Davis Adv. Sh. No. 2
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Russell Collins, Appellant.
Appeal From Williamsburg County
Thomas W. Cooper, Jr., Judge
Opinion No. 24734
Heard October 21, 1997 - Filed January 5, 1998
M. Anne Pearce of the South Carolina Office of
Appellate Defense, of Columbia, for appellant.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, and
Assistant Attorney General John P. Riordan, all of
Columbia, and Solicitor Wade S. Kolb, of Sumter,
WALLER, A.J.: Appellant, Russell Collins, was convicted of
accessory after the fact of murder. We reverse.
On July 25, 1990, James "Buster" Osborne was shot and killed while
working at his Greeleyville convenience store in Williamsburg County.
Collins, who lived down the street from the store, gave two different versions
of the shooting. In one version, he and his friend, Keith Houston, stopped
at the store to buy snacks for work the next morning. As they drove up,
they heard a gunshot and saw a man run out from the store putting what
appeared to be a gun in his pocket. They went in and found Osborne had
been shot; Collins ran to his uncle's house next door and advised Osborne
had been shot.
In his second version, Collins told police he and Houston had gone into
the store to buy snacks when, unbeknownst to Collins, Houston pulled out a
gun, demanded money, and shot Osborne. Collins maintained he had not
known the shooting was going to occur and had not participated in the crime.
Nonetheless, and notwithstanding his claim that he was unaware Houston
planned to rob and shoot Osborne, Collins "covered" for him. Collins told
police he was scared and Houston had convinced him he needed to make up
a story, "cause if you don't, then you gone go to jail too, cause you know they
gone say you helped me do it. I'm a say you helped me do it."
Collins was indicted for attempted armed robbery, murder, possession
of a weapon during a violent crime and accessory after the fact of murder.
At the close of the State's case, the trial judge granted a directed verdict on
all charges except accessory after the fact of murder. The jury convicted him
of this charge, and he was sentenced to 15 years.
Historically, the elements of accessory after the fact of a crime have
been: (1) the felony has been completed; (2) the accused must have knowledge
that the principal committed the felony; and (3) the accused must harbor or
assist the principal felon. State v. Hodge, 278 S.C. 110, 292 S.E.2d 600
(1982), cert. denied, 459 U.S. 910, 103 S.Ct. 217, 74 L.Ed.2d 172 (1982);
State v. Nicholson, 221 S.C. 399, 70 S.E.2d 632 (1952). However, in State v.
Plath, 277 S.C. 126, 284 S.E.2d 221 (1981) cert. denied 467 U.S. 1265 (1984),
a defendant charged with capital murder asserted error in the trial court's
refusal to charge the jury on accessory after the fact. Citing the elements of
State v. Nicholson, supra, this Court stated, "[t]he accessory's absence at
the time the crime was actually committed is necessarily implied from
the above definition and is an essential element of the offense." 277 S.C.
at 139, 284 S.E.2d at 228 (emphasis supplied).
Subsequent to Plath, in State v. Whitted, 279 S.C. 260, 262, 305 S.E.2d
245, 246 (1983), we reiterated that "one element of accessory after the fact
is the absence of the accused at the scene of the crime -- the accused's
involvement begins after the crime is accomplished."1 Most recently, in State
v. Hudgins, 319 S.C. 233, 460 S.E.2d 388 (1995) cert. denied 116 S.Ct. 821
(1996), we stated that since the appellant therein admitted being present
when the murder was committed, he was not entitled to a charge on
accessory after the fact.
It is clear from a reading of Plath, Hudgins, and Whitted that the
result in those cases was based on the fact that there was evidence adduced
at trial which demonstrated participation in the actual commission of the
substantive offense of murder.2 There is, however, a distinction between
being present and participating in the crime, and being merely present
during commission of the crime.
