Petition for Writ of Certiorari — Luzenski Allen Cottrell, Petitioner v. South Carolina

Supreme Court briefJun 15, 2018

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APPENDIX A

809 S.E.2d 423

421 S.C. 622

Supreme Court of South Carolina.

The STATE, Respondent,

Luzenski Allen COTTRELL, Appellant.

Appellate Case No. 2015-000731

Opinion No. 27754

Heard May 24, 2017

Filed December 20, 2017

Rehearing Denied February 16, 2018

Synopsis

Background: Defendant was convicted in the Circuit Court,

Horry County, of, inter alia, murder, based on incident in

which defendant allegedly shot and killed police officer

during Terry stop. Defendant appealed. The Supreme Court,

376 S.C. 260, 657 S.E.2d 451, reversed and remanded for

new trial. On remand, defendant was convicted in the Circuit

Court, Larry B. Hyman, Jr., J., of murder and was sentenced

to death. Defendant appealed.

reasonableness of manner in which police officer acted, and

thus testimony of detective was properly excluded to prevent

it from unduly prejudicing or confusing jury;

[5] defendant's due process rights were not violated by trial

court's refusal to issue express instruction that jury could not

infer malice from defendant's use of deadly weapon;

[6] trial court's decision not to inform parties that note sent by

jury during sentencing deliberations indicated specific

numerical split did not violate defendant's right to assistance

of counsel, fair jury trial, or non-arbitrary verdict; and

[7] trial court's error, if any, in not informing parties of

specific contents of note sent by jury during sentencing

deliberations was harmless.

Affirmed.

Few, J., filed opinion concurring in result only.

**427 Appeal From Horry County, The Honorable Larry B.

Hyman, Jr., Circuit Court Judge

Attorneys and Law Firms

Holdings: The Supreme Court, Hearn, J., held that:

[1] trial court acted properly and in accordance with its broad

discretionary authority in removing defendant's appointed

attorneys and replacing them with new counsel, and thus trial

court did not violate defendant's right to counsel;

[2] two certain jurors were not “mitigation impaired,” and

thus were qualified to serve on jury in capital-murder case;

Keir M. Weyble and Sheri L. Johnson, both of Cornell Law

School, of Ithaca, New York, and Robert M. Dudek, of

Columbia, for Appellant.

Attorney General Alan Wilson, Senior Assistant Deputy

Attorney General Donald J. Zelenka and Assistant Attorney

General J. Anthony Mabry, all of Columbia, and Solicitor

Jimmy A. Richardson, of Conway, for Respondent.

Opinion

JUSTICE HEARN:

[3] risk of confusion and prejudicial effects of detective's

testimony substantially outweighed its probative value, and

thus exclusion of detective's testimony did not violate

defendant's due process rights, Confrontation Clause rights,

or Fourth Amendment right against unreasonable seizures;

[4] focus for jury in determining lawfulness of Terry stop was

*628 Appellant Luzenski Allen Cottrell was convicted and

sentenced to death by an Horry County jury for the 2002

murder of Myrtle Beach police officer Joe McGarry. On

appeal, Cottrell now raises five issues, all of which involve

rulings largely addressed to the trial judge's discretion.

Finding no abuse of discretion by the trial judge, we affirm

his conviction and sentence.

809 S.E.2d 423

FACTS

Shortly after midnight on December 29, 2002, McGarry and

fellow police officer Mike Guthinger entered a Dunkin

Donuts in the city of Myrtle Beach. Both officers were in

uniform and on duty, completing a traffic stop a short time

earlier before deciding to get coffee. Upon entering Dunkin

Donuts, McGarry immediately recognized Cottrell, who was

ordering coffee *629 at the register with two companions,

Diane Lawson and Fred Halcomb. McGarry was familiar with

Cottrell, having had several previous encounters with him,

including arresting Cottrell for possession with intent to

distribute marijuana earlier that year. More significantly, Lt.

Amy Prock of the Myrtle Beach Police Department had

recently notified McGarry that Cottrell had been identified as

a possible suspect1 in the shooting death of Rick Hartman,

whose body had been found in a rural part of Horry County

roughly a month earlier.

Halcomb was also identified as a suspect in Hartman's

death, but he was not immediately recognizable to the

officers.

Upon recognizing Cottrell, McGarry informed Guthinger that

Cottrell was identified as a suspect in a shooting and that he

was possibly carrying a gun. Rather than proceed in line to get

coffee, McGarry and Guthinger exited the Dunkin Donuts and

approached Cottrell on the sidewalk as he stepped out the

door. McGarry asked Cottrell whether he remembered him,

and then inquired as to whether he had taken care of the

previous charges for which McGarry had arrested him. Cottrell

indicated they were all taken care of. At that point, McGarry

asked Cottrell for his identification and informed him he was

going to run an NCIC check to see if Cottrell had any

outstanding warrants.

While waiting for a response from the dispatcher after calling

in Cottrell's information, McGarry indicated to Cottrell that he

was going to perform a pat-down for weapons. Cottrell told

McGarry “no” before turning and walking away toward

another vehicle driven by Donnie Morgan, who was part of

Cottrell's group but unknown to the officers at the time.

Cottrell's right hand was somewhere near the front of his

waistband as he turned and walked away.2 McGarry then

immediately **428 began yelling for Cottrell to stop and show

his *630 hands. When Cottrell did not comply, McGarry

unholstered his weapon and again commanded Cottrell to show

his hands. With Cottrell's back still turned to him, McGarry

reholstered his weapon and rushed towards Cottrell from

behind, struggling to grab Cottrell's right hand which was near

the front of his waistband, while McGarry's left hand was

somewhere on Cottrell's upper back or shoulder, attempting to

gain control of him.

Cottrell was wearing an oversized, baggy jersey, which

Guthinger testified made it impossible for him to see

whether he had a concealed handgun underneath,

though he also stated that such oversized clothing was

often worn for the purposes of concealing illegal

weapons. Though there was no eye witness testimony

to confirm it, the State's theory was that at some point

while waiting for the NCIC to come back, McGarry

caught a glimpse or saw the imprint of a concealed

handgun on Cottrell's person, thereby causing

McGarry's rapid change in demeanor and his

instructions to Cottrell to keep his hands visible.

The pair stumbled and separated as they slid toward the rear of

the Morgan vehicle. As they regained their balance and

squared up, Cottrell raised a .45 caliber handgun and fired a

shot, striking McGarry in the face from eight to twelve inches

away. The shot incapacitated McGarry, who fell backwards

and struck his head on the pavement.3

Guthinger testified he witnessed Cottrell raise his gun

and shoot McGarry, and that the sound of the first shot

was simultaneous with the muzzle blast he saw from the

gun's muzzle. Guthinger then heard a second shot but

did not see a muzzle flash. Experts confirmed that

McGarry's weapon fired a shot, and Lawson, who

witnessed the events from the passenger seat in

Halcomb's vehicle, testified that McGarry's weapon

discharged while he was falling backwards after being

shot by Cottrell.

Immediately upon seeing Cottrell shoot McGarry, Guthinger

drew his weapon and fired several shots at Cottrell, striking

him in the leg as Cottrell sought cover behind Morgan's car. 4

Guthinger and Cottrell continued to exchange gunfire, and

numerous vehicles and nearby buildings were struck by bullets.

At some point during the shootout, Cottrell told Guthinger he

was surrendering, prompting Guthinger to leave his protected

position to place him under arrest. However, as he approached,

Cottrell reloaded his firearm and resumed shooting at

Guthinger, who retreated to cover and called for backup.

809 S.E.2d 423

There was some dispute as to when Cottrell was shot.

The defense produced an expert who testified that

Cottrell was shot from the front, attempting to convince

the jury that McGarry fired the first shot and struck

Cottrell. Guthinger testified that he shot Cottrell, and

that Cottrell was moving without any signs of injury

immediately after shooting McGarry, and only after

Guthinger fired at him did Cottrell begin hopping or

limping on one leg. In a statement to police following

the shooting, Cottrell stated he believed it was

Guthinger who shot him, not McGarry. Lawson also

confirmed that it was Cottrell who fired the first shot,

while McGarry then fired as he was falling to the

ground.

*631 Cottrell fled the scene and responding officers engaged

in a high speed chase through Myrtle Beach until his getaway

vehicle was brought to a halt using stop sticks to disable the

tires, and he was placed under arrest. Police recovered the .45

caliber weapon that was forensically matched to the bullet

which killed McGarry, along with another loaded .357 revolver

in the backseat. Officers attempted to perform CPR on

McGarry, but he passed away in the Dunkin Donuts parking

lot.

PROCEDURAL HISTORY

Cottrell was first tried for the murder of McGarry in 2005. At

that trial, the jury found him guilty of murder, assault with

intent to kill, resisting arrest, and grand larceny. Cottrell

appealed the murder conviction, and this Court reversed,

finding the trial court erred in refusing to give the jury an

instruction on voluntary manslaughter in addition to murder.

State v. Cottrell, 376 S.C. 260, 265, 657 S.E.2d 451, 454

(2008) (hereinafter referred to as Cottrell I ). The other

convictions remained, but Cottrell was granted a new trial on

the murder charge.

