ON WRIT OF CERTIORARI
TO THE SOUTH CAROLINA COURT OF APPEALS
Opinion No. 3929
2000-GS-23-8605

TABLE OF CONTENTS ................................................................................................................ i

TABLE OF AUTHORITIES ........................................................................................................... ii

QUESTIONS PRESENTED FOR REVIEW ON CERTIORARI................................................. 1

STATEMENT OF THE CASE ...................................................................................................... 2

ARGUMENT

I..........................................................................................................................................................

Whether the Court of Appeals erred in affirming the granting of a motion for a new trial where the trial court abused its discretion in granting a motion for new trial after the conviction for murder based upon a comment by a witness that “I didn’t pass a polygraph” when the brief comment was not responsive to the prosecutor’s question, the trial court gave an immediate curative instruction to disregard the comment, the prosecution never referred to the comment or the polygraph again, the state never suggested that any other witness took or passed a polygraph, and the brief comment was never exploited by the State................................................................................................................................................. 15

CONCLUSION ................................................................................................................................ 25

FEDERAL CASES

Arnold v. Evatt, 113 F.3d 1352, 1363-64 (4th Cir. 1997)............................................................ 18

U.S. v. Brevard, 739 F.2d 180, 182 (4th Cir. 1984)............................................................... 18, 19

U.S. v. Smith, 565 F.2d 292 (4th Cir. 1977).................................................................................. 18

U.S. v. Tedder, 801 F.2d 1437, 1444 (4th Cir. 1986)............................................................ 18, 23

STATE CASES

Bruno v. State, 347 S.C. 446, 450, 556 S.E.2d 393, 395 (2001).................................. 17, 18, 22

Ellenburg v. State, 367 S.C. 66, 625 S.E.2d 224 (2006)............................................................. 21

State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999).................................................................. 17

State v. Jackson, 364 S.C. 329, 613 S.E.2d 374 (2005)............................................................ 18

State v. Johnson, 334 S.C. 78, 89, 512 S.E.2d 795, 801 (1999)............................ 17, 18, 20, 22

State v. Johnson (Rorey Jamar), 363 S.C. 184, 610 S.E.2d 305 (2005)............................... 2, 13

State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998).............................................................. 16, 17

State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000)........................................................ 19, 23

State v. Pressley, 290 S.C. 251, 252, 349 S.E.2d 403, 404 (1986)..................................... 17, 18

State v. Wright, 322 S.C. 253, 255, 471 S.E.2d 700, 701 (1996)................................................ 17

STATE RULES

SCACR, Rule 226................................................................................................................................ 2

SCRE, Rule 403 ................................................................................................................................ 17

SCRE, Rule 702 ................................................................................................................................ 17

I. Whether the Court of Appeals erred in affirming the granting of a motion for a new trial where the trial court abused its discretion in granting a motion for new trial after a conviction for murder based upon a comment by a witness that “I didn’t pass a polygraph” when the brief comment was not responsive to the prosecutor’s question, the trial court gave an immediate curative instruction to disregard the comment, the prosecution never referred to the comment or the polygraph again, the state did not suggest any other witnesses took or passed a polygraph, and the brief comment was not exploited by the state?

II. Whether any admission of evidence by a state witness that “they kind of made me feel like I was lying because I didn’t pass the polygraph test” was harmless error?

The Petitioner State of South Carolina made a petition for writ of certiorari pursuant to SCACR Rule 226 from the the decision of the panel of the South Carolina Court of Appeals on January 31, 2005 in State v. Rorey Jamar Johnson, Opinion No. 3939, 363 S.C. 184, 610 S.E.2d 305 (2005) and the subsequent unpublished denial of the timely petition for rehearing on March 17, 2005. This appeal by the State of South Carolina arose from the granting of a new trial from the murder conviction of Rorey Jamar Johnson on September 21, 2001 by the Honorable Larry R. Patterson, Circuit Court Judge. App.p. 314-322. Sept. 21, 2001 Tr. p. 7-13.

The Respondent, Rorey Jamar Johnson, was indicted in 2000 by the Court of General Sessions for Greenville County for murder. 00-GS-23-8605. App.p. 327-28. The charge involves the December 16, 1999 murder of Gregory W. Whitaker. Johnson was represented a trial by Clay Allen of the Greenville County Bar. The prosecution was represented by G. David Seay, Jr. of the Thirteenth Circuit Solicitor’s Office. On September 4, 2001, the case was called to trial. Johnson was present and represented by his counsel. The state and the defense presented testimony. On the same date, the jury returned a unanimous verdict of guilty of murder. App. 304, Tr. p. 329.

The case involved the death of Gregory W. Whitaker who was killed on December 16, 1999 by a gunshot wound to his upper left shoulder area after Johnson stepped up to the car where Whitaker was seated and shot him. Three witnesses; Crystal Marion, Alton Henderson, and Michael Jones were present at the time of the shooting.

The evidence revealed a 911 call was made during the early morning hours of December 16, 1999. App. p. 7-8. Crystal Marion approached Greenville Officer Tonya Evanina and told her she had heard a gunshot. App. p. 9. They traveled up the road to an area. The officer went up to a sports car with its engine running and an interior light on and saw a white male victim in the driver’s seat. App.p. 11. The victim in the car was subsequently pronounced dead at the scene. App. p. 12. Officer Evanina described Ms. Marion as scared, but not intoxicated. App. p. 17.

