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24734 - State v. Russell Collins

Davis Adv. Sh. No. 2
S.E. 2d


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,

for respondent.

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

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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.


Was Collins entitled to a directed verdict since the only evidence
of his guilt showed he was present at the time of the shooting
and therefore, under existing South Carolina law, could not be
guilty as an accessory after the fact?


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

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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

1 The Whitted Court, finding evidence to support either murder or

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.

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accessory after the fact." See also 1 Wharton's Criminal Law, ยง 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.

Cir. 1962).

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

3 We granted the State's petition to argue against the precedent of

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

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conviction for accessory after the fact of murder is


FINNEY, C.J., TOAL, MOORE and BURNETT, A.J., concur.

of the judicial branch, judicial decisions applied retroactively can violate the

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).

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