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2004-UP-065 - State v. Harris
THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State, Respondent,

v.

Jermaine Harris, Appellant.


Appeal From Sumter County
 Howard P. King, Circuit Court Judge


AFFIRMED


Unpublished Opinion No. 2004-UP-065
Submitted January 12, 2004 – Filed February 5, 2004


Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Melody J. Brown, all of Columbia;  and Solicitor Cecil Kelly Jackson, of Sumter, for Respondent.

PER CURIAM:  Appellant Jermaine Harris was convicted of murder, assault and battery with intent to kill, armed robbery, and possession of a weapon during a crime of violence in connection with the robbery of a convenience store that left one of the store’s owners dead and the other injured.  He appeals, asserting error in the trial court’s exclusion of extrinsic impeachment evidence and in its refusal to charge the jury on mere knowledge. We affirm.

FACTS

Around 11:00 p.m. on December 21, 1999, Perry Loyd and his wife were closing up the B & D convenience store they owned.  Mrs. Loyd waited in their truck while Mr. Loyd locked the store’s door.  As he locked the door, an individual holding a gun surprised him and told Mr. Loyd to “give it up.”  The individual then fired two shots.  Mr. Loyd backed away from the storefront and pulled out his gun.  A second individual then moved toward Mr. Loyd, stumbled, and fired his gun at Mr. Loyd.  A third individual then came around the side of the store, raised his gun, and fired two shots at Mr. Loyd, hitting him directly below the knee.  Mr. Loyd was shot a total of six times from three different guns.  Mrs. Loyd died from a gunshot wound to the head.

Mr. Loyd identified Rashaun Brooks as the first shooter, Paris McLeod as the second shooter, and Harris as the third shooter.  All three defendants were arrested shortly after the robbery upon Mr. Loyd’s positive identification. 

At the residence where the three defendants were arrested, the police also arrested Leroy Porter on separate and unrelated charges.  Porter approached the investigating officers after he was arrested.  As a result of the conversation, the officers went to Young Street in an attempt to locate the guns used in the robbery.  After the first attempt failed, Officer Gardner asked Porter to wear a hidden microphone and record a conversation with Rashaun Brooks to get a lead on the location of the guns.  After reviewing the recorded conversation, the police located a Mack 90 rifle that was positively connected to the shells recovered from the scene.

At trial, Officer Gardner was asked on cross-examination whether he previously stated that he had reached an agreement with Porter.  Gardner denied having made such a statement.  The trial attorney representing Paris McLeod then sought to introduce the testimony of John Davis to show that Gardner, in fact, previously stated that a deal had been reached with Porter.  The trial court sustained the solicitor’s objection that the testimony was improper impeachment testimony.  All three defendants joined in the proposed impeachment proffer. 

After hearing the proposed jury instructions, the defense argued the trial court should charge that mere knowledge, in addition to mere presence and mere association, was also insufficient to justify a conviction.  The court denied the motion, and charged the jury on mere presence and association, but not mere knowledge.  The jury found Harris guilty, and he was sentenced to thirty years for murder, seven years consecutive for assault and battery with intent to kill, five years concurrent for armed robbery, and five years concurrent for possession of a weapon during a crime of violence.  This appeal follows.

ISSUES

1.  Did the trial court err in refusing to allow extrinsic impeachment evidence about whether an agreement had been entered into with Leroy Porter? 

2.  Did the trial court err in refusing to instruct the jury that mere knowledge was insufficient to establish guilt? 

LAW/ANALYSIS

Impeachment Evidence

Harris asserts the trial court erred in refusing to admit extrinsic evidence contradicting the testimony of one of the State’s witnesses.  We disagree. 

Rule 613(b), SCRE, provides, in part:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is advised of the substance of the statement, the time and place it was allegedly made, and the person to whom it was made, and is given the opportunity to explain or deny the statement. If a witness does not admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible.

Accordingly, “[e]very witness under cross-examination may be asked whether he has made any former statements relative to the subject matter of the action and inconsistent with his present testimony.”  Aakjer v. Spagnoli, 291 S.C. 165, 170, 352 S.E.2d 503, 507 (Ct. App. 1987).  In order to contradict a witness by introducing a prior statement, a foundation must be laid putting the witness on notice.  McMillan v. Ridges, 229 S.C. 76, 79-80, 91 S.E.2d 883, 884 (1956).  This notice requirement is “met when the cross-examiner advises the witness of the substance of the prior statement,” the time and place of the statement, and the person to whom the statement was made.  State v. Galloway, 263 S.C. 585, 591, 211 S.E.2d 885, 888 (1975).  The standard of review for the admissibility of evidence limits reversal by this court to situations amounting to an abuse of discretion.  State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001). 

In this case, Harris’s co-defendant sought to contradict Officer Gardner’s denial that Gardner and Leroy Porter made an agreement.  The record indicates defense counsel alleged the conversation occurred in the solicitor’s office, but the proffered testimony suggests the location was elsewhere.  Furthermore, defense counsel could only pinpoint the alleged statement to being “during the course of the investigation.”  Reviewing the admissibility of this evidence under the abuse of discretion standard, we cannot conclude that the trial court erred in excluding this evidence where the prerequisites of the notice requirement in Rule 613(b), SCRE, were not satisfied.

Mere Knowledge Instruction

Harris asserts the trial court erred in refusing to include a jury charge that a defendant’s mere knowledge that a crime was going to occur is insufficient to constitute guilt.  After hearing the trial court’s proposed jury instructions, the defense argued the court should charge that mere knowledge, in addition to mere presence and mere association, was also insufficient to justify a conviction.  The court denied the motion. 

The evidence presented at trial determines the law with which the jury should be charged.  Although a trial court “commits reversible error when it fails to give a requested charge on an issue raised by the indictment and evidence presented,” the court should charge the jury with only the law applicable to the case.  State v. Lee, 298 S.C. 362, 364, 380 S.E.2d 834, 835-36 (1989).  Superfluous and inapplicable instructions should be meticulously avoided, for the purpose of jury instructions is to enlighten the jury; redundant instructions and those not in conformance with the facts of a case only operate to imbue unwarranted confusion in the minds of jurors.  State v. Fair, 209 S.C. 439, 445, 40 S.E.2d 634, 637 (1946); see also State v. Franklin, 299 S.C. 133, 382 S.E.2d 911 (1989).

Although Harris’s proposed charge that mere knowledge a crime is going to be committed does not, in and of itself, establish guilt is a correct statement of law, an additional instruction to that affect would be of no particular relevance to this case.  In State v. Collins, 266 S.C. 566, 570, 225 S.E.2d 189, 192 (1976), the mere knowledge charge was necessitated by the fact that there was evidence that the defendant could not have been the principal to the armed robbery because he was in jail at the time the store was robbed.  In this case, there is evidence of Harris’s presence at the scene.  In addition to the testimony that Harris had prior knowledge that a crime was going to be committed against the Loyds, Mr. Loyd’s testimony placed Harris at the scene as one of the individuals who shot him.  There is no indication anywhere in the record of the impossibility of Harris’s participation or that he was not present at the scene.  The trial court acted appropriately in denying the request to charge on mere knowledge.

CONCLUSION

For the foregoing reasons, Harris’s convictions are

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concur.