Criminal Appeal Oral Argument | State v. Isaac Hemingway | South Carolina Court of Appeals

Anything to do before the honorable, the judges of the Court of Appeals draw near and give your attendance, for the court is now in session.

God save the people of South Carolina and this court.

Thank you so much. Good morning and have a seat.

Madam Clerk, appellate case number 2023-000408, the State versus Isaac K. Hemingway.

Thank you. Ms. Franklin Best, it's been a while. Good to see you.

Good morning.

Good morning.

Good morning, Your Honors, and may it please the court. We're asking this court to reverse and grant a new trial based on 5 errors we raised in our briefing. Without waiving any of those arguments, I'd like to start with the CSLI search warrant issue, because I think that it's foundational to this case, and then I'd like to quickly move into the family court bench warrant issue. With regards to the search warrant issue, I mean, here, law enforcement obtained a search warrant to obtain cell site location data, also known as CSLI. The threshold question here is whether law enforcement needed a warrant to obtain the cell phone records at all, and the answer, respectfully, is yes, per Carpenter. The affidavit, the warrant, are located at record on appeal 1081-83. The majority opinion—

Is that a little bit like we need the phone because we need the phone?

I don't know that I quite understand.

It was actually a lob in your direction. That's quite all right. That the State was saying we need the phone because we might need the phone.

Well, I mean, I think that's right. I mean, you know, they wanted to get this information because they had zero leads at this point. This point, and the majority opinion in Carpenter has held that the individual has a reasonable expectation of privacy in the record of his or her movements that are captured by that information. There is no short time frame, safe harbor in Carpenter, as the state advances in its arguments to this court. Fundamentally, Carpenter doesn't change Fourth Amendment law. Except to say that information in the possession of a third party still implicates Fourth Amendment concerns. And per the opinion, I mean, law enforcement can still obtain bank records and PIN registers, but CSLI is different, and that is the holding of Carpenter, and it doesn't depend on the timeframe. I mean, the fact remains that warrantless searches are presumptively unreasonable unless there is an exception to the warrant requirement., and that exception are exigent circumstances: fleeing suspect, destruction of evidence, imminent harm, none of which were present in this case. Carpenter doesn't rise or fall on whether it's 7 days or 4 days, and so it rises or falls on whether or not there was an exigent circumstance, and here, there was no exigent circumstance, and so law enforcement needed that warrant., and in fact, they obtained a warrant. That's sort of the second part of the analysis.

Do they rise and fall on the warrant at that point, since that's the path they chose, or can they bolster today by saying, here's the reasons we didn't need a warrant, since our warrant is defective?

I think that when they made the decision to obtain the warrant, it has to comply with the law, with 1713.140.

Is there any precedent to say that, that they've picked a lane, and they have to stay in it?

I think we could probably look at State v. Warner, where they made it kind of clear that the South Carolina Supreme Court expects that CSLI information be secured by a warrant, and that warrant be supported by probable cause.

Did this affidavit set forth any alleged, or excuse me, the crime in question? And the defendant's, in this case the appellant's connection to the crime?

So, I mean, it alleged that a crime had happened, and it alleged that there had been some phone conversations between Mr. Hemingway and the victim in the case, but there was nothing that was offered to suggest why he was implicated, why he was developed as a suspect, what possible connection he could have to this crime. Crime.

Um, so it doesn't even state the crime that he's believed to have committed, right?

That's exactly right. And, you know, I mean, and I think when you look at sort of the language of it, I mean, you know, the affidavit kind of gives it away when it claims that law enforcement wants the affidavit to identify potential suspects and/or accomplices. You know, on record on, on appeal 1086, I mean, the officer admits, as he is trying to get sort of the celebrite, the analysis of the telephone, that they had zero leads. And I think that zero leads is the opposite of probable cause. The affidavit also said that he wanted the information to provide evidence related to just criminal violations of South Carolina law. I mean, again, just lacking any sort of specificity that is required in these cases.

And at that point in time, they had no idea, and did not allege anything to do with the child support, did they?

No, they did not, Your Honor.

If they had, if they had just said there was an ongoing dispute, family court dispute between the parties, would that have made a difference?