As noted by McAninch and Fairey, The Criminal Law of South
Carolina, p. 368 (3rd. Ed. 1996), "[i]t is entirely conceivable that one could be
present at the scene of a crime committed by another, without any prior or
contemporary contact with or encouragement of the other in the criminal
activity but subsequently offer such assistance as would render him an
accessory, rejected the defendant's claim that the trial court was required to
accept her plea to accessory after the fact. However, nothing in the opinion
indicates that the only evidence was that the defendant was "merely present"
but not participating in commission of the crime.
2 In Plath, the statement of facts specifically indicates that "[a]ll four
persons [including Plath] at one time or another participated in the physical
abuse of the victim." 277 S.C. at 131, 284 S.E.2d at 224. Again, in Hudgins,
this Court's statement of facts indicates the defendant confessed to being the
triggerman, and "admitted to stealing the truck and being involved in a
series of unlawful acts which culminated in the murder." 319 S.C. at 237,
460 S.E.2d at 390. Under these facts, it is clear that, if guilty at all, Plath
and Hudgins were guilty as principals.
accessory after the fact." See also 1 Wharton's Criminal Law, § 33, pp. 197-
98 (15th Ed. 1993) (although an accessory is not ordinarily present when the
felony was committed, his absence is not required. Thus a person who was
present when a felony was committed, but in no way aided or abetted its
commission-- and hence did not qualify as a principal ... may become an
accessory after the fact by rendering aid to the felon thereafter in order to
facilitate his escape); State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992)(one
who, although present at the time of the commission of a felony, takes no
action sufficient to constitute that person being a principal may nevertheless
be an accessory after the fact if he subsequently assists the felon with the
intent to hinder the felon's detection); Buckley v. State of Mississippi, 511
So.2d 1354, 1358 (Miss. 1987); Walker v. State, 204 N.E.2d 850 (Ind. 1965)
cert. denied 382 U.S. 991 (1966); Smith v. United States, 306 F.2d 286 (D.C.
We concur with the law espoused by these authorities. It is untenable
to suggest that a defendant who is "merely present" at the scene of a crime
may not be convicted as an accessory if he thereafter aids the perpetrator to
cover it up or escape from the crime. The mere fact of one's "presence" at
the time of commission of the substantive offense is insufficient to relieve him
of liability as an accessory. Accordingly, we modify existing case law to
recognize that absence is not an essential element of the offense of accessory
after the fact and that "mere presence" at the scene will not preclude an
accessory verdict where the defendant becomes involved after commission of
the substantive offense. To the extent Plath, Whitted. and Hudgins are
inconsistent with this modification, they are overruled.3
However, under the law as set forth in Plath, Hudgins, and Whitted,
the only evidence of Collins' guilt indicates he was, in fact, present at the
time the murder was committed. As "absence" was an essential element of
the crime of accessory after the fact of murder at the time the crime was
committed here, Collins was entitled to a directed verdict.4 Accordingly, his
Plath, Hudgins, and Whitted.
4 To apply a new rule altering the elements of the offense to Collins
would result in an ex post facto/due process violation. See Griffin v. State,
315 S.C. 285, 433 S.E.2d 862 (1993) cert. denied 510 U.S. 1093 (1994);
Elmore v. State, 305 S.C. 456, 409 S.E.2d 397 (1991) (change in law which
alters elements of offense or increases punishment results in ex post facto
violation). Although the ex post facto clause itself does not apply to actions
conviction for accessory after the fact of murder is
FINNEY, C.J., TOAL, MOORE and BURNETT, A.J., concur.
Due Process Clause. An unforeseeable judicial enlargement of a criminal
statute, applied retroactively, operates precisely like an ex post facto law.
Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894
(1964). Judicial action may not retroactively subject action to criminal
prosecution. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344
(1977) Prospective application should be afforded a new rule of criminal
procedure which is a "clear break" from earlier precedent. United States v.
Johnson, 102 S.Ct. at 2587, citing Desist v. United States, 394 U. S. 244, 89
S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969).