State v. Lemire

753 S.E.2d 247, 406 S.C. 558, 2013 WL 5634197, 2013 S.C. App. LEXIS 243

• Court: Court of Appeals of South Carolina
• Decided: October 16, 2013
• Docket: Appellate Case No. 2009-143752; No. 5177
• Status: Published

Opinions

THOMAS, J.

Leo David Lemire appeals his convictions for second-degree lynching, conspiracy, and pointing and presenting a firearm. We affirm.

FACTS AND PROCEDURAL HISTORY

Lemire’s sister, Kerriann Larmand, owned and operated a locksmith franchise known as Pop-A-Lock, which provided roadside assistance and locksmith services to residential, commercial, and automotive customers. On April 30, 2009, Mrs. Larmand and her husband, co-defendant Francis Larmand (Larmand), became suspicious that Pop-A-Lock service calls were being intercepted, and they set up a “mystery shopper call” in an attempt to identify the culprit.¹ Lemire accompanied Larmand to the location where service was requested, but when no one responded, the two drove to the home of Ryan Lochbaum, a former Pop-A-Lock employee who was terminated for misconduct the previous October. Larmand testified that he drove to Lochbaum’s house to see if Lochbaum had a Pop-A-Lock magnet on his car or if any Pop-A-Lock employees were at his house.

Upon arriving at Lochbaum’s home, Larmand exited his truck, leaving Lemire inside, and found Lochbaum socializing with neighbors in the driveway. After a heated discussion with Lochbaum, Larmand began to return to his truck. Lochbaum followed Larmand until he saw that Lemire was now outside the truck and walking towards him with a large handgun. Lochbaum then attempted to disarm Lemire, and a struggle ensued among Lochbaum, Lemire, and Larmand. After some neighbors joined the scuffle, Lochbaum was able to wrestle away the gun. Larmand and Lemire subsequently fled the scene. The police stopped Larmand’s truck later that night and arrested Lemire for pointing and presenting a firearm. Larmand was arrested the following day.

Lemire was indicted for criminal conspiracy for the purpose of committing the crime[s] of lynching and/or pointing or presenting a firearm, second-degree lynching, and pointing and presenting a firearm.² Larmand was charged with the same offenses, and the two were tried together.

During trial, the court charged the jury in part, “It is permissible to infer that all persons present as members of a mob when an act of violence is committed have aided and abetted the crime and are actually guilty as principals.” Le-mire objected, arguing the permissive inference in the charge amounted to improper burden shifting. The trial court overruled Lemire’s objection.

After over an hour of deliberation, the jury sent the trial court a note asking, “If we think one is guilty of a charge, do we have to automatically vote that the other party is also guilty of the charge?” In response, the trial court responded by recharging the jury on the law of second-degree lynching, pointing and presenting a firearm, and criminal conspiracy. Approximately two and one half hours later, the jury sent a second note inquiring, “Not close on verdict ... Can we have a copy printout of the statute of the three charges?” Rather than provide a printed copy of the statutes for the respective charges, the trial court gave the jury a written copy of the entire jury charge. Lemire objected, arguing the physical copy of the charge could allow a single juror to “use the written charge to cite and to overcome what the jury has heard in their minds.” The trial court overruled Lemire’s objection, summoned the foreperson to the courtroom, and stated, “Madam foreperson, we have had [sic] printed out for the jury of [sic] the three charges. What I am going to do is send you back the charge that I have read.” After further deliberation, the jury convicted both Lemire and Larmand of all charges. Lemire appealed.³

ISSUES

I. Did the trial court err in submitting its entire written charge to the jury?

II. Was Lemire entitled to directed verdicts on the charges of second-degree lynching and conspiracy?

III. Did the trial court err in charging the jurors that they could infer all persons present as members of a mob at the time the act of violence is committed are guilty as principals?

STANDARD OF REVIEW

“In criminal cases an appellate court sits to review errors of law only.” State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). “An appellate court will not reverse the trial court’s decision regarding jury instructions unless the trial court abused its discretion.” Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). “An abuse of discretion occurs when the trial court’s ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support.” Id.

