THE STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

APPEAL FROM COLLETON COUNTY

Court of General Sessions

The Honorable Clifton B. Newman, Circuit Judge

The Honorable Jean Hoefer Toal, Chief Justice (Ret.)

Appellate Case Nos. 2023-000392

THE STATE OF SOUTH CAROLINA, ...........................................................RESPONDENT,

V.

RICHARD ALEXANDER MURDAUGH, ......................................................... APPELLANT.

INITIAL BRIEF OF APPELLANT

Richard A. Harpootlian, SC Bar No. 2725 James M. Griffin, SC Bar No. 9995
Phillip D. Barber, SC Bar No. 103421 Margaret N. Fox, SC Bar No. 76228
Andrew R. Hand, SC Bar No. 101633 GRIFFIN HUMPHRIES, LLC
RICHARD A. HARPOOTLIAN, P.A. 8906 Two Notch Road
1410 Laurel Street (29201) Suite 200 (29223)
Post Office Box 1090 Post Office Box 999
Columbia, South Carolina 29202 Columbia, South Carolina 29202
(803) 252-4848 (803) 744-0800
rah@harpootlianlaw.com jgriffin@griffinhumphries.com
pdb@harpootlianlaw.com mfox@griffinhumphries.com
arh@harpootlianlaw.com

Attorneys for Appellant

 TABLE OF CONTENTS

Table of Contents ...................................................................................................... ii

Table of Authorities ................................................................................................. iv
Statement of Issues on Appeal ...................................................................................1
Statement of the Case.................................................................................................2
Statement of Facts ......................................................................................................4
I. The Murder Investigation ................................................................................4
II. The Indictment and Trial .................................................................................9
III. The Tampered Jury Verdict ...........................................................................19
IV. Murdaugh’s Motion for New Trial ................................................................20
Standard of Review ..................................................................................................28
Argument..................................................................................................................30
I. Murdaugh was denied his constitutional right to a fair trial by an impartial
jury free from outside influences. ..................................................................30
A. There is an irrebuttable presumption of prejudice when a state official
secretly advocates a guilty verdict in the jury room during a criminal trial.
....................................................................................................................31
1. The U.S. Supreme Court holds that in a criminal case jury tampering
is presumptively prejudicial. ...........................................................33
2. The presumption of prejudice is irrebuttable when a state official
tampers with the jury during a criminal trial about the merits of the
case. .................................................................................................43
a. The State cannot rebut the presumption of prejudice by arguing
Ms. Hill’s jury tampering was harmless because secret advocacy
for a guilty verdict in the jury room during a criminal trial by a
state official is a structural error in the trial that cannot be
harmless. ...................................................................................48
3. The trial court’s “finding” that Ms. Hill’s comments to jurors that
were “not overt as to opinion” is unsupported by and contrary to the
evidence in the record......................................................................55
4. Even if the presumption of prejudice were rebuttable, the State did
not rebut—or even attempt to rebut—any presumption of prejudice
in this case. ......................................................................................58

ii
 B. Prejudice was proven at the evidentiary hearing. ......................................61
II. The trial court allowed the State to introduce improper character evidence
and other irrelevant and unfairly prejudicial evidence that “so infected the
trial with unfairness as to make the resulting conviction a denial of due
process.”.........................................................................................................71
A. Evidence of financial crimes should have been excluded under Rules
404(b) and 403 of the South Carolina Rules of Evidence. ........................73
1. The State’s theory that Murdaugh murdered his wife and son in cold
blood to distract his law firm from investigating alleged financial
improprieties is illogical, implausible, and unsupported by the
evidence. ..........................................................................................76
2. Any probative value of the evidence concerning the alleged prior bad
acts was substantially outweighed by the unfair prejudice that
resulted to Defendant; therefore, it should have been precluded. ...81
3. Murdaugh did not waive his objections to the financial crime
evidence by testifying. .....................................................................85
4. The trial court erred by concluding Murdaugh “Opened the Door” to
the financial crime evidence by questioning a witness about
Murdaugh’s relationship with Maggie and Paul. ............................86
B. The State violated Murdaugh’s due process rights by using his post-
Miranda silence to impeach him. ..............................................................88
C. The trial court committed reversible error by allowing the State to
introduce evidence of an unscientific experiment performed by an
unqualified Charleston County Deputy in its rebuttal case. ......................92
D. The Trial Court erred by admitting irrelevant and unreliable firearms
evidence. ..................................................................................................106
1. The trial court erred by allowing SLED’s firearms examiner to
provide irrelevant, unreliable, and confusing opinion testimony. .106
2. The trial court erred by allowing the State to introduce multiple guns
seized from Murdaugh’s residence when no evidence linked the guns
to the murders. ...............................................................................113
3. The trial court erred by allowing the State to introduce gunshot
residue results of a raincoat into evidence when no evidence linked
the raincoat to Murdaugh. .............................................................116
Conclusion .............................................................................................................120

iii
 TABLE OF AUTHORITIES

CASES Page(s)
Barnes v. Joyner,
751 F.3d 229 (4th Cir. 2014) ...............................................................33, 36, 39
Blake by Adams v. Spartanburg Gen. Hosp.,
307 S.C. 14, 413 S.E.2d 816 (1992) ...............................................................46
Bosse v. Oklahoma,
580 U.S. 1 (2016) ............................................................................................38
Bowman v. State,
422 S.C. 19, 809 S.E.2d 232 (2018). ..............................................................87
California v. Thompson,
384 P.3d 693 (Cal. 2016) ................................................................................78
Chambers v. Mississippi,
410 U.S. 284 (1973) ..................................................................................71, 72
Clark v. Greenville County,
313 S.C. 205, 437 S.E.2d 117 (1993) ........................................................... 113
Crossmann Communities of N.C., Inc. v. Harleysville Mut. Ins. Co.,
395 S.C. 40, 717 S.E.2d 589 (2011) ...............................................................29
Donnelly v. DeChristoforo,
416 U.S. 637 (1974). .......................................................................................72
Doyle v. Ohio,
426 U.S. 610 (1976) ............................................................................88, 89, 90
Felder v. Nevada,
810 P.2d 755 (Nev. 1991)................................................................................78
Fletcher v. Weir,
455 U.S. 603 (1982) ........................................................................................92
Godoy v. Spearman,
861 F.3d 956 (9th Cir. 2017) ...........................................................................36
Hamrick v. State,
426 S.C. 638, 828 S.E.2d 596 (2019) ...................................................104, 105

iv
Haugh v. Jones & Laughlin Steel Corp.,
949 F.2d 914 (7th Cir. 1991) ...........................................................................65
Hohn v. United States,
524 U.S. 236 (1998). .......................................................................................38
Holman v. State,
381 S.C. 491, 674 S.E.2d 171 (2009). .................................................. 115, 116
Holmes v. United States,
284 F.2d 716 (4th Cir. 1960) ...........................................................................32
Irvin v. Dowd,
366 U.S. 717 (1961) ........................................................................................53
Kazadi v. State,
467 Md. 1, 223 A.3d 554 (2020).....................................................................86
Knight v. Freeport,
13 Mass. 218 (Mass. 1816) .............................................................................53
Limehouse v. Hulsey,
404 S.C. 93, 744 S.E.2d 566 (2013) ...............................................................39
Lord Delamere’s Case,
4 Harg. St. T. 232 (Eng. 1685) ........................................................................54
Mahoney v. Vondergritt,
938 F.2d 1490 (1st Cir. 1991) .........................................................................65
Manley v. AmBase Corp.,
337 F.3d 237 (2d Cir. 2003) ............................................................................65
Massachusetts v. Fidler,
385 N.E.2d 513 (Mass. 1979). ........................................................................65
Mattox v. United States,
146 U.S. 140, 150 (1892) ................................................................................53
Minnesota v. Cox,
322 N.W.2d 555 (Minn. 1982) ........................................................................65
Neder v. United States,
527 U.S. 1 (1999) ............................................................................................48

v
Parker v. Gladden,
385 U.S. 363 (1966) .................................................................................passim
Pennsylvania v. Rizzuto,
777 A.2d 1069 (Pa. 2001) ...............................................................................78
Pope v. Mississippi,
36 Miss. 121 (Miss. Err. & App. 1858). .........................................................54
Remmer v. United States
347 U.S. 227 (1954) .................................................................................passim
Rogers v. State,
853 S.W.2d 29 (Tex. Crim. App. 1993) ..........................................................85
Simmons v. South Carolina,
512 U.S. 154 (1994) ........................................................................................52
Smith v. Phillips,
455 U.S. 209 (1982) ............................................................................35, 37, 39
State v. Bryant,
354 S.C. 390, 581 S.E.2d 157 (2003) .......................................................41, 42
State v. Cameron,
311 S.C. 204, 428 S.E.2d 10 (Ct. App. 1993) ..........................................passim
State v. Clasby,
365 S.C. 148, 682 S.E.2d 892 (2009) .............................................................74
State v. Cochran,
369 S.C. 308, 631 S.E.2d 294 (Ct. App. 2006)...............................................29
State v. Coleman,
301 S.C. 57, 389 S.E.2d 659 (1990) ...................................................75, 77, 80
State v. Cooley,
342 S.C. 63, 536 S.E.2d 666 (2000) ................................................................. 8
State v. Council,
335 S.C. 1, 515 S.E.2d 508 (1999) ..........................................................passim
State v. Fletcher,
379 S.C. 17, 664 S.E.2d 480 (2008) ...............................................................74

vi
State v. Gilchrist,
329 S.C. 621, 496 S.E.2d 424 (Ct. App. 1998)...............................................82
State v. Green,
427 S.C. 223, 830 S.E.2d 711 (Ct. App. 2019) .........................................45, 46
State v. Green,
432 S.C. 97, 851 S.E.2d 440 (2020) ........................................................passim
State v. Green,
440 S.C. 292, 890 S.E.2d 761 (2023) .............................................................90
State v. Grovenstein,
335 S.C. 347, 517 S.E.2d 216 (1999) .............................................................61
State v. Johnson,
302 S.C. 243, 395 S.E.2d 167 (1990) .............................................................43
State v. Jones,
423 S.C. 631, 817 S.E.2d 268 (2018) ............................................................29
State v. King,
334 S.C. 504, 514 S.E.2d 578 (1999) .......................................................79, 80
State v. King,
424 S.C. 188, 818 S.E.2d 204 (2018) .......................................................74, 81
State v. King,
422 S.C. 47, 810 S.E.2d 18 (2017) .................................................................30
State v. Kirton,
381 S.C. 7, 671 S.E.2d 107 (Ct. App. 2008) ...................................................29
State v. Logan,
394 Md. 378, 906 A.2d 374 (2006).................................................................86
State v. Lyle,
125 S.C. 406, 118 S.E. 803 (1923) .....................................................74, 75, 77
State v. McConnell,
290 S.C. 278, 350 S.E.2d 179 (1986) ........................................................... 115
State v. McElveen,
280 S.C. 325, 313 S.E.2d 298 (1984) .............................................................80

vii
State v. Mercer,
381 S.C. 149, 672 S.E.2d 556 (2009) .............................................................28
State v. Moore,
343 S.C. 282, 540 S.E.2d 445 (2000) .......................................................29, 58
State v. Pagan,
369 S.C. 201, 631 S.E.2d 262 (2006) ...........................................................105
State v. Peake,
302 S.C. 378, 396 S.E.2d 362 (1990) .......................................................75, 80
State v. Phillips,
430 S.C. 319, 844 S.E.2d 651 (2020) ................................................... 105, 110
State v. Plumer,
433 S.C. 300, 857 S.E.2d 796 (Ct. App. 2021),..............................................73
State v. Scott,
405 S.C. 489, 748 S.E.2d 236 (Ct. App. 2013).........................................73, 81
State v. Simmons,
279 S.C. 165, 303 S.E.2d 857 (1983) .............................................................57
State v. Smith,
309 S.C. 442, 424 S.E.2d 496 (1992) .................................................75, 77, 80
State v. Stokes,
381 S.C. 390, 673 S.E.2d 434 (2009) .............................................................81
State v. Wallace,
440 S.C. 537, 892 S.E.2d 310 (2023) .......................................29, 30, 102, 103
State v. Warner,
430 S.C. 76, 842 S.E.2d 361 (Ct. App. 2020)...............................................109
State v. Young,
378 S.C. 101, 661 S.E.2d 387 (2008). ..........................................................87
State v. Zeigler,
364 S.C. 94, 610 S.E.2d 859 (Ct. App. 2005)...........................................64, 65
Stewart v. Floyd,
274 S.C. 437, 265 S.E.2d 254 (1980). ............................................................28

viii
Tarango v. McDaniel,
837 F.3d 936 (9th Cir. 2016) .....................................................................47, 53
Turner v. Louisiana,
379 U.S. 466 (1965) .................................................................................passim
United States ex rel. Owen v. McMann,
435 F.2d 813 (2d Cir. 1970) ............................................................................65
United States v. Burr,
1 Burr’s Trial 416 (1807) ................................................................................53
United States v. Claxton,
766 F.3d 280 (3d Cir. 2014) ............................................................................36
United States v. Elbaz,
52 F.4th 593 (4th Cir. 2022). ....................................................................passim
United States v. Gartmon,
146 F.3d 1015 (D.C. Cir. 1998) ......................................................................36
United States v. Greer,
285 F.3d 158 (2d Cir. 2002) ............................................................................36
United States v. Hatter,
532 U.S. 557 (2001) ........................................................................................38
United States v. Johnson,
954 F.3d 174 (4th Cir. 2020) ...........................................................................39
United States v. Jordan,
958 F.3d 331 (5th Cir. 2020) ...........................................................................36
United States v. Laffitte,
121 F.4th 472 (4th Cir. 2024). .................................................................49, 50
United States v. Lawson,
677 F.3d 629 (4th Cir. 2012) ...........................................................................39
United States v. Legins,
34 F.4th 304 (4th Cir. 2022)) ..........................................................................50
United States v. Lloyd,
269 F.3d 228 (3d Cir. 2001) ............................................................................65

ix
United States v. Olano,
507 U.S. 725 (1993). ...........................................................................35, 37, 39
United States v. Pagán-Romero,
894 F.3d 441 (1st Cir. 2018) ...........................................................................36
United States v. Richardson,
No. 19-20076-JAR, 2024 WL 961228 (D. Kan. Mar. 6, 2024) .................... 113
United States v. Seigel,
536 F.3d 306 ....................................................................................................77
United States v. Sylvester,
143 F.3d 923 (5th Cir. 1998) ...........................................................................37
United States v. Turner,
836 F.3d 849 (7th Cir. 2016) ...........................................................................36
Utah v. Soto,
513 P.3d 684 (2022) ........................................................................................47
Ward v. Hall,
592 F.3d 1144 (11th Cir. 2010) .......................................................................36
West Virginia v. McGinnis,
455 S.E.2d 516 (W. Va. 1994)...................................................................78, 79
CONSTITUTIONS, STATUTES, AND RULES
Fed. R. Evid. 606(b) ...............................................................................39, 53, 64, 65
Rule 402, SCRE ............................................................................................... 73, 112
Rule 403, SCRE ................................................................................................passim
Rule 404(a), SCRE...................................................................................................87
Rule 404(b), SCRE ...........................................................................................passim
Rule 606(b), SCRE ............................................................................................64, 65
Rule 702, SCRE ............................................................................................... passim
S.C. Code § 14-3-320...............................................................................................29
S.C. Code § 14-3-330...............................................................................................29

x
S.C. Code § 14-8-200...............................................................................................29
S.C. Code tit. 14 ch. 7 ................................................................................................1
S.C. Const. art. V, § 5 ...............................................................................................29
S.C. Const. art. V, § 9 ...............................................................................................29
S.C. Const., art. V, § 24 ..............................................................................................1
OTHER AUTHORITIES
1 McCormick On Evid. § 55 (8th ed). .....................................................................86
Nat’l Res. Council, Strengthening Forensic Science in the United States: A Path
Forward (2009) ...................................................................................................... 111
President’s Council of Advisors on Sci. and Tech., Forensic Science in Criminal
Courts: Ensuring Scientific Validity of Feature-Comparison Methods (2016) ..... 111

xi
 STATEMENT OF ISSUES ON APPEAL

1. Is prejudice to the defendant’s right to a fair trial presumed when a state

official1 secretly advocates a guilty verdict in the jury room during a criminal trial?

