Today’s (12/17/2014) Opinions from the South Carolina Court of Appeals

scctappealsThe South Carolina Court of Appeals released two opinions today:  State v. Smith and Furr v. Horry County Zoning Board.

In State v. Smith, the court affirmed the lower court’s conviction of Smith for “…criminal sexual conduct with a minor….”  Smith appealed his conviction, arguing that the trial court erred when:

“1) admitting testimony of the forensic interviewer regarding Smith’s identify;

2)  allowing the State’s expert to testify regarding the relationship between the length of delay in [the]disclosure of sexual abuse and the credibility of the disclosure; and

3)  permitting the victim to refresh his recollection by reading his testimony from Smith’s previous trial.”

Smith was accused and convicted of sexually molesting his children when the children were between the ages of six and eight.  Thus the abuse took place between 1999 through 2000.  The assaults were not reported to law enforcement until 2003 after the children left their mother’s home to go live with their aunt.

Noting that the appellate court “…sits to review errors of law only and is bound by the trial court’s findings unless they are clearly erroneous….” the majority of the Appeals Court affirmed Smith’s conviction.  The Court examined South Carolina Rule of Evidence 801(d)(1), concluding that it governed “…the testimony of a witness regarding a victim’s out-of-court statement….”  The court then explained that a statement is not hearsay if “…[t]he declarant testifies at trial…and is subject to cross-examination concerning the statement and the statement is…(D) consistent with the declarant’s testimony in a criminal sexual conduct case or attempted criminal sexual conduct case where the declarant is the alleged victim and the statement is limited to the time and place of the incident.”

The court acknowledged that the State committed an error when asking the expert witness whether the delay in disclosure eroded the credibility of the victim.  The Court concluded that this did not constitute reversible error.

Lastly the court found that no “abuse of discretion by the trial court occurred in permitting the victim to refresh his recollection by reviewing the transcript from the previous file.”

A dissent was filed.

Furr v. Horry County Zoning Board of Appeals involved the Zoning Board’s appeal from the circuit court’s decision.

Furred lived in a subdivision known as Wild Horse.  Mercy Care Hospice proposed to build a fourteen bed hospice in an area adjacent to the Wild Horse suburb.  The facility would require the use of the subdivision’s road.  Horry County’s zoning ordinances were silent regarding the location of  hospices.  After reviewing the matter, the Horry County Zoning Authority determined that the zoning ordinances would permit the erection of a hospice facility in this location.

Furr objected, insisting that the S.C. Code Ann. Section 44-7-130(12) meant that the hospice was actually a hospital that could not be located adjacent to a subdivision. Furr’s appeal to the Zoning Board resulted in the Board’s upholding the Zoning Administrator’s decision.

Furr then appealed to the circuit court.  The court then reversed the Zoning Board’s decision, concluding that the Board’s “…interpretation of the zoning ordinances was incorrect as a matter of law.” The court agreed that a hospice was like a hospital.  The Zoning Board then appealed the circuit court’s decision to the appellate court.

According to the South Carolina Supreme Court, the standard of review view in zoning appeals is “…that a court will not substitute its judgment for the judgment of the board. The court may not feel that the decision of the board was the best that could have been rendered under the circumstances.  It may thoroughly disagree with the reasoning by which the board reached its decision.  It may feel that the decision of the board was a substandard piece of logic and thinking.  None the less, the court will not set aside the board’s view of the matter  just to inject its own ideas into the picture of things.” The court further elaborated that “…[a] zoning board’s decision will be overturned if it is ‘arbitrary, capricious, has no reasonable relation to a lawful purpose, or if the board  has abused its discretion.”  Instead it is the zoning boards rather than the courts who are responsible for the planning and development of local communities.

The Court of Appeals then reversed the circuit court, holding that “…[the] Horry County ordinances do not specifically permit or prohibit a hospice in a CFA zone.  Therefore, the parties asked the Board to determined whether the MCH facility was more comparable to a nursing home or group housing, permitted uses, or a hospital, a prohibited use.  That required a faculty inquiry into the type of care, staffing, and activity that would be involved at the MCH facility along with consideration of the relevant ordinances.  Based on that information and analysis, the Board determined that the MCH facility fell within the permitted uses and approved construction in the CFA Zone.”

