        THE STATE OF SOUTH CAROLINA 

             In The Supreme Court 


The State, Respondent,

v. 


Donta Reid, Appellant. 


Appellate Case No. 2011-204288 





             Appeal from York County
 The Honorable John C. Hayes, III, Circuit Court Judge


                  Opinion No. 27407 

       Heard December 5, 2013 – Filed July 2, 2014 



                      AFFIRMED 



Appellate Defender Kathrine H. Hudgins, of Columbia,
for Appellant.

Attorney General Alan M. Wilson, Assistant Attorney
General Mark R. Farthing, and Assistant Attorney
General Jennifer E. Roberts, all of Columbia, for
Respondent.

Deputy Public Defender Christopher D. Scalzo, of
Greenville, for Amicus Curiae, South Carolina Public
Defender Association.
JUSTICE HEARN: In this criminal appeal, Donta Reid challenges the trial
court's failure to suppress his confession, arguing it was obtained in violation of his
Sixth Amendment right to counsel. We disagree and find the facts of Reid's case
fall within the purview of Montejo v. Louisiana, 556 U.S. 778 (2009), in which the
United States Supreme Court held a valid Miranda1given waiver prior to a
custodial interrogation sufficed to waive a defendant's Sixth Amendment right to
counsel regardless of whether he retained representation at a prior arraignment. Id.
at 795. Reid further contends the trial court erred in failing to grant a directed
verdict of acquittal on the charges for possession of a firearm during the
commission of a violent crime because the State failed to prove he actually or
constructively possessed a firearm. We find those charges were properly
submitted to the jury and therefore affirm his convictions.

                  FACTUAL/PROCEDURAL BACKGROUND

      On the evening of October 1, 2009, Maurice Jackson, Tyrone King, and
Kenny Cunningham, the victims, were sitting on Jackson's front porch when
Jackson received a text from Reid inquiring about buying marijuana. When
Jackson informed Reid he did not have any marijuana, Reid said he would stop by
Jackson's house regardless. Upon arriving, Reid invited Jackson to accompany
him to "midtown," stating he had located some marijuana. Jackson declined
because he could not leave his company on his porch. Reid asked to use Jackson's
cell phone and during the course of his conversation Jackson and Cunningham
overheard him say "There's two" or "It's two of them." Reid indicated he would
come back and left, but he never returned.

       Jackson and his companions remained on the porch and roughly fifteen to
thirty minutes later a man and a woman approached the porch, neither of whom the
victims recognized. The woman ran up the steps and announced that it was a
robbery. The man, who wore a mask, pulled a rifle from his pants, echoed the
woman's pronouncement that this was a robbery, and threatened to shoot if any of
them moved.

       The woman went through the victims' pockets and collected the contents.
The man and woman started to leave, but the man turned around and began
shooting at the victims. Cunningham was struck through his left leg and between
his toes. King was shot in the head and later died from the wounds.


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
       After interviewing the victims, the police investigation focused on Reid, and
the day after the robbery, detectives questioned him about the incident. Reid
informed law enforcement that he stopped by Jackson's house to use Jackson's
phone to call a female friend, who he then went to visit. Reid agreed to
accompany the detectives to this friend's apartment so she could corroborate his
story; however, once they arrived at the address Reid gave them, he indicated the
detectives needed to question a different woman. That woman's mother denied that
Reid had been there the night before.

      Thereafter, Reid was handcuffed and taken to the police station where he
was read his Miranda rights, which he waived. Over the next few days, Reid made
four different statements to law enforcement. Reid gave the first statement at 1:45
p.m. indicating a man named Darius Jeter acted alone in the robbery and was both
the shooter and instigator. Reid admitted he assisted Jeter by reconnoitering
Jackson's porch prior to the robbery. He also stated he did not witness the robbery,
but heard the shots. Reid was then taken to a jail cell in the police department.

       A few hours later Reid asked to speak with the detectives again to provide
additional information. Prior to the interview, Reid was Mirandized again and
after waiving his rights he gave a second statement at 4:10 p.m. In this statement,
he maintained Jeter was the lone robber and shooter; however, this time Reid
described witnessing the events of the robbery, although he still stated he only
heard the shots as he walked away and did not see the gunfire.