2. Is prejudice to a defendant’s right to a fair trial proven when it is found

that a state official tampered with the jury and a juror testifies the jury tampering

influenced her verdict?

3. Did the trial court err by allowing cumulative and unfairly prejudicial

evidence of financial crimes to be presented for over a week, purportedly as evidence

of motive?

4. Did the trial court err in concluding that the Defendant “opened the

door” to evidence of financial crimes by questioning a witness about the Defendant’s

relationship with his wife and son?

5. Did the Defendant waive his right to object to the introduction of

evidence of financial crimes by testifying?

1
In trial court proceedings, the State objected to referring to former Colleton County
Clerk of Court Rebecca Hill as a “state official.” Mr. Murdaugh does not mean that
her improper motives or conduct should be imputed to the prosecution or law
enforcement in this case. But it is inarguable that Ms. Hill acted in this case as an
official of the State of South Carolina: She held an elected office created by Section
24 of Article V of the South Carolina Constitution, her duties included summoning,
impaneling, and managing the jury (see S.C. Code tit. 14 ch. 7), and she was able to
interact with the jurors in Mr. Murdaugh’s murder trial only by virtue of her office.

1
 6. Did the trial court err by allowing the State to impeach the Defendant

with his post-Miranda silence?

7. Did the trial court err by allowing a witness qualified as an expert in

extracting data from cell phones to testify about an experiment he conducted during

trial in which he sat alone in his office over a weekend throwing a phone on the floor

to see if the screen would come on, when he collected no data regarding the results

of the experiment, admitted he had no expertise regarding that aspect of the phone’s

operation, and admitted the results he reported from memory were not statistically

significant?

8. Did the trial court err by allowing the State to distract from its failure

to recover a murder weapon by allowing a State firearms examiner to offer an expert

opinion based on a discredited toolmark methodology and by allowing the admission

of multiple firearms into evidence that were not connected to the murders as well as

a raincoat coated with gunshot residue that was not connected to the defendant?

9. Did the trial court’s cumulative evidentiary errors prejudice the

Defendant’s right to a fair trial?

STATEMENT OF THE CASE

On June 7, 2021, Appellant Richard Alexander Murdaugh’s wife, Maggie

Murdaugh, and his younger son, Paul Murdaugh, were brutally murdered at the dog

kennels on their rural family property in Colleton County. Murdaugh was indicted

2
for the murders and for related firearms offenses on July 14, 2022, by a Colleton

County Grand Jury and his jury trial commenced on January 23, 2023.

(Indictments.) The Honorable Clifton B. Newman presided.

On March 2, 2023, Murdaugh was convicted of two counts of murder and two

related firearms charges and sentenced to life without parole. (Judgment.) He timely

filed notice of appeal from those convictions on March 9, 2023 (Notice of Appeal),

and that appeal was docketed as Appellate Case No. 2023-000392 (the “Direct

Appeal”). On September 5, 2023, Murdaugh filed a motion to suspend the Direct

Appeal and for leave to file a motion for a new trial based on after-discovered

evidence of jury tampering by Rebecca Hill, the Colleton County Clerk of Court.

(Motion to Suspend Appeal.) The Court of Appeals entered an order granting the

motion on October 17, 2023. (Order.) Murdaugh thereafter filed a motion for a new

trial in Colleton County, on October 27, 2023. (Mot. New Trial.)

A one-day evidentiary hearing concluded on January 29, 2024, and the trial

court entered an order denying the motion for a new trial on April 4, 2024. (Order

Denying Mot. New Trial.) Mr. Murdaugh filed a notice of appeal of the order

denying a new trial on April 11, 2024 (Notice of Appeal), and that appeal was

docketed as Appellate Case No. 2024-000576 (the “Jury Tampering Appeal”). On

July 10, 2024, Murdaugh filed a motion to certify the Jury Tampering Appeal to the

Supreme Court. (Mot. To Certify.) On August 13, 2024, the Court granted

3
Murdaugh’s motion to certify the Jury Tampering Appeal. (Order.) The Supreme

Court also certified the Direct Appeal on its own motion under Rule 204(b), SCACR.

By order dated September 13, 2024, the two appeals were consolidated. (Order.)

STATEMENT OF FACTS

I. THE MURDER INVESTIGATION

On June 7, 2021, at 10:07 pm, Appellant Richard Alexander Murdaugh

(“Alex” or “Murdaugh”) called 911 and reported that he discovered his wife Maggie

and son Paul had been “shot badly” and were lying on the ground outside the dog

kennels at his residence off Moselle Road in Colleton County, South Carolina.

State’s Exs. 9, 11. During the 911 call, Alex explained that he had “been up to it

now” and “it’s bad.” (Id.) Alex further stated that he had just returned home from

visiting his mother. Alex then informed the 911 operator that he was returning to his

residence, some 1100 feet away, to get a gun because he feared for his safety. Alex

then drove his 2021 Chevrolet Suburban to his residence, retrieved a 12-gauge

shotgun which he loaded with one 12-gauge shell and one 16-gauge shell. Alex

returned to the kennels and waited for the first responders to arrive. Trial Tr. 470,

506:21–25, 507–08; State’s Exs. 9, 11.

Deputies with the Colleton County Sheriff’s Department arrived first,

followed by Colleton County fire and rescue and later Colleton County EMS.

Colleton County Sheriff Buddy Hill requested that SLED take the lead in the

4
investigation, and later in the night, SLED agents arrived on the scene. The first

deputy on the scene secured the shotgun that Murdaugh had retrieved and briefly

questioned Alex. Another Colleton County Deputy swabbed Murdaugh’s hands for

gunshot residue. A third Colleton County Deputy obtained a search warrant for the

entire Moselle property, which consisted of approximately 1700 acres of land, a main

residence, the kennels and a few out-buildings adjacent to the kennels. Trial Tr. 460–

567, 578–744.

SLED Agents then arrived on the scene and conducted a recorded interview

of Alex in a SLED vehicle. Alex again explained that he had gone to visit his mother,

who lived at Almeda, approximately 13 miles away, because his father had just been

admitted to the hospital. When Alex returned home, he expected to find Maggie and

Paul inside the residence. When they were not there, he drove down to the kennels

because that is where they had gone after dinner. Alex informed the officers that he

had gone up to the bodies to check for signs of life, that he attempted to roll Paul

over and when he did, Paul’s phone popped out of his pocket. Alex put the phone

on Paul’s backside. Trial Tr. 680–743; State’s Ex. 153.

Alex also explained that earlier in the evening, he and his son Paul rode the

property, did some target shooting with a .22 caliber pistol, and then met Maggie for

supper at the residence. (Maggie had been at a doctor’s appointment in Charleston

earlier in the day and returned home to be with Murdaugh and Paul, rather than going

5
to their Edisto beach house.) Alex also told the investigators that after dinner,

Maggie went down to the kennels to let the dogs out, which she liked to do, and that

Paul presumably went to the shop next to the kennels. Murdaugh stated he laid down

on the sofa, nodded off for a short nap, and when he woke, they had not returned to

the residence. Alex tried to call Maggie to let her know he was going to check on

his mother, but she did not answer. So, he texted her instead. Id.

En route to his mother’s house, Alex called his son Buster to check in on him,

tried calling his father, and called friend and fellow attorney Chris Wilson. Buster

and Chris Wilson would later testify that there was nothing unusual in their

conversations with Alex. Alex visited with his mother for about 15 to 20 minutes

and then returned to Moselle. Alex’s mother’s caregiver Shelley Smith was present

during Alex’s visit, and later testified that Alex sat on the bed next to his mother, that

he was not acting out of the ordinary, that he was his normal fidgety self, and that he

did not have any blood on his clothing or shoes. Trial Tr. 2771–82, 2129–32.

Following the recorded interview, Murdaugh was directed to the residence,

where his family and law partners were located. SLED agents followed Murdaugh

into the residence and took possession of the clothes and shoes he was wearing. An

agent also conducted a brief walk-through of the residence the following day,

checked the drains in the bathtubs and sinks for signs of blood, and there were none.

Trial Tr. 708, 1699–1700, 1704–06.

6
 The agents concluded that Maggie was shot and killed with an AR-type

weapon known as a 300 Blackout, and that Paul was shot and killed with a 12-gauge

shotgun. Accordingly, SLED agents seized every 12-gauge shotgun and the only

300 Blackout located in the residence. Trial Tr. 1005–09.

Also, the next morning, June 8, 2021, SLED and the Colleton County Sheriff’s

Department issued a joint press release stating that the public did not have any reason

to be concerned for their safety. Trial Tr. 4121-27. Alex was immediately identified

as the one and only suspect in this brutal double homicide. SLED’s chief

investigator, and multiple other agents, testified that they conduct homicide

investigations concentrically, drawing a theoretical circle around the crime scene and

then try to eliminate the individuals within the circle. From the moment the

investigation began, Alex was the one and only person within this investigative circle

and the agents did not eliminate him. Trial Tr. 1022–24, 3663–64.

Alex was not eliminated from the investigative circle and no one else was ever

included within it, because SLED and the Colleton County Sheriff’s investigators

botched the investigation. Trial Tr. 3662–3709. The first responders from the

Colleton County Sheriff’s Department walked through the crime scene and into the

feed room where Paul was shot, trampling bloody footprints at the scene (possibly

the perpetrators’) with their own footprints. There were noticeable tire tracks in the

7
wet grass that did not match any of the Murdaugh vehicles that were not followed or

investigated. Trial Tr. 486, 500, 510–12, 843–44, 866.

SLED crime scene forensic agents did not even attempt to lift fingerprints

from the feed room doors, doorknobs, or entrance area where Paul was murdered.

Trial Tr. 1866–69. The SLED DNA lab identified DNA from an unknown male

under Maggie’s fingertips. However, SLED never submitted this DNA to the

national DNA database, CODIS, for a potential match. Trial Tr. 3286–89.

Although Alex was at the center of the investigation, SLED did not search his

mother’s residence and property at Almeda for the murder weapons or any other

evidence. SLED agents only conducted a cursory search at Moselle, which did not

reveal any evidence linking Alex to the murders. Trial Tr. 1024, 1699, 1703–06,

3663–84.

Most significantly, SLED allowed the location data from Maggie’s cell phone

to be overwritten after SLED recovered the phone. Maggie’s phone was found

approximately one-half mile from the Moselle property about fifteen feet off the

shoulder of the road in a wooded area. Whoever tossed the phone to this location

was evidently present when Maggie was murdered and took the phone from her dead

body. Alex repeatedly asked SLED to check the location data on Maggie’s phone

against his own phone, which would show that the two phones were not traveling

together. Trial Tr. 1361–64, 4754–56.

8
 When Maggie’s phone was located using Alex’s other son Buster’s shared

location service with Maggie’s phone, SLED agents unlocked Maggie’s phone with

the password provided by Alex. After unlocking the phone, SLED agents put the

phone in airplane mode and transported it to Columbia. Although the phone was in

airplane mode, it was still recording GPS location information. When SLED finally

extracted data from Maggie’s phone, eight days after it was recovered, the location

data from the night of the murders had been overwritten and erased because it only

went back six days. This would have been avoided if SLED had put Maggie’s phone

in a Faraday bag, a basic cell phone forensic protocol that blocks GPS signals, or

failing that, simply turned it off. Trial Tr. 748–55, 1361–65, 4613–15, 4755.

II. THE INDICTMENT AND TRIAL

On July 14, 2022, the State obtained an indictment from a Colleton County

Grand Jury for two counts of murder, and two counts of using a firearm during the

commission of a violent crime. The lead case agent made at least two material

statements to the grand jury when presenting the indictments that were proven to be

false at trial.2 First, the agent incorrectly testified that SLED located multiple

shotguns loaded with a combination of buckshot followed by birdshot at Murdaugh’s

residence. Trial Tr. 3694–95. This is the same combination that was used to murder

2
Although the grand jury testimony was not transcribed, the notes that the agent
used for his testimony were produced in discovery. Trial Tr. 3684.

9
Paul, who was shot first with buckshot through the chest and then with steel birdshot

into his head. Id. At trial, the agent was confronted with this misrepresentation that

he made to Alex during an interview, and the agent simply explained he is allowed

to use “trickery” while interrogating a suspect. When asked if he was using

“trickery” when he made the same false statement to the grand jury, the agent then

claimed that he was mistaken in his testimony. Id.