Not standing alone.

Well, taking it as the whole warrant altogether, there's been a murder, there's an ongoing dispute between the parties, this person is dead, he's saying he's talking to her over the weekend, does that start to tell you take it to it, and again, we're talking about an addition to it, but would that have made a difference?

I mean, I think it begins to, what is it, accretize, I think is the word I'm looking for. I mean, sure, the more facts that are added, it's gonna change the calculus that any magistrate judge would have made. I mean, the mere fact that there may have been some dispute as to child support, I would argue is not enough. Now, if there's some additional evidence that they were, there was some sort of hotly contested whether or not they had had arguments about this. I mean, that's getting a little bit closer. But simply the fact that there may have been some dispute about child support, I don't think actually sort of gets you to a murder warrant.

And there's even less about the other gentleman who was killed.

Yes. As to that, there is nothing at all. I mean, this is— I was really surprised to see this was a sled warrant. This is just so sort of facially invalid. This is why it's not protected by good faith exception. I mean, it is just completely facially invalid, and so reliance on this warrant would have been objectively unreasonable.

Let me ask you, and I don't mean to make you jump ahead, I see you only have 3 minutes or so left. But with the DNA, with the expert, the expert seemed to suggest that the mother was not necessarily a contributor to the DNA that was found on the back door. Or did she not exclude the mother completely? It was a little circular from what I could tell. And also, she didn't seem to account for the fact that a child the male child there could have contributed.

I think that's right. I mean, candidly, when I read this testimony, I find it very confusing. And I'm not surprised that the jury did as well. And in fact, they sent a jury note asking to rehear it. And looking back at Phillips, I know that that opinion outlines a number of things that should happen before this evidence is admitted. Arguably, I mean, it was just still not clear enough to have been reliable, and maybe for that reason a due process problem.

Am I reading the record correctly by concluding that the expert seemed to suggest that someone, for instance, you're touching the podium there, that someone could come behind you and transfer your DNA to another surface?

I do think that that was part of the testimony as to the possibility of transference in these cases.

Did she suggest that, or am I reading too far?

I thought that she testified to that.

Okay, that's what I thought.

I mean, that is my recollection of the testimony, Your Honor. Just really quickly, as to the family court bench warrant, I do think there was confusion in the lower court record on this issue. I think the State's position was well taken, that in our briefing there's some problems as to that. I do believe the State's timeline is accurate. I do still think there are problems. So while I agree with their timeframe, or their categorization of what happened below, still on the law, we disagree. I think that—

I'm gonna put another couple minutes on you, and I'm gonna do the same to Mr. May, because I think this is, difficult enough that we need to talk some more.

Okay, I'm sorry, she's going to add some time, so don't hustle. Oh, okay, okay, thank you.

Sorry, Miss Franklin Best.

No, it's perfect. Um, so I do think there are two issues with regard to the family court bench warrant. Um, I do think it was used as, you know, pretext, law enforcement, to obtain the second statement from Hemingway. And then sort of the fact of the bench warrant and the child support litigation arguably were improper 404 character evidence. But to handle the first part, using this detention, this interrogation, as a basis for obtaining the second statement from Mr. Hemingway, I mean, the fact remains, and I think this supports the first argument, Mr. Hemingway's being picked up on this bench warrant just further shows how weak the state believed its murder case was against him in December of 2020, Nearly a year after the murders. I think it supports his claim that the search warrant for the CSLI evidence lacked probable cause to believe that he committed these murders. But also, it was an improper interrogation. I mean, here, the State leveraged a bench warrant as a ruse to evade probable cause for a homicide arrest. The bench warrant did not provide probable cause for a homicide. And then Hemingway's interview was the product of that unlawful custody. Law enforcement misrepresented the grounds for his arrest in violation of 1713.50, and it was harmful. I mean, I think the prejudice is pretty clear in this. The statements from this interrogation should have been suppressed by the judge. Then, as to the 404 evidence issue, I would just say that this evidence was unduly prejudicial here. It's important to remember that in this highly circumstantial case, with no arrest for a year, when the evidence is so particularly weak, it's especially important to carefully balance admitting evidence that is likely to be highly inflammatory, like child support obligations.