Weeks prior to the scheduled start of Cottrell's second trial in

March 2012, the solicitors representing the State had separate

conversations with Cottrell's appointed attorneys, at which time

each accused co-counsel of misconduct and questioned their

ability to adequately represent Cottrell in light of their

difficulty working together. The solicitors made the trial judge

aware of these allegations, and he conducted discussions in

chambers with the appointed attorneys, who both confirmed

they had indeed made the allegations brought to light by the

State. Both attorneys also indicated they felt their inability to

work together jeopardized Cottrell's defense.

concerns over the allegations made by Cottrell's attorneys,

questioning whether it was possible for them to effectively

represent Cottrell. Cottrell's attorneys stated they could put

their differences aside and work together so the case could

proceed, but acknowledged they would defer to the trial

judge's decision. One of the attorneys admitted that the

allegations were probably sufficient to solidify post-conviction

relief if the case went *632 forward. The trial judge then gave

Cottrell an opportunity to discuss the matter with his attorneys.

After their discussion, Cottrell reiterated he felt confident in

his attorneys' ability to represent him, but that he would defer

to the trial judge's decision. Ultimately, due to his concerns for

Cottrell's representation and the ability of the attorneys to

overcome their problems just two weeks before trial, the trial

judge decided to relieve both attorneys. After appointing new

defense counsel,5 the trial judge afforded Cottrell more than

two years before rescheduling the trial so that his new

attorneys would have adequate time to prepare.

There is no dispute over replacement counsel's

qualifications to represent Cottrell.

Cottrell was eventually tried and found guilty of murder, and

the case proceeded to sentencing. During the sentencing phase,

the jury heard evidence of Cottrell's prior bad acts, including

a prior conviction for the murder of Jonathan Love in Marion

County, as well as testimony surrounding Hartman's murder,

which the State asserted Cottrell was responsible for although

the case had not yet been tried.6

After Cottrell's second trial and conviction for the

murder of McGarry, the State decided not to further

pursue charges against Cottrell for the Hartman murder.

After deliberating for approximately two hours over Cottrell's

sentence, the jury sent a note to the trial judge indicating there

were eleven jurors for the death penalty and one for life,

asking, “What is the next step?” The trial judge did not

disclose to the parties what the split was at that time, instead

reading a redacted version without the numerical count, and

informing them that he would instruct the jury to continue

deliberations. Because the jury had only been deliberating for

two hours, the trial judge concluded it was too early to give an

Allen7 charge. The jury continued its deliberations and

ultimately returned with a unanimous recommendation that

Cottrell be sentenced to death.8 Cottrell now raises five issues

in his appeal to this Court.

**429 In a pre-trial hearing, the trial judge expressed his

809 S.E.2d 423

Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41

L.Ed. 528 (1896).

The jury found three aggravating circumstances present

to warrant the imposition of the death penalty: (1) a

prior murder conviction; (2) the killing of a police

officer in the line of duty; and (3) conduct that created

a great risk of death to more than one person in a public

place. See S.C. Code Ann. § 16-3-20(C) (2015).

*633 ISSUES PRESENTED

I. Did the trial judge's removal of Cottrell's appointed attorneys

violate his right to counsel and due process under the Sixth and

Fourteenth Amendments?

II. Was Cottrell's right to a fair and reliable sentencing

determination violated as a result of the qualification and

seating of two jurors whose expressed views prevented or

substantially impaired their ability to consider constitutionally

relevant mitigating evidence?

III. Did the trial judge err in excluding the testimony of

Detective Nathan Johnson on the grounds that the risk of

prejudice substantially outweighed its probative value?

IV. Did the trial judge err by refusing to instruct the jury not to

infer malice exclusively from the use of a deadly weapon?

V. Did the trial judge err by refusing to disclose the contents

of a jury note to Cottrell's defense counsel during sentencing

deliberations?

ANALYSIS

I. REMOVAL OF ATTORNEYS

[1]Cottrell contends that the removal of his appointed counsel

without any factual findings on the record was an unnecessary

termination of his existing attorney-client relationship and a

violation of his Sixth Amendment **430 rights. On the other

hand, the State asserts the removal of Cottrell's counsel was an

appropriate exercise of discretion by the trial judge. Given the

trial judge's discretionary authority and his duty to ensure the

integrity of the judicial process and safeguard Cottrell's right

to effective counsel, we find the trial judge did not abuse his

discretion in removing Cottrell's attorneys and appointing new

counsel.

[2] [3] [4]An accused has the right to assistance of counsel.

U.S. Const. amend. VI. However, the Sixth Amendment right

to counsel is “circumscribed by the trial court's obligation to

safeguard the integrity of the proceedings and ensure trials

*634 are conducted according to the ethical standards of the

profession.” State v. Sanders, 341 S.C. 386, 389, 534 S.E.2d

696, 697 (2000). Thus, a motion to relieve counsel is left to the

discretion of the trial judge and will not be disturbed absent an

abuse of discretion. State v. Justus, 392 S.C. 416, 418, 709

S.E.2d 668, 670 (2011). In determining whether to remove a

defendant's attorneys, a court must balance a defendant's right

to choose his own counsel “against the need to maintain the

highest ethical standards of professional responsibility.”

Sanders, 341 S.C. at 390, 534 S.E.2d at 698. The Fourth

Circuit has explained that a trial judge must be allowed

“substantial latitude” and broad discretion in disqualifying a

defendant's chosen lawyer so the trial judge may “rule without

fear that it is setting itself up for reversal on appeal.” U.S. v.

Howard, 115 F.3d 1151, 1155 (4th Cir. 1997).

Cottrell characterizes the trial judge's removal of his counsel

as arbitrary and unsupported by any basis in the record, citing

to United States v. Gonzales-Lopez, 548 U.S. 140, 147–48,

126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), for the proposition

that the removal of his attorneys was a structural error under

the Sixth Amendment. We disagree.

While Cottrell is correct in asserting that the erroneous

deprivation of a defendant's counsel of choice is a structural

error in violation of the Sixth Amendment, the key qualifying

language in that statement of law requires that the removal of

defendant's chosen counsel be erroneous. In Gonzales-Lopez,

the United States Supreme Court noted that the right to counsel

of choice is not absolute and is subject to several limitations,

but because the government conceded that the district court

erroneously deprived respondent of his counsel of choice and

without proper justification, the broad discretion normally

afforded to trial judges was not applicable. Id. at 152, 126

S.Ct. 2557. Importantly though, the Gonzalez-Lopez court

made clear that its holding did not cast any doubt or place any

qualifications upon its prior holdings that “limit the right to

counsel of choice and recognize the authority of trial courts to

establish criteria for admitting lawyers to argue before them.”

Id. at 151, 126 S.Ct. 2557. Reaffirming its earlier holdings, the

Court further noted this right to counsel of choice does not

809 S.E.2d 423

extend to defendants represented by appointed counsel. Id. The

Court also reiterated the wide latitude that must be *635

afforded to trial courts in balancing the right to counsel of

choice with the needs of fairness, and its “interest in ensuring

that criminal trials are conducted within the ethical standards

of the profession and that legal proceedings appear fair to all

who observe them.” Id. at 152, 126 S.Ct. 2557.

In this case, we believe the trial judge acted properly and in

accordance with his broad discretionary authority in removing

Cottrell's appointed attorneys. We agree with Cottrell's

argument that his relationship with appointed attorneys, once

established, should be afforded the same level of deference as

that which is afforded to clients with retained counsel;

however, that does not overcome the strong language from

Gonzales-Lopez, Sanders, and the long line of other authorities

delineating the wide latitude a trial judge possesses in

balancing the right to counsel of choice with safeguarding the

integrity of the judicial process. Here, the record reflects the

trial judge removed Cottrell's attorneys to ensure Cottrell

received a fair trial with adequate representation and to

maintain the integrity of the judicial process. And, unlike

Gonzales-Lopez, the State does not concede that the trial judge

erroneously removed counsel—precluding a finding that the

removal of Cottrell's attorneys was necessarily a structural

**431 error and instead requiring the Court to apply an abuse

of discretion standard.

As Cottrell points out, Sanders grants the trial judge discretion

in removing counsel, but he contends there must first be an

evidentiary hearing with findings of fact before the judge can

make such a decision. Indeed, this Court explained in Sanders

that “as a procedural safeguard, an evidentiary hearing is

appropriate to determine whether there is evidence to support

counsel's removal.” 341 S.C. 386, 391, 534 S.E.2d 696, 698.

In Sanders, the trial judge removed one of the defendant's

attorneys after the State indicated the attorney would be called

as a witness to testify about her interactions with another State

witness. Rather than holding a hearing to determine whether

the attorney was a “necessary witness” to disqualify her under

the Rules of Professional Conduct, the trial judge merely relied

on the State's assertion and removed the attorney.

*636 In Cottrell's case, these concerns are mitigated because

in addition to the in camera discussions, the trial judge did in

fact hold a hearing to allow Cottrell and his attorneys to be

heard on the matter. We acknowledge it is somewhat

problematic that the record does not indicate with specificity

what the allegations of misconduct and disagreement actually

entail, but the attorneys' confirmation that the accusations were

made and the absence of any rebuttal weighs in favor of

affirming the trial judge's decision. Moreover, once one of

Cottrell's attorneys admitted on the record that he believed

Cottrell would likely prevail on PCR based on these

allegations, we find the trial judge had little choice but to

remove the attorneys to preserve the integrity of the trial in

accordance with Gonzales-Lopez and Sanders. The right to

counsel is not so absolute that it requires a trial judge to

preside over a trial, exhausting the time of attorneys, jurors,

and judicial staff despite an admission by a defendant's

attorney that the integrity of the verdict is in doubt due to

conduct falling below the accepted standards of the legal

profession.