Crystal Marion testified that she was a prostitute and had seen the victim both that night and earlier that same date. App. p. 20. She had earlier purchased some drugs which she gave him that night. She stated she left Whitaker and then went to the Relax Inn where she saw Alton “Black “ Henderson.[1] She stated she had used some drugs that evening. She said she later rode in a vehicle with a young driver[2], Alton, and Rorey Johnson. App. p. 30-31. The car stopped and she said she told Alton to remain inside the car. She said she got out with Rorey. App. p. 32-33. She said they went to Whitaker’s car and found Whitaker alone in his car in the driver’s seat. App. p. 33. She said Whitaker was very intoxicated when she had seen him. She said she spoke to him and the victim got out on the driver’s side. App. p. 34-35. She described telling him that Johnson was going to sell him some “weed,” but Johnson then said he did not have any more left. Johnson then pulled out crack, which Whitaker rejected. Crystal said to him he was not going anywhere after Whitaker told them he did not have money. Whitaker had gotten back into the vehicle. She said Johnson got into the brown car. App. p. 36. She then left the area. Later, she saw Black and Michael in the brown car. He said she heard a gunshot when she was standing beside the brown car. App. p. 39. She then saw Johnson come running up with the pistol in his hand from behind Whitaker’s car. Crystal said she then jumped into the brown car. App. p. 39-40.

She said when Johnson got into the vehicle, she asked him if he did what she thought he did and Johnson told her to “shut up.” She said they then let her out of the car. App. p. 41-42. She described later stopping the two policemen who took her over to police headquarters. App. p. 43. She said she gave the police a statement at that time (between 5 and 6 a.m.), but it was not the truth. App. p. 43. She said she lied because she was looking out for “her people” and that Alton knew where her mother stayed and that since Johnson had already harmed an innocent person, she feared for her disabled parents safety. App. p. 44. She stated that she had admitted knowing Whitaker, but denied knowing Johnson. App. p. 44. She said she later gave police another statement based upon the truth. App. p. 44, ll. 7-17. Particularly, she stated:

App. p. 44, ll. 18-24. At this point, defense counsel entered an objection. App. p. 44, ll. 24-25.

Defense counsel Clay Allen requested a mistrial due to the witness volunteering that she did not pass a polygraph. He contended that the mere mention of as polygraph would suggest to the jury what she was saying now was true “like she had now passed a polygraph or something to that effect.” App. p. 45, ll. 5-12.

The prosecution asserted that although she mentioned it, no one was going to present any polygraph results and recommended that a cautionary charge be given to the jury. App. p. 45.

The defense asserted that the fact she had been tested may indicate to the jury that the others were also tested, as well as her, and passed on the testimony they are giving. He contended the instruction cannot remedy this inferred harm. App. p. 46.

The prosecution asserted the mere mention alone could be remedied by the instruction where the state will not argue she is more believable due to the polygraph and would refrain from mentioning it in the closing arguments. App. p. 46-47. The defense continued to stress it could not be remedied and urged a mistrial. App. p. 47-49.

The trial judge denied the motion for a mistrial and agreed to give a cautionary instruction. App. p. 49, ll. 4-9. However, the judge recognized that he would see how the facts unfolded as they proceeded in the trial. Id. After the jury instructions, deliberations began. The next day a guilty verdict was entered. App. p. 304.

Subsequent to the verdict, counsel Allen renewed his motion for a new trial upon his prior grounds, including a motion based upon a reference to a polygraph test by Crystal Marion, a state witness. App. p. 306, ll. 1-6. He also asserted that a new trial should be granted based upon a question to witness Norman Stearn, based upon what the defendant (Johnson) told him and the instructions on accomplice liability. App. p. 306-07.[3] The trial judge deferred sentencing until ruling on the motions. App. p. 307-08.

On September 21, 2001, Judge Patterson held a motion hearing on the motions for a new trial. At the hearing, the trial court granted the motion for a new trial. App. 314-322, September 21, 2001 Tr. p. 7-13. Particularly, the judge determined that witness Crystal Marion had acknowledged that she had given three statements and that the jury knew that she said she had not passed the polygraph test. App. p. 315, ll. 12-17. He stated this witness was the first witness and the court opined that when she testified that he did not know what effect it would have on the trial since she was the first witness. He stated the case boiled down to statements of the three witnesses.

The trial judge opined that he had to grant a new trial. App. p. 316, ll. 1-8. He noted that he did not seek to invade the province of the jury. However, he noted that the jury had inquired with a detailed question about whether the defendant could be charged as a principal if he was present at the scene when the question of accomplice liability had not been raised in the case. App. p. 316, ll. 9-20. He noted that this question suggested that the jury had talked about it and that he had then instructed them that it was not an issue in the case and that they should only consider that the state had charged him with shooting the victim with a pistol and killing him. App. p. 316, ll. 17-20.

Judge Patterson stated the testimony revealed two other males were also at the scene of the crime and had given statements they could be impeached with. App. p. 316, ll. 21-25. It was developed that the state had entered into a plea bargain with them to plead to accessory after the fact or a similar crime. App. p. 317, ll. 1-15.

Judge Patterson stated he was concerned about two collateral evidentiary factors. First, he stated that the murder happened in 1999, but there was an issue at trial whether there was a nine-millimeter pistol or revolver involved. The judge stated that he was shocked that the chief investigator had located a bullet in the dash, yet could not recall if the bullet was tested to determine its caliber. App. p. 317-18. Second, the judge stated that he was concerned about a male witness who testified that he heard in the jail that a black male had told him that he was going to blame the murder on someone else. App. p. 318, ll. 9-15. (See App. p. 232-34, 242-43). Judge Patterson noted that the prosecution, in its closing argument asserted that the witness never picked anyone out in a lineup or anything. App. p. 318, ll. 13-15. (See App. p. 269, ll. 3-9).

