THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Tyson E. Langley, WWa
William Edward Hall.,
Appeal From Charleston County
Daniel E. Martin, Sr., Judge
Opinion No. 24924
Heard December 1, 1998 - Filed March 22, 1999
Assistant Appellate Defender Robert M. Dudek, of
South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W., McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, and
Assistant Attorney General Lauri J. Soles, all of
Columbia; and Solicitor David P. Schwacke, of
North Charleston,, for respondent.
BURNETT, A.J.: Appellant appeals his conviction of murder.
Twenty-eight Moultrie Street was the address of a crack house
in Charleston. Eva Desaussure and her boyfriend, Irvin James, lived in
the house and they allowed a group of local drug dealers (the Charleston
boys) to base its drug operations in the house in exchange for drugs and
money. Members of this group included Simon Blye, Dee, Devron and
Sometime prior to February 1995, Eva and Irvin allowed a
group of drug dealers from New York (the New York boys) to also use the
house for its drug operations. Members of this group included Supreme,
Derrick and appellant.
In early February 1995, the Charleston boys entered the house
at 28 Moultrie Street and an argument developed between Devron and one
of the New York boys, Derrick. Devron threatened Derrick with a sawed
off shotgun and then robbed him. When Eva attempted to intervene,
Devron also threatened her. Devron then knocked Derrick into a window,
shattering it. Derrick fled the house through an upstairs window and the
Charleston boys left. Supreme and appellant were not at the house when
this incident occurred. However, Eva testified they were extremely upset
when they learned of the incident.
The next day, Simon, Dee and Tyrone Moore, a friend of the
Charleston boys, returned to 28 Moultrie Street. Eva testified heated
words were exchanged between Supreme, who was standing in the
doorway with his gun, and Simon, Dee, and Tyrone. Eva again intervened
and asked Simon, Dee and Tyrone to leave. They left.
Later that evening, Phillip "Bunny" Gibbs (the victim), a friend
of the Charleston boys, purchased drugs from 28 Moultrie Street. He
stayed at the house for about an hour. The New York boys were not at
the house during that time.
Just before midnight, the victim returned to 28 Moultrie
contains only first names of most of the individuals involved in this
Street. However, because of the tense situation, Eva and Irvin had
ordered the doorman not to allow anyone entrance.2 Therefore, the
doorman would not let the victim enter the house. According to the
testimony of the doorman, when the victim turned to leave, appellant and
Derrick demanded to be let out of the house. Shortly after appellant and
Derrick left the house, both Eva and the doorman testified they heard
Simon testified he, Devron, Dee and Eric were driving by at
that time and saw appellant, Derrick and the victim walking down the
street. Simon testified either Derrick or appellant shot the victim, and he
saw Derrick and appellant "take off running." The victim was shot one
time in the face at close range. Simon admitted the Charleston boys had
guns in the car. The Charleston boys attempted to chase appellant and
Derrick; however, because they did not want to be caught in the area, they
Eva testified appellant and Derrick ran back to the house and
called to Supreme to "come on" and the three left the house. Eva testified
she had not seen appellant since that night. Eva further testified that a
short time after the New York boys left, gunshots were fired upon the
house from an automobile.
Tyrone Moore testified the Charleston boys came to his house
shortly after the shooting and Simon told him appellant had shot the
victim. The police found appellant's cellular telephone at the scene of the
Did the trial judge err in allowing the victim's
sister to testify and in admitting a photograph of
key for ingress and egress. Usually, a doorman was responsible for letting
people in and out of the house.
Appellant argues the trial judge erred in allowing the victim's
sister to testify and in admitting a photograph of the victim. Appellant
contends this evidence was not relevant, and even if relevant, its probative
value was outweighed by its prejudicial effect.
Phyllis Jones, the victim's sister, testified for the State. Over
defense counsel's objection, Ms. Jones testified about the victim's family
and how the victim acquired his nickname, "Bunny." Ms. Jones testified
the victim had attended Burke High School where he played the drums in
the band. Ms. Jones then identified a photograph of the victim. This
photograph was admitted into evidence.