Based on the above analysis, we find the trial judge acted

within the limits of his discretionary powers and did not violate

Cottrell's Sixth Amendment right to counsel by removing his

appointed attorneys and replacing them with new counsel. Had

the attorneys denied the allegations or objected to the trial

judge's remedy of removal, more complete findings of fact may

have been appropriate, but the limited findings in the record

are bolstered by the attorneys' acquiescence to the trial judge's

ruling. Though deference is afforded to a defendant's

attorney-client relationship once established, that relationship

is limited by a trial judge's obligation to safeguard the integrity

of the judicial process, as the trial judge did here. Thus, we

find no error in the trial judge's removal and replacement of

Cottrell's appointed attorneys.

II. JUROR QUALIFICATION

[5]Cottrell next argues the trial court erred in qualifying Jurors

148 and 450 after they made statements during the jury

selection process indicating they would not consider evidence

of a defendant's background in determining whether to impose

the death penalty. After reviewing the record and *637 the

entirety of each juror's voir dire, we affirm the trial judge's

decision to qualify the jurors.

[6] [7] [8]Determinations of whether a juror is qualified are

left to the sole discretion of the trial judge who has the

opportunity to see and hear the jurors. State v. Dickerson, 395

S.C. 101, 115, 716 S.E.2d 895, 903 (2011). In reviewing the

trial judge's qualification of jurors, the juror's responses must

be examined in light of the entire voir dire, and the trial judge's

decision will not be reversed unless it is wholly unsupported

by the evidence. Id. “The ultimate consideration is that the

809 S.E.2d 423

juror be unbiased, impartial, and able to carry out the law as

explained to him.” State v. Sapp, 366 S.C. 283, 291, 621

S.E.2d 883, 887 (2005).

A full review of the voir dire process shows that neither of the

jurors in question was “mitigation-impaired,” and both

identified themselves as “Type C” jurors, meaning they would

not always vote for life or always vote for death. The jurors

further stated they would wait until all evidence was presented

before determining the appropriate sentence **432 based on

aggravating and mitigating evidence.9 Both jurors expressed a

willingness to follow the trial judge's instructions regarding the

law, and both indicated they would not automatically impose

the death penalty. See Dickerson, 395 S.C. at 116, 716 S.E.2d

at 903 (“The circuit judge was more persuaded by the juror's

consistent affirmation he would follow the law and wait to hear

all of the evidence than by his apparent confusion over the

State's burden, and we believe his ultimate determination of

[the juror's] qualification to serve is supported by the *638

record.”). During the sentencing phase of Cottrell's trial, the

trial judge repeatedly instructed the jurors that they would be

required to consider any mitigating circumstance of any nature

whatsoever, and explained what mitigating evidence could

entail.

For example, Juror 450 explained to defense counsel,

“Again, I think that everything is based on individual

acts, and so overall to say that the death penalty is for

everybody, I just don't think that's how it should be.”

Keeping in mind that the jurors had not yet been given

any instructions on the law, we read the colloquies with

Cottrell's attorneys asking whether the jurors would

consider a defendant's background when determining

the appropriate sentence and their responses of “no” to

signify the jurors' intent to treat all defendants fairly

and equally, and base their decision upon the facts of

the case. To laypersons, the notion of equal treatment

for all under the law is a touchstone of our justice

system, and until a juror is fully informed that he may

determine the appropriate sentence based on the unique

backgrounds or characteristics of the defendant, it is not

surprising that a juror would state that he intends to

treat all defendants equally, regardless of their

background.

Based on the deference appellate courts afford to trial judges

in matters of jury selection, and looking at the entirety of the

voir dire process, along with the clear instructions given by the

trial judge, we affirm the trial judge's qualification of Jurors

450 and 148.

III. TESTIMONY OF NATHAN JOHNSON

Cottrell asserts the trial judge violated his due process rights,

the Confrontation Clause, and his Fourth Amendment right

against unreasonable seizures by excluding the testimony of

Detective Nathan Johnson. We disagree.

A. Background

Horry County Detective Nathan Johnson began investigating

the murder of Rick Hartman after his body was found in

November 2002. Johnson identified Cottrell as a possible

suspect in the murder and notified the Myrtle Beach Police

Department to inform its officers that Cottrell was a suspect

and requested any additional information about him. MBPD

Lt. Prock relayed this message to McGarry, knowing that he

was personally familiar with Cottrell after arresting him for

PWID earlier that year. McGarry had no contact or

conversations with Johnson, instead only hearing from Prock

that Cottrell was a possible suspect in a shooting death.

In a pre-trial hearing, the State proffered testimony from

Johnson, Prock, and Guthinger in an effort to establish that

McGarry had reasonably articulable suspicion to conduct a

Terry10 stop during his encounter with Cottrell as a matter of

law. Much of Johnson's pre-trial testimony was dedicated to

the facts he relied on in identifying Cottrell as a “suspect” in

Hartman's murder, including Hartman's escort business, his

relationship with Cottrell, and the circumstances surrounding

his homicide. Lastly, Johnson explained that the entirety of his

*639 interactions with members of MBPD was to inform them

there had been a homicide, a shooting was involved, and that

he was looking at a couple of suspects, one of them being

Cottrell.

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968).

At trial, the State called upon Prock to testify that she relayed

Johnson's request to McGarry. In response to Prock's

testimony, Cottrell sought to call Johnson to testify regarding

the information he knew about Cottrell's involvement in the

Hartman murder, arguing that Johnson did not have reasonable

suspicion to identify Cottrell as a “suspect,” making McGarry's

Terry stop an unlawful seizure. The trial judge excluded

Johnson's testimony on the basis that particular information

about the Hartman murder investigation was not relevant, and

even if it were, its prejudicial effect and potential to mislead or

confuse the jury substantially outweighed **433 its probative

value. However, the trial judge left the door open for Cottrell

809 S.E.2d 423

to call any witness he wished, including Johnson, to contradict

or impeach anything that Prock testified to regarding the

information that was passed to McGarry. After Prock testified,

Cottrell did not call Johnson to contradict or impeach any of

her statements.

Cottrell now argues the trial judge's ruling violated his

constitutional right to present a defense, and his due process

and Fourth Amendment rights. According to Cottrell, the

lawfulness of McGarry's actions and Cottrell's level of

culpability are dependent on whether Johnson possessed

reasonable suspicion himself. Thus, Cottrell argues that the

jury should have determined, as a matter of fact, whether

Johnson possessed reasonable suspicion for a Terry stop.

B. Discussion

[9] [10] [11] [12]The right to present a complete defense is

violated by the exclusion of defense evidence pursuant to a

state rule of evidence only in rare circumstances. Nevada v.

Jackson, 569 U.S. 505, 133 S.Ct. 1990, 1992, 186 L.Ed.2d 62

(2013). The right to present a defense is not without limits, and

the right does not allow criminal defendants to present any

evidence regardless of its admissibility under the rules of

evidence. See U.S. v. Lancaster, 96 F.3d 734, 744 (4th Cir.

1996). Trial judges are afforded wide latitude in determining

whether evidence is admissible. *640 State v. Torres, 390 S.C.

618, 624, 703 S.E.2d 226, 229 (2010). “To warrant reversal

based on the admission or exclusion of evidence, the appellant

must prove both the error of the ruling and the resulting

prejudice, i.e., that there is a reasonable probability the jury's

verdict was influenced by the challenged evidence or the lack

thereof.” Fields v. Regional Medical Center Orangeburg, 363

S.C. 19, 26, 609 S.E.2d 506, 509 (2005).

[13] [14] [15]“The trial judge is given broad discretion in

ruling on questions concerning the relevancy of evidence, and

his decision will be reversed only if there is a clear abuse of

discretion.” State v. Aleksey, 343 S.C. 20, 35, 538 S.E.2d 248,

256 (2000). Even where evidence is relevant, it may still be

excluded if the danger of unfair prejudice substantially

outweighs its probative value. Id.; Rule 403, SCRE. The

decision whether to admit evidence under this rule is again left

to the sound discretion of the trial judge, and the decision will

only be set aside in extraordinary circumstances where the

discretion has been plainly abused. United States v. Simpson,

910 F.2d 154, 157 (4th Cir. 1990).

We reject Cottrell's broad assertions that his constitutional

rights were violated by the exclusion of Johnson's testimony.

Unquestionably, his right to present a defense and the

confrontation clause are still subject to the rules of evidence,

and Cottrell does not challenge the constitutionality of those

rules. See Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646,

98 L.Ed.2d 798 (1988) (“The accused does not have an

unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of

evidence.”). On the various grounds which Cottrell challenges

the exclusion of Johnson's testimony—though we find no error

in the trial judge's ruling—Cottrell must still establish

prejudice, and we find none here. See State v. Jenkins, 412

S.C. 643, 651, 773 S.E.2d 906, 909 (2015).