Judge Patterson noted that four people had given statements and that no one was very credible because of their inconsistent statements. App. p. 318, ll. 16-22. He criticized the prosecution and noted that the witness could not create a line-up when he was not taken and asked to point out who shot the person and was going to blame it on someone else. App. p. 319, ll. 2-11. Judge Patterson further stated that it was the other person at the scene that the Crystal Marion was afraid of. App.p. 319

Judge Patterson stated that then the “polygraph” matter then came up. He noted that unknown to the court at the time was that the defendant would not testify, which is his constitutional right, but there was the problem with the polygraph and the other people at the scene were allowed to plea in order to convict him. App. p. 320-21.

The State of South Carolina made a timely notice of appeal on September 24, 2001. In the Final Brief of Appellant, the State of South Carolina asserted the following question for the appellate court’s review:

Final Brief of Appellant, p.3. App.p. 336. The Respondent made a Final Brief of Appellant is which he asserted the following two issues presented:

App.p. 366. The State made a Reply brief which asserted as an additional issue on reply :

On January 31, 2005, the Court of Appeals affirmed the granting of the motion for new trial in State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998)Id.

The power of the court to declare a mistrial (and new trial) should be used with the greatest caution and only for plain and obvious causes. State v. Johnson, 334 S.C. 78, 89, 512 S.E.2d 795, 801 (1999). A mistrial should not be ordered in every case where incompetent evidence is received. Id.

This case was tried subsequent to the Supreme Court’s decision in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999), wherein the Court held that the admission of polygraph results would be analyzed under SCRE, Rule 702 and 403. Prior to that the law of South Carolina was that the law was that evidence of polygraph examinations were inadmissible. Bruno v. State, 347 S.C. 446, 450, 556 S.E.2d 393, 395 (2001); State v. Wright, 322 S.C. 253, 255, 471 S.E.2d 700, 701 (1996)State v. Pressley, 290 S.C. 251, 252, 349 S.E.2d 403, 404 (1986)Bruno, supra. (Counsel was deficient in failing to object to brief polygraph reference, but Sixth Amendment prejudice not show where evidence admitted was only that the witness took the test and the results were not indicated at trial or in the record, that it was equally plausible that he passed or did not pass where he initially denied his involvement in the case). In Pressley, supra, where error was found based upon repeated references to the defendant’s submission and the evidence that he confessed immediately after. The Bruno court also noted that the references were “isolated comments” and “not specifically elicited by the State’s questions”, nor exploited by the State in its closing by reference to the examination.

In Arnold v. Evatt, 113 F.3d 1352, 1363-64 (4th Cir. 1997)U.S. v. Brevard, 739 F.2d 180, 182 (4th Cir. 1984)Id. However, the Court has held that (1) when the inference about the result of the test may be critical in assessing the witness’ credibility, and (2) when the witness credibility is vital to the case, a curative instruction may not be enough and reversal is required. U.S. v. Tedder, 801 F.2d 1437, 1444 (4th Cir. 1986); U.S. v. Smith, 565 F.2d 292 (4th Cir. 1977)(reversal from reference to polygraph not required where curative instruction given to witness whose credibility was not important).

Recently, this Court in State v. Jackson, 364 S.C. 329, 613 S.E.2d 374 (2005), found no reversible error where the trial court's denial of a defendant's motion to introduce evidence that he passed a private polygraph test did not result in prejudice to defendant in grand larceny trial, where the testimony before the jury was that defendant stated he would be willing to take a polygraph and insurance adjuster testified he never offered defendant a private polygraph, and thus jury was not left with the impression that defendant had taken and failed a polygraph, citing State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000) (holding error without prejudice does not warrant reversal).

In its analysis, the Court of Appeals relied upon the Fourth Circuit decision in Johnson, supra. Particularly, Marion stated:

App. p. 44, ll. 18-24. Crystal Marion’s brief comment was the only reference to the polygraph throughout the trial, except for the immediate cautionary instruction to disregard and that polygraph results were unreliable. App.p. 50. Contrary to the later holdings by the trial court and the Court of Appeals, the solitary remark could not have impacted upon the jury’s verdict in the manner suggested by either the Court of Appeals or trial court.

It is clear Crystal Marion had given numerous statements. Her prior criminal background made evident to the jury, even without the polygraph reference, that she had significant problems with her credibility.[5] Contrary to the claims of the trial judge and implicitly the Court of Appeals, there was no showing or suggestion that she had ever passed a polygraph. The reference was solely that she failed. It is difficult to understand how the comment could be now viewed as just the opposite. Certainly, there is no likelihood that a reasonable juror would or could have interpreted the testimony as now suggested.

The record is devoid of any further reference by the prosecution of a “polygraph” concerning this or any other witness.[6]

The record reveals that the comment by Ms. Marion was not responsive to the question by the prosecution. App. p. 44. The question was directed toward a final statement, yet the witness referred by to her reasoning with the earlier statement.

The trial judge immediately after the motion hearing directed the jury to disregard any reference to polygraphs, that they are not reliable or accurate, and that they were to dismiss it from their mind. App. p. 50-51. After the jury returned, he gave the following curative instruction:

App. p. 50-51. Jurors are presumed to follow these instructions. Accord. State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000) (holding error without prejudice does not warrant reversal). In this case, Ms. Marion was subjected to extensive cross-examination. The jury was given ample opportunity to assess her poor credibility without considering the brief comment. See South Carolina 29201South Carolina 29211South Carolina 29601-2185CERTIFICATE OF COUNSEL .................................................................................................... 1SCACR Rule 226State v. Rorey Jamar Johnson, Opinion No. 3939, 363 S.C. 184, 610 S.E.2d 305 (2005)Id. Judge Patterson stated that he felt the curative instruction would be able to cure it. App. p. 50.

