THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Tyson E. Langley, WWa

William Edward Hall.,

Jr., Appellant.

Appeal From Charleston County

Daniel E. Martin, Sr., Judge

Opinion No. 24924

Heard December 1, 1998 - Filed March 22, 1999

REVERSED

Assistant Appellate Defender Robert M. Dudek, of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W., McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, and

Assistant Attorney General Lauri J. Soles, all of

Columbia; and Solicitor David P. Schwacke, of

North Charleston,, for respondent.

BURNETT, A.J.: Appellant appeals his conviction of murder.

We reverse.

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FACTS

Twenty-eight Moultrie Street was the address of a crack house

in Charleston. Eva Desaussure and her boyfriend, Irvin James, lived in

the house and they allowed a group of local drug dealers (the Charleston

boys) to base its drug operations in the house in exchange for drugs and

money. Members of this group included Simon Blye, Dee, Devron and

Eric.1

Sometime prior to February 1995, Eva and Irvin allowed a

group of drug dealers from New York (the New York boys) to also use the

house for its drug operations. Members of this group included Supreme,

Derrick and appellant.

In early February 1995, the Charleston boys entered the house

at 28 Moultrie Street and an argument developed between Devron and one

of the New York boys, Derrick. Devron threatened Derrick with a sawed

off shotgun and then robbed him. When Eva attempted to intervene,

Devron also threatened her. Devron then knocked Derrick into a window,

shattering it. Derrick fled the house through an upstairs window and the

Charleston boys left. Supreme and appellant were not at the house when

this incident occurred. However, Eva testified they were extremely upset

when they learned of the incident.

The next day, Simon, Dee and Tyrone Moore, a friend of the

Charleston boys, returned to 28 Moultrie Street. Eva testified heated

words were exchanged between Supreme, who was standing in the

doorway with his gun, and Simon, Dee, and Tyrone. Eva again intervened

and asked Simon, Dee and Tyrone to leave. They left.

Later that evening, Phillip "Bunny" Gibbs (the victim), a friend

of the Charleston boys, purchased drugs from 28 Moultrie Street. He

stayed at the house for about an hour. The New York boys were not at

the house during that time.

Just before midnight, the victim returned to 28 Moultrie

contains only first names of most of the individuals involved in this

incident.

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Street. However, because of the tense situation, Eva and Irvin had

ordered the doorman not to allow anyone entrance.2 Therefore, the

doorman would not let the victim enter the house. According to the

testimony of the doorman, when the victim turned to leave, appellant and

Derrick demanded to be let out of the house. Shortly after appellant and

Derrick left the house, both Eva and the doorman testified they heard

gunshots.

Simon testified he, Devron, Dee and Eric were driving by at

that time and saw appellant, Derrick and the victim walking down the

street. Simon testified either Derrick or appellant shot the victim, and he

saw Derrick and appellant "take off running." The victim was shot one

time in the face at close range. Simon admitted the Charleston boys had

guns in the car. The Charleston boys attempted to chase appellant and

Derrick; however, because they did not want to be caught in the area, they

left.

Eva testified appellant and Derrick ran back to the house and

called to Supreme to "come on" and the three left the house. Eva testified

she had not seen appellant since that night. Eva further testified that a

short time after the New York boys left, gunshots were fired upon the

house from an automobile.

Tyrone Moore testified the Charleston boys came to his house

shortly after the shooting and Simon told him appellant had shot the

victim. The police found appellant's cellular telephone at the scene of the

murder.

ISSUE

Did the trial judge err in allowing the victim's

sister to testify and in admitting a photograph of

the victim?

key for ingress and egress. Usually, a doorman was responsible for letting

people in and out of the house.

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DISCUSSION

Appellant argues the trial judge erred in allowing the victim's

sister to testify and in admitting a photograph of the victim. Appellant

contends this evidence was not relevant, and even if relevant, its probative

value was outweighed by its prejudicial effect.

Phyllis Jones, the victim's sister, testified for the State. Over

defense counsel's objection, Ms. Jones testified about the victim's family

and how the victim acquired his nickname, "Bunny." Ms. Jones testified

the victim had attended Burke High School where he played the drums in

the band. Ms. Jones then identified a photograph of the victim. This

photograph was admitted into evidence.