[16]From an evidentiary standpoint, we find no error in the

trial judge's assessment that the risk of prejudice or confusion

substantially outweighed the probative value, if any, of

Johnson's testimony because McGarry's reasonable suspicion

to conduct a Terry stop was not solely dependent on Johnson's

request. It is well-established that reasonable suspicion is

judged according to the complete facts and circumstances *641

known to the officer at the time the seizure is made. See U.S.

v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d

621 (1981). In this case, McGarry had knowledge beyond that

which Johnson possessed, including the specifics of Cottrell's

prior arrest, his connection to the drug trade, an allegation that

Cottrell had held a woman hostage over an unpaid debt, and an

outstanding charge in New York for attempted murder.

Furthermore, the observations McGarry made on the night of

his murder were unique to him, and Johnson had no knowledge

as to what McGarry witnessed, such as whether Cottrell was

illegally carrying **434 a concealed weapon or the movement

of Cottrell's hand toward his waistband, that spurred him to

seize Cottrell. Lastly, for the purposes of the Fourth

Amendment, we find the seizure did not occur at the moment

McGarry began interacting with Cottrell, nor when McGarry

informed him that he would like to perform a pat-down for

weapons; rather, the seizure occurred only when McGarry

placed his hands on Cottrell in an effort to restrict his

movement, and at that time, witnesses corroborated that

Cottrell's right hand was located near his waist band—an

indicator to an experienced officer like McGarry that Cottrell

may have been reaching for a weapon. See California v.

Hodari D., 499 U.S. 621, 626–29, 111 S.Ct. 1547, 113

L.Ed.2d 690 (1991) (finding a suspect was not seized when he

did not submit to a police officer's authority after receiving

orders to stop, and the seizure only occurred once the officer

tackled the suspect). Because Johnson's identification of

Cottrell as a suspect was not the sole piece of information

809 S.E.2d 423

known to McGarry, it reduces the probative value of Johnson's

testimony. On the other hand, the trial judge found Johnson's

testimony about the Hartman murder would have necessarily

led to a “trial within a trial” that would not only confuse the

issues and mislead the jury, but would cause substantial

prejudice to Cottrell by exposing the jury to a litany of other

crimes and bad acts which the parties had earlier agreed to

keep unknown to the jury. Thus, we find no abuse of discretion

in the trial judge's conclusion that the risk of confusion and

prejudicial effects of Johnson's testimony substantially

outweighed its probative value.

[17]Additionally, based on the evidence presented, we find

Cottrell was not entitled to a jury charge on reasonable *642

suspicion, but rather, the focus for the jury in determining the

lawfulness of the stop was the reasonableness of the manner in

which McGarry acted. While the lawfulness of an arrest is

within the province of the jury's deliberation, our manslaughter

jurisprudence does not dictate that the existence of reasonable

suspicion is necessarily a component for the jury to

consider—the inquiry may be limited to analyzing the manner

in which the officer acted, and whether he used a proportionate

amount of force. This point is illustrated by the fact that both

parties asked the trial judge to rule on the lawfulness of

McGarry's Terry stop as a matter of law in pre-trial hearings.

While the trial judge declined to rule at that time, preferring to

see how the issue would develop at trial and what evidence the

parties would offer, his reason for excluding Johnson's

testimony is clarified by his post-trial order, where the trial

judge found McGarry possessed reasonable suspicion as a

matter of law. We are confident that after hearing Johnson's

testimony, the trial judge was able to determine that Johnson

himself possessed a reasonable suspicion, and therefore, his

testimony was properly excluded to prevent it from unduly

prejudicing or confusing the jury, instead allowing the jury to

limit its inquiry to the reasonableness of the manner in which

McGarry acted.

[18]In summary, we find Cottrell's argument that the trial judge

violated his rights to present a defense and to confront a

witness are without merit. “A defendant's right to present a

defense is not absolute: criminal defendants do not have a right

to present evidence that the district court, in its discretion,

deems irrelevant or immaterial.” United States v.

Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003). The trial

judge stated appropriate reasons to exclude Johnson's

testimony based on Rules 401 and 403, SCRE, and because

Cottrell has not shown an abuse of discretion, we affirm the

trial judge's evidentiary ruling.11

Additionally, we find it difficult to discern what

prejudice Cottrell suffered from the exclusion of

Johnson's testimony and do not see a reasonable

probability that the jury's verdict was influenced by the

exclusion of Johnson's testimony. Not only does

Johnson's testimony further support finding McGarry

possessed reasonable suspicion and affirm the

lawfulness of his actions, its admission would have also

led to the introduction of evidence that Cottrell acted

with malice when he killed McGarry, negating the

existence of legal provocation or self-defense.

*643 IV. JURY INSTRUCTION ON MALICE

[19]During the jury charge conference, Cottrell requested that

the trial judge charge the jury not to infer malice from the use

of a **435 deadly weapon, in accordance with Cottrell's

reading of State v. Belcher, 385 S.C. 597, 685 S.E.2d 802

(2009). The trial judge agreed to remove any instruction

permitting the jury to infer malice from the use of a deadly

weapon, but he refused to issue an express instruction that the

jury could not infer malice from the use of a deadly weapon,

noting that the jury has the right to make inferences from the

evidence if it chooses to do so.

Cottrell argues that his due process rights were violated by the

trial judge's refusal to affirmatively instruct the jury not to infer

malice from the use of a deadly weapon because it allowed the

prosecution to shirk its burden of proof during closing

arguments by telling the jury to infer malice from Cottrell's

gun. We disagree.

[20] [21]A trial court is required to charge the current and

correct law in South Carolina. State v. Brandt, 393 S.C. 526,

549, 713 S.E.2d 591, 603 (2011). An appellate court will only

reverse a trial court's decision regarding a jury charge if there

is an abuse of discretion. State v. Pittman, 373 S.C. 527, 570,

647 S.E.2d 144, 166 (2007). This Court's landmark decision in

State v. Belcher departed from the then-common practice of

charging the jury that it may imply malice from the use of a

deadly weapon, even where the defendant presents evidence

that he used the weapon in self-defense. 385 S.C. 597, 685

S.E.2d 802 (2009). Belcher created a new standard whereby

jurors could no longer be charged to infer malice from the use

of a deadly weapon where evidence is presented that would

reduce, mitigate, excuse, or justify the homicide. Id. at 600,

685 S.E.2d at 804. In an instructive footnote, the Court

clarified that its opinion was narrowly tailored to apply to the

jury charge only, but did not “restrict the State from arguing to

the jury for a finding of malice from the use of a deadly

809 S.E.2d 423

weapon, nor restrict a defendant from arguing the absence of

malice or the presence of reasonable doubt in this regard.” Id.

at 612, n. 9, 685 S.E.2d at 810, n. 9.

*644 Here, the trial judge fully complied with Belcher and did

not charge the jurors that they could infer malice from

Cottrell's use of the weapon. He instructed only that malice

could be inferred from conduct showing a total disregard for

human life. Accordingly, we find the trial judge did not abuse

his discretion because his jury instructions complied with

Belcher, and the additional charge requested by Cottrell was

not supported by any authority. Furthermore, contrary to

Cottrell's assertion that his case is similar to Belcher where it

was entirely conceivable that the only evidence of malice was

the defendant's use of a handgun, there is ample evidence in

the record here that would allow the jury to infer malice based

on Cottrell's conduct showing a total disregard for human life,

including his indiscriminate shooting that struck several

vehicles and a restaurant across the street, thereby endangering

members of the public. Thus, we affirm the trial judge's

instructions.

V. CONTENTS OF THE JURY NOTE

[22]Lastly, Cottrell argues the trial judge's refusal to inform

defense counsel of the contents of the jury note indicating the

jury's numerical division during sentencing deliberations

violated his right to assistance of counsel, a fair jury trial, and

a non-arbitrary verdict. We disagree.

[23]Section 16-3-20(C) states that the trial judge must impose

a life sentence if a capital sentencing jury cannot reach a

recommendation after a reasonable deliberation. The

determination of whether a jury has engaged in a “reasonable

deliberation” is a matter committed to the trial judge's

discretion. Tucker v. Catoe, 346 S.C. 483, 489, 552 S.E.2d

712, 715 (2001). In Tucker, the jury deliberated late into the

night and resumed the next day; that afternoon, the foreman

sent a note to the judge stating that the jury was unable to

reach a verdict at that time and asking for a recharge on the

juror's responsibilities. Id. at 491, 552 S.E.2d at 716. The

judge then issued an Allen charge, which this Court found was

unconstitutionally coercive under the totality of the

circumstances, specifically finding the charge impermissible

because it singled out the lone juror in the minority. Tucker,

346 S.C. at 493, 552 S.E.2d at 717. Additionally, the Court

was critical of the judge's treatment of notes he received from

the jury. The *645 judge did not disclose the contents of the

first note, which **436 stated the jury was deadlocked at 10–2

in favor the death penalty, but simply told the parties the jury

wished to rehear testimony. Id. at 495, 552 S.E.2d at 718. The

jury sent a second note the following day informing the judge

it was divided 11-1 and that it was “hopelessly deadlocked”

and not likely to ever get a unanimous verdict. Id. Emphasizing

that it was relying on a “combination of withholding pertinent

information from the parties, thereby depriving them of the

facts necessary to make informed decisions; failing to instruct

the jury to omit from its future communication any reference

to the nature of its division; and giving an unconstitutionally

coercive Allen charge, with its emphasis on a collective result,”

the Court granted the defendant a new sentencing proceeding.