After the jury returned, Judge Patterson gave the following curative instruction:

A review of the remainder of Ms. Marion’s testimony reveals no mention of a polygraph. App. p. 51-117. She stated that she did not see either Alton Henderson, Rorey Johnson, or Michael Jones after she had flagged down the police. She stated she was charged with a felony and murder and that she had prior convictions for prostitution, possession of crack cocaine, giving a false name, and had a probation revocation. App. p. 53.

On cross-examination, she was cross-examined about her record, her use of aliases, and the differences in her statements. App. p. 53-94.

On re-direct examination she clarified that she had refused to plead to anything before she testified. App. p. 95. She again stated that she had been afraid of what Johnson would do to her family. App. p. 95-96. Ms. Marion also reviewed her earlier statements and sought to clarify or affirm her responses. App. p. 97-107, 112-14. She stated that she did not have any deal with the prosecution. App. p. 107-09. She said she had not committed the crime. App. p. 109-110. She concluded by stating Rorey Johnson was seen by her with a gun on December 16.

After the state concluded its presentation, counsel Allen renewed his motion for a mistrial based upon Ms. Marion’s polygraph reference. App. p. 226, ll. 20-21. Judge Patterson again denied the motion. App. p. 226, ll. 24-25. A general motion for directed verdict was denied. App. p. 227.

When the defense rested after its presentation, defense counsel moved for a mistrial on the basis of the fact Norman Stearn was asked if Johnson had told him something about the case asserting that it was an indirect comment of his client’s failure to testify. App. p. 250. The trial court denied the motion for mistrial at the bench conference. App. p. 250, ll. 16-20.

Defense counsel Allen again renewed his motion for a mistrial based upon the polygraph mention. App. p. 251, ll. 11-14. He also renewed his directed verdict motion. App. p. 251, ll. 15-19. Judge Patterson again denied the motion. App. p. 251, ll. 20-22.

Closing arguments were made by the defense. App. p. 252-265. The prosecution, through Assistant Solicitor Seay made an argument for the State. App. p. 265-278. At no time did the prosecution refer to the polygraph comment. State v. Rorey Jamar Johnson, Opinion No. 3939, 363 S.C. 184, 610 S.E.2d 305 (2005). App.p.387-394. In affirming relief on this case, the Court of Appeals panel made the following analysis and conclusion:

The State made a timely petition for rehearing on February 15, 2005. App.p. 395-400. In the petition for rehearing, the State asserted that the panel decision overlooked and misapprehended certain facts and positions in affirming that a new trial was warranted based upon the mere admission of evidence of a witness’s assertion that she had failed a polygraph. The State contended that a new trial was not warranted where the trial court committed a legal error in granting the motion for a new trial based upon non-record based assumptions about the impact of the testimony and ignoring the probative value of the curative instructions evidence based upon speculation not evidenced in the record that the jury would assume all state witnesses had passed a polygraph when , in fact, the only testimony suggested that the single witness “didn’t pass the polygraph test.” Alternately, the State contended the appellate court erred in failing to recognize that the admission of the evidence, if error, was harmless. App.p. 396-99.

On March 17, 2005, the South Carolina Court of Appeals entered an order denying the petition for rehearing. App.p. 402-403. In the order, the per curiam panel stated that, the Court is unable to discover that any material fact or principal of law has either been overlooked or disregarded and hence, there is no basis for granting rehearing.” App.p. 402.

The State of South Carolina made a petition for writ of certiorari on May 18, 2005. On July 13, 2005, Johnson made a Return through appellate counsel Savitz. On August 25, 2006, the Supreme Court of South Carolina granted the petition for writ of certiorari and entered a briefing order. This briefing follows.

I. Whether the Court of Appeals erred in affirming the granting of a motion for a new trial where the trial court abused its discretion in granting a motion for new trial after the conviction for murder based upon a comment by a witness that “I didn’t pass a polygraph” when the brief comment was not responsive to the prosecutor’s question, the trial court gave an immediate curative instruction to disregard the comment, the prosecution never referred to the comment or the polygraph again, the state never suggested that any other witness took or passed a polygraph, and the brief comment was never exploited by the State.

The State submits that the Court of Appeals erred in its analysis by misapprehending Crystal Marion’s testimony as suggesting she passed a polygraph and others failed polygraph tests, when in fact, she declared that she failed the polygraph. App.p. 44, ll. 18-24, p. 320, ll. 11-14. In affirming relief on this case, the Court of Appeals made the following analysis and conclusion:

Johnson, page 7, (emphasis added). App.p. 394. However, in the contested portion, Ms. Marion actually stated:

App. p. 44, ll. 18-24.(emphasis added). Based upon this critical misinterpretation, the Court of Appeals further misapprehended that Judge Patterson did not abuse his discretion in granting a new trial based upon a brief reference by Crystal Marion, that she had failed a polygraph.

The State of South Carolina submits the trial judge abused his discretion in granting a motion for a new trial after a jury verdict for murder based upon the brief isolated reference by initial state witness Crystal Marion that she had failed a polygraph. App. p. 44, ll. 18-23. This abuse of discretion in granting the new trial occurred because:

In granting the motion for new trial, the trial judge further abused his discretion where, without any evidentiary support, he suggested the jury thought “that all these witnesses had taken polygraph tests...” App. p. 320, ll. 11-14. Where the record is devoid of prejudice from the isolated comment, the trial judge abused his discretion in granting the new trial motion.