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Justice is Done: George Stinney Jr.’s 70 Year Old Conviction is Vacated

23EXECUTE2-articleLargeIn 2013, the siblings of electrocuted defendant, George Stinney, Jr., filed a Motion for a New Trial and a Petition for a Writ of Coram NobisBishop Charles Stinney, Catherine Stinney Robinson, and Amie Ruffner retained South Carolina attorneys Matt Burgess, Ray Chandler, Steve McKenzie, and Charleston School of Law Professor, Miller Shealy, to set aside the 70-year-old conviction and execution of George Stinney Jr., in Alcolu, South Carolina in 1944.

Stinney, a fourteen year old minor, was executed in 1944 for the murders of Betty Jane Binnicke and Mary Emma Thames.  Stinney’s siblings argued that his conviction was based on numerous and serious errors that denied Stinney fundamental due process.  According to the Stinney siblings, no other remedy, other than a Writ of Coram Nobis, existed that could remedy the wrongs committed by the state of South Carolina in 1944.

The State of South Carolina disagreed, arguing that no relief should have been granted to Stinney because:

1)  the Stinney siblings lacked standing to bring this petition;

2)  the post conviction relief statute in South Carolina eliminated the use of other writs, such as Coram Nobis;

3)  the doctrine of laches was applicable; and

4)  the South Carolina Supreme Court rather than the Circuit Court was the appropriate jurisdictional venue for the case.

Judge Carmen Mullen  found fundamental constitutional violations of due process occurred in 1944 and vacated the conviction and execution.  According to Mullen, “…law enforcement testified that a confession occurred…” yet “…no written confession exists in the record today.”  She noted that George Stinney was a fourteen year old African-American male who was tried by an all white jury who deliberated for only ten minutes in 1944.  Neither a case file nor a trial transcript from that long ago trial exists today.

Judge Mullen described the Writ of Coram Nobis as a “…holdover of old English law which has been infrequently used in this country.  The writ ‘was available at common law to correct errors of fact’ occurring in proceedings before the King’s Bench….At its inception, the writ was utilized in both civil and criminal cases and there was no time limitation for presenting the facts that affected the ‘validity and regularity of a previous judgment….[T]he writ ‘has had a continuous although limited use…in our states….”    Mullen further noted that “[c]oram nobis relief is appropriate only if no other remedy is available to the applicant.”  Lastly Judge Mullen stated that “[u]ltimately coram nobis is predicated on doing justice.”

After a review of the existing known facts and additional live testimony, Judge Mullen’s legal analysis concluded that George Stinney Jr. was subjected to “fundamental deprivations of due process.”  Miranda, custodial interrogations, coerced confessions, ineffective assistance of counsel, and the execution of a minor were all discussed as were violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments.  Judge Mullen announced that “…I find by a preponderance of the evidence standard, that a violation of Defendant’s procedural due process rights tainted his prosecution…[thus] the Court…grants relief in the form of a writ of coram nobis, ‘not on the grounds that the judgment against him was wrong on the merits, but that the courts have failed in a capital case to discharge their proper functions with due regard to the constitutional safeguards in the administration of justice.”  Because of this, Judge Mullen vacated the “Defendant’s conviction.”

See also New York Times, Post & Courier, The State

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A Tribute to Nancy P. Johnson, 1949-2014

nancypjohnson1Nancy P. Johnson ended her battle with ovarian cancer on Saturday, December 13th.  For me, she was a mentor, a former boss and teacher, a generous colleague,  a role model, a lady, and a gentle soul.  I first met Nancy at Clark Atlanta University where she taught Law Librarianship.  I was then fortunate to begin my career under her at Georgia State, first as an intern and later as the Public Services Librarian.   She built a small library into an impressive research facility that students, faculty, staff, local lawyers and librarians loved to use. She trained and influenced an entire generation of law librarians and law library directors.  She will be missed by many, particularly her family, but we are all richer for having known her.  Check out Dean Steve Kaminshine’s tribute to her here.


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Smile for the day

jimmykimmelExams end on Friday, and December holidays are just ahead.  As you finish your exams and look for relaxation, check out Jimmy Kimmel’s Pets Against People video, explaining exactly how our furry friends and family feel about those holiday costumes that we lavish upon them.  Enjoy!