When you go back to the DNA, when the judge does his two-part analysis, which he was required, I felt that he made a good analysis, as far as whether the SLED expert's testimony would aid the trier of fact. I thought he really worked on that.

I agree.

Then, when he gets to whether it'd be unfairly prejudicial, it was just like one sentence. Do you want to speak to that?

No, I mean, And I agree with that. And I think what they talk about in Phillips, too, they quote some of these other cases about how talismanic DNA evidence can be for a jury. They just want to believe it because it's got this patina of scientific infallibility. And so I do think that's right. I mean, I think that it's incumbent upon a judge in these cases just to sort of make sure that The jury is carefully, conscientiously weighing this evidence.

We'll hear from you in reply.

Thank you so much, Your Honor.

Mr. Mabry. A lot to unpack, Mr. Mabry.

I respectfully don't think so, but I'll get there. Good morning, Judge Condours, Judge Gathers, and Judge Vinson. My name is Anthony Mabry. I represent the State in this case. This was a horrible murder, double murder, not just horrible but brutal. On January 12th, 2020, Mr. Hemingway was convicted of murdering Miss Myesha Burch and Andrew Leggett in Centenary, South Carolina, about a 40-minute drive from Mr. Hemingway's home near Coastal Carolina on the other side of Conway. They were brutally shot to death. Mr. Leggett was shot twice on the couch while he was sleeping. Miss Burch had gotten out of bed and there was a horrible struggle in the hallway. She was beaten, hair pulled out, and shot 5 times. One of them might have been a through and through into her arm, so 4 shots, but at least 3 shots to the top of the head. Somebody wanted her dead. There's no question about that, and they made sure she was dead. And the person that had the motive to do that was Mr. Hemingway in that— in this case. And that, that all came out along with the phone records and the other evidence, circumstantial evidence in the case. There's 4 issues, and I'll discuss them in whatever order the court wants to, but I'll start with the CSLI in this case. I disagree with Ms. Franklin Best. The Supreme Court in Carpenter was a unique case, and the Supreme Court said this is a unique case. They said, well, what we're talking about in this case is surveilling somebody for weeks, months, and years, basically spying on a person. They said, "That's what this case is about, and we don't agree with that, and if you want to obtain that information from a third-party carrier, like Verizon or a phone company, you have to get a search warrant. You have to comply with the Fourth Amendment." They explicitly said, "We're not saying anything about 6 days or less, or getting the CSLI around the time of the crime, which the police would need to complete an investigation, and catch a dangerous criminal." They said, we're talking about some spying on somebody, like going, you following them into their house, to their political meetings, to their church. You're determining everything about that person's life. And they specifically said, we are not talking about short-term CSLI in this case. They have not changed that opinion since 2018. There's been no precedent that comes out that says 4 days of CSLI is a search, and that's our position in this case. You don't even have to get to the search warrant. If you look at the search warrant, this court thinks there's enough probable cause. I think there is, but you don't even have to get there. This was not a search under the law, and not only that, the police in this case acted in good faith, because they tried to get a search warrant, and got a search warrant, and provided it to a phone company. We did not search the defendant's telephone. If we had searched his phone, you know, maybe something would be different here. But we couldn't find the phone, because he admitted he got rid of it shortly after the murders, and the murder weapon was also missing. But we request, I'm sorry, Judge Condryce.

I just want to, you got a warrant, and so we're there. So, the question from me is that, Did you— is there probable cause to get a warrant based on the affidavit, no supplemental testimony? Is there enough in the warrant? Does it say, we think it's this guy, this is why, we found gun casings, we did this, we did that? At all points, that's what's thin on the ground for me. It's kind of like we need the phone records to see if we need the phone records.

It is not a well-drafted warrant. Yeah, affidavit.

Thank you for that.

It is a close question.

It is.

I agree with you, but I, I think there's enough looking at the totality of the circumstances that are pled in the affidavit and the inferences the magistrate can draw from those facts, the totality of the facts. In this case, there's probable cause to issue the warrant to get the phone to CSLI.