LAW/ANALYSIS

I. Submission of the Written Charge to the Jury

On appeal, Lemire argues the trial court’s decision to send the entire charge in written form to the jury during deliberation was in error because (1) the jury did not request the entire charge but only the statutes pertaining to the charges, (2) the foreperson was given only a single copy of the charge while the remaining jurors remained sequestered in the jury room, (3) the remaining jurors were neither instructed about their rights to read the instructions in their entirety nor admonished not to take portions of the charge out of context, and (4) there was an increased likelihood of prejudice because the written charge was provided when the jurors were struggling to reach a verdict. We disagree.

A. Jury Only Requested the Statutes

“A trial court may, in its discretion, submit its instructions on the law to the jury in writing.” State v. Turner, 373 S.C. 121, 129, 644 S.E.2d 693, 697 (2007). Furthermore, a party disputing the submission of the written charge must show prejudice to obtain relief on this ground. Id. A trial court should use this practice sparingly and only when it will aid the jury and not prejudice the defendant. State v. Covert, 382 S.C. 205, 210, 675 S.E.2d 740, 743 (2009). In any event, “[i]t is never appropriate ... to give only part of the charge to the jury.” Id. We hold the trial court acted within its discretion in sending a written copy of the entire charge to the jury during its deliberation.

Here, pursuant to the prohibition in Covert, the trial court was not at liberty to provide the jury with written copies of only selected portions of its instructions.⁴ The trial court could either recite the requested portions to the jury or, as was done here, send a written copy of the entire charge to the jury. At trial, Lemire never advocated that the trial court should reinstruct the jury verbally on the requested written statutes. Thus, the court did not abuse its discretion when it simply chose the other valid alternative as permitted by Covert. Recognizing that trial courts must exercise restraint in employing this practice, we nevertheless hold its use here was proper, especially considering the trial court had already re-charged the jurors orally on the relevant statutes when they made their first inquiry during the deliberation. See 75A Am.Jur.2d Trial § 978 (2007) (observing that a written copy of the court’s charge can be provided to the jurors provided the presiding judge has first read the instructions to them).

B. Single Copy of the Charge Given to the Foreperson

We further hold Lemire has failed to establish reversible error from the trial court’s decisions both to supply the jury with only one copy of the written charge and to give that copy to the foreperson for delivery to the jury room. First, Lemire did not request the court provide a separate copy for each juror. Furthermore, we have found no authority, nor has Lemire cited authority, for the proposition that it is error for a trial court to furnish a single copy of its written instructions to the jury during deliberation.⁵

Additionally, there is no discussion in the record between the trial court and Lemire concerning the trial court’s decision to summon only the foreperson to receive the written jury instructions. Because Lemire never objected at trial to the summoning of the foreperson only and never requested the entire jury be present to receive the written charge, this argument is not preserved for appellate review. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) (“A party may not argue one ground at trial and an alternate ground on appeal.”); see also Kennedy v. S.C. Retirement Sys., 349 S.C. 531, 532-33, 564 S.E.2d 322, 323 (2001) (“ ‘Preserving issues for appellate review is a fundamental component of appellate practice. South Carolina appellate courts do not recognize the plain error rule.’ ” (quoting Jean H. Toal, Shahin Vafai & Robert Muckenfuss, Appellate Practice in South Carolina 55 (1999))).6

Setting aside the rules of preservation, further, we find Lemire was not prejudiced by the court furnishing the foreperson with a single copy of the charge. Lemire argues in his brief that the prejudice is “readily apparent as the record reflects that the jury sent out a note that said ‘Reached a verdict on three charges, deadlocked on the remaining.’ Obviously the jury has not carefully read the jury instructions or had taken some of the instructions out of context.” We do not agree that the note evidences prejudice. We fail to see how the note is indicative that jury confusion was caused by the trial court’s instructions. A number of explanations could exist for the wording of this note. To assume that the note is a sign of prejudice, as Lemire argues, is speculative. See Green v. State, 351 S.C. 184, 196, 569 S.E.2d 318, 324 (2002) (refusing to speculate what foreman meant when he related to the trial court the jury had reached a verdict “reluctantly” and holding this statement did not prove defendant was prejudiced).

