Criminal Practice – Kidnapping, Robbery & Murder – Confession – Other Bad Acts – Sentencing

In interrogating defendant, the detectives in this case went up to the line of what is permissible. However, despite their misrepresentations, their mentions of the death penalty, and their promise not “to slap a robbery charge on you,” the detectives did not cross that line so as to render defendant’s confession involuntary.

We affirm defendant’s convictions for kidnapping, murder and armed robbery. We vacate defendant’s kidnapping sentence.

The detectives repeatedly misrepresented the strength of the state’s case. They invoked the specter of the death penalty twice, even if they did not directly threaten defendant’s life.

We find it particularly concerning that the detectives outlined potential stories that defendant could tell and seemingly encouraged him to “come up with a lie” if he wanted to do so—shortly before floating the scenario that “[m]aybe [the victim (Victim)] rolled up on you looking for sex.” That, of course, would end up nearly matching the explanation defendant gave during the later stages of the interrogation for how he came to take Victim’s life.

It does not appear that defendant was promised leniency. At most, the officers assured defendant that they would put in the proverbial good word for him—that they would not “hang [him] out to f*****g dry” when they talked to prosecutors.

Glancing references to the death penalty do not automatically render a statement involuntary, and our courts have been hesitant to throw out statements encouraged by officers’ false statements.

Even if the officers’ tactics were at the extreme end of the allowable spectrum, they informed defendant’s mental calculation about whether to confess, rather than overbearing his will.

Other Bad Acts

The trial court erroneously allowed the state to present evidence of defendant’s armed robbery of a different person, Bocar Bah. The two incidents were insufficiently similar to establish a common scheme or plan.

Among the similarities are “incident occurred in SC,” “male victim,” “def[endant]s came from G[eorgia]”—where, again, they lived at least some of the time—and “def[endant]s used cell phone.” Some of the other similarities are stronger: credit cards, a driver’s license, and other items linked to Bah were found at defendant’s residence. However, these similarities and connections are not strong enough to say that the two offenses are the result of the same “criminal process.”

We do not question the circuit court’s view of the evidence that a carjacking or armed robbery scheme or plan involving defendant and his girlfriend existed. However, we do not believe the state produced enough evidence to show that Victim’s murder was part of that scheme or plan. Given that, admitting evidence of the robbery of Bah under the common scheme or plan exception was error.

Nevertheless, the error was harmless. The state’s evidence placed defendant’s and Victim’s cell phones in the same areas; defendant’s statement placed him in Victim’s bloody truck; and Victim’s gun and holster were found at defendant’s residence.

The only element of murder on which the jury’s considerations could have been tainted by Bah’s testimony was on the issue of malice—the dividing line between murder on one side and voluntary manslaughter, involuntary manslaughter, or self-defense on the other. However, there is overwhelming evidence in the record from which the jury would have inferred malice regardless. The evidence that Victim was shot in the back of the head and the evidence that he was shot twice both indicate the presence of malice. Additionally, we note that the jury convicted defendant of armed robbery and kidnapping—both of which are felonies.

Admission of evidence of the Bah robbery was harmless error.

Sentencing

Since defendant was convicted of both kidnapping and murder, he should not have been sentenced for kidnapping. S.C. Code Ann. § 16-3-910.

Although defendant failed to preserve this issue for appellate review, principles of judicial economy favor vacating defendant’s kidnapping sentence. There is no cognizable legal argument the state can raise that this sentence was properly imposed. Nor do we believe that the interests of our state’s justice system are served by requiring defendant to go through a collateral appeal process to attack a facially invalid sentence that will not actually affect the length of his imprisonment.

Affirmed in part; vacated in part.

State v. Hillary (Lawyers Weekly No. 011-062-23, 18 pp.) (John Geathers, J.) Appealed from Horry County Circuit Court (William McKinnon, J.) David Alexander for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown, Anthony Mabry and Jimmy Richardson for respondent. South Carolina Court of Appeals