Id.

Unlike in Tucker, the note sent by the jury in Cottrell's case did

not state that it was hopelessly deadlocked. The note simply

indicated what the jurors' vote was and inquired as to the next

step. The trial judge acted within his discretion and determined

that the jury had not yet reached a deadlock after “reasonable

deliberation” because it had only been deliberating for two

hours at that point. Without a deadlock, the trial judge found

it was not appropriate to give an Allen charge, instead simply

telling the jury to continue with its deliberations. Furthermore,

the trial judge followed the Court's instructions in Tucker and

advised the jury not to notify him of its specific vote counts in

future notes. The trial judge notified the parties of the contents

of the jury's note, withholding only the numerical split.

Cottrell cites to United States v. Maraj, 947 F.2d 520, 525 (1st

Cir. 1991), and State v. Tremblay, 820 A.2d 571, 575–76 (Me.

2003) to demonstrate that the trial judge violated Cottrell's

rights by not disclosing the numerical split. In both cases, the

courts found the respective trial judges should have disclosed

knowledge of numerical splits to the parties because it

deprived them of an opportunity to be adequately heard before

the trial judges responded to the juries' inquiries. However, in

both Maraj and Tremblay, the courts found the failure to

disclose the numerical split was harmless error and the

defendants suffered no prejudice. See Maraj, 947 F.2d at 526

(holding whether the failure to disclose the numerical split

*646 was viewed under the more strict standard for

constitutional violations or under less stringent standard

applicable to most trial errors, the error was harmless);

Tremblay, 820 A.2d at 577 (explaining that because the note

indicated the jury “reached a relative standstill in deliberations

and needed further instructions on how to proceed,” and was

not “substantive inquiry into fact or law” the court's limited

disclosure of the contents made the defendant less susceptible

to prejudice).

809 S.E.2d 423

JUSTICE FEW:

[24]Accepting Cottrell's argument that the trial judge should

have disclosed the numerical split, we agree with the State that

the decision is subject to a harmless error analysis. Because the

trial judge concluded the jury had not yet reached a deadlock

such that he needed to give an Allen charge, even if Cottrell

had been notified of the numerical split, there was nothing

further for him to do at the time to protect his rights. See

Maraj, 947 F.2d at 526 (“Moreover, had the full note been

contemporaneously disclosed, there was nothing more that

defense counsel could appropriately have done to protect their

clients' rights. On this record, we fail to see any realistic

possibility that the partial nondisclosure prejudiced the

defense, contributed even fractionally to the convictions,

influenced the jury en route to the verdicts, swayed the trial's

outcome, or adversely affected the appellants' substantial

rights.”). Accordingly, we affirm the trial judge's ruling.

PROPORTIONALITY REVIEW

[25]Pursuant to South Carolina Code Section 16-3-25(C)

(2015), this Court must review the proportionality of Cottrell's

death sentence. From our review of the record, we find the

sentence was not imposed as a result of passion, prejudice, or

any other arbitrary factor. The evidence clearly supports the

jury's finding of statutory aggravating circumstances. See S.C.

Code Ann. § 16-3-20(C). Lastly, the death penalty has been

imposed in similar cases where the aggravating circumstances

involved the death of a police officer. See **437 Sapp, 366

S.C. at 294, 621 S.E.2d at 888; Aleksey, 343 S.C. at 36, 538

S.E.2d at 256.

*647 CONCLUSION

Based on the foregoing, we find the trial court committed no

reversible error and Cottrell's conviction and sentence for the

murder of Officer McGarry are AFFIRMED.

BEATTY, C.J., KITTREDGE and JAMES, JJ., concur. FEW,

J., concurring in result only in a separate opinion.

I concur in the result reached by the majority. I disagree,

however, with two points in the majority's analysis.

I. Removal of Attorneys

First, I disagree that a trial court has “discretion” to remove

trial counsel over the defendant's objection as an exercise of

the court's duty to ensure the defendant receives a fair trial.

This Court has never before recognized such discretion, nor

has any court of which I am aware. In each case cited by the

majority to support its holding, the trial court made a specific

factual finding that the attorney was legally disqualified due to

a conflict of interest or a likelihood the attorney would be a

witness at trial. The trial court's failure to make such specific

findings in this case is the error we address in this appeal, 12 and

clearly distinguishes each of those cases from this one. The

majority has taken those cases far out of their proper context,

and the cases do not support the majority's holding.

Cottrell's own statement of the issue before us is, “The

trial court's removal of the lawyers appointed to

represent [Cottrell], over the objection of both

[Cottrell] and his lawyers, and in the absence of any

findings justifying this interference with an established

attorney-client relationship, violated [Cottrell's] rights

to counsel and due process under the Sixth and

Fourteenth Amendments....” Appellant's Br. 10

(emphasis added).

For example, the majority states “the Sixth Amendment right

to counsel is ‘circumscribed by the trial court's obligation to

safeguard the integrity of the proceedings and ensure trials are

conducted according to the ethical standards of the profession,’

” quoting State v. Sanders, 341 S.C. 386, 389, 534 S.E.2d 696,

697 (2000). Sanders, however, involved an allegation the

attorney would be called as a “necessary witness” in the trial,

*648 and thus was legally disqualified pursuant to Rule 3.7 of

the South Carolina Rules of Professional Conduct. Id.; see

Rule 3.7, RPC, Rule 407, SCACR (providing, “A lawyer shall

not act as an advocate at a trial in which the lawyer is likely to

be a necessary witness....”). In Sanders, we actually reversed

the trial court's decision to remove counsel even though the

trial court's ruling was based on a finding of legal

disqualification. 341 S.C. at 390, 534 S.E.2d at 698. Sanders

does not support the existence of “discretion” to remove an

attorney without any finding of a legal basis for

disqualification.

809 S.E.2d 423

Sanders relied on United States v. Howard, 115 F.3d 1151

(4th Cir. 1997), and United States v. Williams, 81 F.3d 1321

(4th Cir. 1996). In Williams, the district court disqualified

counsel based on its finding counsel had a conflict of interest.

81 F.3d at 1323. Williams then offered to supply auxiliary

counsel to cross-examine the witness whose testimony

provided the primary basis for counsel's conflict, but the

district court elected not to permit the arrangement. Id. Later,

Williams claimed the witness would not testify because she

would assert a privilege, and thus the potential conflict was not

a concern. Id. The district court rejected the argument and

permitted the government to call the witness. Id. Thus, when

the Fourth Circuit stated “disqualification of Williams's

counsel was well within the district court's discretion,” 81 F.3d

at 1325, the appellate court was referring to the trial court's

discretion to reject the arrangement proposed to eliminate the

conflict, not discretion to remove counsel when no

disqualifying reason existed.

In Howard, which the majority in this case quotes directly, the

district court made two separate factual findings to support its

conclusion counsel was legally disqualified—counsel had a

conflict of interest and counsel was likely to be a necessary

witness. 115 F.3d at 1155. However, the defendant attempted

to waive the conflict and argued **438 counsel would not be

required to testify. Id. Reviewing the district court's decision

not to permit the waiver and not to accept the argument

counsel would not testify, the Fourth Circuit stated the “right

to be represented by an attorney of his own choosing ... is

circumscribed by ... the obligation of trial courts to safeguard

the integrity of the proceedings before them,” and “a trial court

'must have sufficiently broad discretion to rule without *649

fear that it is setting itself up for reversal on appeal' if it

disqualifies a defendant's chosen lawyer.” Id. (quoting

Williams, 81 F.3d at 1324). Therefore, the “discretion”

referred to by the Fourth Circuit is not the discretion to do

what the trial court did here, but only that “district courts ‘must

be allowed substantial latitude’ in rejecting waivers of this

sort.” Id.

The majority also relies on State v. Justus, 392 S.C. 416, 709

S.E.2d 668 (2011). In Justus, the “the solicitor filed a motion

entitled ‘Motion to Have the Court Determine Whether

Defense Counsel has an Actual Conflict of Interest.’ ” 392 S.C.

at 417, 709 S.E.2d at 669. The motion was based on the

solicitor's contention that defense counsel represented the

State's lead investigator, who was a potential witness in the

case. 392 S.C. at 417-18, 709 S.E.2d at 669. At a hearing on

the motion, the defense attorney testified she represented the

investigator only for a limited purpose, which had been

completed, and she was no longer representing him. 392 S.C.

at 418, 709 S.E.2d at 669. The resolution of the motion,

therefore, turned on the factual question of whether the defense

attorney continued to represent the investigator, and thus

whether or not a conflict of interest would arise if he testified.

We stated,

We acknowledge that it is a close question

whether [counsel]'s representation of [the

investigator] was ongoing or had concluded.

Moreover, it is fairly debatable whether [the

witness]'s potential testimony presented an

actual conflict of interest. However, given the

conflicting evidence before the trial court, and

giving deference to its findings of fact, we find

no abuse of discretion in the disqualification

of [counsel].

