State v. 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.

David Gerrard Johnson, Appellant.

Appellate Case No. 2012-209267

Appeal From Florence County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2014-UP-167
Heard February 6, 2014 – Filed April 9, 2014

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Donald J. Zelenka, and Assistant
Attorney General Melody Jane Brown, all of Columbia;
and Solicitor E.L. Clements, III, of Florence, for
Respondent.
PER CURIAM: David Gerrard Johnson appeals his convictions for murder, first-
degree burglary, armed robbery, possession of a weapon during the commission of
a violent crime, and conspiracy, arguing the trial court erred in (1) admitting a
statement Johnson made to the police and evidence that was the product of this
statement, (2) finding Johnson knowingly and voluntarily consented to providing
DNA and fingerprint evidence, (3) excusing a juror, and (4) admitting graphic
photographs of the deceased victim's body. We affirm.

Family members of the victim initially became concerned after receiving a call
informing them the victim failed to show up for work. They went to her home,
where they noticed signs of suspicious activity. The police later found the victim's
car away from her home. Nearby, they found a bag of pillows that tested
presumptive positive for blood.

After additional investigation, police notified Johnson through Johnson's father and
"word on the street" that they wanted to speak with him about the victim's
disappearance. Johnson voluntarily went to the police station and, after waiting
several hours, agreed to talk with one of the officers. The officer then read
Johnson his Miranda rights.1 Johnson then proceeded to give several different
accounts about what had happened, but eventually led the police to the victim's
body. When the officers returned to the police station with Johnson, Johnson again
received Miranda warnings, after which he gave a formal statement in which he
admitted to being in the victim's home when she died and witnessing her death at
the hand of another individual. He also told police he accompanied other
participants in the crime when they removed the victim's body, which they
accomplished by using her car to drive it to a remote location. Johnson also
revealed that after he and other participants drove the victim's car back to her
home, he remained inside the car while the others stole items from inside the
residence. Johnson also showed the police various electronic items that had been
taken from the victim's home and were being stored at his father's house.

Johnson later signed a release form authorizing law enforcement to obtain his
fingerprints and a sample of his saliva. Forensics testing showed the victim's blood
on the mattress, bed clothes, and furniture in her bedroom. Additional tests

1
See Miranda v. Arizona, 384 U.S. 436 (1966).
revealed Johnson's DNA on the steering wheel of the victim's car and his
fingerprints on the driver's side area.

Johnson was subsequently indicted for murder, first-degree burglary, armed
robbery, possession of a weapon during the commission of a violent crime, and
conspiracy. A jury found him guilty on all charges.

1. Johnson first argues that because of the evidence demonstrating his lack of
mental capacity to make a knowing and voluntary waiver of his constitutional
rights, the trial court should not have admitted the statement he made to the police.
We hold the trial court did not abuse its discretion in admitting the statement;
therefore, we affirm the court's ruling. See State v. Von Dohlen, 322 S.C. 234, 243,
471 S.E.2d 689, 695 (1996) ("On appeal, the conclusion of the trial judge as to the
voluntariness of a confession will not be reviewed unless so erroneous as to show
an abuse of discretion."). Here, the trial court, though acknowledging the
prolonged time that Johnson was at the police department before giving his
statement, noted: (1) there was no undue coercion, threats, or force on the part of
law enforcement in procuring the statement; (2) Johnson had come to the police
station voluntarily; (3) before making his statement, Johnson had been provided
food, drink, and the opportunity to rest; (4) Johnson had been read his Miranda
rights twice and signed a waiver form; (5) Johnson had previously been through
the criminal justice system, having entered into guilty pleas in the past; (6) none of
the officers had reason to believe that Johnson did not understand his rights as read
and explained to him; and (7) Johnson's responses throughout the transcript of his
statement indicated he understood the questions that the officers asked him.
Furthermore, a clinical psychologist who evaluated Johnson a few months before
his trial testified that Johnson understood that he should not talk to the solicitor
without his attorney being present and could not be forced to talk in court. Even
with the acknowledgment that Johnson may have had cognitive deficits, there is
evidence to support the trial court's admission of his statement. See State v. Myers,
359 S.C. 40, 47, 596 S.E.2d 488, 492 (2004) ("A determination whether a
confession was 'given voluntarily requires an examination of the totality of the
circumstances.'" (quoting Von Dohlen, 322 S.C. at 243, 471 S.E.2d at 694-95));
State v. Miller, 375 S.C. 370, 378-79, 652 S.E.2d 444, 448 (Ct. App. 2007) ("When
reviewing a trial judge's ruling concerning voluntariness, the appellate court does
not re-evaluate the facts based on its own view of the preponderance of the
evidence, but simply determines whether the trial judge's ruling is supported by
any evidence." (citing State v. Saltz, 346 S.C. 114, 136, 551 S.E.2d 240, 252
(2001))).
2. Johnson also argues the trial court erred in admitting evidence that was the
product of his statement because that evidence was the fruit of the poisonous tree.
Because, however, Johnson's statement was obtained legally, the admission of any
evidence resulting from the information he provided is not barred by the doctrine
of the fruit of the poisonous tree. See State v. Copeland, 321 S.C. 318, 323, 468
S.E.2d 620, 624 (1996) ("The 'fruit of the poisonous tree' doctrine provides that
evidence must be excluded if it would not have come to light but for the illegal
actions of the police, and the evidence has been obtained by the exploitation of that
illegality.").