The decision to grant or deny a mistrial is within the discretion of the trial judge. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998). The decision of the trial court will not be disturbed absent an abuse of discretion. State v. Johnson, 334 S.C. 78, 89, 512 S.E.2d 795, 801 (1999)Id. An instruction to disregard objectionable evidence is usually deemed to cure the error unless on the facts of the particular case it is probable notwithstanding the instruction the accused is prejudiced. State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999)Bruno v. State, 347 S.C. 446, 450, 556 S.E.2d 393, 395 (2001)State v. Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999)(evidence of results of a test or the willingness or refusal of a defendant to take a test is inadmissible); State v. Wright, 322 S.C. 253, 255, 471 S.E.2d 700, 701 (1996)(the results of polygraph exams are inadmissible because the reliability of the polygraph is questionable). The Court, in State v. Pressley, 290 S.C. 251, 252, 349 S.E.2d 403, 404 (1986) stated that because of the inadmissibility of this type of evidence, a trial judge should be meticulous in ensuring that the jury make no improper inference from any reference to a polygraph. Accord, Bruno, supra, the Court contrasted its showing with Johnson, supra, the Court found the mere inadvertent mention of an offer to take a polygraph did not result in reversible error, particularly where “the extensive instruction given by the trial judge cured any possible prejudice caused by the brief mention of an offer of a polygraph examination.” See also, Arnold v. Evatt, 113 F.3d 1352, 1363-64 (4th Cir. 1997)(failure to give curative instruction did not require relief from mention of a polygraph test in an immunity agreement where the witnesses testified at length and the polygraph reference would not significantly affect the jury’s credibility assessment).

In U.S. v. Brevard, 739 F.2d 180, 182 (4th Cir. 1984), the Fourth Circuit held: “where an impermissible reference to a polygraph has been interjected, the court usually may cure the error by striking the evidence and instructing the jury to disregard it.” U.S. v. Tedder, 801 F.2d 1437, 1444 (4th Cir. 1986)U.S. v. Smith, 565 F.2d 292 (4th Cir. 1977)State v. Jackson, 364 S.C. 329, 613 S.E.2d 374 (2005)State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000)U.S. v. Brevard, 739 F.2d 180, 182 (4^th Cir. 1984) and its factors in assessing whether a curative instruction or a mistrial is an appropriate response to a reference to passing a polygraph. App.p. 394. These factors were: “(1) whether an inference about the result of the test may be critical in assessing the witness’s credibility, and (2) whether the witness’s credibility is vital to the case.” However, the Court of Appeals overlooked in its assessment the significant fact that the state witness declared she had failed the polygraph rather than passing it - i.e. that she, a state witness, was not to be believed. The error of the Court of Appeals and trial counsel in parsing this “polygraph” comment to suggest the it inured only to the State’s benefit by enhancing her credibility is beyond any reasonable comprehension. If the jury instruction to disregard was ignored, the sole impression remaining was that Marion was lacking credibility, rather than supporting enhanced credibility as the lower courts have now each suggested.

First, the Court of Appeals erred in its brief analysis because the “polygraph” remark was isolated. State v. Johnson, 334 S.C. 78, 512 S.E.2d 795, U.S. v. Brevard, supra.

6. There is no support for the finding that the jury thought all witnesses had taken and passed a polygraph.

In affirming the grant of the new trial motion, the Court of Appeals accepted the lower court’s baseless speculation that the jury thought that all the state’s witnesses had taken and passed polygraph tests. App. p. 320, ll. 11-14. This basis for granting the motion is unsupported by any reasonable reading of this record and is plainly an abuse of discretion. As inBruno v. State, 347 S.C. 446, 556 S.E.2d 393, the mere reference to a polygraph at trial cannot support an assumption that it was passed without the results being presented. Like Bruno and Jackson, it is pure speculation that the jury would assume each state witness had taken and passed a polygraph. Further, this baseless assumption must fail because the trial court’s firm instruction to the jury to disregard the comment. Certainly, the isolated would not support further unfounded speculation about the remaining witnesses. The trial court’s decision to grant a new trial was unsupported by the evidence and must be deemed an abuse of discretion. It must be vacated and the conviction reinstated and the matter remanded for sentencing.

Further, in erroneously finding prejudice, Judge Patterson noted that the weapon was never found, but that there were passing references to the type of gun used and that an investigator had not followed-up on the type of caliber of a weapon. App. p. 317-18. However, this factual issue was presented to the jury.[16] It was discussed throughout the closing arguments of the defense that the state had not shown the type of caliber of the projectile, a missing piece of potential evidence. (Defense Closing) App. p. 253, ll. 18-25, p. 260, ll. 9-18. (Prosecution Closing) App. p. 265, ll. 22-25, p. 275, ll. 14-16. The trial judge had instructed the jury that issues of fact were solely their determination. App. p. 280-81. Further, the jury was told “you have to decide this case based upon the evidence and testimony that you heard...” App. p. 287, ll. 5-11.

Further, prejudice was not shown and the impact of the stricken testimony was harmless. See U.S. v. Tedder, 801 F.2d 1437 (4^th Cir. 1986). As noted below, while deliberating, the jury did not request to review the testimony of Ms. Marion, but sought to review the testimony of two other eye witnesses; Alton Henderson and Michael Jones, as well as Stacy Bland[17]. App.p. 323-324. See App.p. 302-303. It is a reasonable inference that Ms. Marion’s testimony at that point may not have been as critical to their assessment of guilt as the other witnesses. Simply put, had Marion never mentioned the comment, the result would have been the same.