C. Oral Instructions Concerning the Written Jury Charge

Lemire further contends that since a single written copy of the charge was provided to the jury during its deliberation, all the jurors should be instructed about their right to read the entire charge and be admonished not to take any portions out of context. Lemire’s entire argument concerning the charge includes the following:

Your honor, the only hesitation that I have and the objection that I would make for the record is that not knowing the dynamic of the jury, and there being one copy of the charge, I would hesitate a juror or a group of jurors being able to try and use the written charge to cite and to overcome what the jury [sic] has heard in their minds. But I understand the court’s position. And I would just object to the written charge as such going back to the jury ... To pick and choose and pointing different sections of the charge as opposed to other sections. If the other jurors did not wish to read the whole charge. It’s about twenty-two pages, twenty-one pages. And that’s the reason that I would have, that there is the possibility that there might be some jurors who would emphasize certain sections of that and point to others and see if there’s something else in the charge. And they may remember things differently.

Nowhere in his argument concerning the written jury charge did Lemire request the trial court instruct the jury in any manner. Therefore, any error predicated on the trial court’s failure to instruct the jury regarding the manner in which the jury should use the written charge is not preserved for appellate review. See State v. Ford, 334 S.C. 444, 454, 513 S.E.2d 385, 390 (Ct.App.1999) (“When a charge is inadequate as given, a party must request further instructions or object on grounds of incompleteness to preserve the issue for review.”).

Lemire failed to establish preserved error arising from the trial court’s failure to instruct the jury about the written charge. Nonetheless, we address prejudice to respond to the dissent’s argument. The dissent contends error arose when the trial court did not instruct the jury to refrain from “picking and choosing” from the written charge. The dissent finds prejudice in the jury’s quick deliberation, claiming this suggests that each juror did not consider the charges as a whole.⁷ No other prejudice is identified by the dissent beyond speculation about the happenings within the jury room. There is a general rule against review of internal jury deliberation. See State v. Franklin, 341 S.C. 555, 562, 534 S.E.2d 716, 720 (Ct.App.2000). We recognize that the length of the jury’s deliberation could be attributable to a variety of factors, and we decline to speculate about what occurred within the jury room.⁸

Moreover, the dissent assumes that by failing to warn the jury not to “pick and choose” from the jury charge, the jury wholly ignored the rest of the jury charge and simply convicted Lemire based on the requested charges. The dissent notes such a worry was predicated on the trial court’s prior failure to recharge the jury on the hand of one is the hand of all while recharging the jury on lynching. We question the appropriateness of considering this argument in light of the fact that Lemire himself argued against the State’s request for an additional hand of one is the hand of all instruction and prevailed. See State v. Stroman, 281 S.C. 508, 514, 316 S.E.2d 395, 399 (1984) (noting a party cannot complain of error which his own conduct induced). There is no evidence in the record indicating the jury neglected any portion of the charge. Rather, the record indicates the jury deliberated for almost an additional hour after receiving the written instructions. Further, after receiving an Allen⁹ charge, the jury continued deliberation for another forty minutes before arriving at a verdict. In the Allen charge, the trial court instructed the jury to “lay aside all outside matters and reexamine the questions before you based on the law and the evidence in this case.” The law and evidence in the case would include the hand of one is the hand of all charge and its limitations. Thus, were we to set aside this court’s preservation rules and find error, we find no prejudice.

D. Prejudice Due to Lengthy Jury Deliberations

Finally, Lemire maintains the likelihood he would be prejudiced by the trial court’s decision to give the written charge to the jury was enhanced because the jury was struggling to reach a verdict. Lemire never argued to the trial court that the likelihood of prejudice resulting from its decision concerning the jury charge would be greater due to the jury’s difficulties in reaching a verdict. Thus, this argument is not preserved for review. See Dunbar, 356 S.C. at 142, 587 (noting an issue must be raised to and ruled upon by the trial court to be preserved for appellate review).