A trial judge is accorded broad discretion in ruling on the

admissibility of the testimony. State v. Davis, 309 S.C. 326, 422 S.E.2d

133 (1992) (holding the admissibility of evidence with little probative value

was harmless where it did not affect the outcome of the trial), cert. denied,

508 U.S. 915, 113 S.Ct., 2355, 124 L.Ed.2d 263 (1993). All relevant

evidence is admissible. Rule 402, SCRE. Evidence is relevant if it has a

direct bearing upon and tends to establish or make more or less probable

the matter in controversy. Rule 401, SCRE; State v. Alexander., 303 S.C.

377, 401 S.E.2d 146 (1991). Although evidence is relevant, it may be

excluded if the danger of unfair prejudice substantially outweighs its

probative value. Rule 403, SCRE; State v. Alexander, supra. Further, a

photograph should be excluded if it is calculated to arouse the sympathy

or prejudice of the jury or is irrelevant or unnecessary to substantiate

facts. State v. Livingston, 327 S.C. 17, 488 S.E.2d 313 (1997). Even if the

evidence was not relevant and thus wrongly admitted by the trial judge,

its admission may constitute harmless error if the irrelevant evidence did

not affect the outcome of the trial. State v. Davis, supra; State v.

Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991), cert. denied, 503 U.S. 993,

112 S.Ct. 1691, 118 L.Ed.2d 404 (1992).

We find Ms. Jones' testimony and the victim's photograph were

not relevant to proving the guilt of appellant.3 Because the evidence of

the defendant first attacks the victim's character. Rule 404(a), SCRE.

The State claims this testimony and the photograph were relevant to

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appellant's guilt was not overwhelming, we cannot find this irrelevant

evidence did not affect the outcome of the trial under a harmless error

analysis. Compare State v. Livingston, supra (evidence of appellant's guilt

was not overwhelming so as to find harmless the error in admitting an

irrelevant photograph of victim) with State v. Davis, supra (evidence of

appellant's guilt was overwhelming; therefore, the admission of mother's

irrelevant testimony about the victim was harmless).

A jury could have found appellant guilty of victim's murder

under several theories presented by the State. First, appellant would be

guilty of murder if he actually shot victim. Second, under the "hand of

one, the hand of all theory," appellant would be guilty of murder if he

aided Derrick. Under this theory, one who joins with another to

accomplish an illegal purpose is liable criminally for everything done by

his confederate incidental to the execution of the common design and

purpose. To admit evidence under this theory, the existence of the

common design and the participation of the accused against whom the

evidence is offered should first be shown. State v. Woomer, 276 S.C. 258,

277 S.E.2d 696 (1981). Third, appellant would be guilty of murder

if the jury found he was an accomplice. Under accomplice liability theory,

ita person must personally commit the crime or be present at the scene of

the crime and intentionally, or through a common design, aid, abet, or

assist in the commission of that crime through some overt act." State v.

Austi , 299 S.C. 456, 459, 385 S.E.2d 830, 832 (1989); see also State v.

Leonard, 292 S.C. 133, 355 S.E.2d 270 (1987) (to be liable as an aider or

abetter, the participant must be chargeable with knowledge of the

principal's criminal conduct; mere presence at the scene is not sufficient to

establish guilt as an aider or abetter).

The State used the following evidence to establish appellant's

guilt: appellant and Derrick left the house together; appellant's cellular

at issue in this case. Therefore, this evidence was not admissible for this

purpose. Instead, the only possible purpose of this testimony and

introduction of the photograph was to distance the victim from the drug

dealing that was occurring at 28 Moultrie Street and to neutralize

testimony by the State's witnesses regarding his drug use. However,

because appellant did not attack the victim's character, this evidence

should not have been admitted.

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telephone was found at the crime scene; Simon testified either appellant or

Derrick shot the victim; and Tyrone testified that immediately after the

incident, Simon told him appellant shot the victim. While this

circumstantial evidence was sufficient to present this case to a jury on the

above theories, the evidence fails to establish overwhelming evidence of

appellant's guilt.

Because we reverse on this issue, we do not address

appellant's other issues.

REVERSED.

FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.

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