Second, the agent incorrectly testified before the grand jury that the clothes

Alex was wearing when law enforcement arrived on the scene, which were later

collected by SLED, had high velocity blood spatter which placed Alex very close to

Paul when he was shot and killed. Trial Tr. 3684–85. SLED had sent photos of

Alex’s clothes to a so-called “blood spatter expert” in Oklahoma for analysis. This

“expert” issued an initial report stating that there was no evidence of blood spatter

on Alex’s clothes. Not satisfied, SLED agents flew to Oklahoma for an in-person

meeting with this “expert” who immediately issued a revised report concluding that

Alex’s shirt did in fact have high-velocity blood spatter stains. (Mot. to Exclude.)

During pretrial discovery, SLED produced its lab notes and other reports in

response to a subpoena, which had not previously been provided to the defense from

the Attorney General’s production. This SLED production contained a report which

definitively determined that there was in fact no human blood on the shirt Alex was

wearing the night of the murders. As a result, Murdaugh moved to exclude this

10
“expert” from testifying as to his blood spatter opinions, alleging the State had

fabricated the blood spatter evidence. Id. The State never responded to the motion

or denied fabricating the evidence; instead, it abandoned the “expert” at trial and

instead argued that Murdaugh changed his clothes after the murders. E.g., Trial Tr.

5817–51.

The State’s forensic evidence presented at trial failed to link Alex to Maggie

and Paul’s murder. All experts agreed that Paul was initially shot through his chest

while he was standing inside the small feed room, and the second kill shot was to his

head. This shot blew open Paul’s skull, causing his brain to first hit the ceiling of

the feed room and then land just outside the door, next to Paul’s lifeless body. Trial

Tr. 5176–5200. The person who killed Paul would have been covered in blood and

brain matter. Id. Maggie, on the other hand, appeared to be shot from further away

and the murderer would not have received much, if any, of her blood on or about his

or her body. Trial Tr. 5209–14.

The DNA evidence from Alex’s clothes did not reveal any significant amount

of Paul’s DNA. As stated above, there was no blood on Murdaugh’s shirt, and just

trace amounts on his shorts, which was consistent with Murdaugh touching the

bodies upon his arrival on the scene. Trial Tr. 3686–88. Similarly, there were only

two particles of gunshot residue on Murdaugh’s hands, three particles were found on

his shirt, three particles on his shorts, no particles on his shoes, and a single particle

11
on the seat buckle in the Chevrolet Suburban that Murdaugh was driving. These

minimal findings are consistent with Alex retrieving the shotgun for personal

protection, after approaching the bodies, that he had when first responders arrived.

Trial Tr. 2448:13–25, 2466:1–12, 2487.3 Also, trace amounts of Maggie’s blood

were on the steering wheel of the Suburban and the shotgun that Murdaugh retrieved,

which is consistent with Alex touching her body to check for signs of life. Id.

The State introduced ballistic expert opinion testimony over objection and

after a Council hearing. The SLED forensic ballistics witness did not offer an

opinion as to whether any of the shotguns or the 300 Blackout seized from the

Moselle property were used to murder Maggie or Paul. Instead, the ballistics witness

testified that the same shotgun fired both shells that killed Paul. The witness also

testified that because the 300 Blackout shell casings found near Maggie’s body had

sufficiently similar extraction marks to 300 Blackout shell casings found near the

Murdaugh residence and at the shooting range on the Murdaugh property, the same

weapon must have extracted all three sets of casings. To reach this conclusion, the

3
The State also introduced, over objection, evidence that gunshot residue was found
inside a blue rain jacket located in a search of Mrs. Murdaugh’s Almeda residence
in September 2021, months after the murder. Trial Tr. 2466:12–2480:12. There was
no evidence whatsoever linking Murdaugh to this rain jacket. Instead, Murdaugh’s
mother’s caregiver testified that she observed Murdaugh bring a blue tarp into the
residence and leave it spread open in a sitting room early one morning, a few days
following Murdaugh’s father’s funeral. Trial Tr. 2142:6–43:6.

12
expert necessarily had to presume, without any supporting tests, studies or data, that

every 300 Blackout manufactured in the world makes singularly unique extraction

marks. Trial Tr. 313–71, 1884–1996, State’s Ex. 400.

SLED’s cell phone forensic examiner testified regarding the data captured on

Maggie, Paul and Alex’s phones. Significantly, Maggie’s phone registered an

orientation change between 9:06:12 and 9:06:20 pm, meaning that the phone was

physically rotated during that period. This orientation change occurred while Alex

was calling Maggie’s phone. Trial Tr. 1238–39, 1324–27. Furthermore, while this

orientation change was occurring, Maggie’s phone was not recording footsteps, yet

Alex’s phone was. Def.’s Ex. 156. The SLED cell phone forensic witness conceded

that he would expect to find recorded steps on Maggie’s phone if the same person

possessed both Maggie’s and Alex’s phones when the orientation change occurred

at 9:06 pm. Trial Tr. 1329–30, 1356–57. According to the defense cell phone

forensic witness, this orientation change occurred when the cell phone was tossed to

the side of Moselle Road, about one-half mile from the entry to the kennels. Trial

Tr. 1652:7–55:10, State’s Ex. 227.

Furthermore, On-Star data for Murdaugh’s Suburban indicates that he passed

the location where Maggie’s phone was tossed at 9:08:36 pm, approximately two

minutes after the orientation change and 96 seconds after the screen on Maggie’s

phone went dark and remained dark until after Murdaugh arrived at his mother’s

13
home. Trial Tr. 1349, 1351, 4049, 4051–53, 4058, 4307–08, 4621, 4623–32; Def.’s

Ex. 158. The defense cell phone expert testified that iPhones have a “Raise to Wake”

feature, which was active on Maggie’s phone, and which causes the screen to

illuminate in response to the slight movement of being picked up from a table or

seat. Trial Tr. 4620–32. A phone that illuminates whenever it is picked up certainly

would illuminate when thrown from a vehicle moving 42 miles per hour. See id.

Alex therefore could not have had Maggie’s phone when it was thrown on the

roadside.

After the defense cell phone expert testified, a deputy with the Charleston

County Sheriff’s Department spent the weekend in his office tossing an iPhone onto

the floor of his office to test whether the phone would illuminate. Based upon this

unscientific experiment, he concluded that the cell phone will illuminate if it is

gently moved but not if it violently moved. The State was allowed to present the

deputy’s testimony about this experiment and the Deputy’s conclusions, over

objection, in its rebuttal case. Trial Tr. 5395–5415.

The State also entered Paul’s cell phone and its extracted data into evidence.

SLED’s cell phone forensics witness located a video on Paul’s phone taken on the

night of the murders from 8:44:49 p.m. to 8:45:47 p.m. Trial Tr. 1318:20–21:20.

The video is of Cash, a dog owned by family friend Rogan Gibson. Paul contacted

Rogan expressing concern about Cash’s tail. Rogan requested Paul send him a video

14
of the tail. In this video, Paul, Maggie, and a third person can be heard speaking in

the background. Rogan and numerous other witnesses identified this third person’s

voice as Alex’s. The video portrayed a family going about their normal routine,

without any sign of trouble or hostility. However, the video contradicted Alex’s

statements made to law enforcement and others that he stayed inside the residence

following supper, briefly napped on the couch, then went to visit his mother, and

never went down to the kennels. Trial Tr. 1318:20–21:20; State’s Ex. 297.

In the middle of the trial, SLED was notified by General Motors that it had

the On-Star data for the night of the murders for Murdaugh’s Suburban. This data

was introduced into evidence and corroborated Alex’s statements that he went

directly to and from his mother’s residence at Almeda without stopping or taking

any detours. Trial Tr. 3452–59.

Additionally, the State presented over objection ten witnesses who testified

over a span of six days about financial crimes Murdaugh committed, which involved

more than nineteen victims, as evidence of Alex’s alleged motive for killing Maggie

and Paul. Trial Tr. 2242–2433, 2502–87, 2656–2799, 2812–2956, 3497–3520, 3877–

3903, 3905–37. Specifically, Jeannie Seckinger, the chief financial officer of the

Murdaugh law firm where Alex was a partner, testified that on the afternoon of June

7, 2021, she spoke with Alex about a fee that the firm should have received from a

trucking accident lawsuit in which Alex was co-counsel with Chris Wilson, an

15
attorney from another firm. Trial Tr. 2286–88. The law firm received an expense

check from the Wilson firm, but not a fee check. Alex’s paralegal contacted Wilson’s

paralegal to ask about the fee and was informed that Alex had already received the

fee. Alex was first asked about the missing fee a month or so earlier. Trial Tr. 2278–

81.

Seckinger testified that when she asked Alex again about the missing fee on

June 7, he was hostile at first but then went into his office with her to discuss the

situation. Alex was insistent that Wilson still had the fee in his trust account. During

this conversation, Alex received a phone call saying that his father was being

admitted back to the hospital with a poor prognosis. When Alex received this call,

Seckinger testified that she stopped her inquiry and offered Alex sympathy as a

friend. Trial Tr. 2286–88.

The State’s theory at trial was that this confrontation, combined with the

pressure of an upcoming motion to compel hearing scheduled later in the week in a

boating accident lawsuit in which Alex was a defendant and extensive financial

information was being sought from Alex, prompted Alex to murder Maggie and Paul

to distract from the inquiry about the missing funds.

The trial court also allowed the State, over objection, to introduce evidence

involving three different and more extensive financial fraud schemes that had not

even been suspected at the time of the murders. Seckinger testified that in September

16
2021, three months after the murders, she was running a report of Alex’s cases and

discovered that Alex had been depositing client settlement funds made payable to

Forge, a well-known structure settlement firm, into a fake Forge account that Alex

opened at Bank of America. The State also presented evidence that Russell Lafitte

of Palmetto State Bank diverted settlement proceeds deposited into estate and

conservatorship accounts to Alex. Lastly, the State presented evidence that Alex

diverted more than $4 million paid on his behalf to the Estate of Gloria Satterfield,

the Murdaugh housekeeper, to settle an insurance claim brought against Alex for

Satterfield’s accidental death on the Murdaugh property. Overall, the jury received

evidence in this murder trial over a six-day period that Murdaugh defrauded at least

nineteen clients of more than $9 million. State’s Exs. 314, 329, 352.

When Alex was confronted by his law partners about the fake Forge account

scheme in September 2021, he admitted his misconduct, confessed to stealing the

money to support a severe opioid addiction, and resigned from the firm. Trial Tr.

2414–15. A few days later, Alex’s drug supplier, Curtis Eddie Smith, shot Murdaugh

in the head, penetrating and fracturing his skull, in an assisted suicide attempt. Alex

survived the gun shot, was admitted to the hospital in Savannah, and later entered a

drug treatment facility in Atlanta. Trial Tr. 3877–3922.

Alex testified at trial in his own defense and denied killing Maggie and Paul.

Alex admitted that he was at the kennels with them and had lied to law enforcement

17
and others regarding his whereabouts after dinner. Alex explained that he lied

because of drug-induced paranoia, and after having lied that he continued to lie

because of paranoia, distrust for SLED, and concern that he was the center of focus

in the investigation. Alex testified that he and Paul rode around the property and

when Maggie arrived home, they all met at the residence for supper. Alex took a

shower and changed clothes and ate dinner with them. Maggie asked him to go to

the kennels after dinner and he initially declined. A short time later, he drove down

to the kennels in a golf cart because he felt bad that he rejected her request. When

Alex arrived at the kennels, things were somewhat chaotic. Bubba, their yellow

labrador retriever, chased and caught a chicken. Bubba brought the chicken to Alex,

and he took it from the dog’s mouth, placed the chicken on top of an animal cage,

then immediately drove back to the house in the golf cart. After a few minutes, Alex

decided to drive to his mother’s home in Almeda to check on her. Alex left the

Moselle residence going out the main entrance, and did not ride by the kennels. Alex

never heard gunshots at any time. 4 Trial Tr. 4964–80.

Alex also admitted to the financial crimes about which the State had presented

evidence in its case. Alex testified that he stole money from the law firm and clients

4
The defense presented the results of an acoustics test which established, without
contradiction, that a person inside the residence with the television on could not hear
gunshots from a 12-gauge shotgun or 300 Blackout rifle being fired at the kennels.
Trial Tr. 4284–97; Def.’s Ex. 140.

18
to support his severe opioid addiction. Alex had been struggling with opioid

addiction for over 20 years, which started when he was prescribed opioids for pain

relief after knee surgery. Id.

Alex also testified that he was not concerned about Seckinger’s questioning

of him regarding the attorneys’ fee and that the upcoming hearing on the motion to

compel was not worrisome either. Id. Alex’s attorney in the boating lawsuit, Dawes

Cooke, also testified that the upcoming hearing was a routine matter and not

especially concerning. Tr. 4499–4504. In addition, Mark Tinsley, the plaintiff’s

counsel in the boating accident case, conceded that nothing explosive was expected

to occur at the motion hearing scheduled for June 10, three days after the murders.

Trial Tr. 2053–54, 2951–52.

During closing arguments, the defense argued that the State’s theory that

Murdaugh would murder his wife and son to distract from the financial inquiry was

a total fabrication and unbelievable. In response, the prosecutor argued that the jury

could disregard their motive theory and find Murdaugh guilty because the State is

not required to prove motive, only malice. Trial Tr. 5823–25.

III. THE TAMPERED JURY VERDICT

After six weeks of trial, the case was submitted to the jury at about 3:45 pm

on March 2, 2023. The verdict was returned early that evening. Jurors’ television

19
interviews indicate the actual deliberations took less than one hour. Murdaugh was

sentenced to life in prison without the possibility of parole.

On August 1, 2023, the then-Colleton County Clerk of Court, Rebecca Hill,

published a book, Behind the Doors of Justice, about Mr. Murdaugh’s trial. She had

been planning to write a book about the trial even before it began. Evid. Hr’g Tr.

181:11–183:19. She repeatedly said during the trial that a guilty verdict would sell

more books, and that she needed to sell books because “she needed a lake house.”

Id. 181:20–183:1. The book caused some jurors to come forward to describe Ms.

Hill’s efforts to obtain her desired guilty verdict through jury tampering during trial.

Jurors stated that after the State rested and the defense began its case, Ms. Hill

entered the jury rooms often, telling jurors not to let the defense “throw you all off,”

or “distract you or mislead you,” and telling them “not to be fooled” by Mr.

Murdaugh’s testimony in his own defense. Id. 52:7–18, 203:18–25, 209:25–210:18;

Mot. New Trial Ex. A (Juror 630 Aff., Aug. 14, 2023) & Ex. H (Juror 785 Aff., Aug.

13, 2023); Juror Z Aff., Jan. 29, 2024.