This argument also fails on the merits, as such a practice of providing the written charge to the jury has not been considered prejudicial as long as the trial court has already given the charge orally. See Turner, 373 S.C. at 129, 644 S.E.2d at 697 (“A trial court may, in its discretion, submit its instructions on the law to the jury in writing.”); see also 75A Am.Jur.2d Trial § 978 (2007) (noting the general recognition that when a jury requests written instructions, “no good reason exists to deny such a request because giving the instructions might avoid confusion ... as to the contents of the instructions” and when a written copy of a jury charge is provided during deliberations, “the proper practice would be for a judge to first read the instructions to the panel, as opposed to just merely handing the written instructions to them”); id. (acknowledging “a few cases which hold that a trial court commits error if it sends its written instructions with the retiring jury” but further noting that “in this latter group of cases, the courts have ruled that such error was not of sufficient magnitude to warrant reversing a case which was otherwise properly tried”). The trial court demonstrated caution in sending the written instructions to the jury room, as evidenced in the fact that this measure was taken only when it became clear the jurors were still unable to reach a verdict despite having received additional verbal instructions and having engaged in prolonged deliberations. See Covert, 382 S.C. at 210, 675 S.E.2d at 743 (2009) (finding it is within the trial court’s discretion to submit its instructions on the law to the jury in writing, but this practice should be used sparingly and only when it will aid the jury and not prejudice the defendant). Accordingly, we hold that providing the jury with a written copy of the jury charge did not result in prejudice to Lemire.

II. Directed Verdicts

Lemire argues he was entitled to directed verdicts on the lynching and conspiracy charges. An appellate court reviews the denial of a directed verdict by viewing the evidence and all reasonable inferences in the light most favorable to the State. State v. Weston, 367 S.C. 279, 292, 625 S.E.2d (2006). “If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, [an appellate court] must find the case was properly submitted to the jury.” Id. at 293-93, 625 S.E.2d at 648. The trial court may not consider the weight of the evidence. Id. at 292, 625 S.E.2d at 648.

At trial, however, only Lemire’s co-defendant, Larmand, moved for directed verdicts on the lynching and conspiracy charges. Lemire neither requested to join in the motion nor moved for similar relief; therefore, Lemire has not preserved these arguments for review. See State v. Ward, 374 S.C. 606, 612, 649 S.E.2d 145, 148 (Ct.App.2007) (ruling the appellant could not bootstrap an issue for appeal through the objection made by a co-defendant) (citing Tupper v. Dorchester Cnty., 326 S.C. 318, 324 n. 3, 487 S.E.2d 187, 190 n. 3 (1997)).

III. Jury Charge on Inference

Lemire contends the trial court erred in charging the jurors that they could infer that all persons present as members of a mob when an act of violence is committed are guilty as principals. Lemire argues this instruction, which was taken directly from section 16-3-240 of the South Carolina Code (2003), unconstitutionally shifted the burden of proof, was redundant and confusing in view of other parts of the charge, and amounted to a charge on the facts. We find no error.¹⁰

Generally, the trial judge is required to charge only the current and correct law of South Carolina. Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d 462, 472-73 (2004); State v. Brown, 362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct.App.2004). A jury charge is correct if it contains the correct definition of the law when read as a whole. Sheppard, 357 S.C. at 665, 594 S.E.2d at 473. Jury instructions should be considered as a whole, and if as a whole they are free from error, any isolated portions which may be misleading do not constitute reversible error. State v. Aleksey, 343 S.C. 20, 27, 538 S.E.2d 248, 251 (2000). The standard for review of an ambiguous jury instruction is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. Id. When a charge is inadequate as given, a party must request further instructions or object on grounds of incompleteness to preserve the issue for review. Ford, 334 S.C. at 454, 513 S.E.2d at 390.