A trial judge is accorded broad discretion in ruling on the
admissibility of the testimony. State v. Davis, 309 S.C. 326, 422 S.E.2d
133 (1992) (holding the admissibility of evidence with little probative value
was harmless where it did not affect the outcome of the trial), cert. denied,
508 U.S. 915, 113 S.Ct., 2355, 124 L.Ed.2d 263 (1993). All relevant
evidence is admissible. Rule 402, SCRE. Evidence is relevant if it has a
direct bearing upon and tends to establish or make more or less probable
the matter in controversy. Rule 401, SCRE; State v. Alexander., 303 S.C.
377, 401 S.E.2d 146 (1991). Although evidence is relevant, it may be
excluded if the danger of unfair prejudice substantially outweighs its
probative value. Rule 403, SCRE; State v. Alexander, supra. Further, a
photograph should be excluded if it is calculated to arouse the sympathy
or prejudice of the jury or is irrelevant or unnecessary to substantiate
facts. State v. Livingston, 327 S.C. 17, 488 S.E.2d 313 (1997). Even if the
evidence was not relevant and thus wrongly admitted by the trial judge,
its admission may constitute harmless error if the irrelevant evidence did
not affect the outcome of the trial. State v. Davis, supra; State v.
Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991), cert. denied, 503 U.S. 993,
112 S.Ct. 1691, 118 L.Ed.2d 404 (1992).
We find Ms. Jones' testimony and the victim's photograph were
not relevant to proving the guilt of appellant.3 Because the evidence of
the defendant first attacks the victim's character. Rule 404(a), SCRE.
The State claims this testimony and the photograph were relevant to
appellant's guilt was not overwhelming, we cannot find this irrelevant
evidence did not affect the outcome of the trial under a harmless error
analysis. Compare State v. Livingston, supra (evidence of appellant's guilt
was not overwhelming so as to find harmless the error in admitting an
irrelevant photograph of victim) with State v. Davis, supra (evidence of
appellant's guilt was overwhelming; therefore, the admission of mother's
irrelevant testimony about the victim was harmless).
A jury could have found appellant guilty of victim's murder
under several theories presented by the State. First, appellant would be
guilty of murder if he actually shot victim. Second, under the "hand of
one, the hand of all theory," appellant would be guilty of murder if he
aided Derrick. Under this theory, one who joins with another to
accomplish an illegal purpose is liable criminally for everything done by
his confederate incidental to the execution of the common design and
purpose. To admit evidence under this theory, the existence of the
common design and the participation of the accused against whom the
evidence is offered should first be shown. State v. Woomer, 276 S.C. 258,
277 S.E.2d 696 (1981). Third, appellant would be guilty of murder
if the jury found he was an accomplice. Under accomplice liability theory,
ita person must personally commit the crime or be present at the scene of
the crime and intentionally, or through a common design, aid, abet, or
assist in the commission of that crime through some overt act." State v.
Austi , 299 S.C. 456, 459, 385 S.E.2d 830, 832 (1989); see also State v.
Leonard, 292 S.C. 133, 355 S.E.2d 270 (1987) (to be liable as an aider or
abetter, the participant must be chargeable with knowledge of the
principal's criminal conduct; mere presence at the scene is not sufficient to
establish guilt as an aider or abetter).
The State used the following evidence to establish appellant's
guilt: appellant and Derrick left the house together; appellant's cellular
at issue in this case. Therefore, this evidence was not admissible for this
purpose. Instead, the only possible purpose of this testimony and
introduction of the photograph was to distance the victim from the drug
dealing that was occurring at 28 Moultrie Street and to neutralize
testimony by the State's witnesses regarding his drug use. However,
because appellant did not attack the victim's character, this evidence
should not have been admitted.
telephone was found at the crime scene; Simon testified either appellant or
Derrick shot the victim; and Tyrone testified that immediately after the
incident, Simon told him appellant shot the victim. While this
circumstantial evidence was sufficient to present this case to a jury on the
above theories, the evidence fails to establish overwhelming evidence of
Because we reverse on this issue, we do not address
appellant's other issues.
FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.