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2009-UP-139 - State v. Washington

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Johnny Washington, Appellant.


Appeal From Richland County
Thomas W. Cooper Jr., Circuit Court Judge


Unpublished Opinion No. 2009-UP-139
Submitted January 2, 2009 – Filed March 10, 2009 


AFFIRMED


Chief Appellate Defender Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport; and Solicitor Warren B. Giese, all of Columbia, for Respondent.

PER CURIAM: Johnny Washington appeals from his convictions for armed robbery (two counts) and assault with the intent to kill.  Washington asserts the circuit court erred by making an improper "Golden Rule" argument that asked the jurors to view themselves as victims of the crimes for which Washington was on trial.  Our review of the court's jury instructions indicates that the examples the court utilized to distinguish the offenses of larceny, robbery, and armed robbery were general in nature and were factually unrelated to the facts in this case.  Moreover, these examples were abstract and did not ask jurors to consider the evidence from the victim's perspective.  In fact, the circuit court gave the directions in the first person.  While the circuit court's instructions did not violate the "Golden Rule" argument, in our view, the better practice would be for the judge to not place himself, or the jury, in the hypothetical being used to explain the law.

The circuit court did not indicate its view of the facts in this case or make any comment that would indicate its opinion regarding Washington's guilt or innocence.   Rather, the court emphasized that the jury must presume Washington to be innocent and explained it was the State's burden to prove each element of the alleged offense, beyond a reasonable doubt, before the jury could find Washington guilty.  See Daves v. Cleary, 355 S.C. 216, 224, 584 S.E.2d 423, 427 (Ct. App. 2003) (internal citations omitted) ("When reviewing a jury charge for alleged error, an appellate court must consider the charge as a whole in light of the evidence and issues presented at trial.  If the charge is reasonably free from error, isolated portions which might be misleading do not constitute reversible error.  A jury charge is correct if it contains the correct definition and adequately charges the law.  The substance of the law is what must be charged, not any particular verbiage."). 

Therefore, the circuit court's order is

AFFIRMED.[1]

WILLIAMS, PIEPER, and GEATHERS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.