       Prior to midnight that same day, detectives approached Reid again for
questioning. After waiving his Miranda rights, Reid made another statement, this
time indicating a female–Samantha Ervin–was also involved in the robbery. Reid
still maintained Jeter was the shooter but now stated Ervin helped plan the robbery
and drove the three of them to Jackson's house. He also indicated Ervin
accompanied Jeter to Jackson's house while he waited in her truck for them. Reid
stated after he heard gunfire, Jeter and Ervin ran back to Ervin's truck, and Jeter
said he thought he shot one of them.

       During his arraignment the following day, Reid filed a request for counsel
and a supporting affidavit of indigency. He was approved for appointment of
counsel that day. Over the course of the next few days, law enforcement
interviewed Ervin and she eventually disclosed that in addition to herself and Reid,
Davontay Henson and Aileen Newman were also involved in the crimes. Based on
this information, Henson and Newman were both arrested. Thereafter, detectives
questioned Reid on October 6 at 9:40 a.m., informing him they knew he had not
been truthful in his prior statements. Although Reid had not yet met with his
appointed counsel, he again waived his Miranda rights and gave a fourth
statement.

       In his fourth statement, Reid stated he was with Henson and Newman at
Ervin's house earlier in the evening on October 1 when Henson pulled out a rifle
and said he wanted to rob someone. Ervin asked if Reid would assist in robbing
Jackson and he assented. Reid then walked over to Jackson's home and called
Ervin to inform her there were two other people at Jackson's house. After Reid left
Jackson's home, he met up with Henson, Ervin, and Newman, who had all been
riding around in Ervin's truck. Reid informed them there were three people on the
porch and he could not convince Jackson to leave with him. Henson then stated he
would just rob all three of them. Reid and Ervin waited in Ervin's truck while
Henson and Newman walked to Jackson's home. Reid heard gunshots and shortly
thereafter, Henson and Newman returned to the truck. Henson then threatened to
"come back and get" anyone who disclosed the events of the evening.

       Based on law enforcement's investigations, Reid, Henson, Newman, and
Ervin were subsequently charged with murder, assault and battery with intent to
kill (ABWIK), criminal conspiracy, armed robbery, and possession of a firearm
during the commission of a violent crime. Ervin and Newman both pled guilty, but
Henson and Reid proceeded to a joint trial.2

       Prior to trial, Reid moved to suppress his fourth statement to the police on
the grounds it was obtained in violation of his Sixth Amendment right to counsel.
During the Jackson v. Denno3 hearing, Reid argued he requested and was
appointed counsel at his arraignment on October 3, and therefore, it was a violation
of his constitutional rights for police to question him on October 6 without his
attorney present. The State contended Reid's argument was no longer viable
because Montejo held a valid Miranda waiver prior to a custodial interrogation is
not rendered constitutionally inadequate simply because the defendant was
appointed counsel at a prior arraignment. The trial court denied the motion to
suppress and the case proceeded to trial.

2
  Ervin pled guilty to three counts of armed robbery and one count of criminal

conspiracy, and Newman pled guilty to one count of ABWIK, one count of 

criminal conspiracy, and three counts of armed robbery. 

3
  378 U.S. 368 (1964). 

       At trial, Cunningham and Jackson both testified about their encounter with
Reid prior to the incident and indicated he was not one of the perpetrators present
during the robbery. Additionally, Newman and Ervin testified about the particulars
of the plan to rob Jackson and how it was executed. They described Reid's
participation in scouting out the porch and his attempt to lure Jackson away from
the home. They also indicated Reid knew Henson had a rifle he planned to
employ, but Reid himself did not take part in the commission of the robbery.

      Ultimately, the jury found Reid not guilty of murder, but guilty of assault
and battery of a high and aggravated nature, three counts of armed robbery, three
counts of possessing a firearm during the commission of a violent crime, and
criminal conspiracy. Reid appealed, and the Court certified the case pursuant to
Rule 204(b), SCACR.

                               ISSUES PRESENTED

I.	    Did the trial court err in allowing the introduction of Reid's fourth statement
       to law enforcement?

II.	   Did the trial court err in failing to grant a directed verdict in favor of Reid on
       the three charges of possession of a firearm during the commission of a
       violent crime?

                                  LAW/ANALYSIS

I.	    SIXTH AMENDMENT RIGHT TO COUNSEL

      Reid argues the trial court erred in failing to suppress his fourth statement
because the police obtained it in violation of his Sixth Amendment right to
counsel. We disagree.

