# State v. Von Dohlen > Supreme Court of South Carolina · May 28, 1996 · 322 S.C. 234 URL: https://www.frixlaw.com/law-library/cases/9855059 ## Case - **Full name:** The STATE, Respondent v. Herman Henry “Bud” VON DOHLEN, Appellant - **Court:** Supreme Court of South Carolina - **Decided:** May 28, 1996 - **Citations:** 322 S.C. 234; 471 S.E.2d 689; 1996 S.C. LEXIS 91 - **Precedential status:** Published - **Opinion:** Dissent by Finney - **Judges:** Burnett, Finney, Moore, Toal, Waller - **Cited by:** 76 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855059 ## How later opinions describe it (automated extraction) - holding defendant's will was not overborne and confession was voluntary when interrogators manufactured a composite sketch of suspect by looking at **456defendant through a one-way mirror and showed defendant shell casings not actually recovered from the crime scene - stating that the test for determining the admissibility of a statement is whether it was knowingly, intelligently, and voluntarily given under the totality of the circumstances - finding that once the circuit court determines that the statement is admissible, it is up to the jury to ultimately determine whether the statement was voluntarily made - describing the police's actions as "reprehensible," but upholding confession obtained after police showed defendant an eyewitness composite sketch of himself actually drawn by police while observing him through a one-way mirror as defendant's will was not overborne by the tric… - finding once the trial court determines a defendant's confession is valid because it was knowingly and voluntarily given, it must then submit the defendant's statement to the jury ## Opinion text Finney, Chief Justice: For the reasons given below, I respectfully dissent, and would reverse and remand for a new trial. A. In Favorem Vitae Review I disagree with the majority’s conclusion that this appeal is not subject to in favorem vitae review. In State v. Torrence, 305 S.C. 45 , 406 S.E. (2d) 315 (1991), a majority of the Court held the doctrine inapplicable “in all trials beginning after the date of this opinion....” (emphasis added). As the majority acknowledges, this trial began on the date of the opinion. By its own terms, Torrence is inapplicable here. The majority, however, relies on the fact the solicitor “advised” the trial judge and appellant’s lawyers of the Torrence opinion on the morning it was filed. What the solicitor did not do, however, was produce a copy of the opinion, indicate its effective date, or inform appellant’s attorneys that in abolishing the doctrine, this Court adopted a contemporaneous objection rule. The solicitor’s action cannot and should not be used to overcome this Court’s clear mandate. Unequivocally, this appeal must be reviewed in favorem vitae. State v. Torrence, supra. B. Brady Violation The majority concludes appellant failed to establish the State withheld impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed. (2d) 215 (1963). I disagree. Consumer Affairs began investigation the pawn shop at the request of the Goose Creek Police Department. In the course of this investigation Consumer Affairs learned of appellant’s arrest and inquired about certain employee forms which pawn *251 shop operators are required to file. Altman, 1 through his attorney, supplied copies of the forms, which were obviously altered. Among these forms was a statement allegedly notarized by Captain Dewitt of the Berkeley County Sheriff’s Department. An investigator from Consumer Affairs interviewed Dewitt and informed him of the agency’s investigation. Dewitt testified he told the investigator his signature on the document was a forgery. As a result of this investigation, the Altmans relinquished their pawnbroker’s license. While the investigation began before the murder, the interview with Captain Dewitt, the production of forged documents, and the subsequent surrender of the pawnbroker’s license occurred after the murder but before appellant’s trial. The murder investigation was conducted by the Berkeley County Sheriff’s Department, Dewitt’s employer. The novel question before the Court is a narrow one: When the law enforcement agency investigating the crime has actual knowledge of impeaching evidence regarding a key state’s witness, is that knowledge imputable to the solicitor? The answer is clearly “Yes.” See, e.g., Fitzgerald v. Bass, 6 Va. App. 38 , 366 S.E. (2d) 615 (1988) and eases cited therein (constructive knowledge attributed to prosecutor where the information is in the possession of the same police force investigation the case). We need not reach the more difficult question whether, but for the involvement of the Berkeley County Sheriff’s Department in both matters, Consumer Affairs’ knowledge should be imputed to the solicitor. Having determined the information was imputable to the solicitor, the next