The trial judge and Court of Appeals abused their discretion in speculating the jury would rely upon unfounded and unstated speculation and that the unfounded “speculation” was prejudicial. This is, in fact, what the trial judge and Court of Appeals did. However, the jury, following the judge’s instructions would not have done the same. Judge Patterson’s decision was an abuse of his discretion based upon this factual error. The decision affirming it must be reversed.[18]

For all the foregoing reasons, the Court of Appeals erred in failing to conclude the trial court abused his discretion in granting the new trial where the comment did not prejudice the defense for the above-stated reasons which evidence both an abuse of discretion and harmless error. The Court should reverse the decision of the Court of Appeals and the convictions should be reinstated and the matter remanded for the limited purpose of sentencing.

I, Donald J. Zelenka, hereby certify that I have served a copy of the Brief of Petitioner on Petition for a Writ of Certiorari and Appendix in the foregoing on Joseph L. Savitz, III, Chief Attorney, South Carolina Division of Appellate Defense, 1330 Lady Street, Suite 401, Columbia, South Carolina 29201 this 23^rd day of October, 2006.

^[1] Alton “Black” Henderson, 30 years old, testified that was currently in the detention center. On December 15, 1999, (the day somebody got killed), he met up with Johnson and Michael Jones in City Heights, in Jones’ vehicle. App. p. 138. After they rode around with Jones driving, they ran into Marion at the Relax Inn motel beside the Texaco. App. p. 139. He said he saw her in a motel room. After they left the motel, she approached Jones’ vehicle with him asking who had crack cocaine to sell. App. p. 140. He said he and Crystal got into the car with Jones and Johnson and Jones drove to 211 Anderson Road. App. p. 141. Marion said “good, he’s still here”, when she noticed another vehicle there. Henderson said he had vaguely seen the other car, a Mitsubishi 300 G.T, there. App. p. 141-42. When they parked, Rorey and Crystal got out and went back. App. p. 142. After a period of time of waiting for more than 10 minutes, Jones left an Henderson said he went back into the backyard and saw Crystal and Rorey coming his direction. Then Rorey turned around and went back and fired one shot to the black vehicle. App. p. 143-44. He had earlier seen a white male come around from the passenger side and get in the driver’s side. App. p. 144. After Johnson shot Whitaker, the four got back into the car. Crystal was then dropped off later while the others rode around. App. p. 145. After he left the vehicle, Henderson said he did not call the police until the 17th when he learned the guy was dead. App. p. 146. He informed Det. Brian Miller, who he had prior dealings with. App. p. 146. He said he had asked to get paid for the information. App. p. 146. When he went in, he did not initially tell them that Johnson was the shooter. App. p. 147. Between the time he was dropped off and when he talked to the police, he denied talking with Jones or Marion. He said Johnson put the gun in his pocket. He said he had gotten out of the vehicle with Jones at one point, but he never went back with him. App. p. 148.

Henderson testified that he had been charged with murder and attempted armed robbery and prior to court, he entered into an agreement to pled to accessory after the fact of murder which he had done in August. He had also pled to an unrelated strong arm robbery and was awaiting sentencing. App. p. 149-50. He stated the only requirement was “to tell the truth.” App. p. 150, ll. 15-25. He was to receive concurrent sentences and jail credit. App. p. 151.

Henderson stated that he had not made an agreement when he gave the police his statement. App. p. 151. He admitted that he had initially asked Det. Miller if he would be paid when he gave his statement and initially tried to protect Johnson by not giving his name. App. p. 152-53.

On cross-examination, he declared he was arrested after he gave the statement, even though he stated he had nothing to do with it. App. p. 154. He stated the second statement was the truth and had more detail than the first. Id. He stated the only thing he did wrong was not informing the police after a person was killed. App. p. 156. Henderson said he met up with Marion at the Relax Inn in room 220. Henderson said he did not get high on crack that night, but that Marion, who he had known for a few months, had talked about “jacking” (robbing) somebody. App. p. 156-58. She had described Whitaker as a john who had been getting high and spending money on crack. App. p. 158. Crystal had insisted on going over to the boarding house to try to sell him some crack and Rorey was going to sell it. App. p. 158-59. He said Crystal told him (Henderson) to stay in the car because he had a “bad reputation and might scare someone. He noted after he had waited awhile he got out and approached the car and then saw Johnson go back to the victim’s car. App. p. 163.

Henderson said he later spoke with Michael Jones about the fact that a revolver has no shells. App. p. 164. He also described his relationship with Det. Miller. He was examined on his agreement to testify and the deal he was receiving. App. p. 164-69.

Henderson said the first time he saw the victim, he was outside the car and had learned that he was spending money all day getting high. App. p. 170. He said he initially told the police he did not see the shooting, but that he first saw Johnson’s gun when he used it. App. p. 171. He described it as a large revolved. App. p. 171. He stated further that he never told anyone while he was in jail that he personally did the shooting. App. p. 172. He said he thought he would receive 15 years. App. p. 173. He stated he had upheld his agreement to tell the truth. App. p. 173-74.

^[2]Michael Jones, an 18 year old, testified that he owned a ‘72 Impala in December 1999. App. p. 177. On December 15-16, 1999, he said he was driving around with Rorey, Crystal, and “Black”. He had met with Marion at the Relax Inn. His car had been running hot and he had added water to his radiator at the Texaco. App. p. 178. He stated that after he had left the Texaco with them, Crystal gave directions to a boarding house. App. p. 180. They pulled into the area and Rorey got out with Crystal and they went behind the house to a black car. App. p. 181. Jones said he initially remained in the car with Black listening to music. App. p. 182. Alton got out of the car and he later heard a gunshot and Jones stated he “froze up and panicked” and started to drive off. App. p. 182. Alton was in the back seat and Rorey and Crystal came around. Jones said he saw Rorey with a black handle that looked like a gun. App. p. 183.