       The Sixth Amendment to the United States Constitution guarantees that "[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." U.S. Const. amend. IV.4 "[O]nce the
adversary judicial process has been initiated, the Sixth Amendment guarantees a
4
  The protections of the Sixth Amendment have been extended to the states
through the Fourteenth Amendment. Powell v. Alabama, 287 U.S. 45, 61, 53
(1932).
defendant the right to have counsel present at all 'critical' stages of the criminal
proceedings." Montejo, 556 U.S. at 786. This right to counsel may be waived by a
defendant provided relinquishment of the right is voluntary, knowing, and
intelligent. Id. However, the decision to waive counsel need not itself be
counseled. Id. Generally, "an accused who is admonished with the warnings
prescribed [in Miranda] has been sufficiently apprised of the nature of his Sixth
Amendment rights, and of the consequences of abandoning those rights, so that his
waiver on this basis will be considered a knowing and intelligent one." Patterson
v. Illinois, 487 U.S. 285, 296 (1988).

      Reid contends his Sixth Amendment right to counsel was implicated at the
arraignment when he requested appointment of counsel. He therefore argues the
subsequent police-initiated interview violated that right and his waiver was invalid.
We find the United States Supreme Court foreclosed this argument in Montejo.

       Prior to Montejo, the Court established the rule in Michigan v. Jackson, 475
U.S. 625 (1986), that "if police initiate interrogation after a defendant's assertion, at
an arraignment or similar proceeding, of his right to counsel, any waiver of the
defendant's right to counsel for that police-initiated interrogation is invalid." Id. at
636. The Court expounded this holding as an extension of the rule in Edwards v.
Arizona, 451 U.S. 477 (1981), that "an accused person in custody who has
'expressed his desire to deal with the police only through counsel, is not subject to
further interrogation by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication, exchanges, or
conversations with the police.'" Jackson, 475 U.S. at 626 (quoting Edwards, 451
U.S. at 484–85).

       However, in Montejo the Court expressly overruled Jackson, finding the
protections afforded in Miranda, Edwards, and Minnick5 sufficiently safeguard a
defendant's Sixth Amendment right to counsel. Montejo, 556 U.S. at 794. In that
case, Jesse Montejo was arrested in connection with a robbery and murder. Id. at
781. He waived his right to counsel under Miranda and gave various accounts of
the incident. Id. Several days later, Montejo was brought before a court for a "72-
hour hearing," a preliminary hearing required in Louisiana during which the court
automatically appointed him an attorney as part of the course of the proceeding.
Id. Prior to meeting with his newly retained attorney, detectives visited Montejo in
prison and requested he accompany them in searching for the murder weapon. Id.

5
    Minnick v. Mississippi, 498 U.S. 146 (1990).
The detectives read Montejo his Miranda rights again and he agreed to go on the
excursion, during which time he wrote an inculpatory letter of apology to the
victim's widow. Id. at 782.

      At trial, Montejo argued the letter must be excluded under Jackson because
counsel was appointed at his arraignment and therefore his subsequent waiver was
presumptively invalid. Id. The trial court rejected his argument and allowed
admission of the letter. Id. The jury convicted Montejo of first-degree murder and
sentenced him to death. Id. On appeal, the Louisiana Supreme Court affirmed his
conviction. Id. In rejecting his reliance on Jackson, that court found the

      prophylactic protection of Jackson is not triggered unless and until the
      defendant has actually requested a lawyer or has otherwise asserted
      his Sixth Amendment right to counsel. Because Montejo simply
      stood mute at his 72–hour hearing while the judge ordered the
      appointment of counsel, he had made no such request or assertion.

Id.

       On certiorari to the United States Supreme Court, Montejo argued
Louisiana's application of Jackson produced an arbitrary and unworkable standard
that could not be applied consistently nationwide because some states
automatically appoint counsel to indigent defendants while others require
affirmative action by the defendant to obtain counsel. Id. at 783–84. Montejo
contended the Sixth Amendment's right to counsel should not turn on whether a
defendant requested counsel but whether he was represented by counsel, and once
represented the defendant could not constitutionally be approached by law
enforcement for questioning while in custody. Id. at 786. The majority of the
Court rejected both interpretations. Id. at 792. Although agreeing Louisiana's
interpretation invited mischief in determining whether a defendant adequately
"invoked" his right to counsel, the Court found Montejo's reading was inconsistent
with the Jackson holding. Id. at 783. Specifically, the Court noted that the evil
Jackson sought to redress was the potential for police badgering defendants into
changing their minds and waiving their right to counsel after that right was
asserted. Id. at 798. However, under Montejo's construction of Jackson, if a
defendant is automatically appointed counsel, the police cannot initiate questioning
of him despite the fact he never asserted the right to have his attorney present. Id.
This, the majority found, was an inconsistent expansion from the antibadgering
rationale that drove the decision in Jackson, for a defendant could not be coerced
into changing his mind if he never actually invoked his right to counsel in the
custodial setting. Id.

