State v. Lee

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.

Brandon Jewel Lee, Appellant.

Appellate Case No. 2018-001440

Appeal from Aiken County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2021-UP-302
Heard March 2, 2021 – Filed August 18, 2021

AFFIRMED

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Deborah R.J. Shupe,
both of Columbia; and Solicitor John William Weeks of
Aiken, for Respondent.

PER CURIAM: Appellant Brandon Jewel Lee seeks review of his convictions for
first-degree burglary and unlawful possession of a prescription drug without a
prescription. Lee argues the circuit court erred by instructing the jurors that their
role was to determine the true facts in the case because the instruction diverted the
jurors from their obligation to determine whether the State proved guilt beyond a
reasonable doubt. We affirm.

"[J]ury instructions should be considered as a whole, and if as a whole they
are free from error, any isolated portions [that] may be misleading do not constitute
reversible error." State v. Aleksey, 343 S.C. 20, 27, 538 S.E.2d 248, 251 (2000).
"The standard for review of an ambiguous jury instruction is whether there is a
reasonable likelihood that the jury applied the challenged instruction in a way that
violates the Constitution." Id. (citing Estelle v. McGuire, 502 U.S. 62 (1991)). In
resolving this question, we agree with the State that the context surrounding the
challenged language is critical.

In the present case, during jury instructions, the circuit court stated, in
pertinent part:

To these two indictments the defendant has pled not guilty
and that puts the burden on the State of South Carolina to
prove the defendant's guilt to you beyond a reasonable
doubt. A person charged with committing a criminal
offense is never required to prove himself innocent. I
charge you that it is an important constitutional rule of law
that a defendant in a criminal trial, no matter how serious
crimes [may] be, will always be presumed to be innocent
of the crime for which the indictment was issued unless
guilt is proven to you beyond a reasonable doubt based on
evidence satisfying you of that guilt beyond a reasonable
doubt.

Presumption of innocence does not end when you start
your deliberations, but it stays with the defendant
throughout the trial until you reach a verdict of guilt based
on evidence satisfying you of that guilt beyond a
reasonable doubt. The phrase is not a mere legal theory,
it's not a legal phrase. It is a substantial constitutional right
to which every defendant is entitled unless you the jury are
satisfied from the evidence of the defendant's guilt beyond
a reasonable doubt.
Our appellate courts have defined the term reasonable
doubt sort of two ways. Sometimes they say a reasonable
doubt is the kind of doubt that would cause a reasonable
person to hesitate to act. It's the kind of doubt that would
cause a reasonable person to hesitate to act. It's also
described this way: The State has the burden of proving a
defendant guilty beyond a reasonable doubt. Sometimes
we illustrate it[:] if we were trying a wreck case or civil
case, the parties come in on equal footing as far as the
evidence goes[,] and for a person to prove his case, he has
to prove it by what we call the preponderance or the
greater weight of the evidence in the civil case and tip the
scales ever so slightly in his favor. If he's able to do that,
he's entitled to a verdict.

In a criminal case, because of the presumption of
innocence, when the parties come into court, the scales of
justice are tipped way in favor of the defendant. He is
presumed to be innocent. And for the State to prove him
guilty beyond a reasonable doubt, the scales have to tip in
this manner.

So the burden is greater in a criminal case than it is in a
civil case. It's beyond a reasonable doubt as opposed to
the preponderance or the greater weight of the evidence.
Our courts have said proof beyond a reasonable doubt is
proof that leaves you firmly convinced of the defendant's
guilt. Obviously, there are very few things in the world
that we know with absolute certainty, and in criminal
cases, the law does not require proof that overcomes every
possible doubt. If based on your consideration of the
evidence[,] you are firmly convinced that the defendant is
guilty of the crimes charge[d], you must find him guilty.
If, on the other hand, you think there's a real possibility
that he is not guilty, you must give him the benefit of the
doubt and find him not guilty.

As I told you when we selected you to serve[,] there are
two judges [who] try every case. I'm the trial judge, the
judge of the law; you're the judges of the facts. My role is
to rule on the admissibility of the evidence and to instruct
you on the law. Your role is to determine what the true
facts are in the case and to determine whether or not the
State has proven its case to you beyond a reasonable
doubt. So please don't infer from anything I have said,
done, frowned, smiled, raised my eyebrows, yawned,
stretched, whatever, that I have any opinion about the
facts. I cannot. That is your sole duty. You're the sol[e]
finders of the facts and you determine what the true facts
are in the case and whether or not the State has proven the
case to you beyond a reasonable doubt.