392 S.C. at 419, 709 S.E.2d at 670.

The “discretion” to which we referred in Justus was

discretion to make the factual finding necessary to

determine if a potential conflict of interest existed,

not to simply remove counsel with no finding of

legal disqualification. As it did with Sanders and

Howard, the majority has taken Justus out of

context, and Justus does not support the majority's

holding.

Based on Sanders, Howard, and Justus, the majority

treats the trial court's ruling to dismiss counsel as

one “largely addressed to the trial judge's

discretion,” and states “we *650 believe the trial

judge acted ... in accordance with his broad

discretionary authority in removing Cottrell's

appointed attorneys.” I strongly disagree with the

majority's characterization of the trial court's

authority. In my opinion, a trial court may not

terminate the attorney-client relationship between a

criminal defendant and his counsel over the

defendant's objection without first making specific

findings that a valid basis for disqualification exists.

See generally United States v. Gonzalez-Lopez, 548

U.S. 140, 147-48, 126 S.Ct. 2557, 2563, 165 L.Ed.

2d 409, 419 (2006) (“The right to select counsel of

809 S.E.2d 423

one's choice ... has been regarded as the root

meaning of the constitutional [Sixth Amendment's]

guarantee. ... Deprivation of the right is ‘complete’

when the defendant is erroneously prevented from

being represented by the lawyer he wants, regardless

of the quality of the representation he received. To

argue otherwise is to confuse the right to counsel of

choice—which is the right to a particular lawyer

regardless of comparative effectiveness—with the

right to effective counsel—which imposes a baseline

requirement of competence on whatever lawyer is

chosen or appointed.”); Faretta v. California, 422

U.S. 806, 819-20, 95 S.Ct. 2525, 2533, 45 L.Ed. 2d

562, 572-73 (1975) (“The right to defend is given

directly to the accused; for it is he who suffers the

consequences if the defense fails.... To thrust counsel

upon the accused, against his considered wish, thus

violates the logic of the Amendment.”).13

It makes no difference that counsel was appointed. See

Morris v. Slappy, 461 U.S. 1, 23 n.5, 103 S.Ct. 1610,

1622 n.5, 75 L.Ed. 2d 610, 627 n.5 (1983) (Brennan, J.,

concurring) (“But the considerations that may preclude

recognition of an indigent defendant's right to choose

his own counsel ... should not preclude recognition of

an indigent defendant's interest in continued

representation by an appointed attorney with whom he

has developed a relationship of trust and confidence....

[A]n indigent defendant has an important interest in a

relationship that he might develop with his appointed

attorney.”); see also Cuyler v. Sullivan, 446 U.S. 335,

344-45, 100 S.Ct. 1708, 1716, 64 L.Ed. 2d 333, 344

(1980) (stating, in a different context, “we see no basis

for drawing a distinction between retained and

appointed counsel that would deny equal justice to

defendants who must choose their own lawyers”).

**439 That does not mean the trial court's error requires a new

trial. First, I would remand this case to the trial court and

require the court to make findings as to whether a valid basis

for disqualification exists. Even without a remand, however, I

would not reverse the trial court and order a new trial. I *651

would instead affirm on the narrow basis that the facts in this

record do not require a new trial.

As then Solicitor Hembree stated at the hearing the trial court

conducted to address this question, this was an “extreme

situation.” Prior to the hearing, both Solicitor Hembree and

then deputy solicitor Richardson submitted memoranda to the

trial court in which they described separate conversations each

had with Cottrell's first and second chair attorneys. Solicitor

Hembree's memo documents the statement of first chair

counsel that “in her career practicing law she had never

worked with any lawyer more dishonest or unethical than

[second chair]” and “she could not wait to get this case

concluded just to get away from him.” Deputy Richardson's

memo documents the statement of second chair that first chair

“was lazy, not easily motivated, and drank too much.” Deputy

Richardson's memo states second chair “said that he had to

take the lead on getting started for this trial because [first

chair] would never request discovery, look into getting experts,

and investigate the details of the shooting or possibilities of

misconduct” by officer McGarry.14

See State v. Cottrell, 376 S.C. 260, 265, 657 S.E.2d

451, 454 (2008) (finding the evidence presented at

Cottrell's first trial supported the “reasonable inference

... that [officer McGarry] reacted in an impermissibly

aggressive manner, physically assaulting and then

shooting [Cottrell] when he exercised his constitutional

right to walk away” and “evidence in this case

presented a jury question whether the arrest was lawful

but effectuated through the victim's unnecessary use of

violence”).

The trial court met privately with each defense attorney before

the hearing. At the hearing, the trial court stated he was able to

verify “the memoranda which were provided to me are correct”

that both defense attorneys had accused the other of “what I

consider to be serious misconduct.” The court explained that

“each of defense counsel believed that the allegations were

correct” and “both counsel told me that in their opinion ...

[Cottrell's] defense was being jeopardized.” While I believe

the trial court erred by not making specific findings, the court

explained, “I have been very careful not to go into the specifics

..., but there have been allegations involving dishonesty,

unethical conduct, personal problems *652 that should be

addressed, all sorts of things that I believe ... would be of grave

concern.”

In a written order, the trial court stated first chair “made

serious allegations of dishonesty and unethical conduct against

her co-counsel,” and second chair “challenged [first chair's]

competence, work ethic, and personal life.” The court stated,

“Each acknowledged having made the statements against

co-counsel and that they believed the statements to be true.”

In conclusion, the trial court should have made specific

findings on the record, and given that it did not do so, this

Court should remand with a requirement that those findings be

made now. However, I acknowledge the trial court was in a

809 S.E.2d 423

very difficult position. In ten years as a trial judge in which I

presided over hundreds of criminal trials and numerous capital

cases, I never faced an “extreme situation” like this. I am not

sure how I would have handled it if I had. Reading this record

convinces me that a dilemma of this magnitude will almost

never arise. While I steadfastly disagree with the majority's

characterization of the trial court's power to resolve this

problem as one of “wide latitude” or “considerable discretion,”

I do believe that on these unique facts the failure of the trial

court to make specific findings that **440 would form the

basis for a legal disqualification does not warrant a new trial.

II. Contents of the Jury Note

That it is error for a trial court to refuse to inform defense

counsel of the contents of a note from the jury should require

no explanation. In my view, a trial court has no authority to

refuse to inform trial counsel of any information regarding the

conduct of a trial. If this Court takes seriously the duty of

counsel to provide effective assistance under the Sixth

Amendment, then we must also recognize the elementary

principle that counsel must have available the information

necessary to fulfill that duty. The idea that a trial court may

unilaterally decide not to provide such information to trial

counsel in any proceeding—particularly the sentencing phase

of a capital trial—is absurd.

As to whether this obvious error requires reversal, Cottrell has

not articulated any action trial counsel could have taken if the

information was disclosed that would have changed the *653

way the trial court conducted the sentencing hearing or altered

its outcome. I agree, therefore, with the majority's conclusion

the error was harmless.

All Citations

421 S.C. 622, 809 S.E.2d 423

End of Document

APPENDIX B

363

.•.

•,_

STATE OF SOUTH CAROLINA

COUNTY OF HORRY

IN THE COURT OF GENERAL SESSIONS

2003-GS-26-00020

State of South Carolina,

)

PLAINTIFF,

vs.

Luzenski Allen Cottrell,

DEFENDANT.

- - - - -

}

)

TRANSCRIPT OF RECORD

March 8, 2012

Conway, South Carolina

Before:

�-

The Honorable Larry B. Hyman

Appearances:

BY:

J. Gregory Hembree, Esq.

Attorney for State

BY:

Jimmy A. Richardson, II, Esq.

Attorney for State

BY:

Melissa R. Armstrong, Esq.

Attorney for Luzenski Allen Cottrell

BY:

Stuart M. Axelrod, Esq.

Attorney for Luzenski Allen Cottrell

Brenda R. Babb

Circuit Court Reporter

364

INDEX

Argument by Mr. Hembree

Argument by Ms. Armstrong

Argument by Mr. Axelrod

Ruling of Court

Certificate of Reporter

EXHIBITS

NO.

DESCRIPTION

C-1

January 6, 2012 Memorandum from JAR

C-2

January 6, 2012 Memorandum from

J. Gregory Hembree

365

_,-,..,

Motion Hearing - March 8, 2012

The Court:

Ladies, gentlemen, we are here today

as a continuation of my hearing which was conducted on, a

status conference rather which was conducted on last

Monday.

some discovery, however, a matter more pressing has, has

come to the Court's attention.

Solicitor handed up two, I guess we could refer to them as

memos, for my consideration.

Exhibits 1 and 2, I have the original exhibits which I have

retrieved from the Clerk of Court.

into this proceeding.

At that hearing I carried over a matter concerning

At that hearing the

They were marked as Court's

I want them introduced

In that memorandum, or those memorandums, were

one from Deputy Solicitor Jimmy Richardson, one from the

Solicitor Mr. Greg Hembree.

because the Solicitor's office had become aware of a

serious rift or problem developing in the defense team

which the Solicitor's office, according to the memorandum,

caused him, the Solicitor, concern about the defendant's

ability to be effectively represented by this defense team.

I have reviewed both of the memorandum in detail.