      In light of what it considered equally untenable interpretations, the Court
determined the rule enunciated in Jackson had proved unworkable and should be
abandoned. Id. at 792. Furthermore, the Court observed the limited benefits of
Jackson in light of the safeguards provided by Miranda, Edwards, and Minnick:

      Under Miranda's prophylactic protection of the right against
      compelled self-incrimination, any suspect subject to custodial
      interrogation has the right to have a lawyer present if he so requests,
      and to be advised of that right. Under Edwards' prophylactic
      protection of the Miranda right, once such a defendant "has invoked
      his right to have counsel present," interrogation must stop. And under
      Minnick's prophylactic protection of the Edwards right, no subsequent
      interrogation may take place until counsel is present, "whether or not
      the accused has consulted with his attorney."

Id. at 794 (citations omitted). Accordingly, the Court reasoned that "[i]f that
regime suffices to protect the integrity of a suspect's voluntary choice not to speak
outside his lawyer's presence before his arraignment, it is hard to see why it would
not also suffice to protect that same choice after arraignment, when Sixth
Amendment rights have attached." Id. at 795 (citations and quotations omitted).
Ultimately, the Court overruled Jackson and remanded Montejo's case to allow
him to invoke any Edwards' protections he might claim, such as arguing he clearly
asserted his right to counsel when officers approached him. Id. at 797.

       Turning to our case, we find Montejo bars Reid's claim that his Sixth
Amendment right to counsel was violated. Although Reid makes much of the
factual distinctions between the cases—Montejo was automatically appointed
counsel while Reid elected to file a form requesting counsel—it is exactly this type
of argument Montejo meant to preclude by overruling Jackson. The Court did
more than merely remove the presumption of invalidity of a waiver after a
defendant's Sixth Amendment rights were invoked. It held that where, as here, a
defendant claimed a violation of his Sixth Amendment right to counsel in the
context of a custodial interrogation, the relevant inquiry was what happened the
moment police initiated contact. Therefore, the question is no longer, as Reid
posits, whether the defendant invoked his right to counsel at arraignment, but
whether he waived his rights prior to the interrogation. See id. at 797 ("What
matters for Miranda and Edwards is what happens when the defendant is
approached for interrogation, and (if he consents) what happens during the
interrogation—not what happened at any preliminary hearing.").

      We accordingly find that under Montejo, Reid waived his right to counsel by
signing the Miranda waiver prior to giving his fourth statement. Because he made
no allegations that he requested his counsel be present or that this waiver was
otherwise not knowing and voluntary, we affirm the admission of his statement.6

II.   DIRECTED VERDICT

      Reid also argues the trial court erred in failing to direct a verdict of acquittal
on the charges for possession of a firearm during the commission of a violent
crime. We disagree.

      On appeal from the denial of a motion for a directed verdict, the Court views
the evidence in the light most favorable to the State. State v. Buckmon, 347 S.C.
316, 321, 555 S.E.2d 402, 404 (2001). To survive a directed verdict motion, the
State must provide direct or substantial circumstantial evidence reasonably tending
to prove the defendant's guilt, or from which the defendant's guilt can be fairly and
logically deduced. State v. Walker, 349 S.C. 49, 53, 562 S.E.2d 313, 315 (2002).

      In his motion for a directed verdict, Reid argued the State failed to prove he
ever possessed the rifle. The State countered that he could be convicted under the
theory of "the hand of one is the hand of all." The trial court denied the motion.



