State v. Montrelle Lamont Cambell

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Montrelle Lamont Campbell, Appellant.

Appellate Case No. 2018-000115

Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge

Opinion No. 5885
Heard September 15, 2021 – Filed December 22, 2021

REVERSED AND REMANDED

Appellate Defender Lara Mary Caudy and Appellate
Defender David Alexander, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General W. Jeffrey Young, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, and Assistant
Attorney General William Joseph Maye, of Columbia;
and Solicitor Scarlett Anne Wilson, of Charleston, all for
Respondent.
KONDUROS, J.: Montrelle Lamont Campbell appeals his convictions for murder
and attempted murder. He contends that because attempted murder is a specific
intent crime, the trial court erred in charging the jury that malice may be inferred
when a deadly weapon is used. Additionally, he maintains that because no
evidence supported an accomplice liability charge, the trial court erred by
instructing the jury on "the hand of one is the hand of all" theory of accomplice
liability. We reverse and remand.

FACTS/PROCEDURAL HISTORY

On September 17, 2015, Katrina Brown was at her apartment in Gadsden Green 1
with her sister Kerri Brown and her friend Tonya Mosely when a woman named
Kadeshia arrived around 11:30 p.m. Kadeshia was an old friend of Kerri's, but
Katrina knew her. While the women were visiting, a man knocked on Katrina's
door and told Kadeshia that someone was waiting for her outside. Kadeshia told
the man to "[t]ell them I'm coming" but continued her conversation in Katrina's
apartment. Eventually, Kadeshia's brother, Campbell, walked into Katrina's
apartment without permission. Campbell, also known as "Troll," sat down without
saying anything.

Katrina asked Campbell to leave because she did not know him, 2 and Campbell
eventually left without saying a word. Katrina and Kadeshia then had a verbal
altercation because Katrina believed Kadeshia should have apologized. Shortly
after Kadeshia left, Katrina walked outside to smoke a cigarette. While Katrina
was outside, Campbell hit her, knocking her to the ground. Campbell then stood
over her and looked prepared to hit her again. Instead, Campbell moved back into
the middle of the street while Kerri and Tonya helped Katrina up. Katrina, Kerri,
and Tonya then followed Campbell into the middle of the street and "had a few
words" with him. The women went back inside Katrina's apartment after she
noticed Campbell looked prepared to reach for something inside of a car.

The next night, September 18, 2015, Katrina hosted a party at her apartment in
Gadsden Green. The party ended around 6:30 a.m. on September 19, 2015, when a
gunman shot at least fourteen bullets from a rifle into Katrina's apartment. The
bullets struck Kerri in her head, Katrina's cousin Tierra Brown in her arm, and

1
Gadsden Green is a government housing community in Charleston.
2
Katrina did not learn Campbell was Kadeshia's brother until the next day.
Katrina's friend Antwan Foster in the chest. Kerri and Tierra survived but Foster
did not.

Because no one saw the shooter, police asked Katrina if she knew whether anyone
wanted to harm her. Katrina testified she did not have a conflict with anyone in the
neighborhood other than Campbell. While processing the crime scene, police
recovered fourteen rifle shell casings and obtained security camera footage of the
area around the time of the shooting from multiple locations.

The security footage showed a gold Buick parking on Nunan Street. Police
determined Tomeka President owned the gold Buick in the security footage and
identified Trivell "Vell" Richardson and Andrew "Ace" Rivers as the individuals
exiting the car. The footage showed Richardson and Rivers walking toward
Gadsden Green and Richardson eventually walking back to the car followed by a
third individual holding a rifle. Richardson and Campbell were both charged with
murder and two counts of attempted murder for the shooting at Katrina's
apartment.

At Campbell's trial, President testified that Campbell was at her Austin Lakes
apartment in North Charleston when she went to sleep around 11:45 p.m. the night
before the shooting. President also stated Campbell was not there when she woke
up the next morning 3 and her car and car keys were missing.

Richardson testified 4 he was at the Austin Lakes apartment complex in North
Charleston during the early morning hours 5 on the day of the shooting when
Campbell approached him in President's gold Buick. Campbell asked Richardson
to go with him to get cigarettes, and Richardson got in the car. However,
Richardson recalled that instead of stopping at the gas station, Campbell got on the
interstate and drove downtown.