IV. MURDAUGH’S MOTION FOR NEW TRIAL

On September 5, 2023, Mr. Murdaugh filed a motion to suspend his appeal

and for leave to file a motion for a new trial based on the evidence of Ms. Hill’s jury

tampering. The Court granted the motion and Mr. Murdaugh filed his motion for a

new trial on October 27. On November 1, he petitioned the Supreme Court for a

20
writ of prohibition to prohibit Judge Newman from adjudicating the new trial

motion, based on public statements Judge Newman made after the jury returned

guilty verdicts. On November 15, the Supreme Court denied the petition as moot

because Judge Newman recused himself from hearing the new trial motion. On

December 18, the Chief Justice appointed retired Chief Justice Jean H. Toal to serve

as the circuit judge hearing Mr. Murdaugh’s motion for a new trial.

The trial court ordered an evidentiary hearing, and the parties submitted

extensive briefing in advance of the hearing. The trial court held a “prehearing

procedure” on January 16, 2024 to determine, inter alia, “[w]ho has the burden of

proof in this matter, and what must be shown to meet that burden of proof, and what

must then be shown to contest what has been shown and proved?” Prehearing Hr’g

Tr. 3:1–2, 5:22–25. At this initial hearing, the trial court ruled that Mr. Murdaugh

bears the burden of proving actual prejudice in the verdict rendered. Id. 21:9–20. It

further ruled Mr. Murdaugh would not be permitted to call any witnesses, including

eyewitnesses to Ms. Hill’s jury tampering, or to examine any jurors called by the

court. Id. 51:9–54:2. Instead, the trial court would call and itself examine each

juror; the only other witness would be Ms. Hill and any cross-examination of her

would be strictly limited. Id. 41:22–42:2, 43:3–45:14, 46:25–51:7, 49:22–23.

On January 24, 2024, the trial court communicated its proposed questions to

jurors to the parties. Mr. Murdaugh’s counsel objected to the questions and to the

21
rulings made at the hearing by letter dated January 25, 2024. Ltr. from R.

Harpootlian to Ret. Chief Justice Toal, Jan. 25, 2024. The trial court reconsidered

its prior rulings and allowed Mr. Murdaugh to call the alternate juror and Barnwell

County Clerk Rhonda McElveen and allowed the parties an opportunity for cross-

examination of witnesses who were not deliberating jurors.

The evidentiary hearing was held on January 29, 2024. A single juror testified

one business day earlier, on January 26, to accommodate a scheduling conflict. The

jurors (identified by anonymous letters) testified as follows:

Jurors C, F, L, E, O, Y, W, Q, and K testified that they did not hear Ms. Hill

comment on the merits of the case before the verdict.

Juror P testified that he heard Ms. Hill tell jurors, regarding Murdaugh’s

decision to testify in his own defense, to “watch his body language.” Evid. Hr’g Tr.

77:22–78:7. Juror P testified the comment did not affect his verdict.

Juror X testified that she heard Ms. Hill comment, regarding Murdaugh’s

decision to testify in his own defense, that it was rare for a defendant to testify in a

criminal case and that “this is an epic day.” Id. 23:9–24:3. Juror X testified the

comments did not affect her verdict.

Juror Z testified that she heard Ms. Hill comment regarding Murdaugh’s

decision to testify in his own defense, to watch Murdaugh’s actions, and to watch

him closely. Juror Z testified that the comments did affect her verdict:

22
 Q. All right. Was your verdict influenced in any way by the
communications of the clerk of court in this case[?]

A. Yes, ma’am.

Q. And how was it influenced?

A. To me, it felt like she made it seem like he was already guilty.
Q. All right, and I understand that, that that’s the tenor of the remarks
she made. Did that affect your finding of guilty in this case?
A. Yes, ma’am.

Id. 46:6–15. The trial court then examined Juror Z regarding her affidavit attached

to Murdaugh’s motion for a new trial, and she affirmed each paragraph therein,

including averments that during trial Ms. Hill “told the jury ‘not to be fooled’ by the

evidence presented by Murdaugh 's attorneys, which I understood to mean that Mr.

Murdaugh would lie when he testified,” and that Ms. Hill “instructed the jury to

‘watch him [Murdaugh] closely’ immediately before he testified, including ‘look at

his actions’ and ‘look at his movements,’ which I understood to mean that he was

guilty.” Mot. New Trial Ex. A ¶¶ 2–3.

The trial court then asked,

Q. Juror Z, I asked you previously was your verdict on March 2, 2023,

influenced in any way by communications from Becky Hill, the clerk
of court. You answered that question yes. In light of what you said in
the affidavit, which is:

A. I had questions about Mr. Murdaugh’s guilt but voted guilty because
I felt pressured by the other jurors.

Q. Is that answer that I just read a more accurate statement of how you
felt?

23
 MR. HARPOOTLIAN: Object to the form, Your Honor.
THE COURT: Overruled.

A. Yes, ma’am.

Q. All right. So, you do stand by the affidavit?

A. Yes, ma’am.

Q. Very good.

Evid. Hr’g Tr. 55:1–56:7. After Juror Z left the courtroom, Murdaugh’s counsel

objected:

MR. HARPOOTLIAN: Your Honor, we objected to the questioning

because this juror gave two statements under oath, one in an affidavit
and one here to you today. The one here to you today was Becky Hill
influenced her verdict.
THE COURT: Yes.

MR. HARPOOTLIAN: The one she gave in an affidavit six months ago
was based on jurors. It could be both. Your Honor picked out the one
in the affidavit from six months ago and said is that a more accurate
statement. That presupposes and suggests to her what she should say.
And we believe that this, this juror’s testimony -- and, Your Honor, I’m
afraid what you're going to say is, well, she said the affidavit was more
accurate than what she testified under oath here today and, therefore,
I’m not going to consider her testimony, and I think that’s where we’re
heading here.

I’d ask you to bring her back in, explain to her there’s nothing wrong
with it both being true.
THE COURT: I decline to do that and overrule the objection.

Id. 58:2–22. Later during the hearing, Juror Z, through her own counsel, provided

an affidavit averring,

1. I would like to clarify my testimony today.

24
 2. As I testified, I felt influenced to find Mr. Murdaugh guilty by
reason of Ms. Hill’s remarks, before I entered the jury room.

3. Once deliberations began as I stated in paragraph 10 of my earlier

affidavit, I felt further, additional pressure to reach the guilty verdict.

Juror Z Aff., January 29, 2024. Although the trial court introduced Juror Z’s

prehearing affidavit into evidence on its own motion, it refused to allow Juror Z’s

affidavit of that day into evidence or to allow any further testimony from Juror Z.

Ms. Hill testified after the jurors. She denied engaging in any jury tampering.

She also denied stating that she wanted a guilty verdict to promote book sales. She

admitted she plagiarized portions of her book and that her profits from its sale in the

six months before it was withdrawn from publication because of her plagiarism were

approximately $100,000. Evid. Hr’g Tr. 133:8–12. She admitted the book contained

unfounded statements included for “poetic license” or “literary ease.” Id. 125:18–

20, 137:17–19. Examination by the trial court revealed that Ms. Hill’s denial, during

direct examination, of questioning a juror during the murder trial was not truthful,

and that she did want a guilty verdict. Id. 146:18–159:3.

Barnwell County Clerk of Court Rhonda McElveen testified next to rebut Ms.

Hill’s denial that she wanted a guilty verdict to promote book sales. Ms. McElveen

was assisting in the courtroom during the murder trial. She testified,

Q. And did she discuss with you -- what, if anything, did she discuss
with you about how she felt the verdict should turn out to be in the
Murdaugh trial vis a vis in reference to the book, what would help the
book?

25
 A. A guilty verdict.
Q. Tell the judge and, and me what exactly she said to you that you
remember. This is prior to the trial.

A. Okay. Well, first of all, she said we might want to write a book
because she needed a lake house and I needed to retire, and from then,
further conversation was that a guilty verdict would sell more books,
and we left it at that. This was before even in December.

Q. And, and when, when -- did she ever say that again to you during
this -- the, the weeks you spent there?

A. Several times. It could be said -- it was, you know, amongst friends

in her office or we might be having dinner, that kind of stuff, but that's
about it.
Q. That she needed a guilty verdict to sell more books?
A. That would be the best way to sell books, yes, sir.

Q. The best way to sell books.

Now, during this -- during this process, did she ever express to you an
opinion on whether or not, in fact, was Mr. Murdaugh guilty of the
murders of his son and his, his wife?
A. Yes, sir.
Q. Tell me. Tell me what she said and if you remember when.

A. I don’t exactly remember when. I know it’s over half of the trial had
already happened, but the evidence was coming forth that it looked like
he might be guilty. She made a comment that guilty verdict would be
better for the sale of books.
Id. 181:20–183:1. She also testified that Ms. Hill made comments to her, like

“‘[d]on’t be fooled by the evidence presented by Mr. Murdaugh’s attorneys,”

identical to statements reported by some jurors. Id. 184:25–185:18. And she

testified that Ms. Hill insisted on allowing a book writer (who wrote the forward to

26
Ms. Hill’s book) to sit in the well of the court during trial, where she could see sealed

exhibits, under the subterfuge of being a Sunday school teacher. Id. 186:12–190:10.

The final witness was the alternate juror, Juror 741. She testified that Ms. Hill

told jurors “the defense is about to do their side” and “[t]hey’re going to say things

that will try to confuse you” but “[d]on’t let them confuse you or convince you or

throw you off.” Id. 203:18–204:3.

At the conclusion of the hearing, the trial court ruled from the bench:

Did Clerk of Court Hill make comments to any juror which expressed
her opinion what the verdict would be? Ms. Hill denies [doing so] and
so the question becomes was her denial credible.

I find that the clerk of court is not completely credible as a witness. Ms.
Hill was attracted by the siren call of celebrity. She wanted to write a
book about the trial and expressed that as early as November 2022, long
before the trial began. She denies that this is so, but I find that she
stated to the clerk of court Rhonda McElveen and others her desire for
a guilty verdict because it would sell books. She made comments about
Murdaugh’s demeanor as he testified, and she made some of those
comments before he testified to at least one and maybe more jurors.
...
The clerk of court allowed public attention of the moment to overcome
her duty.
Id. 251:13–252:1, 23–24.

The trial court nevertheless denied the motion for a new trial, reasoning that

there is no presumption of prejudice from tampering with jurors during a trial about

the matter pending before the jury and Murdaugh failed to prove that Ms. Hill’s

comments changed the jury’s verdict. The trial court discounted the testimony of

27
Juror Z, who said Ms. Hill’s comments did affect her verdict, because she “was

ambivalent in her testimony.” Id. 252:13. In a State-drafted written order entered

66 days after the ruling from the bench, the trial court further ruled in passing that

“this Court also find[s] that any possible presumption of prejudice was overcome,”

without any reference to any evidence presented at the evidentiary hearing. (Order

Denying Mot. New Trial 24, Apr. 4, 2024.) Murdaugh timely appealed the order on

April 11, 2024.

On March 25, 2024, Ms. Hill resigned from office. In May 2024, it was

reported that the State Ethics Commission had referred ethics complaints against her

for criminal prosecution.

STANDARD OF REVIEW

“The decision whether to grant a new trial rests within the sound discretion of

the trial court” and is reviewed for an abuse of discretion. State v. Mercer, 381 S.C.

149, 166, 672 S.E.2d 556, 565 (2009). “An abuse of discretion arises in cases in

which the judge issuing the order was controlled by some error of law or where the

order, based upon factual, as distinguished from legal, conclusions, is without

evidentiary support.” Stewart v. Floyd, 274 S.C. 437, 440, 265 S.E.2d 254, 255

(1980).

When it is asserted the trial court’s order was controlled by an error of law, “a

question of law is presented” and the “standard of review is plenary” and “without

28
deference to the trial court.” State v. Cochran, 369 S.C. 308, 312–13, 631 S.E.2d

294, 297 (Ct. App. 2006) (Kittredge, J.) (citing S.C. Const. art. V, § 5 & 9; S.C. Code

§§ 14-3-320, 14-3-330, & 14-8-200); Crossmann Communities of N.C., Inc. v.

Harleysville Mut. Ins. Co., 395 S.C. 40, 47, 717 S.E.2d 589, 592 (2011).

When reviewing the trial court’s decision, the appellate court may not make

its own findings of fact if the trial court’s findings are “reasonably supported by the

evidence.” Cochran, 369 S.C. at 312–13, 631 S.E.2d at 297. “The appellate court

does not re-evaluate the facts based on its own view of the evidence but simply

determines whether the trial judge’s ruling is supported by any evidence.” State v.

Kirton, 381 S.C. 7, 23, 671 S.E.2d 107, 114 (Ct. App. 2008). But “[i]n reviewing

mixed questions of law and fact, where the evidence supports but one reasonable

inference, the question becomes a matter of law for the court.” State v. Moore, 343

S.C. 282, 288, 540 S.E.2d 445, 448 (2000).

Similarly, a trial court’s ruling on the admission or exclusion of evidence—

when the ruling is based on the South Carolina Rules of Evidence—is reviewed

under an abuse of discretion standard. A trial court acts outside of its discretion when

the ruling is not supported by the evidence or is controlled by an error of law. State

v. Wallace, 440 S.C. 537, 541–43, 892 S.E.2d 310, 312–13 (2023); State v. Jones,

423 S.C. 631, 636, 817 S.E.2d 268, 270 (2018) (“A trial court’s ruling on the

admissibility of expert testimony constitutes an abuse of discretion where the ruling

29
is unsupported by the evidence or controlled by an error of law.”). A trial court’s

failure to exercise its discretion as to the admissibility of evidence is itself an abuse

of discretion. Wallace, 440 S.C. at 541–43, State v. King, 422 S.C. 47, 68–69, 810

S.E.2d 18, 29 (2017) (holding the trial court's refusal to listen to the disputed phone

call recording left the court unable to carry out the required balancing under Rule

403, SCRE). The trial court—when ruling on the admission or exclusion of

evidence—must think through the objection that has been made, the arguments of

the attorneys, and the law—particularly the applicable evidentiary rules—and must

thoughtfully apply the correct law to the information and evidence before it. Wallace,

440 S.C. 541–43; Morris v. BB&T Corp., 438 S.C. 582, 587, 885 S.E.2d 394, 397

(2023).

ARGUMENT

I. MURDAUGH WAS DENIED HIS CONSTITUTIONAL RIGHT TO A

FAIR TRIAL BY AN IMPARTIAL JURY FREE FROM OUTSIDE
INFLUENCES.