Lemire relies on State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009), to support his position that the charge unconstitutionally shifted the burden of proof. Belcher, however, concerned a permissive inference of malice, which is not an element of lynching. Furthermore, the trial court instructed the jurors they would first have to find a mob had been formed and Lemire was present as a member of the mob when the victim was attacked before they could find Lemire guilty as a principal as well as an accessory. As to Lemire’s arguments that the charge was redundant, confusing, and tantamount to a charge on the facts, these concerns were neither raised to nor ruled upon by the trial court and are therefore not preserved for appeal. See State v. McKnight, 352 S.C. 635, 646, 576 S.E.2d 168, 173-74 (2003) (holding an argument not raised to and not ruled on by the trial court was unpreserved for appellate review). Accordingly, the trial court properly overruled Lemire’s objection to the jury charge.

CONCLUSION

We hold the trial court acted within its discretion in submitting its entire written charge to the jury when the jury requested copies of the statutes under which Lemire was charged. We further hold Lemire’s argument that he was entitled to directed verdicts on the lynching and conspiracy charges are not preserved for appellate review. Additionally, the jury charge on inference was a correct interpretation of the applicable statute in effect at the time of the incident and trial. We decline to address Lemire’s argument that the charge was redundant, confusing, and amounted to a charge on the facts because Lemire failed to properly raise this issue below. Based on the foregoing, the trial court’s decision is

AFFIRMED.

WILLIAMS, J., concurs.

1 . A "mystery shopper call" involves reporting a bogus service request to central dispatch and waiting at the location where service was requested to see if an individual other than a Pop-A-Lock employee arrives to fill the request.

2 . Lemire was also indicted for assault with intent to kill, but the State elected not to proceed on this charge.

3 . Larmand also appealed his convictions, and the two appeals were initially heard together by this court sitting en banc. A separate opinion was issued on Larmand's appeal. See State v. Larmand, 402 S.C. 184, 739 S.E.2d 898 (2013). Subsequently, the court voted to return the case to the original panel for disposition finding en banc review was improvidently granted.

4 . The Supreme Court of South Carolina decided State v. Covert, 382 S.C. 205, 675 S.E.2d 740 (2009), on April 13, 2009, and Lemire’s trial took place during October of that same year.

5 . In the standard charges recommended by the South Carolina Supreme Court Staff Attorneys Office, the charge for giving written charges to the jury references a single copy: "I will give you a copy of these instructions in [written] ... form.” The jury charges recommended by the South Carolina Supreme Court Staff Attorneys Office are available on the Charleston County Bar Association website at http://www.charlestonbar.org/CM/ArchivedNewsletters/GSInstructions 2.doc (last visited September 23, 2013). These standard charges also note the foreperson’s duty to preside in the jury room and serve as the juiy's spokesperson in court. Id. We do note, however, that these standard charges are not endorsed by the Supreme Court of South Carolina. Instead, they are simply suggestions compiled by the Supreme Court Staff Attorneys Office. A disclaimer before the list of charges reads "These jury charges are merely suggestions. They are not required and have not been sanctioned or approved by the South Carolina Supreme Court.” Id.

6 . We are aware that had all the jurors been summoned into the courtroom with instructions given to each, these matters would probably not be before us now. However, summoning all of the jurors or giving further jury instructions was not requested. To find that Lemire was somehow prejudiced due to something the foreperson or jury may or may not have done requires this court to speculate upon the happenings in the jury room. Nevertheless, guidelines and procedures as to how to submit a written charge to the jury would benefit the bench and bar in the future.

7 . We note that Lemire never argued at trial or in his briefs that the quickness of the jury’s deliberation evidenced prejudice. Instead, Le-mire argued in his brief that prejudice was apparent from the jury's note stating it had reached a verdict on three charges and were deadlocked on the remaining. As previously noted, we do not agree that this note evidences prejudice.

8 . We also note that the brevity of a jury’s deliberation is not a ground for the reversal of a criminal conviction. See State v. Holland, 261 S.C. 488, 498-99, 201 S.E.2d 118, 123-24 (1973); State v. Dewitt, 254 S.C. , 176 S.E.2d 143, 147 (1970); State v. Chandler, 126 S.C. 149, 154, 119 S.E. 774, 776 (1923).

9 . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

10 . Section 16-3-240 was in effect at the time of the incident and at the time of Lemire's trial, but it was repealed in 2010.