3
President did not state what time she woke but testified she had to be at work by
7:00 a.m.
4
Richardson was not tried with Campbell; he testified he was still facing charges
but was hoping for leniency for testifying on behalf of the State.
5
Richardson stated he left a strip club around 4:00 a.m. before going to Austin
Lakes.
After parking on Kennedy Street, Campbell exited the car, told Richardson to park
it on Nunan Street, and began walking towards Gadsden Green. Richardson asked
Rivers, who was on Kennedy Street when they arrived, to ride with him while he
parked the car. Richardson and Rivers began walking towards Gadsden Green
after parking the car on Nunan Street.

Richardson explained that he called Campbell to ask where he should leave the car
keys because Richardson was uncomfortable being in Gadsden Green and wanted
to leave. As Richardson and Rivers were walking toward Gadsden Green,
Richardson said they heard gunshots. Richardson stated he returned to the car but
Rivers ran in the opposite direction. While Richardson was trying to start the car,
Campbell got in with a rifle and told him to "go." Richardson testified he then
drove back to Austin Lakes in North Charleston.

Following the close of the State's case, the trial court denied Campbell's motion for
a directed verdict. Campbell did not testify but presented testimony from Peggy
Blake, who lived across the street from Katrina at the time of the shooting. Blake
testified she heard the shooting and saw a black man wearing a hoodie and holding
a "sporty rifle" get into a lime green car that drove away. However, police were
unable to find a lime green car on the security camera footage.

Following the close of Campbell's case and the State's rebuttal, Campbell renewed
his motion for a directed verdict, which the trial court also denied. The trial court
then held a charge conference and informed the parties it planned to charge the
jury that malice may be inferred by the use of a deadly weapon and instruct the
jury on the hand of one is the hand of all theory of accomplice liability. Campbell
first objected to the accomplice liability jury instruction, arguing no evidence
implicated a second party. Campbell also objected to the inferred malice jury
instruction, asserting it was inappropriate under Belcher. 6 After the trial court
stated that Belcher did not apply because Campbell presented no evidence of

6
State v. Belcher, 385 S.C. 597, 611, 685, S.E.2d 802, 809 (2009) ("[I]nstructing a
jury that 'malice may be inferred by the use of a deadly weapon' is confusing and
prejudicial where evidence is presented that would reduce, mitigate, excuse[,] or
justify the homicide."), overruled by State v. Burdette, 427 S.C. 490, 493, 832
S.E.2d 575, 577 (2019) (holding "regardless of the evidence presented at trial, a
trial court shall no longer instruct a jury that malice may be inferred from the use
of a deadly weapon").
mitigation such as self-defense, Campbell maintained his objection, arguing that
"attempted murder does have a different burden. Since it[s] burden is higher, I
think having that instruction basically is counter somewhat to that different
burden."

The State argued both it and Campbell presented sufficient evidence for an
accomplice liability charge because the charge has an any evidence standard.
Regarding Campbell's objection to the inferred malice charge, the State "ha[d]
nothing further to add" but asserted that the charge was proper. Ultimately, the
trial court noted Campbell's objections but decided to give both the inferred malice
and accomplice liability instructions.

The trial court charged the jury that "[m]alice aforethought may be expressed or
inferred . . . . Malice may be inferred from conduct showing a total disregard for
human life. Inferred malice may also arise when the deed is done with a deadly
weapon . . . ." The trial court also instructed the jury regarding accomplice
liability:

[I]f a crime is committed by two or more people who are
acting together and committing a crime, the act of one is
the act of all. A person who joins with another to commit
an unlawful act is criminally responsible for everything
done by the other person which happens as a probable or
natural consequence of the act done in carrying out the
common plan and purpose . . . . If two or more people
are acting together . . . assisting each other and
committing the offense, the act of one is the act of all. Or
it is sometimes said, the hand of one is the hand of all.

Following deliberations, the jury convicted Campbell of murder and attempted
murder. The trial court sentenced him to life in prison for murder and thirty years'
imprisonment for each attempted murder charge with the sentences running
concurrently. This appeal followed.