Jones described driving and dropping off Crystal and then Alton. He said Rorey stayed in the car and went back to his house, although they did not discuss what happened, although Jones had questions that he did not ask. App. p. 184. He said he saw Rorey on the 16th after Jones got out of school and Rorey told him he had shot a man in the chest because he was “hassling him or something.” App. p. 185, ll. 7-19. Johnson told him not to open his mouth. App. p. 185. He identified Johnson in court as the man with the handle of the gun sticking out of his pocket and the man who made the comments to him. App. p. 186.

Jones admitted, despite what he knew about the crime, he did not talk to the police “because I didn’t believe him”, even though he had heard the gunshot. App. p. 187. On December 17, Jones told the police the gun was at his house because he knew Rorey was coming to see him. App. p. 187-88. He said he wanted them to catch him because they had him and that he did not have anything to do with the crime, even though there was not a gun at the house. App. p. 188. He said he did not discuss this with either Henderson or Crystal since he dropped them off. App. p. 188-89.

Jones stated he still goes to Carolina High School, but now has a criminal record since being charged with murder. App. p. 189. He had pled guilty to accessory after the fact and his sentencing was deferred. App. p. 189-191.

On cross-examination, Jones stated that he was arrested on December 17 and charged with murder and attempted armed robbery, but that he pled only to accessory after the fact to murder. App. p. 192-92. He felt that he was wrong because he drove the car, but did not know anyone was to be killed. App. p. 193. He said he knew no gun was at his house when he tried to get the police there and mislead them about owning a 357 revolved. App. p. 194-95.

Jones stated the first time he saw Rorey’s gun was when he saw the handle when Johnson was running back to the car. App. p. 195-96. He stated he was not at the Relax Inn, but at the Texaco when Henderson got out. He admitted he had smoked marijuana earlier and was “all messed up.” App. p. 200-01. (See also, App. p. 205). He did not recall stopping at Hot Spot, Johnson getting out, or any discussions about a shell with Henderson. App. p. 201. He did not recall Henderson leaving his car at the boarding house. He stated when they left Crystal and Rorey were in the front seat with him. App. p. 202. He stated also that he did not know why he had not been entered and stated he expected no deal. App. p. 203-04. He admitted that he had heard the gunshot while he was waiting in the car, saw the pistol in the pocket, and still provided Johnson transportation out of the area. App. p. 205-07.

^[3] During the deliberations, the jury asked a question which caused Judge Patterson to respond to counsel that “the facts of the case are either he shot him or he didn’t. There is no accomplice liability in this case.” App.p. 291. Judge Patterson further declared that the facts do not support accomplice liability because “they’ve already charged the other two with accessory so it can’t be accomplice liability...” App.p. 291. The state asserted that accomplice liability could still be charged under the indictment. App.p. 296. However, Judge Patterson then charged the jury that accomplice liability is not the state’s theory in the case and that the jury would have to decide if “. . . Johnson did . . .kill Mr. Gregory W. Whitaker buy means of a gunshot wound . . . That’s the theory of the state’s case that they presented to you, and their theory was not on accomplice liability. . .” App.p. 298.

^[5] Crystal Marion testified that she was a prostitute and had seen the victim that night and had seen him earlier that date. App. p. 20. She stated she was charged with a felony and murder and that she had prior convictions for prostitution, possession of crack cocaine, giving a false name, and had a probation revocation. App. p. 53. On cross-examination, she was cross-examined about her record, her use of aliases, and the differences in her statements. App. p. 53-94.

^[6] Recently, in Ellenburg v. State, 367 S.C. 66, 625 S.E.2d 224 (2006)Ellenburg v. State, 367 S.C. 66, 625 S.E.2d 224 (2006), the Court concluded that a brief reference in a closing argument by the prosecution in which solicitor asked why a State's witness would lie when he knew that when he was going to be "put on the polygraph," was fair response to comments made by defense counsel during closing, in which counsel stated that witness did not tell truth to police, as he only provided information to police after police were ready to put witness on a lie detector, and thus the comment was not improper.

^[7] Detective Mark White of Greenville City Police Department testified that no firearm was ever recovered and therefore he has been unable to make comparisons. App. p. 207-08. On cross-examination he recalled that the projectile was sent to SLED to determine the caliber, but he did not recall the result. App. p. 209. These testimony is what Judge Patterson was critical of by the fact that Det. White was not aware of the results, if any and whether SLED had ever completed the tests.

^[8] Stacy Bland testified that Johnson told him that he had killed somebody, that he had shot him in the chest because they wouldn’t give it up. App.p. 131-32. He had described the victim as a cold-hearted person. App. p. 134.

On cross-examination, Bland testified that Johnson had told him that he used a 9 millimeter weapon. App. p. 135. Bland described the gun as one with a clip that ejects a shell when it is fired. He said he was housed in the detention center when he made his statement. App.p. 136.

^[9] The trial judge also referred to the jailhouse testimony of witness Hicks and disapproved of the manner of the cross-examination of him concerning the lack of a line-up or identification. Despite these comments, the prosecution’s attempt to impeach the witness’ identification of Henderson was fair comment. Nevertheless, it did not support a new trial.