I mean, at that point, it could have been CSLI on the other 5 or 6 people she talked to on Kareema's phone, or what? I mean, at that point, it could have been anybody that talked to her, because at that point, you're not alleging the child support, you're not alleging—

No, they didn't. Yeah, I mean, like, if, if I had been drafting the search warrant, I would have drafted it differently, but the court, the law recognizes police officers are not legal technicians.

And nothing about the other gentleman who died?

No, nothing about Mr. Leggett. He just happened to be there.

Uh, but I mean, it could have all been gotten from Mr. Leggett, and she was the collateral damage.

Well, Ifs and buts, right? Anything's, anything's possible. But they did plead he was there the day of the crime. He took the children away from the crime scene, so he would have known the two— the victim and her friend were there by themselves. He also came back the next day. So he's, he's at the crime scene the day before, he's at the crime scene the day after.

Enough in and of itself. I mean, obviously he's He's not just merely stopping by. He's there to pick up his own children. So certainly he was there. That's not in dispute.

Well, he— I'm sorry.

No, no, no, you're fine.

No different than an Amazon driver that day.

So I'm saying there's no— nothing in the affidavit that alleges that he was involved in the murders.

Well, it does say he was also the last person to talk to her. He admitted he talked to her around midnight. So he's at the crime scene, he's all, he's all over the crime scene the day before and the day after. We don't know exactly when the victims were killed, and then you've got him admitting he was the last person to talk to her. And, and he took the children away from the home, so he would have been the one to know there's nobody there but the victim. And the other gentleman. I think there's enough, look at the standard of probable cause, which is not beyond a reasonable doubt. It's not even a preponderance of the evidence. The case law, State v. Brown, says it's not even more probable than not. It's just, is there probable?

But knowing that there are two people at the house is not equivalent or does not equate to the alleged crimes.

Well, somebody wanted them dead, and somebody made sure they were dead.

It's a horrific situation, but—

And he knew they were there, and he knew they were there alone.

Let me ask you this, if I might, following through on the record, because I couldn't glean this from the record. Can you just give me a quick summary of the evidence that you have against him as far as what was put forth at the trial? To substantiate the conviction.

What else did you have? Did you have blood spatter? Did you have a gun? Did you have a this? You have tire prints?

Well, first of all, they're not raising a directed verdict.

We understand that, but there might be an argument of harmless error analysis.

We have the two victims of murder. He lived 40 minutes away from them. He was in a horrible child support dispute with her. He denied paternity on 4 of the 5 children, and she had to prove it. She had to get DNA testing to even get him to concede that he, he was the father of the other 4 children. And then we have the CSL lie, where he is not in bed with his girlfriend when he says he was in bed, and she claims he's in bed. He is away from the home and makes a phone call at 4:49, and in the morning. So the— he's lying about his whereabouts. He gives two statements. He's lying about his whereabouts on the night of the crime. And not only that, he has the motive to kill her, to go in the house, and then after she's killed, he doesn't have to pay any of the child support. There was way plenty of evidence for the judge to overrule the directive verdict motion at trial.

Wasn't he seeking custody of the kids? Am I mistaken in that?

No, he was denying, no. He got custody of kids after the murders, 3 of them, after the murders occurred, but what he didn't want, he did not want to pay child support. He already owed another woman, a bench warrant was out on him for not paying child support to another woman where he had a child with, so he was in financial straits, wanted for not paying child support, and then, they murdered.

Well, under your theory, he would be killing the other woman too, that he had.

Ma'am?

Under your theory, with an outstanding child support warrant, he would be killing the other lady too.

Well, he explained that he made that up about 6 months after the murders. Okay? But that was never taken down by the clerk's office. So we— what we had was there was an active bench warrant in the system that under Arizona v. Evans, we can rely on the fact there's an active bench warrant in the system to arrest him the day that we arrested him.

But it's an active bench warrant for a whole nother lady and a whole nother family.

Yeah, but still, it was an active bench warrant. But no, he was gonna have to pay— I added it up. He was gonna have to pay $8,000 a year in child support if this hearing went forward on that Friday after the murders. And after they were murdered, he didn't have to pay a dime, and he got 3 of the children. So he's— and nobody else has produced any motive to kill these kids.

None of this was alleged in the affidavit. Ma'am? None of this was alleged.