They were handed up to me

366

Motion Hearing - March 8, 2012

I met with both members of the defense team separately and

privately to discuss this.

discussions, or I am satisfied from my discussions with

counsel, that the memorandum which were provided to me are

correct.

the defense team against co-counsel alleging what I

consider to be serious misconduct.

It would appear to me from my

Each one contains allegations made by members of

I have made, let me make this clear, absolutely

no investigation to determine whether or not there was any

truth to the allegations.

My only concern was whether the

allegations had been made.

It became very clear that the

allegations had been made, that each of defense counsel

believed that the allegations were correct, and more

importantly, I inquired of each of the defense counsel

whether or not he or she felt that this problem that has

developed, or the issues that have developed between them,

was affecting Mr. Cottrell's defense, whether or not Mr.

Cottrell's defense was being, the word I use was

jeopardized.

that was true, that his defense was being jeopardized.

Both counsel told me that in their opinion

It is this Court's responsibility to make sure

above all things that Mr. Cottrell is being effectively

defended in this case and that he is receiving, that he

will receive a fair trial, that is of the utmost importance

to me and, Mr. Cottrell, I want you to know that.

367

Motion Hearing - March 8, 2012

This case is scheduled to begin, after several

continuations, on March the 26th, the 26th day of this

month.

Court, Clerk's office, Sled, for the trial of this case,

however, I have grave concerns as to whether or not this

case can proceed.

Substantial effort has been put into preparing the

I want to hear from counsel concerning this.

inclination is, and I quite frankly feel that I have no

alternative but to continue this case and relieve one or

both counsel in this matter and hire a substitute.

understand that that is going to result in a substantial

delay in this trial, probably a delay of a year or more,

but my concern that Mr. Cottrell receive adequate

representation in this matter and my duty to protect him in

that regard compels me to take that position.

Now first I would like to hear from the State of

South Carolina in this regard if the State chooses to make

any comment or to wade in on this issue.

Mr. Hembree:

Mr. Hembree?

Yes, Your Honor, very briefly.

You know the State's general feeling and desire to get this

case tried as soon as we possibly could.

position throughout, the Court's well aware of that,

however, I will tell the Court I, co-counsel and I,

understood that this was a distinct possibility that a

continuance was, and a lengthy continuance, was a distinct

That's been our

368

Motion Hearing - March 8, 2012

possibility when we began down this path and felt compelled

to submit our concerns to the Court and we understand that.

We, but we also, like the Court, have the responsibility to

ensure that Mr. Cottrell receive a fair trial, that he is

adequately represented, that he is effectively represented.

We have an interest as, as, as officers of the Court, as

prosecutors, but also from a selfish standpoint, if you

want to call it that, we've tried this case once already.

We don't want to try it a third time, and we firmly believe

that based on the, the circumstances that we find ourselves

in today that a, a post conviction relief would be granted

if we went forward with the trial, and because of that we

would rather do it right, absolutely do it right than do it

fast.

do it fast so we would, we would, we would request a

continuance in this case and in addition to, I understand

the Court's position, but our position would be that we

believe that a continuance is appropriate.

We believe

that new defense counsel should be assigned.

We would, we

would make that request to the Court based on the

circumstances that we find ourselves in.

2�

It's a whole lot more important to do it right than

It's an extreme situation.

It's not one that we

took lightly or one that we felt good about.

situation where you want to go revealing private

conversations with other lawyers.

It's not a

I don't know that I've

369

Motion Hearing - March 8, 2012

ever done that in my whole career but it's a death penalty

case and because of the, you know, the magnitude of this

case and the seriousness of it, we just had no other choice

and we would, we would as I say, we would request that a

continuance be granted and new counsel be assigned.

The Court:

All right, Ms. Armstrong, may I hear

from you?

Ms. Armstrong:

Yes, Your Honor.

I would defer

to the Court's judgment in this, however, I would like to

reiterate that as far as I'm concerned I can set aside my

personal misgivings about dealing with co-counsel and one

thing I have never questioned is his commitment to Mr.

Cottrell, notwithstanding some impressions that I've gotten

and may have been wrong about.

The Court:

All right, and the thing that

concerns me mostly, Ms. Armstrong, is in our discussions, I

think you were very candid with me and I appreciate your

candor, when we, we discussed this issue, but what really

concerns me is that even though you assured me that you are

willing to soldier on with this matter and that you were

likewise committed to Mr. Cottrell, that in your opinion

the relationship has worked or will work to Mr. Cottrell's

detriment or the detriment of his defense; is that still

your position?

Ms. Armstrong:

Your Honor, having a chance to

370

Motion Hearing - March 8, 2012

reflect and think about it a little more and knowing that

notwithstanding our differences, Mr. Axelrod wants to give

Mr. Cottrell the best possibly defense.

it is possible for Mr. Axelrod and I to sit down face to

face and discuss it and see if we can set aside our

negative opinions and move forward.

a possibility.

The Court:

I do believe that

I think, I think it's

Ms. Armstrong, we're only two and a

half weeks from trial.

Ms. Armstrong:

That's correct, Your Honor, and

We may have to reschedule an

no work has stopped.

evaluation of Mr. Cottrell that was scheduled for today,

that would have to be rescheduled, and we would need for

the office that was subpoenaed for documents to provide

what Mr.- Skidmore has found missing in a timely fashion.

The Court:

I'll hear from you.

Mr. Axelrod:

All right, thank you.

Mr. Axelrod,

I think the Court's right that

I think that

what's most important is Allen's defense.

Solicitor Hembree raises valid points.

solidifies probably a PCR.

reading what I read.

Investigator be here, I want Allen to be here, I think that

2.4

maybe the Court should inquiry of Allen.

to say, Your Honor, I just say I would defer to what the

I think his memo

I think it just does, I mean

I defer to the Court and I'll ask the

I don't know what

371

Motion Hearing - March 8, 2012

Court thinks is best, thank you.

The Court:

Okay, Mr. Cottrell, you have heard

my concerns and I believe I've made my position clear to

you.

do not want to continue this case.

attorneys it's going to result in a delay in this case and

it is a very important case, it's a capital case.

probably going to result in a substantial delay of this

case so I do not undertake this lightly; however, I am

really concerned that their differences of opinion as to

the way to proceed in this case and that perhaps the

theories shared by your co-counsel may be in conflict.

I want you to receive the best defense possible.

If I replace your

It's

Tell me. Mr. Cottrell, if you have any comments

to make to the Court concerning this issue?

Defendant Cottrell:

Your Honor, I know from my

16 ·knowledge from speaking with both my attorneys that I know

Mr. Axelrod's strategy.

I know that he's been preparing

diligently for my trial.

We've spoken on numerous

occasions about how he would like to proceed and I feel

confident in his ability to represent me as the attorney

for this trial.

I just became aware of this rift between the two

I had no idea that it was there.

It does cause

attorneys.

me concern as well but if I could I would like to speak

with both of them, you know.

I haven't had a chance to do

372

Motion Hearing - March 8, 2012

that since I found out and if I could speak with both of

them?

The Court:

All right, well we will take a brief

recess, will ten, fifteen minutes, is that how much time

you need?

Defendant Cottrell:

Honor.

The Court:

That would be fine, Your

Okay, we'll take a moment.

There's

a place, I think, back here where you can speak to them.

We'll just be at ease for about fifteen minutes, okay.

(Whereupon, a recess was taken and the following

takes place on the record after the recess.)

The Court:

Okay, Mr. Cottrell, have you had

adequate time to speak to your attorney?

deputy came out and told me that you were ready to come

back in, have you had all the time you need?

Defendant Cottrell:

The Court:

The sheriff's

Yes, sir, I have.

Well would you like to say anything

else to me?

Defendant Cottrell:

Just that I spoke with both

21 .of them and they said that they would be able to work

together, you know, but ultimately it would up to you, Your

Honor.

All right.

The Court:

Defendant Cottrell:

I would just like to

373

Motion Hearing - March 8, 2012

reiterate that I do feel confident about the

representation.

The Court:

Well you tell me that you even say

you still had some concern?

Defendant Cottrell:

Right, because I had no

idea that this was going on between the two of them.

understand that, you know, a case like this is stressful

for all parties involved and, you know, I know that the

work that Mr. Axelrod has done in the first part of the

trial of this case, I don't think it can be matched by

anybody else.

The Court:

So, I

Well, Mr. Cottrell, as I told you

my, my main concern is that you receive an effective and

adequate defense and I .also have a concern that that is

absolutely necessary in order to, for this case to survive

the ultimate review that it would be placed under if you

are convicted.

this, with this case.

We have been struggling to get it to

Court to get it tried.

There have been several

continuances granted.

We have had status conferences,

The State has concerns, I am torn with

21· motion hearings throughout the year towards that end,

however, and I understand your position, however, there are

serious allegations that have been made by your co-counsel

against the other co-counsel.

The Solicitor's job is to try this case but he

374

Motion Hearing - March 8, 2012

also has an ethical responsibility to bring allegations of

misconduct to the Court's attention and these are very

serious.

degree of friction between the Solicitor's office and the

defense.

what the defense counsel is doing and the same thing from

the defense counsel complaining about the Solicitors, but

those are usually just minor things having to do with

strategy and things of that nature.

There's always, in every substantial case, some

I am accustomed to having the Solicitors complain

This goes beyond that.