^[10] Alton “Black” Henderson, 30 years old, testified that was currently in the detention center. On December 15, 1999, (the day somebody got killed), he met up with Johnson and Michael Jones in City Heights, in Jones’ vehicle. App. p. 138. After they rode around with Jones driving, they ran into Marion at the Relax Inn motel beside the Texaco. App. p. 139. He said he saw her in a motel room. After they left the motel, she approached Jones’ vehicle with him asking who had crack cocaine to sell. App. p. 140. He said he and Crystal got into the car with Jones and Johnson and Jones drove to 211 Anderson Road. App. p. 141. Marion said “good, he’s still here”, when she noticed another vehicle there. Henderson said he had vaguely seen the other car, a Mitsubishi 300 G.T, there. App. p. 141-42. When they parked, Rorey and Crystal got out and went back. App. p. 142. After a period of time of waiting for more than 10 minutes, Jones left an Henderson said he went back into the backyard and saw Crystal and Rorey coming his direction. Then Rorey turned around and went back and fired one shot to the black vehicle. App. p. 143-44. He had earlier seen a white male come around from the passenger side and get in the driver’s side. App. p. 144. After Johnson shot Whitaker, the four got back into the car. Crystal was then dropped off later while the others rode around. App. p. 145. After he left the vehicle, Henderson said he did not call the police until the 17th when he learned the guy was dead. App. p. 146. He informed Det. Brian Miller, who he had prior dealings with. App. p. 146. He said he had asked to get paid for the information. App. p. 146. When he went in, he did not initially tell them that Johnson was the shooter. App. p. 147. Between the time he was dropped off and when he talked to the police, he denied talking with Jones or Marion. He said Johnson put the gun in his pocket. He said he had gotten out of the vehicle with Jones at one point, but he never went back with him. App. p. 148.

^[11]Michael Jones, an 18 year old, testified that he owned a ‘72 Impala in December 1999. App. p. 177. On December 15-16, 1999, he said he was driving around with Rorey, Crystal, and “Black”. He had met with Marion at the Relax Inn. His car had been running hot and he had added water to his radiator at the Texaco. App. p. 178. He stated that after he had left the Texaco with them, Crystal gave directions to a boarding house. App. p. 180. They pulled into the area and Rorey got out with Crystal and they went behind the house to a black car. App. p. 181. Jones said he initially remained in the car with Black listening to music. App. p. 182. Alton got out of the car and he later heard a gunshot and Jones stated he “froze up and panicked” and started to drive off. App. p. 182. Alton was in the back seat and Rorey and Crystal came around. Jones said he saw Rorey with a black handle that looked like a gun. App. p. 183.

^[12] During the deliberations, the jury asked a question which caused Judge Patterson to respond to counsel that “the facts of the case are either he shot him or he didn’t. There is no accomplice liability in this case.” App.p. 291. Judge Patterson further declared that the facts do not support accomplice liability because “they’ve already charged the other two with accessory so it can’t be accomplice liability...” App.p. 291. The state asserted that accomplice liability could still be charged under the indictment. App.p. 296. However, Judge Patterson then charged the jury that accomplice liability is not the state’s theory in the case and that the jury would have to decide if “. . . Johnson did . . .kill Mr. Gregory W. Whitaker buy means of a gunshot wound . . . That’s the theory of the state’s case that they presented to you, and their theory was not on accomplice liability. . .” App.p. 298.

^[14] Crystal Marion testified that she was a prostitute and had seen the victim that night and had seen him earlier that date. App. p. 20. She stated she was charged with a felony and murder and that she had prior convictions for prostitution, possession of crack cocaine, giving a false name, and had a probation revocation. App. p. 53. On cross-examination, she was cross-examined about her record, her use of aliases, and the differences in her statements. App. p. 53-94.

^[15] Recently, in Ellenburg v. State, 367 S.C. 66, 625 S.E.2d 224 (2006)Ellenburg v. State, 367 S.C. 66, 625 S.E.2d 224 (2006), the Court concluded that a brief reference in a closing argument by the prosecution in which solicitor asked why a State's witness would lie when he knew that when he was going to be "put on the polygraph," was fair response to comments made by defense counsel during closing, in which counsel stated that witness did not tell truth to police, as he only provided information to police after police were ready to put witness on a lie detector, and thus the comment was not improper.

^[16] Detective Mark White of Greenville City Police Department testified that no firearm was ever recovered and therefore he has been unable to make comparisons. App. p. 207-08. On cross-examination he recalled that the projectile was sent to SLED to determine the caliber, but he did not recall the result. App. p. 209. These testimony is what Judge Patterson was critical of by the fact that Det. White was not aware of the results, if any and whether SLED had ever completed the tests.

^[17] Stacy Bland testified that Johnson told him that he had killed somebody, that he had shot him in the chest because they wouldn’t give it up. App.p. 131-32. He had described the victim as a cold-hearted person. App. p. 134.

^[18] The trial judge also referred to the jailhouse testimony of witness Hicks and disapproved of the manner of the cross-examination of him concerning the lack of a line-up or identification. Despite these comments, the prosecution’s attempt to impeach the witness’ identification of Henderson was fair comment. Nevertheless, it did not support a new trial.

Q.	And it was during this final interview, final statement when you told the complete truth on this matter; is that correct?
A.	Well, the second statement was the truth as well, but, therefore, they kind of made me feel like I was lying because I didn’t pass the polygraph test. And the second one–

Q.	And it was during this final interview, final statement when you told the complete truth on this matter; is that correct?
A.	Well, the second statement was the truth as well, but, therefore, *they kind of made me feel like I was lying because I didn’t pass the polygraph test.* And the second one–

1.	The brief comment was isolated;
2.	The brief comment was not critical to her credibility;
3.	The brief comment was never referred to by the prosecution;
4.	The brief comment was not elicited by the prosecution;
5.	There was an immediate curative instruction striking the matter from the jury’s consideration by instructing the jury to disregard. App. p. 50, l. 18 - p. 51, l. 3.