3. Johnson also argues the trial court erroneously found he knowingly and
voluntarily consented to providing the police a DNA sample and fingerprint
standard, again relying primarily on evidence that he lacked the mental capacity to
make a knowing and voluntary waiver of this right. Intellectual disability alone,
however, does not amount to an inability to give consent, which, like knowledge in
a waiver situation, requires a determination based on the totality of the
circumstances. See State v. Wallace, 269 S.C. 547, 550, 238 S.E.2d 675, 676
(1977) ("Whether a consent to search was voluntary or the product of duress or
coercion, express or implied, is a question of fact to be determined from the
'totality of the circumstances.'"). Here, the trial court, when determining whether
Johnson signed the consent form voluntarily, noted Johnson had held a job and
received wages, thus evidencing some ability to understand a request for
fingerprint and DNA evidence. Furthermore, "our state standard does not require a
law enforcement officer conducting a search to inform the defendant of his right to
refuse consent." State v. Forrester, 343 S.C. 637, 645, 541 S.E.2d 837, 841
(2001).

4. Johnson next contends he did not receive a fair trial because the trial court
erroneously excused a juror who stated she could be fair and impartial even though
she knew members of Johnson's family. We find no error in the trial court's
decision to excuse the juror. By statute, the trial court must make its own
determination as to whether a prospective juror should be excused from serving on
a particular case and "[i]f it appears to the court that the juror is not indifferent in
the cause, he must be placed aside as to the trial of that cause and another must be
called." S.C. Code Ann. § 14-7-1020 (Supp. 2013); see also State v. Franklin, 267
S.C. 240, 248, 226 S.E.2d 896, 899 (1976) (stating the words "if it appears to the
court," as used in a prior version of section 14-7-1020, "are evidence of discretion
vested in the trial judge" (citing State v. Faries, 125 S.C. 281, 287, 118 S.E. 620,
622 (1923))). Here, even though the juror stated she could be fair, she also
expressed discomfort about the prospect of having to face Johnson's family if she
were to sit on a jury that eventually convicted him. Given the juror's hesitation, we
hold the trial court, as required by statute, made an independent finding as to
whether the juror was genuinely "indifferent in the cause" and properly exercised
its discretion in excusing her. See State v. Rogers, 263 S.C. 373, 381, 210 S.E.2d
604, 608 (1974) (stating the "applicable general rule" that the "matter of excusing
jurors is addressed to the sound discretion of the trial judge, the exercise of which
will not be interfered with unless it is clearly shown to have been abused to the
actual prejudice of the complaining party" (quoting 50 C.J.S. Juries § 205 (1947)));
State v. Faries, 125 S.C. 281, 288, 118 S.E. 620, 622 (1923) ("The manner and
bearing of the juror, nature's stamp of character on form and countenance, are
evidential exhibits for the consideration of the circuit judge, which may be more
indicative of the juror's real attitude than his words. Those things cannot
adequately be spread upon the record." (citation omitted)).

5. Finally, Johnson takes issue with the trial court's decision to admit three
photographs of the deceased victim's body. We find no error. The photographs
were relevant, as required by Rule 401, SCRE, in that they had a tendency to
enhance the probability of the existence of certain facts, including information in
Johnson's statement about the manner of the victim's death and the concealment
and removal of her remains. Furthermore, the photographs, in addition to being
relevant, were not "calculated to arouse the sympathy or prejudice of the jury" so
as to justify their exclusion. State v. Torres, 390 S.C. 618, 623, 703 S.E.2d 226,
228 (2010). To the contrary, the trial court was presented with other photographs,
which it excluded as overly gruesome and graphic.

AFFIRMED.

HUFF, THOMAS, and PIEPER, JJ., concur.