Now, if you do that, obviously, you have to determine the
credibility or the believability of the witnesses. It's not
what I think, it's not what the defense lawyer thinks is
telling the truth, or the State, prosecutor who's telling the
truth, it is your sole duty as the judges of the facts to
determine the credibility of the witnesses who have
testified in this case.

(emphases added). Additionally, while instructing the jury on the elements of the
offenses with which Lee was charged, the circuit court admonished the jury that the
State was required to prove each element of those offenses beyond a reasonable
doubt.

At the conclusion of jury instructions, the circuit court added the following:

The verdict has to be unanimous. All twelve of you must
agree as to each one, the drugs and the burglary.
Obviously, you're not back there to punish any enemy or
reward any friends, you're back there to carefully
deliberate what has been presented to you. You determine
what the true facts were from the testimony and not what
the lawyers argued or what I've said or anything else, but
what you determine the true facts to be from the witnesses.
Take the true facts, apply it to the law of burglary, and the
drug case, and decide whether or not the State has met that
burden of proving him guilty beyond a reasonable doubt.

(emphases added).
After the conclusion of the jury instructions, Lee objected to the circuit court's
reference to determining the true facts. The circuit court overruled the objection:

[Counsel]: Your honor, [State v. Beaty1] says that judges
should [omit] the use of the phrase true facts.

THE COURT: Well, I understand that, but their job is
to determine the credibility of the witnesses, determine
what the true facts are, but I added once they do that then
based on that they have to determine whether or not the
State has proven the case to them beyond a reasonable
doubt, so I - - I cured that and I stand by my charge. Thank
you.

As set forth above, the circuit court's first two references to "the true facts"
did not appear until after the circuit court completed a thorough instruction on the
State's burden of proof, and the references were logically placed within the
instruction on the jury's role as the finders of fact, immediately before the instruction
on witness credibility. The circuit court followed up the "true facts" comments with
reminders to determine whether the State had proven its case beyond a reasonable
doubt. Likewise, the "true facts" references at the conclusion of jury instructions
were coupled with a reminder of the State's burden, which the circuit court had
already thoroughly explained at the beginning of the jury instructions.

We find the circuit court's jury instructions as a whole to be comparable to the
instructions given in Aleksey, in which our supreme court concluded that the
instructions as a whole "properly conveyed the law to the jury." 343 S.C. at 29, 538
S.E.2d at 253. In Aleksey, the supreme court recounted the circuit court's instructions
as follows:

The [circuit] court gave a lengthy, complete, and proper
instruction on reasonable doubt, the presumption of
innocence, and the State's burden of proof. Next, the judge
instructed the jury concerning its role as finder of facts. In
concluding his remarks on determining the credibility of
witnesses, the judge stated:

1
423 S.C. 26, 34, 813 S.E.2d 502, 506 (2018).
Obviously you do not determine the truth or
falsity of a matter by counting up the number
of witnesses who may have testified on one
side or the other.

Ladies and gentlemen, throughout this entire
process, you have but one single objective,
and that is to seek the truth, to seek the truth
regardless of from what source that truth may
be derived.

Now, all of these things, ladies and
gentlemen, you will consider, bearing in
mind that you must give the defendant the
benefit of every reasonable doubt.

Id. at 26, 538 S.E.2d at 251 (emphasis added). The court further explained:

The [circuit] court's instructions concerning seeking the
truth were given in the context of the jury's role in
determining the credibility of witnesses.[2] The remarks
were prefaced by a full instruction on reasonable doubt
and followed by an additional exhortation to bear in mind
the State's heavy burden of proof. Under the standards
articulated in [State v. ]Smith[3] and Boyde[ v.
California4], the instruction as a whole properly conveyed

2
Lee argues the present case is distinguishable from Aleksey because the challenged
language in Aleksey was in the instruction on the jury's role in determining witness
credibility and here, the challenged language was in the instruction on the jury's role
as the finders of fact. However, we view the jury's role in determining witness
credibility as a subset of the jury's role as the finders of fact. Therefore, this is a
distinction without a difference.
3
315 S.C. 547, 554, 446 S.E.2d 411, 415 (1994) (holding that jury instructions
"should be considered as a whole, and if as a whole they are free from error, any
isolated portions [that] may be misleading do not constitute reversible error").
4
494 U.S. 370, 380 (1990) (holding that when a jury instruction is ambiguous "and
therefore subject to an erroneous interpretation," the standard of review "is whether
there is a reasonable likelihood that the jury has applied the challenged instruction
in a way that prevents the consideration of constitutionally relevant evidence").
the law to the jury and there is not a reasonable likelihood
the jury applied the judge's instructions to convict
appellant on less than proof beyond a reasonable doubt.

Id. at 29, 538 S.E.2d at 252–53 (emphasis added). Notably, the court declined to
hold that any mention of "the truth" in jury instructions is unconstitutional. Id. at 29
n.2, 538 S.E.2d at 253 n.2.

