State v. Smith

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.

Jahru Harold Smith, Appellant.

Appellate Case No. 2018-000505

Appeal From Greenville County
Robin B. Stilwell, Circuit Court Judge

Unpublished Opinion No. 2021-UP-298
Submitted November 2, 2020 – Filed August 11, 2021

AFFIRMED IN PART AND VACATED IN PART

Appellate Defender Kathrine Haggard Hudgins, 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 Michael Douglas Ross, all of
Columbia; and Solicitor William Walter Wilkins, III, of
Greenville, all for Respondent.
PER CURIAM: Appellant, Jahru Harold Smith, appeals from his convictions and
sentences for murder, armed robbery, and possession of a weapon during the
commission of a violent crime. He asserts the trial court erred in refusing to
continue his trial in order for him to obtain prescription eyeglasses so that he could
see to (1) assist his attorney in his defense and (2) exercise his Sixth Amendment
right to self-representation. He further argues the trial court erred in (3) sentencing
him to five years' imprisonment for the possession of a weapon during the
commission of a violent crime after sentencing him to life without parole (LWOP)
for murder and armed robbery. We affirm the trial court's denial of a continuance,
his convictions, and his sentences for murder and armed robbery, but we vacate his
five-year sentence for possession of a weapon during the commission of a violent
crime.

1. We find no error in the trial court's denial of Appellant's motion for a
continuance to acquire glasses in order to assist in his defense. Appellant made no
showing to the trial court that he required prescription eyeglasses in order to assist
in his own defense or to confront witnesses against him. See Rule 7(a), SCRCrimP
(providing "[c]ontinuances may be granted by a presiding judge . . . only upon a
showing of good and sufficient legal cause"). Though Appellant maintained to the
trial court that he could not see without his prescription eyeglasses and trial
counsel stated his understanding that Appellant received some disability due to his
visual impairment, these were mere assertions. During his motion, Appellant
presented nothing to the court regarding the extent of his visual impairment or
whether it hampered his ability to assist in his defense. He also presented nothing
to show he made any effort prior to trial to obtain a new pair of glasses. Further,
we find no evidence that the trial court's suggested accommodation of the use of
trial counsel to assist Appellant visually, as well as the court's assurance that they
could take their time, was insufficient or that Appellant would be prejudiced by use
of the suggested accommodation. Additionally, we find Appellant's reliance on
United States v. Scheur, 547 F. Supp. 2d 580 (E.D. La. 2008), is misplaced. There,
the government filed a motion in limine regarding the need for special
accommodations for Scheur—who was blind—following allegedly fruitless
discussions with defense counsel concerning the defendant's disability. Id. at 582,
583. The United States District Court thereafter scheduled an evidentiary hearing
on the matter, which was held eleven days prior to Scheur's trial date. Id. at 584
n.6. In the wake of the hearing, the court observed "an authoritative road map for
courts to follow when faced with the trial of a disabled defendant" and ordered
certain accommodations for Scheur. Id. at 588, 589. Here, the issue is not the
extent to which a court should accommodate a defendant's known disability as it
was in Scheur. Rather, the issue is whether the trial court abused its discretion in
denying Appellant's motion for a continuance—made on the day of trial—when no
showing was made of (1) the extent of his alleged disability or whether his
disability required further accommodations in order for Appellant to assist in his
defense beyond those noted available by the court and (2) whether Appellant acted
with diligence in attempting to obtain prescription eyeglasses prior to trial or in
bringing the matter to the court's attention. See State v. Mansfield, 343 S.C. 66, 72,
538 S.E.2d 257, 260 (Ct. App. 2000) ("The granting or denial of a motion for
continuance is within the sound discretion of the trial judge."); id. ("The trial
court's refusal of a motion for continuance will not be disturbed on appeal absent a
clear abuse of discretion resulting in prejudice to the appellant."); State v. Meggett,
398 S.C. 516, 520, 523, 728 S.E.2d 492, 494, 496 (Ct. App. 2012) (observing that
"a party cannot complain of an error which his own conduct has induced" and
finding no error in the denial of the defendant's motion for a continuance to test
evidence when the defendant—who raised the matter with trial counsel the
morning of trial—had a significant period of time to obtain the testing and his
failure to do so was a result of his own inaction) (quoting State v. Babb, 299 S.C.
451, 455, 385 S.E.2d 827, 829 (1989)). To the extent Appellant maintains he was
unable to present the proper showing to the trial court based upon trial counsel's
failures, the proper remedy for such—as observed by Appellant in his brief—is a
post-conviction relief (PCR) action. See State v. Felder, 290 S.C. 521, 522, 351
S.E.2d 852, 852 (1986) (recognizing PCR, rather than a direct appeal, is the proper
avenue for allegations of ineffective assistance of counsel).

2. We likewise find the trial court's denial of Appellant's motion for a
continuance did not deprive him of his right to self-representation. First, the trial
court did not deny Appellant this right. Rather, the court specifically granted
Appellant's motion to represent himself. As with his assistance of counsel claim,
Appellant failed to make any showing to the trial court that his visual impairment
deprived him of the ability to represent himself or that trial counsel could not
provide the needed visual assistance as stand-by counsel. See State v. Bennett, 259
S.C. 50, 53-54, 190 S.E.2d 497, 498 (1972) (finding no error in the trial court's
denial of the defendant's motion for continuance—made on the day of trial—to
allow him to pursue an opportunity to obtain counsel of his choice, as the
"[d]efendant's constitutional right to counsel [was] fully met at every stage of the
proceeding against him by the representation afforded him by diligent and talented
appointed counsel"). It was Appellant's own action in refusing to remain in court
and participate in the trial that denied him the opportunity to represent himself.
See State v. Stroman, 281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984) ("[A] party
'cannot complain of an error which his own conduct has induced.'" (quoting State
v. Worthy, 239 S.C. 449, 465, 123 S.E.2d 835, 843 (1962))). Likewise, based upon
his own conduct, Appellant is unable to show how he was prejudiced by the trial
court's ruling. See Mansfield, 343 S.C. at 72, 538 S.E.2d at 260 ("The trial court's
refusal of a motion for continuance will not be disturbed on appeal absent a clear
abuse of discretion resulting in prejudice to the appellant." (emphasis added)).

3. As conceded by the State, the trial court erred in sentencing Appellant to
five years in prison for his possession of a weapon during the commission of a
violent crime conviction after he was sentenced to LWOP for murder and armed
robbery, and the five-year sentence is therefore vacated. See S.C. Code Ann. § 16-
23-490(A) (2015) ("If a person is in possession of a firearm or visibly displays
what appears to be a firearm or visibly displays a knife during the commission of a
violent crime and is convicted of committing or attempting to commit a violent
crime . . . , he must be imprisoned five years, in addition to the punishment
provided for the principal crime. This five-year sentence does not apply in cases
where . . . a life sentence without parole is imposed for the violent crime."
(emphasis added)); State v. Sledge, 428 S.C. 40, 59-60, 832 S.E.2d 633, 644 (Ct.
App. 2019) and State v. Palmer, 415 S.C. 502, 525, 783 S.E.2d 823, 835 (Ct. App.
2016) (vacating the defendants' five-year sentences for possession of a weapon
during the commission of a violent crime under S.C. Code Ann. § 16-23-490(A)
after finding such sentences inapplicable due to the trial court sentencing the
defendants to life without parole for their violent crimes).

AFFIRMED IN PART AND VACATED IN PART.1

HUFF, WILLIAMS, and GEATHERS, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.