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only." State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate "[c]ourt
is bound by the trial court's factual findings unless they are clearly erroneous." Id.
"An appellate court will not reverse the trial [court]'s decision regarding a jury
charge absent an abuse of discretion." State v. Marin, 415 S.C. 475, 482, 783
S.E.2d 808, 812 (2016) (quoting State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d
578, 584 (2010)). "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).

LAW/ANALYSIS

I. Inferred Malice

Campbell argues the trial court erred by giving an inferred malice jury instruction
because attempted murder is a specific intent crime and requires both express
malice and a specific intent to kill pursuant to our supreme court's ruling in State v.
King, 422 S.C. 47, 810 S.E.2d 18 (2017). We agree.

"A person who, with intent to kill, attempts to kill another person with malice
aforethought, either expressed or implied, commits the offense of attempted
murder." S.C. Code Ann. § 16-3-29 (2015). "[A] specific intent to kill is an
element of attempted murder as codified in section 16-3-29." King, 422 S.C. at 56,
810 S.E.2d at 22.

In Burdette, our supreme court held the trial court erred by giving an inferred
malice jury instruction because, pursuant to Belcher, "[t]here was evidence
presented at trial that tended to reduce, mitigate, excuse, or justify" the defendant's
killing of the victim. 427 S.C. 490, 495, 832 S.E.2d 575, 578 (2019). The
supreme court further "consider[ed] whether the permissive inference charge may
be given in any setting, even those in which no evidence is presented that would
reduce, mitigate, excuse, or justify the commission of an offense containing the
element of malice." Id. at 502, 832 S.E.2d at 582 (emphasis omitted).

The supreme court noted "[i]t is always for the jury to determine the facts, and the
inferences that are to be drawn from th[o]se facts." Id. (quoting State v. Cheeks,
401 S.C. 322, 328, 737 S.E.2d 480, 484 (2013)). The supreme court observed that
"[w]hen the trial court tells the jury it may use evidence of the use of a deadly
weapon to establish the existence of malice, . . . the trial court has directly
commented upon facts in evidence, elevated those facts, and emphasized them to
the jury." Id. The supreme court determined that "[e]ven telling the jury that it is
to give evidence of the use of a deadly weapon only the weight the jury determines
it should be given does not remove the taint of the trial court's injection of its
commentary upon that evidence." Id. at 502-03, 832 S.E.2d at 582.

The supreme court concluded that "[a] jury instruction that malice may be inferred
from the use of a deadly weapon is an improper court-sponsored emphasis of a fact
in evidence" and held that "[r]egardless of the evidence presented at trial, trial
courts shall not instruct a jury that the element of malice may be inferred when the
deed is done with a deadly weapon." Id. at 503-05, 832 S.E.2d at 582-83.
Additionally, the supreme court stated that its ruling was effective in all cases
pending on direct review or not yet final if the issue was preserved. Id. at 505, 832
S.E.2d at 583.

In the present case, the trial court instructed the jury that malice could be inferred
by the use of a deadly weapon over Campbell's objection. Burdette made clear that
trial courts cannot instruct the jury that malice may be inferred by the use of a
deadly weapon, regardless of the evidence presented. Although our supreme court
decided Burdette after Campbell's trial, its holding applies to all cases that were
pending on direct appeal if the issue was preserved, which it was in this case.7 Id.
Accordingly, the trial court erred by giving the charge.

The State argues any error by the trial court instructing the jury on inferred malice
was harmless. The State asserts the jury could have found Campbell had express
malice based on the evidence that Campbell had recently hit Katrina, Campbell
drove across town in his girlfriend's car, and fourteen rounds were fired from a rifle
into Katrina's apartment. We disagree.