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South Carolina Supreme Court Opinions Issued Today (12/10/2014)


South Carolina Dept. of Transportation v. Revels

Petitioners Revels and Poston prevailed in a condemnation action against the South Carolina Department of Transportation. Relying upon S.C. Code Ann. §§28-2-10 to 28-2-520, petitioners filed a request to be awarded attorneys’ fees in the amount of $28,233.33 based upon a contingency fee agreement with their attorneys.

The Circuit Court instead awarded $16,290.00, using an hourly rate via a lodestar calculation rather than the existing contingency fee agreement. An appeal to the Court of Appeal resulted in an affirmation for the Department of Transportation.

At issue was a dispute as to how the statute, §28-2-510(B)(1), should be construed. The language of the statute states that a litigant “…may recover reasonable litigation expenses…” with an application to the court. The “…application shall show that the landowner has prevailed, state the amount sought, and include an itemized statement from an attorney or expert witness representing or appearing at trial in behalf of the landowner stating the fee charged, the basis therefor, the actual time expended, and all actual expenses for which recovery is sought.” The court is given “discretion” to “reduce the amount to be awarded” or even to “deny an award.”

The South Carolina Supreme Court affirmed and reversed in part, remanding the decision to the circuit court, concluding that the court improperly construed and applied the statute. The Court held that “…a court is authorized to either award reasonable attorneys’ fees to a prevailing landowner or deny the award in its entirety depending on the circumstances surround the litigation. If the court determines that an award is warranted, it must then consider a constellation of factors in calculating the amount of the award. Initially, the court must consider the itemized statement submitted by the landowner’s attorney in support of the requested amount of litigation expenses. Once the court reviews this statement in conduction with the circumstances surrounding the litigation, it may then determine a reasonable award of attorneys’ fees.”

Kiawah Development v. South Carolina Department of Health & Environmental Control

Justice Hearn drafted the majority opinion in the above case while Chief Justice Toal filed a dissent.

Kiawah Development Partners requested a permit from DHEC to construct a bulkhead and revetment “…stretching 2,783 feet in length and 40 feet in width over the State’s tidelands, thereby permanently altering 111,320 square feet or 2.5 acres of pristine tidelands.” DHEC denied the request, concluding that it would violate S.C. Code Ann. §48-39-150(A)(6) and S.C. Regulation 30-11. Kiawah then requested a “final review conference before the DHEC Board” which was denied.

Kiawah next requested a hearing before an Administrative Law Court (ALC). The ALC ruled in favor of Kiawah, concluding that the intended structure would not violate any of the South Carolina statutory provisions or regulations. An appeal to the South Carolina Supreme Court then issued.

The majority opinion framed the issues presented as:

  1. Did the ALC err in finding the bulkhead and revetment would not contravene the Coastal Zone Management Act?
  2. Did the ALC err in finding the bulkhead and revetment would not contravene regulation 30-11?
  3.  Did the ALC err in finding the bulkhead and revetment would not contravene regulation 30-12(c)?

Concluding that the Administrative Law Court had erred in its findings and “committed several errors of law,” the majority reversed. As part of their analysis, the majority relied on the deference doctrine which “…provides that where an agency charged with administering a statute or regulation has interpreted the statute or regulation, courts, including the ALC, will defer to the agency’s interpretation absent compelling reasons.”

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Library Hours & December Holiday Break

happyholidaysThe Sol Blatt Jr. Law Library, along with the Charleston School of Law, will close for the December holiday break at noon on Tuesday, December 23rd.  It will re-open at 7:30 a.m. on Monday, January 5th, 2015 at 7:30 a.m.  Have a wonderful December break and travel safely!

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Law Review Commons

lawreviewcommonsLaw Review Commons, hosted by BePress, provides free access to over 200 law review titles from 69 law schools.  A list of law schools participating in the resource can be found here.  An Advanced Search feature exists that allows searching via field, i.e. title, author, institution, publication name or subject.  A Google type tool bar, known as the Simple Search,  is also available that will search both the fields listed above and the full text of items.  Once created and run, a search can also be saved and an Alert created if the researcher creates a free BePress account.

In addition to searching, researchers can also browse the site in several ways.  The researcher can browse by institution, law review title, a subject list and an index created subject list that further subdivides into authors and article titles.

According to information from the website, access to over 150,000 articles from 1852 onwards is provided.  At this point, materials are selective rather than comprehensive.

Researchers with an individual or institutional Expresso account can also use this site to submit articles to law reviews.

Check this excellent and free resource out here.

Hat Tip:  Robert Ambrogi


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