The trial court found Ms. Hill tampered with the jury during Murdaugh’s

murder trial. Evid. Hr’g Tr. 251:13–252:1, 23–24. The only evidence the State

presented contradicting sworn testimony describing the tampering was Ms. Hill’s

own denial, which the trial court found not credible. Id. The trial court found she

was motivated by a desire to sell books. Id. The trial court found she was “attracted

by the siren call of celebrity” and she “allowed public attention of the moment to

30
overcome her duty.” Id. And one juror testified that Ms. Hill’s tampering did

influence her verdict. Id. 46:6–15.

But the trial court nonetheless denied the motion for a new trial, by

committing legal error and by abusing its discretion. The trial court erred when it

refused to presume that jury tampering during trial by a state official advocating a

guilty verdict is prejudicial to the right of the accused to a fair trial, and when it held

that deliberate jury tampering by a state official seeking a guilty verdict was harmless

because, in its opinion, the correct verdict was rendered regardless. The trial court

abused its discretion when finding that Ms. Hill’s tampering did not affect the jury’s

verdict despite a juror’s uncontradicted testimony that her verdict was affected. The

Court therefore should reverse the trial court’s order denying Murdaugh’s motion for

a new trial, vacate Murdaugh’s murder and firearms convictions, and remand for a

new trial.

A. There is an irrebuttable presumption of prejudice when a state official

secretly advocates a guilty verdict in the jury room during a criminal
trial.

The trial court identified the wrong legal standard to decide Murdaugh’s

motion for a new trial. When a state official communicates with jurors about a

criminal case during trial, the law presumes the tampering was prejudicial to the

defendant’s right to a fair trial. The burden shifts to the state to show the

communication was harmless. The State can meet that burden by, for example,

31
showing the communication did not concern the merits of the case, that it was

favorable to the defendant, or that it never reached a deliberating juror. But where

it is proven there was an improper communication by a court official to jurors about

the merits of the case before them—ex parte advocacy by a state official—the

presumption is irrebuttable. State v. Cameron, 311 S.C. 204, 207–08, 428 S.E.2d 10,

12 (Ct. App. 1993) (Where “‘[t]here was the private communication of the court

official to members of the jury, an occurrence which cannot be tolerated if the

sanctity of the jury system is to be maintained . . . a new trial must be granted unless

it clearly appears that the subject matter of the communication was harmless and

could not have affected the verdict.’” (quoting Holmes v. United States, 284 F.2d

716, 718 (4th Cir. 1960)) (emphasis added)).

The trial court, however, rejected the correct legal standard and applied an

erroneous standard of its own invention: that Murdaugh, in addition to proving that

Ms. Hill did tamper with the jury about the merits of his case during trial, must also

prove what the verdict would have been but for that tampering. The Court should

hold that in so doing, the trial court abused its discretion. Identification of the correct

legal standard is a question of law subject to the Court’s plenary review and Justice

Toal’s legal error is entitled to no deference.

32
1. The U.S. Supreme Court holds that in a criminal case jury tampering is
presumptively prejudicial.
The trial court erred by ruling that South Carolina courts should disregard

binding precedent of the U.S. Supreme Court that requires it to presume jury

tampering is prejudicial to the defendant. In Remmer v. United States, the U.S.

Supreme Court held, unanimously,

In a criminal case, any private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed presumptively
prejudicial, if not made in pursuance of known rules of the court and
the instructions and directions of the court made during the trial, with
full knowledge of the parties. The presumption is not conclusive, but
the burden rests heavily upon the Government to establish, after notice
to and hearing of the defendant, that such contact with the juror was
harmless to the defendant.
347 U.S. 227, 229 (1954). The Fourth Circuit holds Remmer is still “clearly

established federal law.” Barnes v. Joyner, 751 F.3d 229, 243 (4th Cir. 2014). The

trial court, however, instead ruled that State v. Green, 432 S.C. 97, 851 S.E.2d 440

(2020), directs South Carolina courts to ignore Remmer:

THE COURT: [The] South Carolina Supreme Court said very clearly
we do not go by the guidance of the 1950s case of US v. Remmer.

MR. HARPOOTLIAN: That’s -- we do not believe that’s what Justice

Kittredge has said in [State v. Green] ---

THE COURT: He said it straight out as clear as a bell can be, but I’ve
ruled on that.

Evid. Hr’g Tr. 100:19–25.

33
 This Court, however, has not split with the Fourth Circuit to instruct South

Carolina courts to disregard Remmer. In Green, the Court merely “decline[d] to

adopt the Remmer presumption of prejudice in every instance of an inappropriate

bailiff communication to a juror” because “not every inappropriate comment by a

bailiff to a juror rises to the level of constitutional error,” including the inappropriate

comments at issue in Green, which “did not touch the merits, but dealt only with the

procedural question of how the judge might handle a jury impasse that apparently

never materialized.” 432 S.C. at 100–01, 851 S.E.2d at 44. Green accords perfectly

with recent Fourth Circuit authority: Under Remmer “any private communication,

contact, or tampering directly or indirectly, with a juror during a trial about the matter

pending before the jury is deemed presumptively prejudicial,” but “[t]o trigger this

presumption, a defendant must introduce ‘competent evidence of extrajudicial juror

contacts’ that are ‘more than innocuous interventions.’” United States v. Elbaz, 52

F.4th 593, 606 (4th Cir. 2022) (Richardson, J.) (internal quotation marks omitted),

cert. denied, 144 S. Ct. 278 (2023).

If the Remmer presumption of prejudice ever applies, it must apply where, as

here, an elected state official advocates for a guilty verdict in the jury room during

trial so that she can personally profit from selling books about a guilty verdict. That

is not an “innocuous intervention.”

34
 But the trial court nevertheless held that when there is tampering with a juror

during a trial about the matter pending before the jury, prejudice is never presumed

but instead always must be proven by the defendant. Prehearing Hr’g Tr. 20:25–

21:20; Order Denying Mot. New Trial 4–5. In doing so, the trial court adopted the

State’s argument that Remmer was abrogated by Smith v. Phillips, 455 U.S. 209

(1982), and United States v. Olano, 507 U.S. 725 (1993). Resp’t’s 2d Br. 6–7.

The trial court agreed, ruling from the bench:

I am not conducting a Remmer hearing. Remmer is a 1954 decision of

the United States Supreme Court that deals with question of influence
of the jury and a motion for a new trial on the basis of after-discovered
evidence of that influence. I rely on the South Carolina decision of our
Supreme Court authored by Justice Kittredge, State v. Green, and the
Green decision specifically says that Remmer is not the guidance that
South Carolina trial judges should look to in conducting hearings on
after-discovered evidence.
Prehearing Hr’g Tr. 11:1–10; see also Evid. Hr’g Tr. 100:19–21 (“[The] South

Carolina Supreme Court said very clearly we do not go by the guidance of the 1950s

case of US v. Remmer.”). Its State-drafted order entered months after the evidentiary

hearing, however, hides its reasoning, stating only that “Murdaugh argues . . .

prejudice must be presumed under Remmer” while the State “argues that the

overwhelming weight of South Carolina case law is clear that . . . the burden is on

the defendant to show not only that the improper influence occurred but also

resulting prejudice.” Order Denying Mot. New Trial 4–5. The trial court’s order

then proceeds to review South Carolina cases, some of which are arguably irrelevant

35
(e.g., cases dealing with external influences not touching on the merits of the case

before the jury or alternate jurors participating in deliberations) and some of which

are inarguably irrelevant (e.g., cases dealing with internal jury influences),5 without

attempting to explain why Remmer is not good law. Id. 5–8.

To be sure, the continued viability of Remmer is not universally agreed. There

is a three-way federal circuit split on the issue. The majority position, adopted by

the First, Second, Third, Fourth, Seventh, Ninth, Eleventh, and D.C. Circuits and at

least 28 states, presumes prejudice under Remmer, although many courts, like the

Fourth Circuit (and this Court in Green) decline to apply it categorically to

“innocuous” contacts with jurors. E.g., United States v. Pagán-Romero, 894 F.3d

441, 447 (1st Cir. 2018); United States v. Greer, 285 F.3d 158, 173 (2d Cir. 2002);

United States v. Claxton, 766 F.3d 280, 299 (3d Cir. 2014); Barnes, 751 F.3d at 245;

United States v. Turner, 836 F.3d 849, 867 (7th Cir. 2016); Godoy v. Spearman, 861

F.3d 956, 968 (9th Cir. 2017); Ward v. Hall, 592 F.3d 1144, 1180 (11th Cir. 2010);

United States v. Gartmon, 146 F.3d 1015, 1028 (D.C. Cir. 1998). The Fifth,6 Sixth,

5
The Remmer presumption does not apply to internal influences on the jury, Barnes,
751 F.3d at 245–46, and Mr. Murdaugh has not sought any relief based on any
alleged improper internal influence on the jury.
6
The Fifth Circuit may have since moved back to the majority position. See United
States v. Jordan, 958 F.3d 331, 335 (5th Cir. 2020) (“To be entitled to a new trial
based on an extrinsic influence on the jury, a defendant must first show that the
extrinsic influence likely caused prejudice” and “[t]he government then bears the
burden of proving the lack of prejudice.”).

36
and Tenth Circuits and at least fourteen states decline to apply Remmer and instead

require defendants to prove prejudice, as the trial court held. The Eighth Circuit and

at least seven states leave the question entirely to judicial discretion.

As the State argued, the question driving the split is whether Remmer was

narrowed or overruled by Smith v. Phillips and United States v. Olano. See, e.g.,

United States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998) (“We agree that the

Remmer presumption of prejudice cannot survive Phillips and Olano.”). The Court

should decline the State’s invitation to join the minority position on that question for

three reasons.

First, the argument that Olano or Phillips abrogated Remmer is

unpersuasive—which may explain why that argument remains the minority position

30 and 40 years after those decisions, respectively. In Phillips, a juror applied for

employment with the district attorney’s office during trial, but the prosecution did

not disclose the fact until after the trial. 455 U.S. at 213–14. In Olano, the trial court

permitted alternate jurors to attend but not to participate in jury deliberations. 507

U.S. at 728–29. In each case the Supreme Court held that a new trial was not

required. But neither case involved an “external” influence on the jury from anyone

other than alternate jurors. Both cases cited Remmer with approval. Olano, 507

U.S. at 738; Phillips, 455 U.S. at 215. Olano even stated “[t]here may be cases

where an intrusion should be presumed prejudicial,” citing Turner v. Louisiana, 379

37
U.S. 466 (1965) as an example of such a case. 507 U.S. at 739. In Turner, prejudice

was presumed where the jury was in the charge of sheriff’s deputies who were also

prosecution witnesses, a fact pattern with a close similarity to the present case.7 379

U.S. at 474.

Second, only the U.S. Supreme Court can decide whether it has overruled its

decision in Remmer: “‘[I]t is this Court’s prerogative alone to overrule one of its

precedents.’” Bosse v. Oklahoma, 580 U.S. 1, 3 (2016) (quoting United States v.

Hatter, 532 U.S. 557, 567 (2001)). This Court cannot decide that the U.S. Supreme

Court has overruled a precedential decision by implication from later decisions that

appear to use inconsistent reasoning: “‘Our decisions remain binding precedent until

we see fit to reconsider them, regardless of whether subsequent cases have raised

doubts about their continuing vitality.’” Id. (quoting Hohn v. United States, 524 U.S.

236, 252–53 (1998)).

Third, the Court should defer to the Fourth Circuit’s interpretation of a

question of federal constitutional law, especially when it adopts the majority

7
Like the deputies in Turner, Ms. Hill had the jury in her charge. She was not a
prosecution witness, but like a prosecution witness she made statements to the jury
advocating a guilty verdict.

38
position, see Limehouse v. Hulsey, 404 S.C. 93, 108–09, 744 S.E.2d 566, 575

(2013),8 and the Fourth Circuit’s position is clear:

Some courts have suggested that post-Remmer developments—Smith v.

Phillips, 455 U.S. 209, 215 (1982), United States v. Olano, 507 U.S.
725, 738–39 (1993), and Federal Rule of Evidence 606(b)—narrowed
or overturned Remmer’s presumption of prejudice. See, e.g., United
States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998) (“[T]he Remmer
presumption of prejudice cannot survive Phillips and Olano.”). But the
Fourth Circuit continues to adhere to a Remmer presumption when the
contact goes beyond the innocuous.

Elbaz, 52 F.4th at 606 n.9; see also United States v. Johnson, 954 F.3d 174, 179–80

(4th Cir. 2020) (holding that where “an unauthorized contact was made” with jurors

“of such a character as to reasonably draw into question the integrity” of the trial

proceedings, the defendant “is entitled under Remmer: (1) to a rebuttable

presumption that the external influence prejudiced the jury’s ability to remain

impartial” (internal quotation marks omitted)); Barnes, 751 F.3d at 243 (holding

Remmer is “clearly established federal law”); United States v. Lawson, 677 F.3d 629,

642 (4th Cir. 2012) (“At issue in this debate are the Supreme Court’s decisions in

Smith v. Phillips and United States v. Olano . . . . This Court’s decisions addressing

8
Moreover, while South Carolina’s courts are not subject to the mandate of the
Fourth Circuit, they must follow what the Fourth Circuit says is “clearly established”
federal law regarding the rights of criminal defendants in this State or writs of habeas
corpus may be granted. See 28 U.S.C. § 2254(d)(1) (providing for a habeas writ
where state court proceedings “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States”).

39
such external influences on a jury’s deliberations reflect that the Remmer rebuttable

presumption remains [a]live and well in the Fourth Circuit.” (citations omitted)).

“To determine whether a contact with a juror is innocuous or triggers the Remmer

presumption we look to whether there was (1) any private communication; (2) any

private contact; (3) any tampering; (4) directly or indirectly with a juror during trial;

(5) about the matter before the jury.” Elbaz, 52 F.4th at 607 (internal quotation marks

omitted).

Two years before the Fourth Circuit’s Elbaz decision (its most recent

published decision affirming Remmer), this Court in Green considered a case in

which a juror asked a bailiff what would happen if the jury deadlocked, and the

bailiff responded that the judge probably would give an Allen charge and ask them

to stay later. The Court held,

The trial court questioned each juror and the bailiff, which proved
“there was no reasonable possibility the [bailiff’s] comments
influenced the verdict.” Our unwillingness to categorically apply the
Remmer presumption of prejudice stems from our view that not every
inappropriate comment by a bailiff to a juror rises to the level of
constitutional error. In Remmer, a juror was approached by a “person
unnamed” and told “that [the juror] could profit by bringing in a verdict
favorable to the [defendant].” The federal district court, without
holding a hearing, denied the defendant’s motion for a new trial.
Ultimately, the Supreme Court recognized the presumption of prejudice
from the highly improper juror contact and remanded to the federal
district court “to hold a hearing to determine whether the incident
complained of was harmful to the [defendant].”