"An erroneous instruction alone is insufficient to warrant this [c]ourt's reversal."
Id. at 496, 832 S.E.2d at 578. "[E]rroneous jury instructions are subject to a
harmless error analysis." State v. Smith, 430 S.C. 226, 233, 845 S.E.2d 495, 498
(2020). "When considering whether an error with respect to a jury instruction was
harmless, we must 'determine beyond a reasonable doubt that the error complained
of did not contribute to the verdict.'" Burdette, 427 S.C. at 496, 832 S.E.2d at 578
(quoting State v. Middleton, 407 S.C. 312, 317, 755 S.E.2d 432, 435 (2014)). "In

7
Campbell filed his notice of appeal on January 23, 2018, and Burdette was
decided on July 31, 2019.
making a harmless error analysis, our inquiry is not what the verdict would have
been had the jury been given the correct charge, but whether the erroneous charge
contributed to the verdict rendered." Id. at 496, 575 S.E.2d at 578-79 (quoting
State v. Kerr, 330 S.C. 132, 145, 498 S.E.2d 212, 218 (Ct. App. 1998)).

In State v. Brooks, this court held the trial court's error in giving an inferred malice
jury instruction was harmless because "the jury could have found that [the
defendant]'s conduct showed a total disregard for human life, allowing the jury to
infer malice from this conduct." 428 S.C. 618, 632, 837 S.E.2d 236, 243 (Ct. App.
2019), cert. denied, S.C. Sup. Ct. order dated Aug. 10, 2020. The court of appeals
noted the defendant in Brooks displayed his gun, taunted his targets, ignored a
hands up gesture by one of his targets, and ignored his friend's "no" plea. Id. at
630-31, 837 S.E.2d at 242-43. Additionally, the court of appeals interpreted the
defendant's attempts to cover up his guilt as indications of malice. Id. at 631, 837
S.E.2d at 243.

In the present case, the evidence of express malice is significantly less than the
amount in Brooks. The State contends Campbell's previous altercation with
Katrina, Campbell driving across town to commit the crime, and someone firing a
weapon fourteen times into Katrina's apartment is sufficient evidence of express
malice to overcome the trial court's erroneous inferred malice jury instruction.
However, Campbell's previous altercation with Katrina and Campbell driving
across town is not a total disregard for human life like the defendant in Brooks
displayed.

Moreover, we cannot state beyond a reasonable doubt that the erroneous
instruction did not contribute to the verdict. The jury could have reasonably found
malice partially based on the use of a weapon. Indeed, the jury may have found
malice based solely on the use of a weapon. Therefore, the error in giving the
inferred malice instruction was not harmless. Accordingly, we reverse the trial
court giving the instruction.

II. Accomplice Liability

Campbell asserts the trial court erred by instructing the jury on the hand of one is
the hand of all theory of accomplice liability because no evidence supported the
charge. Campbell argues neither party presented evidence he acted with another
pursuant to a common design or plan. We agree.
"[T]he trial court is required to charge only the current and correct law of South
Carolina." State v. Marin, 415 S.C. 475, 482, 783 S.E.2d 808, 812 (2016)
(alteration in original) (quoting Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d
462, 472 (2004)). "The law to be charged to the jury is determined by the evidence
presented at trial." State v. Brown, 362 S.C. 258, 262, 607 S.E.2d 93, 95 (Ct. App.
2004) (quoting State v. Hill, 315 S.C. 260, 262, 433 S.E.2d 848, 849 (1993)). "If
there is any evidence to support a jury charge, the trial [court] should grant the
request." Id.

[A] person who joins with another to commit a crime is
criminally responsible for everything done by the other
person which happens as a natural and probable
consequence of the act; if two or more are together,
acting together, and assisting each other in committing
the offense, all are guilty; a finding of a prior arranged
plan or scheme is necessary for criminal liability to attach
to the accomplice who does not directly commit the
criminal act; when an act is done in the presence of and
with the assistance of others, the act is done by all.

State v. Washington, 431 S.C. 394, 406, 848 S.E.2d 779, 785 (2020).

In Washington, our supreme court affirmed in part, reversed in part, vacated in
part, and remanded to the trial court for a new trial this court's decision to affirm
the conviction of a defendant who had been indicted for murder and convicted of
the lesser included offense of voluntary manslaughter. Id. at 397, 848 S.E.2d at
781. The supreme court observed that the trial court's instruction "convey[ed] the
gist of the accomplice liability theory" and was correct for a case that warranted
the instruction. Id. at 406, S.E.2d at 785.