None of that was alleged in the affidavit. The other point I wanted to point out about the affidavit was, not only are they looking for evidence of him, he's clearly a person of interest, or they wouldn't have been asking for these phone records. Now, they didn't call him a suspect, but if you get his phone records, that will help establish the time of death. They didn't know the time of death, but if you get his cell phone records and his CSLI, —then you can place at what times she was talking to him and he was talking to her and where he was. So you've got to establish the time of death during a criminal investigation.

Certainly, but you have to have a basis to get the records in the first place.

Which records you talking about? The CSLI. I mean, you're saying that we need this because we don't have any leads and we're gonna investigate—

To do a fishing expedition.

Expedition. As opposed to—

no, it's not a fishing expedition. They, they had a person of interest, and it was him, because he's all over that crime scene the 2 days before, and he's the last person to talk to the victim. But, but you don't even have to get there. It's not a search if it's less than 6 days of CSLI.

Your people decided that it was a search and went and got a warrant.

That doesn't— we're not bound by that. The fact that they got a warrant— this court and the Supreme Court has said The fact that they got a warrant, and this court finds it was defective in some way, we're not stuck with that warrant. We can act in good faith, which is what we did.

It's not illegal to get 4 warrants. But isn't the warrant evidence that it's not good faith, that it was a fishing expedition? Isn't what they said in the affidavit say, we got no clue, so we're just gonna look at the last guy that was at the house?

We're not talking about United States v. Leon good faith. We're talking about Illinois v. Kroll good faith. The Supreme Court has said you only need a search warrant for 7 days or more. They understood that police are gonna need to get CSLI when they're conducting a murder investigation, and there's gonna be exigent circumstances where you need to get that, to apprehend a dangerous killer, which is what we have in this case. Um, it's not a search to obtain 4 days of CSLI from a phone company. We didn't search his phone. We requested, the phone company would have treated the search warrant, they're not judges. You know, they're not legal technicians. They're not, don't wear robes. They get this thing, and all they know is we're being requested to turn over CSLI. And we don't even need a search warrant to get the phone calls, the toll records. The wife to him, and him back to the wife, and him calling the victim using star, 76 to see if anybody's discovered the bodies, you don't even have to have a search warrant at all. That's still third-party doctrine.

Sure, and you've got her phone, and you've got his number from his father, so pretty much you gotta go out and all of the phone stuff from her to him.

We got all the phone stuff from him, the toll records from his phone company without a search warrant. Under mi—

I want to give you a chance to talk about DNA, so just— Sure. Yeah, I don't know. Just go ahead.

I disagree. They, their issue on appeal is the judge erred under Phillips. If you look at Phillips, everything that was wrong in Phillips, we did correctly. We had a pretrial hearing. The expert was there to testify and did testify. They explained every concept that the court in Phillips said should have been explained to the jury. Including Judge Gathers mentioned, she explained what touch DNA is, and that what was found on the back door could have been transferred by somebody else. What was found on the walls could have been transferred by somebody else. She explained what probability sets are. She explained all the concepts that the court in Phillips said was not. And even in Phillips, there was some misleading of the jury about RMP DNA. The DNA in this case was not RMP, it was STRMix, which has been recognized by numerous courts all over the United States. It's been found admissible, which is what we used. We didn't use the— what was used in Phillips. Now, they argue it's all irrelevant because the son could have left the DNA on the back door. What she actually said was she looked at that. Now, she didn't have the son's DNA, but she looked at it, and, uh, she testified on pages 742 through 57 that she looked at whether the mother's DNA was on the back door. The son would have both the father's and the mother's DNA if he touched the back door. She said the probability sets that the mother touched the DNA, or by inference, the son containing the mother's DNA, the probability sets were extremely low. But she told that to the jury. She told—

I really didn't have any trouble personally with the 702. I think they cleaned up Phillips. I do. My question is, is the judge saying, this is all he said about 403, he said, I find that the testimony is very relevant, and in this case, it substantially outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury. Period. He didn't go piece by piece through it, and my question to you is, how is that enough? How is that analysis enough, when he doesn't break down what's—