The attempted bribery of a juror in Remmer—conduct which goes to

the heart of the merits of the case on trial—is a far cry from the

40
 circumstances presented in this case. The bailiff’s actions here—
though improper—did not touch the merits, but dealt only with the
procedural question of how the judge might handle a jury impasse that
apparently never materialized.

432 S.C. at 100, 851 S.E.2d at 441 (2020) (citations omitted). The trial court read

that language to hold that South Carolina courts never apply the Remmer

presumption of prejudice in any circumstances. Prehearing Hr’g Tr. 11:1–10; Evid.

Hr’g Tr. 100:19–21.

Green is the only reported South Carolina appellate decision discussing

Remmer, 9 and the trial court’s reading of it plainly erroneous. “While we decline to

adopt the Remmer presumption of prejudice in every instance of an inappropriate

bailiff communication to a juror” does not mean “we decline to adopt the Remmer

presumption of prejudice in any instance of inappropriate communication to a juror,”

nor does “[o]ur unwillingness to categorically apply the Remmer presumption of

prejudice stems from our view that not every inappropriate comment by a bailiff to

a juror rises to the level of constitutional error” mean “no inappropriate comment to

a juror ever rises to the level of constitutional error.” Green, 432 S.C. at 100–01,

851 S.E.2d at 441. A more reasonable reading is that the Court’s opinion is identical

to the Fourth Circuit’s opinion expressed in Elbaz two years later: prejudice is

9
The only other South Carolina appellate case citing Remmer is State v. Bryant, 354
S.C. 390, 395, 581 S.E.2d 157, 160 (2003), which cites Remmer once in a string
citation without any discussion.

41
presumed unless the contact is “innocuous” or does not “touch the merits.” Compare

52 F.4th at 606 with Green, 432 S.C. at 100, 851 S.E.2d at 441.

That is also consistent with the earlier opinion of the Court of Appeals in

Cameron, which held,

In this case, there was the private communication of the court official
to members of the jury, an occurrence which cannot be tolerated if the
sanctity of the jury system is to be maintained. When there has been
such a communication, a new trial must be granted unless it clearly
appears that the subject matter of the communication was harmless and
could not have affected the verdict.
311 S.C. at 208, 428 S.E.2d at 12. The trial court refused even to consider Cameron

because it is a Court of Appeals decision, Prehearing Hr’g Tr. 21:25–22:3 (“I do not

regard State v. Cameron as the guidance that needs to be used by me in making a

determination about this case. It’s a Court of Appeals case.”), and because, in its

view, the later Green decision held Remmer is no longer good law, id. 22:3–10.

Similarly, in Bryant, the only South Carolina case other than Green to cite

Remmer, the Court held the defendant must prove “actual juror bias,” which he did

by proving “the questioning of jurors’ family members by Horry County Police

detectives in a case in which the victim was a Horry County Police Department

Officer was, at minimum, an attempt to influence the jury” that “could have been

perceived as an attempt to intimidate jurors.” 354 S.C. at 395, 581 S.E.2d at 160–

01 (2003). That jury intimidation was the actual prejudice the defendant had the

burden to prove. There was no suggestion that having proven law enforcement

42
officers engaged in jury intimidation, the defendant then needed to prove what the

verdict would have been but for the intimidation.

2. The presumption of prejudice is irrebuttable when a state official

tampers with the jury during a criminal trial about the merits of the case.

Having proven that Ms. Hill communicated with at least one deliberating juror

about the evidence presented during his murder trial, Murdaugh has established that

he is entitled to a new trial. “A defendant in a criminal prosecution is constitutionally

guaranteed a fair trial by an impartial jury, and in order to fully safeguard this

protection, it is required that the jury render its verdict free from outside influence.”

State v. Johnson, 302 S.C. 243, 250, 395 S.E.2d 167, 170 (1990) (internal quotation

marks omitted). Where “[t]here was the private communication of the court official

to members of the jury, an occurrence which cannot be tolerated if the sanctity of the

jury system is to be maintained . . . a new trial must be granted unless it clearly

appears that the subject matter of the communication was harmless and could not

have affected the verdict.” Cameron, 311 S.C. at 207–08, 428 S.E.2d at 12 (internal

quotation marks omitted). Cameron requires the “subject matter” of the

communication between an official and a juror to be harmless—clearly harmless.

Id. Otherwise, a new trial must be granted.

When, as here, it is proven that a state official has told jurors not to believe

the defendant when he testifies, the State cannot rebut the presumption of prejudice

by arguing what the outcome would have been without that tampering. Ms. Hill was

43
a state official who used her official authority to obtain private access to jurors so

she could argue the merits of the evidence outside of the presence of the court, the

Defendant, and his counsel. This is, fortunately, a rare event, but it is one that

requires a new trial. The Court of Appeals’ distinction in Cameron between the

communication itself being harmless and the subject matter of the communication

being harmless and its requirement that a new trial be granted unless the latter is

established recognizes that deliberate jury tampering by a court official cannot be

cured or excused by the strength of the evidence presented at trial.

The U.S. Supreme Court addressed this exact issue almost sixty years ago

when it held the Sixth Amendment right to a trial before an impartial jury is

incorporated to the states via the Fourteenth Amendment. In Parker v. Gladden, a

bailiff told a juror in a murder trial “that wicked fellow, he is guilty.” 385 U.S. 363,

363 (1966) (per curiam). The Supreme Court of Oregon held the statement did not

require a new trial because it was not shown the statement changed the outcome of

the trial. The U.S. Supreme Court reversed, holding “[t]he evidence developed

against a defendant shall come from the witness stand in a public courtroom where

there is full judicial protection of the defendant’s right of confrontation, of cross-

examination, and of counsel,” and “[w]e have followed the undeviating rule, that the

rights of confrontation and cross-examination are among the fundamental

44
requirements of a constitutionally fair trial.” Id. at 364–65 (internal quotation marks

and citations omitted).

In Parker, the state also argued that the bailiff’s statement was harmless

because ten members of the jury never heard his statement and Oregon law at that

time allowed a guilty verdict by ten affirmative votes of the twelve jurors. The State

of Oregon argued, as the State does here, that the jury tampering did not require a

new trial because the defendant did not show the verdict would have been different

but for the improper communication. In Parker, that was almost mathematically

certain—ten jurors never heard the communication at issue and the vote of ten jurors

was at that time enough to convict. Id. at 365.

Yet the Supreme Court rejected that reasoning and, after questioning whether

the factual record supported that argument, stated that in “any event, petitioner was

entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.” Id.

at 366. That reasoning accords with the reasoning in Cameron 27 years later—the

right being protected is not the right to a “correct” verdict but the constitutional right

to trial before a fair and impartial jury free from state officials’ improper influences.

The Court of Appeals more recently touched on this point in Green, holding a

bailiff’s comments were presumptively prejudicial because of his official position,

but that the State rebutted that presumption by showing for various reasons that the

remark did not in fact influence the outcome of the jury’s deliberations. State v.

45
Green, 427 S.C. 223, 236, 830 S.E.2d 711, 717 (Ct. App. 2019), aff’d as modified,

432 S.C. 97, 851 S.E.2d 440 (2020) (citation omitted). This Court affirmed but

modified the decision to correct the Court of Appeals’ reasoning. The

communication was not prejudicial not because it did not in fact change the verdict;

instead, it was not prejudicial because the subject matter of the communication was

harmless: “The bailiff’s actions here—though improper—did not touch the merits,

but dealt only with the procedural question of how the judge might handle a jury

impasse that apparently never materialized.” Green, 432 S.C. at 100, 851 S.E.2d at

441. A bailiff presuming to tell the jury that if it is deadlocked, the judge will instruct

them to keep deliberating is improper but likely harmless because the subject matter

is procedural or logistical, rather than to the merits of the case. Here, by contrast,

the extensive, deliberate, and self-interested jury tampering which it has been proven

Ms. Hill committed far exceeds the simple bailiff mistakes that forced a retrial in

Cameron, where “a bailiff’s misleading response to a juror’s question about

sentencing options compromised the jury’s impartiality because it left the impression

that their verdict could not affect the trial court’s sentencing discretion,” or in Blake

by Adams v. Spartanburg General Hospital, where a bailiff told a juror “that the trial

judge ‘did not like a hung jury, and that a hung jury places an extra burden on

taxpayers.’” See Green, 427 S.C. at 237, 830 S.E.2d at 717–18 (citing 311 S.C. at

208, 428 S.E.2d at 12 and quoting 307 S.C. 14, 16, 413 S.E.2d 816, 817 (1992)).

46
 Finally, state and federal courts have “found the authority of the speaker to be

relevant to Sixth Amendment analyses” of improper external communications with

jurors during trial. Utah v. Soto, 513 P.3d 684, 695 (2022). In Parker, the U.S.

Supreme Court noted that the state’s argument that no harm could have resulted from

a bailiff’s comments on the merits “overlooks the fact that the official character of

the bailiff—as an officer of the court as well as the State—beyond question carries

great weight with a jury which he had been shepherding for eight days and nights.”

385 U.S. at 365. For that reason, “undue contact with a juror by a government officer

almost categorically risks influencing the verdict.” Tarango v. McDaniel, 837 F.3d

936, 947 (9th Cir. 2016). Here, the improper communications about the merits of

the case did not come from a bailiff acting as a security guard or as a message courier.

They came from an elected official—someone whose name nearly every one of the

jurors presumably had seen on the same ballot that they used to vote for the President

of the United States 10—holding an office established by the state Constitution. It

was the very person who summoned the jurors to serve, who impaneled them and

administered their oath, who administered the oath to the witnesses presented to

10
Ms. Hill was elected in 2020; the voter turnout in the 2020 general election in
Colleton County was over 73% of all registered voters. 2020 Statewide General
Election Results, S.C. Election Comm’n, https://www.enr-scvotes.org/SC/Colleton/
106517/Web02.264677/#/.

47
them for their consideration, who told when and where to report for each day of their

service, and who read their verdict in the courtroom.

a. The State cannot rebut the presumption of prejudice by arguing Ms. Hill’s
jury tampering was harmless because secret advocacy for a guilty verdict in
the jury room during a criminal trial by a state official is a structural error
in the trial that cannot be harmless.

Sustaining a conviction based on the Court’s opinion of the strength of the

evidence against the accused regardless of improper external influences on the jury

from court officials about the merits of the case is effectively a directed verdict for

the prosecution—a statement that whatever happened at trial simply does not matter

because the evidence can admit only one result regardless. That would be structural

error. Cf. Neder v. United States, 527 U.S. 1, 34 (1999) (Scalia, J., concurring in

part) (noting that even if “the judge certainly reached the ‘right’ result,” “a directed

verdict against the defendant . . . would be per se reversible no matter how

overwhelming the unfavorable evidence,” because “[t]he very premise of structural-

error review is that even convictions reflecting the ‘right’ result are reversed for the

sake of protecting a basic right” (emphasis in original)).

When the jury returned guilty verdicts in this case, the trial court congratulated

the jury that “certainly the verdict that you have reached is supported by the

evidence, circumstantial evidence, direct evidence, all of the evidence pointed to

only one conclusion, that’s the conclusion you all have reached. So, I applaud you

all for . . . coming to a proper conclusion.” Trial Tr. 5877:17–23. Even before Ms.

48
Hill’s misconduct was known, the trial court foreshadowed the outcome of the

“harmless error” analysis it applied to Murdaugh’s new trial motion: The trial court

held that Ms. Hill’s jury tampering could not “in any way undermine the fairness and

impartiality of [the] six-week trial with its extensive evidentiary presentations,

arguments from counsel, and instructions from the trial court” and “any possible

presumption of prejudice was overcome by these facts.” Order Denying Mot. New

Trial 24.

But the prejudice at issue, whether it is presumed or must be proven, is not an

incorrect verdict. Jury tampering is prejudicial if it denies the accused a fair trial.

The strength of the State’s evidence against the accused cannot cure the denial of his

right to a fair trial. See, e.g., Parker, 385 U.S. at 363–65. Thus, the rule for deciding

whether to grant Murdaugh a new trial is not whether the trial court believes the

outcome of the trial would have been the same had Ms. Hill’s jury tampering not

occurred. If that were the case, the trial court should deny a motion for a new trial

even if she paid the jury to vote guilty because, in the trial court’s opinion, “all of

the evidence pointed to only one conclusion”—the guilt of the accused.

The Fourth Circuit very recently made a similar point when overturning a

Murdaugh-related criminal conviction because of a violation of the defendant’s Sixth

Amendment right to trial by an impartial jury. In United States v. Laffitte, the Fourth

Circuit held that the trial court’s removal of a juror during deliberations violated the

49
defendant’s right to an impartial jury because there was a reasonable possibility that

the removal was related to the juror’s views on the merits of the case. 121 F.4th 472,

489–90 (4th Cir. 2024). The government argued the violation was harmless. The

Fourth Circuit held that it need not reach the issue of whether the Sixth Amendment

violation was structural error, because “even under the harmless error standard . . .

[f]or constitutional errors, the government bears the heavy duty of proving ‘beyond

a reasonable doubt that the error complained of did not contribute to the [result]

obtained.’” Id. at 491 (quoting United States v. Legins, 34 F.4th 304, 319 (4th Cir.

2022)). The Fourth Circuit rejected the government’s argument “that the strength of

the evidence submitted during its case-in-chief was sufficient to render any error

harmless” under that standard because the defendant “presented defenses, and

whether the jury credited his testimony was at the heart of those defenses . . . [a]nd

the jury—not this Court—is tasked with evaluating that evidence and deciding

whether the Government has met its burden.” Id. at 492. Likewise, in this case the

State cannot cure the absence of an impartial jury at trial by asking a trial judge or

an appellate court to evaluate the evidence it presented at trial in lieu of the missing

impartial jury.