The Solicitor has an ethical duty to bring it to

I am quite sure that he has complied with

my attention.

his ethical responsibility.

ethical responsibility is having had these matters brought

to my attention.

responsibility is and that's to report it and let it be

·flushed out by someone else.

careful not to go into the specifics other than general

allegations, but there have been allegations involving

dishonesty, unethical conduct, personal problems that

should be addressed, all sorts of things that I believe on

review would be matters that would be of grave concern to a

PCR judge, and there again I'm not suggesting, Mr.

Cottrell, that there will be a conviction in your case, I'm

not telling you that I've prejudged your case.

you that if it reaches that point that could certainly be a

I am not certain what my

I'm afraid I do know what my ethical

As I've said I have been very

I'm telling

375

Motion Hearing - March 8, 2012

problem.

I don't think that I have had, I have any

alternative than to relieve counsel in this matter, both

attorneys.

give them adequate opportunity to pick up your defense and

they will, I'm sure, proceed in the same fashion or very

much the same fashion.

They will have access to all the materials that have been

gathered so far.

attorneys to discuss strategy and make that type of

decision and they will discuss it with you, I'm sure.

I am going to relieve counsel in this matter.

continue this case until such time as the trial will be

app:i;opriate.

I am going to appoint someone, I'm going to

You certainly have input into that.

They have will have access to these two

But

I'm going to

I make no ruling at this point as to whether or

not I intend today or tomorrow to appoint new counsel.

going to give some more thought to that as to who should

represent you.

order that whoever is appointed that counsel cooperate with

I'm

I am going, in that order, and I do so now

20· them, turn over all the materials that have been gathered

so far and anything that they have, their complete files on

you to new counsel.

order.

That is my ruling,

will prepare an

Gentlemen, I'm sorry, ladies, gentlemen, I'm

sorry, but that is just what I must do, thank you.

376

Motion Hearing - March 8, 2012

Madam Clerk:

Sir, before everybody leaves

exhibits were picked up by the county police and your

investigator from our office and can they be returned back

now because the new parties are going to probably want to

see it at that time.

The Court:

Lorie Rabon and Carmen -I would like to have the exhibits

placed in possession of the Clerk of Court so that they

would be available for new counsel.

copies, photostatic copies of the exhibits that, 1 and 2,

that were handed up last week, parts of this record.

think that these Exhibits Number 1 and 2, which I have the

originals of, will, would be in the same record but I still

want to make sure that that becomes a part of this record.

Thank you very much, ladies and gentlemen.

I'm going to make

(Whereupon, Court's Exhibits Numbers 1 and 2

marked for identification.)

Mr. Richardson:

Your Honor, one other thing

we·'ve got dealing with that discovery issue, we have turned

over supplement K, L, C, B, which is numerous reports.

just would ask that either Ms. Armstrong or Mr. Axelrod

sign these originals so that we can know for whoever who is

going to take over this case what evidence has been given

out.

We've got everything else signed.

The Court:

They may, they may acknowledge

receipt of those matters, thank you.

377

End of requested transcript .....

CERTIFICATE OF REPORTER

I, the undersigned Brenda R. Babb, official court

reporter the South Carolina Court Administration, do hereby

certify that the foregoing is a true, accurate, and

complete transcript of record of all proceedings had and

evidence introduced in the hearing of the captioned case,

relative to appeal, in the Court of General Sessions for

Horry County, South Carolina.

I do further certify that I am neither kin, counsel

nor interest to any party hereto.

Brenda R. Babb, CVR

OFFICIAL REPORTER

378

January 61\ 2012

Talked with Stuart for a few minutes before our status conference. He repeated his dissatisfaction with

his co-counsel Lisa Armstrong. He repeated that Lisa was lazy, not easily motivated and drank too much.

Stuart said that he had to take the lead on getting started for this trial because Lisa would never request

discovery, look into getting experts, and investigate the details of the shooting or possibilities of

misconduct by the MBPD.

Stuart also said that he decided to storm ahead and take this case on himself. He realized he was

second chair but that he was going to do the work because Armstrong was either incapable or too lazy

to start.

1 do not remember the first date that Stuart mentioned his problems with Armstrong to me but I know

he has expressed concerns over her abilities more than a few times.

COUIU'S

EXHIBIT

379

MEMORANDUM

TO:

FROM:

RE:

DATE:

State v. Cottrell File

r Il...

J. Gregory Hembree, Solicitor/1,,0f

Conversation with defense col;el

February 21, 2012

Th.is morning we had a status conference scheduled for the case above referenced.

When I walked into my office at approximately 8:45 Lisa Armstrong was sitting in our lobby.

Lisa asked me to confirm the time for our hearing and I advised her that it was scheduled for 9:30

and sat down for a minute to chat. We discussed a few of the things that we intended to cover at

the hearing and then Lisa offered how sorry she was that my office had to work with her co

counsel, Stuart Axelrod, on a regular basis. I agreed with her that he was very difficult to work

with and that his clients frequently received stiffer prison sentences due to his advice and

approach.

Lisa then went into a rather lengthy discussion that in her career practicing law she had never

worked with any lawyer more dishonest or unethical than Mr. Axelrod. She went on to say that

they were not working together at all and that she could not wait to get this case concluded just to

get away from him. From her demeanor it was clear that she strongly disliked her co-counsel.

Ms. Armstrong also stated that Mr. Axelrod was fixated on the wrong strategy for this type of

case and that he wouldn't listen to her advice regarding guilt phase strategy. I agreed with her

that what I perceived his strategy was not the strategy I would use if I were defending the case.

She never specifically revealed any strategy and I made my judgment based upon what Mr.

Axelrod has revealed to others along with what I anticipate his strategy to be based on the

discovery he has requested.

After that conversation and knowing what Mr. Axelrod said to Deputy Solicitor Richardson

about Ms. Annstrong, I became very concerned about the defendant's ability to be effectively

represented by this defense team.

COURI''S

EXHIBIT

380

. .•

. STATE OF SOUTH CAROLINA )

COUNTY OF HORRY

State of South Carolina

vs.

Luzenski Allen Cottrell

)

IN THE COURT OF GENERAL SESSIONS

FOR THE FIFTEENTH JUDICIAL CIRCUIT

INDICTMENT NO. 2003-GS-26-0020

ORDER REMOVING DEFENSE

COUNSEL AND CONTINUI� CASE

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This matter comes before the court al a scheduled status hearing held on March� 2012. Jury

selection in this capital murder case was to begin on March 26, 2012. The purpose of the hearing

was to resolve any outstanding motions or discovery matters. At the end of the hearing Solicitor

Gregory Hembree stated that he and his Deputy Solicitor James A. Richardson had recent

conversations with the defense team which raised serious concerns about the �efendant's ability to be

effectively represented by defense counsel. After much consideration, I must �gree.

Solicitor Hembree offered into the record two written statements by Deputy Solicitor

Richardson and himself. The Solicitor's statement describes a lengthy conversation with defense

counsel Lisa Armstrong, during which Mrs. Armstrong made serious allegations of dishonesty and

unethical conduct against her co•counsel Stuart Axelrod. She further expressed her concerns about

counsel's inability to coordinate trial strategy. Deputy Solicitor Richardson's statement referenced

several conversations with Mr. Axelrod in which he made serious accusations against Ms.

Armstrong. His accusations chalJenged her competence, work ethic, and personal life.

The court is now placed in the very uncomfortable position of complying with its ethical

responsibility as to these accusations. Due to the serious nature of the allegations, I spoke. to each of

•

·'

381

. .

the Defendant's attorneys privatel}' in my chambers. Each acknowledged having made the

statements against co-counsel and that they believed the statements to be true. On further inquiry,

both advised that they were of the opinion that conduct of co-counsel had jeopardized the defense of

this case.

I re-convened the hearing on March 8, 2012, during which I expressed my concern that the

defendant could not be effectively represented by his present attorneys. Ms. Armstrong stated that

since having last talked with me, she and Mr. Axelrod had determined that they could try to set aside

their differences and continue to represent the defendant. This is a capital case two weeks from trial.

I see no way to repair the relationship of co-counsel and the damage done to the defense.

I have carefully explained my concerns to the defendant. He stated that he thought his

attorneys could resolve their problems and continue with his defense. However, my duty at this point

is to protect this defendant by taking the course most likely to assure that he will be effectively

represented and his constitutional rights will be preserved. I am not unaware of the delay and

expense to be caused by my decision. Nevertheless, I must take the extreme measure of relieving

counsel and appoint new counsel.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that auorney Lisa

Armstrong and Stuart Axelrod are relieved as counsel for the defendant.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED upon notice of appointment of

new counsel they shall turn over to new counsel all file-materials within 10 days.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that lhe Office of Indigent

Defense Capital Case Division shall assume the duty of defense in this case. Upon assignment to

specific attorneys the Office of Indigent Defense shall notify this court of such assignments to obtain

formal appointment orders.

382

·'

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the trial of this·case

is continued until further order of this court.

l-L

AND IT JS SO ORDERED.

Conway, South Carolina

March 13, 2012

.. .

. .·

.·

. '• . . .

.....

Larry 8. Hym n, Jr., Presiding udge

Fifteenth Judicial Circuit

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