question is whether the evidence is material. I agree with the majority’s statement of the rule: Evidence is material under Brady only if there is a reasonable probability that, had the evidence been timely disclosed, the result of the trial would have been different. State v. Bryant, 307 S.C. 458 , 415 S.E. (2d) 806 (1992). In my opinion, had the jury known that Magistrate Altman’s business had closed rather than contest charges it had created false documents and filed them with a state agency, and that there had been a *252 forgery of a police officer’s signature on one of those documents, there is a reasonable probability that Magistrate Altman’s credibility would have been severely injured. An informed jury might well have disbelieved the magistrate’s trial testimony. Since I would hold appellant’s other statement must also be excluded, 2 I conclude there is a reasonable probability that the trial would have had a different result had the State properly disclosed the Brady material. I would reverse. C. Admissibility of Statements I also dissent from the majority’s conclusions that appellant’s statements to the police and to Magistrate Altman were admissible. In my opinion, the statement made to the police must be suppressed as involuntary and obtained in violation of appellant’s due process rights. I would also suppress the statement to Magistrate Altman because it was obtained in violation of appellant’s Fifth and Sixth amendment rights. 3 As to the first statement, the majority acknowledges the police misconduct in fabricating physical evidence in order to coerce a confession was “reprehensible” and “deplorable,” but nonetheless condones the fruit of these acts. I will not. The countenancing of such conduct can only further erode the public’s confidence in law enforcement, and their respect for the justice system. Wherever that fine line between acceptable and unacceptable deceptive police conduct may be, there can be no question that it had been crossed here. I would hold the trial judge erred in failing to suppress this statement which was unconstitutionally coerced as the result of police fabrication of physical evidence. See State v. Cayward, 552 So. (2d) 971 (Fla. App. (2d) Dist. 1989) review dismissed 562 So. (2d) 347 (Fla. 1990); see also State v. Farley, 192 W. Va. 247 , 452 S.E. (2d) 50 , 60 footnote 13 (W. Va. 1994). I would also hold appellant’s statement to Magistrate Altman must be suppressed. 4 Magistrate Altman had intimately involved himself in the police investigation of this case, coming to the crime scene and discussing the case with investiga *253 tion officers, receiving telephone updates at home concerning appellant’s actions at SLED Headquarters, and, taking advantage of his position as magistrate, being admitted to appellant’s jail cell after visiting hours. Once in the cell Magistrate Altman did not ask appellant personal or business questions, but instead questioned him about the murder. In my opinion, the evidence is susceptible only of the finding Magistrate Altman was acting as a law enforcement agent. Further, it is undisputed that appellant’s Sixth Amendment right to counsel had attached and that no Miranda warnings were given nor waiver obtained before the jail cell interrogation by the magistrate. Consequently, admission of appellant’s statement to Magistrate Altman is barred by both the Fifth and Sixth Amendments. See United States v. Taylor, 800 F. (2d) 1012 (10th Cir. 1986) (whether person is police agent depends on facts and circumstances). D. Malice Charge The trial judge charged the jury that “malice is implied where one intentionally and deliberately does an unlawful act....” Unless deemed harmless error, which the majority does not and cannot, this unconstitutional charge requires reversal. Yates v. Evatt, 500 U.S. 391 , 111 S.Ct. 1884 , 114 L.Ed. (2d) 432 (1991). Reliance on State v. Bell, 305 S.C. 11 , 406 S.E. (2d) 165 (1991) is misplaced. In Bell , the judge charged the jury that malice is defined as the intentional doing of an unlawful act, not that it was implied from such actions. Further, there is not meaningful difference between the terms “implied” and “presumed.” Yates, supra. This jury charge mandates reversal under the facts of this case. For the reasons given above, I would reverse. I respectfully dissent. While Magistrate Altman’s wife was the nominal owner of the Quick Silver Pawn Shop, the evidence shows Magistrate Altman, rather than his wife, actually ran the business and handled its affairs. See § C, infra. While this holding effectively moots the Brady issue, I write separately on it because of my disagreement with the result reached by the majority. Appellant does not assert this second statement should be suppressed as the fruit of the unconstitutional first statement. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855059. Public record. Not legal advice.