6
  Although Reid makes allusions to the fact that a state can provide more expansive
protection than that mandated by the federal Constitution, he never raised before
the trial court any South Carolina constitutional provision or other state law upon
which to ground such an extension. Instead, he argued only a violation of his Sixth
Amendment rights under the United States Constitution and this Court must apply
those rights as interpreted by the United States Supreme Court. Oregon v. Hass,
420 U.S. 714, 719 (1975) ("[A] State is free as a matter of its own law to impose
greater restrictions [on] police activity than those this Court holds to be necessary
upon federal constitutional standards. But, of course, a State may not impose such
greater restrictions as a matter of federal constitutional law when this Court
specifically refrains from imposing them." (internal citations omitted)). We
therefore confine our analysis to Reid's rights under the United States Constitution.
       The doctrine of accomplice liability arises from the theory that "the hand of
one is the hand of all." 23 S.C. Jur. Homicide § 22.1 (2014). 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. State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 584
(2010). A 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 to be guilty under a theory of
accomplice liability. State v. Langley, 334 S.C. 643, 648–49, 515 S.E.2d 98, 101
(1999). Accordingly, proof of mere presence is insufficient, and the State must
present evidence the participant knew of the principal's criminal conduct. State v.
Leonard, 292 S.C. 133, 137, 355 S.E.2d 270, 272 (1987). If "a person was 'present
abetting while any act necessary to constitute the offense [was] being performed
through another,' he could be charged as a principal—even 'though [that act was]
not the whole thing necessary.'" Rosemond v. United States, 134 S. Ct. 1240, 1246
(2014) (alteration in original) (quoting 1 J. Bishop, Commentaries on the Criminal
Law § 649, p. 392 (7th ed. 1882)).

       Just as Reid could be convicted of assault and battery of a high and
aggravated nature and armed robbery under a theory of accomplice liability even
though he did not wield the offending weapon, so could he be found guilty for
possession of that firearm. Although there was no evidence presented Reid
assisted Henson in possessing the firearm, the State presented evidence Reid
helped orchestrate the robberies and reconnoitered the scene. Furthermore, Reid
knew Henson had a rifle in his possession for use during the robberies. Reid then
waited at the getaway vehicle for Henson to return with the proceeds.7 We find the
State presented direct or substantial circumstantial evidence Reid facilitated the
robbery and knew Henson intended to use a firearm during the commission of the
crime. We therefore hold the trial court properly denied Reid's motion for a
directed verdict on the charges for possession of a firearm during the commission
of a violent crime.8


7
  This Court has previously held that a participant need not witness the crime to be
"present at the scene" and guilty under a theory of accomplice liability. See State
v. Chavis, 277 S.C. 521, 522, 290 S.E.2d 412 (1982) (affirming a defendant's
conviction as a principal where the defendant helped plan the robbery, but was
three miles away from the scene when the crime actually occurred).
8
  This holding is in accord with other jurisdictions that have considered guilt under
an accomplice liability theory in similar circumstances. See, e.g., Rosemond, 134
                                 CONCLUSION
      Based on the foregoing, we affirm both the trial court's denial of Reid's
motion to suppress his fourth statement and its denial of his directed verdict motion
on the charges of possessing a firearm during the commission of a violent crime.



TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ.,
concur.




S. Ct. at 1243 (holding a defendant can be convicted as a principal for aiding and
abetting the crime of "us[ing] or carr[ying] a firearm" during a crime if the
"defendant actively participated in the underlying drug trafficking or violent crime
with advance knowledge that a confederate would use or carry a gun during the
crime's commission," even if the defendant did not use or carry a gun himself);
Battle v. United States, 515 A.2d 1120, 1128 (D.C. 1986) (holding an unarmed
aider and abettor is subject to a sentence enhancement where the principal was
armed); Com. v. Humphries, 991 N.E.2d 652, 658 (Mass. 2013) ("[T]o establish
liability for firearm possession under a theory of joint venture, it is not necessary
that the Commonwealth prove that a defendant had actual or constructive
possession of a firearm, but only that such a defendant was accessory to another
identified defendant in possessing a firearm." (internal quotation marks omitted));
State v. White, 484 A.2d 691, 695 (N.J. 1984) (finding that the Graves Act, which
allows sentence enhancement based on use or possession of a firearm, applies to an
unarmed accomplice); but see Dailey v. State, 675 P.2d 657, 661 (Alaska Ct. App.
1984) (holding that Alaska's sentence enhancement statute for possession of a
firearm during the commission of a felony should apply "only to a defendant who
personally uses or possesses a firearm during the commission of an offense");
Garringer v. State, 909 P.2d 1142, 1149 (Haw. 1996) (interpreting Hawaii's
sentencing enhancement statute to preclude the imposition of enhanced sentencing
where defendant did not personally possess, threaten to use, or use a firearm while
engaged in the commission of that felony).