The supreme court acknowledged, "an alternate theory of liability may not be
charged to a jury 'merely on the theory the jury may believe some of the evidence
and disbelieve other evidence.'" Id. at 409, 848 S.E.2d at 787 (quoting Barber v.
State, 393 S.C. 232, 236, 712 S.E.2d 436, 438 (2011)). The supreme court noted
that "[f]or an accomplice liability instruction to be warranted, the evidence must be
'equivocal on some integral fact and the jury [must have] been presented with
evidence upon which it could rely to find the existence or nonexistence of that
fact.'" Id. at 407, 848 S.E.2d at 786 (alteration in original) (quoting Barber, 393
S.C. at 236, 712 S.E.2d at 439). After observing that the record contained
evidence the defendant was both the shooter and not the shooter, the supreme court
reasoned that "[t]he question becomes whether there was equivocal evidence the
shooter, if not [the defendant], was an accomplice of [the defendant]." Id.

The supreme court compared Washington's case to Wilds v. State, in which this
court affirmed the post-conviction relief court's grant of relief on the issue of
accomplice liability. 407 S.C. 432, 440, 756 S.E.2d 387, 391 (Ct. App. 2014). In
Wilds, this court found the post-conviction relief court correctly determined the
trial court erred in charging accomplice liability because neither party presented
evidence that anyone besides the defendant was the shooter. Id. at 440, 756 S.E.2d
at 791. The supreme court in Washington reasoned that, like the jury in Wilds, the
jury in Washington may have doubted the possible accomplice's testimony he did
not shoot the victim. Washington, 431 S.C. at 410, 848 S.E.2d at 787. Still, the
supreme court found some evidence must have been presented that the only
possible accomplice shot the victim to warrant an accomplice liability jury
instruction. Id. Because no evidence of that kind was presented, the supreme court
determined the trial court erred by instructing the jury on accomplice liability. Id.
at 403, 410, 848 S.E.2d at 784, 787.

Here, the trial court erred by charging the jury on accomplice liability. Blake's
testimony that she saw a man wearing a hoodie and holding a rifle leave the scene
of the shooting in a lime green car is evidence that someone other than Campbell
may have been the shooter, as Campbell was allegedly wearing a jersey and the
video footage and Richardson's testimony indicate he left in President's gold Buick.
Because Richardson's testimony presented evidence that Campbell was the shooter,
like Washington, the question is whether the Record contains equivocal evidence
the man seen by Blake was Campbell's accomplice.

Based on the evidence presented at trial, only Richardson could have been
Campbell's accomplice. On the day of the shooting, Richardson rode with
Campbell from North Charleston to Gadsden Green, parked the car for Campbell,
and drove Campbell back to North Charleston. Like in Wilds and Washington, the
jury could have doubted Richardson's testimony that he was not involved in a
common plan or scheme with Campbell to carry out the shooting. Nevertheless,
neither party presented evidence that Richardson and Campbell had joined together
in a common plan or scheme to carry out the shooting. Indeed, Richardson
testified he did not know Campbell was going to drive to Gadsden Green or why
Campbell asked him to park the car on Nunan Street.

Even if Richardson's involvement was equivocal evidence he and Campbell
worked together to carry out the shooting, the Record must have also contained
some evidence Richardson was the shooter for the accomplice liability instruction
to be proper; it did not. Again, the jury could have doubted Richardson's testimony
that he was not the shooter. Still, while security footage showed Richardson
walking in Gadsden Green around the time of the shooting, it also showed him
walking without a rifle, wearing a white T-shirt and ball cap rather than a hoodie,
and getting into the gold Buick rather than a lime green car. Consequently,
Richardson does not meet the description of the man seen by Blake.

Thus, neither party presented evidence that either Campbell was working with the
man seen by Blake or that Richardson was the shooter. Therefore, the trial court
erred by giving an accomplice liability jury instruction. Accordingly, we reverse
the trial court and remand for a new trial on the murder and attempted murder
charges.

CONCLUSION

The trial court committed reversible error by giving both inferred malice and
accomplice liability jury instructions. Therefore, Campbell's convictions of murder
and attempted murder are

REVERSED AND REMANDED.

HILL and HEWITT, JJ., concur.