
order to contradict a witness by introducing a prior statement, a foundation
must be laid putting the witness on notice.  McMillan v. Ridges, 229
S.C. 76, 79-80, 91 S.E.2d 883, 884 (1956).  This notice requirement is “met
when the cross-examiner advises the witness of the substance of the prior statement,”
the time and place of the statement, and the person to whom the statement was
made.  State v. Galloway, 263 S.C. 585, 591, 211 S.E.2d 885, 888 (1975). 
The standard of review for the admissibility of evidence limits reversal by
this court to situations amounting to an abuse of discretion.  State v. Saltz,
346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001). 

In this case, Harris’s co-defendant sought to contradict
Officer Gardner’s denial that Gardner and Leroy Porter made an agreement.  The
record indicates defense counsel alleged the conversation occurred in the solicitor’s
office, but the proffered testimony suggests the location was elsewhere.  Furthermore,
defense counsel could only pinpoint the alleged statement to being “during the
course of the investigation.”  Reviewing the admissibility of this evidence
under the abuse of discretion standard, we cannot conclude that the trial court
erred in excluding this evidence where the prerequisites of the notice requirement
in Rule 613(b), SCRE, were not satisfied.

Mere Knowledge Instruction

Harris asserts the trial court erred
in refusing to include a jury charge that a defendant’s mere knowledge that
a crime was going to occur is insufficient to constitute guilt.  After hearing
the trial court’s proposed jury instructions, the defense argued the court should
charge that mere knowledge, in addition to mere presence and mere association,
was also insufficient to justify a conviction.  The court denied the motion. 

The evidence presented at trial determines the
law with which the jury should be charged.  Although a trial court “commits
reversible error when it fails to give a requested charge on an issue raised
by the indictment and evidence presented,” the court should charge the jury
with only the law applicable to the case.  State v. Lee, 298 S.C. 362,
364, 380 S.E.2d 834, 835-36 (1989).  Superfluous and inapplicable instructions
should be meticulously avoided, for the purpose of jury instructions is to enlighten
the jury; redundant instructions and those not in conformance with the facts
of a case only operate to imbue unwarranted confusion in the minds of jurors.  State v. Fair, 209 S.C. 439, 445, 40 S.E.2d 634, 637 (1946); see also State v. Franklin, 299 S.C. 133, 382 S.E.2d 911 (1989).

Although Harris’s proposed charge that
mere knowledge a crime is going to be committed does not, in and of itself,
establish guilt is a correct statement of law, an additional instruction to
that affect would be of no particular relevance to this case.  In State v.
Collins, 266 S.C. 566, 570, 225 S.E.2d 189, 192 (1976), the mere knowledge
charge was necessitated by the fact that there was evidence that the defendant
could not have been the principal to the armed robbery because he was in jail
at the time the store was robbed.  In this case, there is evidence of Harris’s
presence at the scene.  In addition to the testimony that Harris had prior knowledge
that a crime was going to be committed against the Loyds, Mr. Loyd’s testimony
placed Harris at the scene as one of the individuals who shot him.  There is
no indication anywhere in the record of the impossibility of Harris’s participation
or that he was not present at the scene.  The trial court acted appropriately
in denying the request to charge on mere knowledge.

CONCLUSION

For the foregoing reasons, Harris’s convictions are

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concur.