This case, however, is distinct from Laffitte in that Ms. Hill’s jury tampering

is so far beyond the pale that the Court should have no reason to be reluctant to

conclude that her conduct constitutes structural error in the trial. The issue here is

50
not whether a judge erred in dealing with a jury issue during trial, nor whether a juror

engaged in misconduct, nor whether some member of the public engaged in

misconduct, nor whether a defendant engaged in misconduct, nor even whether a

bailiff made an improper statement. The issue is whether an elected state official

using the power of her office to enter the jury room during trial to advocate against

the defendant to promote her own financial interests is a structural error in the

conduct under the trial, under the principle that all evidence and argument presented

to the jury must be presented in the courtroom. See Turner, 379 U.S. at 472–73 (“In

a constitutional sense, trial by jury in a criminal case necessarily implies at the very

least that the ‘evidence developed’ against a defendant shall come from the witness

stand in a public courtroom where there is full judicial protection of the defendant’s

right of confrontation, of cross-examination, and of counsel.”).

The undisputed evidence and findings from the evidentiary hearing are that

Ms. Hill did engage in jury tampering. Three jurors and the alternate juror testified

that Ms. Hill made comments to them regarding the merits of Murdaugh’s testimony

in his own defense. Evid. Hr’g Tr. 23–24, 46–56, 77–78, 203–04. One juror and the

alternate testified that she told them not to be “fooled by” the defense. Id. at 46–56,

203–04. The only witness to contradict any of that testimony was Ms. Hill, whom

the trial court found to be not credible. Id. at 251:13–252:1, 23–24. One juror even

testified that Ms. Hill’s conduct did influence her decision to vote guilty. Id. at 46–

51
56. Ms. Hill’s conduct would necessarily bias a jury against the defendant. It was

an abuse of discretion for the trial court instead to reason that it does not matter

whether that happened because any jury, biased or unbiased, would reach the same

verdict in this case. The right at issue is the constitutional right to trial before an

unbiased jury, not a right to a correct verdict.

It has long been held to be a structural error for a state actor to engage in ex

parte advocacy to the jury during trial. “The requirement that a jury’s verdict must

be based upon the evidence developed at the trial goes to the fundamental integrity

of all that is embraced in the constitutional concept of trial by jury.” Turner, 379

U.S. 466, 472 (1965) (internal quotation marks omitted). “The evidence developed

against a defendant shall come from the witness stand in a public courtroom where

there is full judicial protection of the defendant’s right of confrontation, of cross-

examination, and of counsel . . . .” Parker, 385 U.S. at 364. In Simmons v. South

Carolina, the U.S. Supreme Court similarly held it is unconstitutional for the

defendant to receive the death penalty “on the basis of information which he had no

opportunity to deny or explain.” 512 U.S. 154, 161 (1994) (internal quotation marks

omitted).

The principle is ancient and foundational to our system of trial by jury:

In the ultimate analysis, only the jury can strip a man of his liberty or
his life. In the language of Lord Coke, a juror must be as ‘indifferent
as he stands unsworn.’ His verdict must be based upon the evidence
developed at the trial. This is true, regardless of the heinousness of the

52
 crime charged, the apparent guilt of the offender or the station in life
which he occupies. It was so written into our law as early as 1807 by
Chief Justice Marshall in 1 Burr’s Trial 416 (1807).

Irvin v. Dowd, 366 U.S. 717, 722 (1961) (citations omitted). What is now called the

Remmer presumption is far older than the 1954 Remmer decision. “Private

communications, possibly prejudicial, between jurors and third persons, or

witnesses, or the officer in charge, are absolutely forbidden, and invalidate the

verdict, at least unless their harmlessness is made to appear.” Mattox v. United

States, 146 U.S. 140, 150 (1892). 11 Likewise,

It is well settled, that it is not necessary to show that the minds of the
jury, or of any member of it, were influenced. It is sufficient to show
that intermeddling did take place, to set aside the verdict. Too much
strictness cannot be exercised in guarding trials by jury from improper
influence. It has been said that, “this strictness is necessary to give
confidence to parties in the results of their causes; and every one ought
to know that, for any, even the least, intermeddling with jurors, a verdict
will always be set aside.”- Knight v. Freeport, 13 Mass. 220.

This is the language of the Supreme Court of Massachusetts in a civil

cause. How much more important is it, to guard the purity of jury trials,

11
Maddox was superseded in 1975 by Rule 606(b) of the Federal Rules of Evidence
on a separate issue regarding the admissibility of juror testimony to impeach the
verdict. But it is still currently cited by federal appellate courts for the principle that
when state officials communicate ex parte with the jury about the merits of the case
during trial, a new is required. E.g., Tarango, 837 F.3d at 947 (“Mattox and its
progeny further establish that undue contact with a juror by a government officer
almost categorically risks influencing the verdict.”).

53
 against improper influence, when the matter at stake is the life or liberty
of a prisoner.

The authorities upon this point all agree; and, as they are very numerous
....

Pope v. Mississippi, 36 Miss. 121, 124 (Miss. Err. & App. 1858). For an even older

example,

An officer is sworn to keep the jury, without permitting them to

separate, or any one to converse with them; for no man knows what
may happen; although the law requires that honest men should be
returned upon juries, and, without a known objection, they are
presumed to be probi et legales homines, yet they are weak men, and
perhaps may be wrought upon by undue applications. The evil to be
guarded against, is improper influence; and when an exposure to such
an influence is shown, and it is not shown that if failed of effect, then
the presumption is against the purity of the verdict.

Lord Delamere’s Case, 4 Harg. St. T. 232 (Eng. 1685).

Contrary to the State’s position before the trial court, the Court has not

abrogated or abandoned this foundational principle that when the State’s officials

engage in ex parte communications with the jury during trial about the merits of the

case, a new trial is required. Nor has the U.S. Supreme Court opened a door that

could allow states to abandon that principle. All that has happened is a sensible

restriction of the principle to exclude improper communications that do not bear on

the merits of the issue before the jurors. See Green, 432 S.C. at 100, 851 S.E.2d

at 441.

In the trial court, the State complained that this sort of tampering happens so

commonly that it “cannot overstate the impossibility” of considering it a structural

54
error. Resp’t’s 2d Br. 12. That exactly reverses the issue. Nothing like Ms. Hill’s

conduct has ever happened before this case. Most likely it will never happen again.

The impossibility is found in excusing Ms. Hill’s conduct with post hoc reasoning

that her tampering probably did not change the outcome of the trial (even though

one juror said it did). If Ms. Hill’s misconduct is excused, then truly anything goes.

The trial court committed legal error by not presuming Murdaugh’s right to a

fair trial was prejudiced by Ms. Hill’s jury tampering. Applying the correct legal

standard, the evidence—that an elected state official deliberately advocated for a

guilty verdict in the jury room during trial so she could personally profit from it—

supports only one reasonable inference—the presumption of prejudice to

Murdaugh’s right to a fair trial is irrebuttable and constitutes a structural error in his

trial. The Court therefore should reverse the trial court and vacate Murdaugh’s

convictions.

3. The trial court’s “finding” that Ms. Hill’s comments to jurors that were
“not overt as to opinion” is unsupported by and contrary to the evidence
in the record.

At the evidentiary hearing the trial court examined Juror Z about her affidavit

describing Ms. Hill’s jury tampering, and she testified,

[The Court] Q. Very good. The second -- the first paragraph, of course,
is the statement that you were in the case. Second paragraph says:

Toward the end of the trial, after the Presidents’ Day break but before
Mr. Murdaugh testified, the clerk of court, Rebecca Hill, told the jury,
quote, not to be fooled, unquote, by the evidence presented by Mr.

55
 Murdaugh’s attorneys, which I understood to mean that Mr. Murdaugh
would lie when he testifies.

Is that what your recollection is of that statement?

[Juror Z] A. Yes, ma’am.

Q. Is there anything in the statement that on reflection you think is not

correct?

A. No, ma’am.
Evid. Hr’g Tr. 5:4–18.

When ruling from the bench that same day, the trial court ruled:

Did Clerk of Court Hill make comments to any juror which expressed
her opinion what the verdict would be? Ms. Hill denies, A, and so the
question becomes was her denial credible.

I find that the clerk of court is not completely credible as a witness. . . .

I find that she stated to the clerk of court Rhonda McElveen and others
her desire for a guilty verdict because it would sell books. She made
comments about Murdaugh’s demeanor as he testified, and she made
some of those comments before he testified to at least one and maybe
more jurors.
Id. 251:13–252:1.

That seems clear enough. But the State-drafted order the trial court entered

months later slips in the statement “This Court further finds that the improper

comments made by Clerk Hill as expressed by Jurors Z and P were limited in subject

and not overt as to opinion . . . .” Order Denying Mot. New Trial 22. That offhand

finding is unsupported by and, indeed, contradicted by, the evidence in the record

and it contradicts the ruling the trial court from the bench the same day it received

the juror’s testimony. Juror Z testified that Ms. Hill said “not to be fooled” by

56
evidence presented in Murdaugh’s defense. Evid. Hr’g Tr. 5:4–18. The alternate

juror testified that Ms. Hill told jurors “the defense is about to do their side” and

“[t]hey’re going to say things that will try to confuse you” but “[d]on’t let them

confuse you or convince you or throw you off.” Id. 203:18–204:3. No reasonable

person can say those statements are “not overt as to opinion.” Certainly, that is not

what Justice Toal said when ruling on the motion for a new trial later that same day.12

Allowing the State to insert a “finding” contradicted by all evidence in the

record and by the trial court’s own ruling from the bench, simply to shore up its

position on appeal, was an abuse of discretion by the trial court. The Court therefore

should disregard the finding that Ms. Hill’s statements were not “overt as to

opinion.” See State v. Simmons, 279 S.C. 165, 167, 303 S.E.2d 857, 859 (1983)

(holding the trial court abused its discretion when denying a motion for a new trial

where its decision was based on a factual finding but “the record is in all respects

void of evidence to support [that] finding”). Ms. Hill’s statements as set forth in

sworn testimony, uncontroverted by anyone except Ms. Hill (whom the trial court

found not credible), speak for themselves. To the extent it is necessary to

characterize those statements in a legal analysis, that is a mixed question of law and

12
Mr. Murdaugh concedes the statements were “limited in subject”—the subject of
his testimony in his own defense at trial. The trial court does not identify any other
subject to which the statements purportedly were “limited.” See Circuit Court Order,
Apr. 4, 2022.

57
fact and “[i]n reviewing mixed questions of law and fact, where the evidence

supports but one reasonable inference, the question becomes a matter of law for the

court.” Moore, 343 S.C. at 288, 540 S.E.2d at 448. The only reasonable inference

here is that Ms. Hill’s statements to jurors overtly expressed her opinion that

Murdaugh should be found guilty.

4. Even if the presumption of prejudice were rebuttable, the State did not
rebut—or even attempt to rebut—any presumption of prejudice in this
case.
At the evidentiary hearing, the State failed to meet its burden to overcome the

presumption that Ms. Hill’s conduct was prejudicial to Murdaugh’s right to a fair

trial before an impartial jury that considers only the evidence and argument

presented in open court. It was impossible to do so, so it did not even try to argue

any presumption was overcome. See, e.g., Evid. Hr’g Tr. 230:18–239:19 (closing

argument of S. Creighton Waters for the State).

Nevertheless, the trial court held that Ms. Hill’s jury tampering could not “in

any way undermine the fairness and impartiality of [the] six-week trial with its

extensive evidentiary presentations, arguments from counsel, and instructions from

the trial court” and that “any possible presumption of prejudice was overcome by

these facts.” Order Denying Mot. New Trial 24. That finding is unsupported by any

evidence in the record. The trial court does not cite or refer to any evidence

58
presented at the evidentiary hearing to support that finding—for which the State did

not even argue.

The evidence presented at the hearing was that nine jurors testified that they

did not hear Ms. Hill comment on the merits of the case before the verdict, three

jurors (P, X, and Z) and the alternate juror testified that Ms. Hill commented to the

jury about Murdaugh’s testimony in his own defense, one deliberating juror and the

alternate juror testified that Ms. Hill told jurors not to believe or be fooled by the

defense—and that deliberating juror testified that Ms. Hill’s comments influenced

her decision on the verdict, and the Barnwell County Clerk of Court who participated

in the trial nearly every day testified that Ms. Hill made similar comments to her and

that Ms. Hill repeatedly stated that a guilty verdict would help her book sales. Evid.

Hr’g Tr. 181–183. Further, the trial court did not examine Juror 785, who was

impaneled from the start of the murder trial until the very last day, even though she

was at the courthouse and available to testify. Evid. Hr’g Tr. 173:11–19. Juror 785

has also given a sworn statement that she too heard Ms. Hill say that jurors should

not be “fooled by” the defense. Mot. New Trial Ex. H ¶ 2.

That record provides no support whatsoever for a finding that the State

overcame any presumption of prejudice. Based on the trial court’s commentary in

same paragraph of the order in which it presents this finding about the “six-week

trial with its extensive evidentiary presentations” (Order Denying Mot. New Trial

59
24) and its unusual action to summon the gallery back to the courtroom after the

adjournment of the evidentiary hearing to proclaim, “I agree that the evidence was

overwhelming and the jury verdict not surprising” (Evid. Hr’g Tr. 254:3–16, 255:19–

20), it appears that its finding that “any possible presumption of prejudice was

overcome” is based solely on its own opinion that the correct verdict was rendered

at trial. That was an abuse of discretion. Because no evidence supports the trial

court’s finding that “any possible presumption was overcome,” this Court should

disregard it.

Finally, the throwaway line in the State-drafted order that “any comments

[from Ms. Hill to jurors] that occurred were cured by the trial court’s extensive

instructions,” Order Denying Mot. New Trial 22, has no merit. During trial, Judge

Newman was unaware of Ms. Hill’s jury tampering so of course he gave no curative

instructions regarding her tampering. He only gave the usual jury instructions given

in every trial—do not discuss the case with anyone, do not seek outside information

or watch news reports about the case, and consider only the evidence presented in

the courtroom when deliberating. Order Denying Mot. New Trial 22–23. Jury

instructions given to every jury, from a trial judge unaware that any jury tampering

is taking place, cannot “cure” jury tampering by a state official going into the jury

room to advocate for a guilty verdict so she can sell books about it. See Remmer,

347 U.S. at 229 (jury tampering in a criminal case is presumptively prejudicial);

60
Cameron, 311 S.C. at 207-08, 428 S.E.2d at 12 (holding “the private communication

of the court official to members of the jury” means “a new trial must be granted

unless it clearly appears that the subject matter of the communication was

harmless”). The trial court’s citation to State v. Grovenstein, 335 S.C. 347, 517

S.E.2d 216 (1999) in support of its conclusion that the standard jury instruction not

to consider external influences cures all jury tampering, known or unknown, is

completely off-point. Grovenstein involved a curative instruction specific to the

external influence at issue given by the trial judge to the jury after he learned of the

external influence—which was nothing more than the alternate juror remaining with

the jury for 20 or 30 minutes after the case was submitted. 335 S.C. at 353, 517

S.E.2d at 219.