As a trial judge, he doesn't have to list every fact that was testified to in the trial. He can say, I considered it in relation to Rule 403, and I followed the rule. I find that it meets this test. Its probative value is not substantially outweighed by these things. But she explained this to the jury as well. She said, you know, I looked at that. She told the jury, could the son be on the wall inside the house where the smear was, where the struggle was? Yeah, could the son. There was so— the number of alleles was so low, it could be the son, it could be the father. And under the fingernails, she testified, it could be the son, it could be the father. But on the back door, she looked at, Was the mother's DNA there? And she testified the probability sets that the mother contributed, i.e., the son could have as well, 'cause you don't just leave— when you touch something, you don't leave your father's fragment but not your mother's. When you leave DNA, you leave your whole DNA fragment. And you've got your mother and father's DNA. So she testified the probability sets that the mother's DNA was there on this back door was extremely low. But the jury knew that. They could reject her testimony if they wanted to. Some of the jurors could have said, you know, there's still an outside chance that the son touched the back door. I mean, she didn't say it's a match. She explained to the jury. I'm not saying—

I wanted to quote from you on Phillips on that one point. It says, the Supreme Court stated the trial court must conduct an on-the-record balancing of probative value against applicable 403 dangers. The trial court should make specific findings as to each contested element or issue. He didn't do that.

I agree with you on that. Yeah, I missed that. Thank you, Mr. Baber. But he heard all the evidence. He's listened to all of it, in light of Phillips, and he made the analysis. He just didn't list, like you said, what the court said. He didn't list those factors. But again, all of this was explained to the jury. What happened in Phillips, they weren't told the truth. They weren't told about RMP. They weren't told about mixtures. They weren't told about transference. I apologize. Any other questions for Mr.

Mabry? Thank you, sir, for your very fine argument. Thank you. Ms. Franklin Best on reply.

Thank you, Your Honors. Just a quick, to discuss the scope of Carpenter, probably the best evidence of that is what the opinion itself says. This is from the opinion, that our decision today is a narrow one. We do not express a view on matters not before us, real-time, CSLI, or tower dumps, and then it goes on. I mean, I think, and of course, real-time CSLI, I think, would fall under sort of an exigent circumstance kind of exception to their need for a warrant. So again, 6 days, 4 days, I think anything other than perhaps real-time CSLI is going to need to be obtained with a warrant. And going to the warrant and the lack of probable cause, Mr. Mabry talks about how the judge could have found probable cause based on the information that was contained in this affidavit. I can't see how a magistrate would find probable cause when the author of the affidavit himself, who drafted it, said that he had zero leads. The officer himself did not even have reasonable suspicion at that point of who committed this crime. So, I mean, there's—

There's just been puffing that the officer's just trying to get the records in a big hurry and say, we need your help, we have no evidence, we need some leads, and this is the only way we're gonna get it. I'm not saying that he's being dishonest, but just saying, trying to figure out a way to get it as quickly as possible.

Well, except that, I mean, where he writes that there are zero leads were not actually in the affidavit. It was in the computer dump when he admitted sort of right afterwards, that they had absolutely no leads at all.

You have the page reference for that, I'm just having trouble finding it.

I'm sorry, 1086. That's right. Your Honor. Thank you. I mean, you know, this is a law enforcement officer. He knows what he needs to do. He knows he needs to make a showing of probable cause. So, I mean, to sort of throw up his hands and say, I got nothing, you gotta get me this warrant, would be kind of fundamentally at odds with what his duties were at that time. Again, I think it's under Weston, Supreme Court case Weston, that you're not entitled to a good faith defense if you've got a completely facially invalid search warrant, as we have here. So, for that reason, that does not save this search.

Do you see any similarities between the present case and the Rowland case?

I am afraid I don't know the answer to that, Your Honor.

The case, uh, you know, where the young, um, college student was abducted, um, and her DNA was in the abductor's car.

And I am familiar with the, with the circumstances. Okay, well, I'll just leave it at that then. Yeah, my apologies, but I do not have anything else unless there are additional questions.

Any questions from the panel? Thank you very much for your very thoughtful testimony. Thank you, Your Honors. We'll be in recess.

Be upstanding for the court.