In State v. Beaty, the defendant challenged the use of the phrases "search for
the truth," "true facts," and "just verdict" in the circuit court's preliminary remarks
to the jury at the trial's commencement. 423 S.C. at 32–34, 813 S.E.2d at 505–06.
Our supreme court distinguished the case from Aleksey on this basis, stating, "In
Aleksey, we found there was no reversible error because the 'seek the truth' language
was charged in conjunction with the credibility of witnesses charge[] and not with
either the reasonable doubt or circumstantial evidence charges." 423 S.C. at 33,
813 S.E.2d at 506 (emphasis added). The court noted that in the case before it, the
comments "were a mere statement to the jury and not a charge on the law." Id. at
34, 813 S.E.2d at 506. The court also noted that the comments were not linked to
either the reasonable doubt or the circumstantial evidence charges. Id. Nonetheless,
the court expressed concern over the continued use of such comments:

However, we agree with Appellant that a trial judge should
refrain from informing the jury, whether through
comments or through a charge on the law, that its role is
to search for the truth, or to find the true facts, or to render
a just verdict. These phrases could be understood to place
an obligation on the jury, independent of the burden of
proof, to determine the circumstances surrounding the
alleged crime and from those facts alone render the verdict
the jury believes best serves its perception of justice. We
instruct trial judges to avoid these terms and any others
that may divert the jury from its obligation in a criminal
case to determine whether the State has proven the
defendant's guilt beyond a reasonable doubt.

Id. (emphasis added) (footnote omitted); see also State v. Needs, 333 S.C. 134, 155,
508 S.E.2d 857, 867–68 (1998) (advising circuit courts to avoid, inter alia, "in search
of truth" language in the definition of reasonable doubt because it "runs the risk of
unconstitutionally shifting the burden of proof to a defendant"), modified on other
grounds by State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004); cf. State v. Daniels,
401 S.C. 251, 256, 737 S.E.2d 473, 475 (2012) (admonishing the circuit court to
remove from its jury instructions "any suggestion . . . that a criminal jury's duty is to
return a verdict that is 'just' or 'fair' to all parties" because "[s]uch a charge could
effectively alter the jury's perception of the burden of proof, substituting justice and
fairness for the presumption of innocence and the State's burden to prove the
defendant's guilt beyond a reasonable doubt").

In the present case, considering the challenged language within its context, we
see no reasonable likelihood that this language diverted the jury from its obligation
to determine whether the State proved guilt beyond a reasonable doubt. In other
words, applying the standard of review to the present case, the circuit court's jury
instructions as a whole were proper. See Aleksey, 343 S.C. at 27, 538 S.E.2d at 251
(setting forth the standard of review for an ambiguous jury instruction, i.e., "whether
there is a reasonable likelihood that the jury applied the challenged instruction in a
way that violates the Constitution"); id. (holding that an appellate court should
consider jury instructions as a whole). The circuit court had already given a
complete instruction on the State's burden, including an accurate definition of
reasonable doubt,5 when it referenced the "true facts" within the specific instruction
on the jury's role as the finders of fact and at the conclusion of the jury instructions
as a whole.

The disputed language was immediately followed by a reminder of the State's
burden of proof, which our supreme court found to be helpful in Aleksey. 343 S.C.
at 29, 538 S.E.2d at 252–53 ("The remarks were prefaced by a full instruction on
reasonable doubt and followed by an additional exhortation to bear in mind the
State's heavy burden of proof. . . . [T]he instruction as a whole properly conveyed
the law to the jury[,] and there is not a reasonable likelihood the jury applied the
judge's instructions to convict [the defendant] on less than proof beyond a reasonable
doubt."); cf. State v. Pradubsri, 420 S.C. 629, 640–41, 803 S.E.2d 724, 730 (Ct. App.
2017) (holding that the circuit court's truth-seeking language in its jury instruction
did not constitute reversible error because the instruction as a whole included at least
twenty references to the State's burden of proof). Additionally, while instructing the
jury on the elements of the offenses with which Lee was charged, the circuit court
admonished the jury that the State was required to prove each element of those
offenses beyond a reasonable doubt.

5
The circuit court defined reasonable doubt as "the kind of doubt that would cause
a reasonable person to hesitate to act." Our supreme court has noted that this
instruction is a correct statement of South Carolina law. State v. Jones, 343 S.C.
562, 578, 541 S.E.2d 813, 821 (2001).
Based on the foregoing, there is no reasonable likelihood that the jury applied
the "true facts" language in a way that violates the Constitution. Accordingly, Lee's
convictions are

AFFIRMED.

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.