Because the undisputed evidence admits only one reasonable inference, that

no presumption was (or could have been) overcome, this Court should hold the

presumption of prejudice to Murdaugh’s right to a fair trial was not rebutted, vacate

his convictions, and remand for a new trial.

B. Prejudice was proven at the evidentiary hearing.

As discussed above, in Parker the U.S. Supreme Court held that the Supreme

Court of Oregon erred in holding a bailiff’s statement to a juror that the defendant

“is guilty” did not require a new trial because the defendant did not prove the

comment affected the verdict. 385 U.S. at 366. The Supreme Court ruled “‘the

61
“evidence developed” against a defendant shall come from the witness stand in a

public courtroom where there is full judicial protection of the defendant’s right of

confrontation, of cross-examination, and of counsel.’” Id. at 364 (quoting Turner,

379 U.S. at 472–473). It further ruled the state’s argument that the defendant did not

show the comment prejudiced him ignored the “official character of the bailiff—as

an officer of the court as well as the State.” Id. at 365. Here, Murdaugh’s motion

for a new trial asserted a much higher-ranking official made equally direct comments

(and more of them) to jurors during a criminal trial. Parker therefore controls if the

comments were made. The State’s prehearing brief implicitly admitted this point:

Finally, Murdaugh cites to Parker v. Gladden, 385 U.S. 363 (1966), and
argues it represents that the statement of “that wicked fellow, he is
guilty” cannot be harmless. However, Parker is factually
distinguishable because he was able to do what Murdaugh cannot: ‘one
of the jurors testified that she was prejudiced by the statements[.]’ . . .
In this case, Murdaugh has presented an affidavit from a single juror
who deliberated, and that juror prescribed her verdict to pressure from
other jurors—not anything Clerk Hill allegedly said.

Resp’t’s 2d Prehearing Br. 10.

That fell flat at the evidentiary hearing.13 Not only did Murdaugh prove the

comments were made, but a juror also testified they influenced the verdict. In

13
That was not the only instance in which the State’s return to the motion was
overtaken by events. In its return, the State also claimed Mr. Murdaugh’s allegations
that Ms. Hill committed wrongdoing were not “even remotely plausible” and that he
was merely “projecting his own calculating, manipulative psyche onto a dedicated
public servant”—ironically referring to Ms. Hill. State’s Return to Mot. New Trial

62
Parker, the juror only testified, regarding the bailiff’s statement, that “all in all it

must have influenced me. I didn’t realize it at the time.” Parker, 385 U.S. at 366

n.3. At the evidentiary hearing, Juror Z gave much more definitive testimony:

Q. All right. Was your verdict influenced in any way by the

communications of the clerk of court in this case[?]
A. Yes, ma’am.

Q. And how was it influenced?

A. To me, it felt like she made it seem like he was already guilty.

Q. All right, and I understand that, that that’s the tenor of the remarks
she made. Did that affect your finding of guilty in this case?
A. Yes, ma’am.

Evid. Hr’g Tr. 46:6–15. In Parker, the juror testified “it must have influenced me,”

but in this case the juror testified “it did influence me.”

Parker therefore controls this case. If a bailiff stating, “that wicked fellow, he

is guilty,” to a juror who later testifies that statement “must have influenced me,”

requires a new trial, then a much more senior court official telling a juror not to be

“fooled by” evidence presented by the defense and not to believe the defendant when

he testifies to a juror who later testifies those statements “did influence me,” must

require a new trial. The prejudice is proven. And there is no question about the

18. After that filing, Ms. Hill’s ethics commissions complaints were referred for
criminal prosecution, her book was withdrawn for publication due to plagiarism, and
she resigned from office in disgrace.

63
continued viability of Parker—it is a landmark case that incorporated the Sixth

Amendment right to an impartial jury to the states. 385 U.S. at 364.

Although Murdaugh’s counsel argued Parker in, inter alia, his pretrial brief,

his second pretrial brief, his reply pretrial brief, and his written objections to the trial

court’s proposed questions to the jurors, the trial court studiously avoided it entirely.

Instead, the trial court erroneously required that Murdaugh, in addition to proving

that Ms. Hill did tamper with the jury about the merits of his case during trial, must

also prove that tampering affected the deliberating jurors’ subjective decision to vote

for a guilty verdict.

Questioning jurors about what motivated them to vote in a certain way when

rendering their verdict is improper, and the defense objected. E.g., Ltr. from R.

Harpootlian to Ret. Chief Justice Toal, Jan. 25, 2024, at 1–2; Evid. Hr’g Tr. 49:9–

51:3. Rule 606(b) of the South Carolina Rules of Evidence provides,

Upon an inquiry into the validity of a verdict or indictment, a juror may

not testify as to any matter or statement occurring during the course of
the jury’s deliberations or to the effect of anything upon that or any
other juror’s mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror’s mental
processes in connection therewith, except that a juror may testify on the
question whether extraneous prejudicial information was improperly
brought to the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror.

“Thus, juror testimony or affidavits are admissible to prove an allegation of

extraneous information or influence,” State v. Zeigler, 364 S.C. 94, 110, 610 S.E.2d

64
859, 867 (Ct. App. 2005), but not to prove the “effect” of that information “upon that

or any other juror’s mind or emotions as influence the juror to assent to or dissent to

the verdict,” Rule 606(b), SCRE. “[I]nquiry into the motives of individual jurors

and conduct during deliberations is never permissible; any investigation must focus

solely on whether the jury was exposed to external influences and, from an objective

perspective, whether such influence was likely to have affected the jury’s verdict.”

Mahoney v. Vondergritt, 938 F.2d 1490, 1492 (1st Cir. 1991) (emphasis added)

(construing substantively identical federal Rule 606(b)); see also Minnesota v. Cox,

322 N.W.2d 555, 559 (Minn. 1982) (“Therefore, the proper procedure for reviewing

a jury verdict is to determine from juror testimony what outside influences were

improperly brought to bear upon the jury and then estimate their probable effect on

a hypothetical average jury.” (citing United States ex rel. Owen v. McMann, 435 F.2d

813, 820 (2d Cir. 1970) & Massachusetts v. Fidler, 385 N.E.2d 513, 519 (Mass.

1979)); Manley v. AmBase Corp., 337 F.3d 237, 252 (2d Cir. 2003) (“[C]ourts must

apply an ‘objective test,’ . . . focusing on two factors: (1) ‘the nature’ of the

information or contact at issue, and (2) ‘its probable effect on a hypothetical average

jury.’”); United States v. Lloyd, 269 F.3d 228, 238 (3d Cir. 2001) (“[W]e must

conduct ‘an objective analysis by considering the probable effect of the allegedly

prejudicial information on a hypothetical average juror.’”); Haugh v. Jones &

Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991) (“The proper procedure

65
therefore is for the judge to limit the questions asked the jurors to whether the

communication was made and what it contained, and then, having determined that

the communication took place and what exactly it said, to determine—without

asking the jurors anything further and emphatically without asking them what role

the communication played in their thoughts or discussion—whether there is a

reasonable possibility that the communication altered their verdict.”).

There is no doubt that the “probable effect on a hypothetical average jury” of

being told not to believe the defendant when he testifies in his own defense, by the

elected official who administered the oath to them when they were impaneled, is to

be prejudiced against the defendant. So, the State requested the trial court instead

ask jurors whether Ms. Hill’s comments affected their decision to vote guilty in this

case. The State requested this because it thought it knew what the answer would be,

made evident by the statement in its prehearing brief that “Parker is factually

distinguishable because he was able to do what Murdaugh cannot: ‘one of the jurors

testified that she was prejudiced by the statements[.]’” Resp’t’s 2d Prehearing

Br. 10.

But when Juror Z unexpectedly testified that she was prejudiced by Ms. Hill’s

statements, the State was cornered. Even under the incorrect legal standard adopted

by the trial court, Murdaugh prevailed. He proved the verdict was influenced by Ms.

Hill’s jury tampering. One deliberating juror did testify that her verdict was

66
influenced by Ms. Hill’s jury tampering. And no evidence was presented to

controvert Juror Z’s testimony or to show any bias or motive for falsehood.

The only way out was for the trial court to decide that Juror Z’s uncontroverted

testimony in open court about her own state of mind and her own mental processes

was not credible:

Juror Z, I asked you previously was your verdict on March 2, 2023,

influenced in any way by communications from Becky Hill, the clerk
of court. You answered that question yes. In light of what you said in
the affidavit, which is:
I had questions about Mr. Murdaugh’s guilt but voted guilty because I
felt pressured by the other jurors.
Is that answer that I just read a more accurate statement of how you
felt?
MR. HARPOOTLIAN: Object to the form, Your Honor.

THE COURT: Overruled.

A. Yes, ma’am.
Q. All right. So, you do stand by the affidavit?
A. Yes, ma’am.

Q. Very good.

Evid. Hr’g Tr. 55:1–56:7. After Juror Z left the courtroom, Murdaugh’s counsel

objected that there was no inconsistency with being influenced both by Ms. Hill’s

comments during the presentation of evidence at trial and by other jurors during

deliberations. Id. 58:2–22. Juror Z attempted to make this point herself, but the trial

67
court would not permit any further testimony or examination of her. So, through her

own counsel, she provided an affidavit that day averring,

1. I would like to clarify my testimony today.

2. As I testified, I felt influenced to find Mr. Murdaugh guilty by
reason of Ms. Hill’s remarks, before I entered the jury room.

3. Once deliberations began as I stated in paragraph 10 of my earlier

affidavit, I felt further, additional pressure to reach the guilty
verdict.

Juror Z Aff., January 29, 2024. The trial court nevertheless held “this Court does

not find credible Juror Z's ambivalent and self-contradicted statements to the

contrary that her verdict was in any way affected by any comments from Clerk Hill.”

Order Denying Mot. New Trial 21.

Because the trial court elected to disregard Rule 606(b), we do not have an

objective inquiry into whether Ms. Hill’s comments likely would have affected a

jury, but instead have a credibility determination about whether those comments

affected this jury. That determination is based on a court-conducted, inquisitorial

inquiry into a juror’s own internal mental processes, a subject the trial court was

forbidden by law to inquire into, and based on the strange reasoning that if a juror

testifies she was influenced by external tampering, she has violated her oath to

follow the judge’s instructions not to base her verdict on anything but the evidence

presented in court, and therefore her testimony that she was influenced is not credible

and should be disregarded. See Order Denying Mot. New Trial at 20–21. Or that if

68
she testifies that she was influenced by other deliberating jurors during deliberations,

any testimony that she also was influenced by events that happened during trial

before deliberations should be disregarded. Id.

This is a bizarre and legally untenable result. Juror Z, who has direct

knowledge of her own mental processes, said those mental processes were

influenced by Ms. Hill’s comments that she should not be fooled by the defense. The

trial judge—who knows nothing of Juror Z’s mental processes other than how Juror

Z describes them—presumed to tell Juror Z that she was mistaken, and that Ms. Hill

did not influence her. It is extraordinary that the trial judge believed she knew Juror

Z’s mental processes better than Juror Z.

Juror Z did not ask to be placed in this situation. She sat in a courtroom,

isolated from her normal life and work, for six weeks because someone she did not

know was accused of committing a crime that had nothing to do with her. That is a

tremendous public service for which she has not been compensated in any

meaningful way. She maintained her anonymity until well after the evidentiary

hearing. She did not “cash-in” with media appearances after the verdict. She is not,

as the State has scurrilously argued, an ally or advocate for Murdaugh. See Resp’t’s

2d Prehearing Br. 18 (accusing Juror Z’s lawyer of being “an agent of Murdaugh”).

She voted to convict him of murder. She has no reason to lie. She has simply been

69
honest about what Ms. Hill did during the trial and the effect it had on her own

deliberations.

It was an abuse of discretion for the trial court to disregard Juror Z’s testimony

about her own mental processes simply because her testimony met a legal standard

the State thought that Murdaugh could not possibly satisfy. The trial judge’s

characterization of her testimony as “ambivalent” is unsupported by any evidence in

the record. When asked, “Was your verdict influenced in any way by the

communications of the clerk of court in this case[?]” she answered, “Yes, ma’am.”

Evid. Hr’g Tr. 46:6–14. When asked, “And how was it influenced?” she answered,

“To me, it felt like she made it seem like he was already guilty.” Id. When asked,

“Did that affect your finding of guilty in this case?” she answered “Yes, ma’am.” Id.

No reasonable person can say that is “ambivalent” testimony.

The only reasonable inference from the record is that Ms. Hill’s jury

tampering did influence at least one juror’s decision to vote for a guilty verdict. The

Court therefore should reverse the trial court and vacate the murder and firearms

convictions.

* * *

The public rightly sees Murdaugh’s downfall as an exposé of privilege and

corruption in South Carolina’s legal system and the citizens of South Carolina need

more from this case than confirmation of their own social-media-fed ideas about the

70
details of a crime they did not witness. They need to see that their legal system

actually works. Satisfying public desire to see a hated man punished is not why we

have a legal system. If Murdaugh is to be convicted of murder, the citizens of South

Carolina need to see him convicted by a process they would agree is fair if they were

the defendants. No reasonable man would agree, if he were on trial for his life, that

having the clerk of court secretly advocate against him in the jury room so she can

sell books about his conviction would be a fair trial. Providing Murdaugh with the

fair trial that every citizen of South Carolina would expect for himself is necessary

to assure all that no one—powerful or humble, innocent or guilty, hated or beloved—

is proscribed from due process and the equal protection of the law.

II. THE TRIAL COURT ALLOWED THE STATE TO INTRODUCE

IMPROPER CHARACTER EVIDENCE AND OTHER IRRELEVANT
AND UNFAIRLY PREJUDICIAL EVIDENCE THAT “SO INFECTED
THE TRIAL WITH UNFAIRNESS AS TO MAKE THE RESULTING
CONVICTION A DENIAL OF DUE PROCESS.”

The trial court committed numerous evidentiary errors, repeatedly admitting

over objection evidence that was irrelevant, unfairly prejudicial, or otherwise

prohibited by the South Carolina Rules of Evidence. These errors were, standing

alone, reversible errors. Additionally, they combined to create a due process

violation because they rendered Murdaugh’s criminal trial fundamentally unfair. See

Chambers v. Mississippi, 410 U.S. 284, 298 (1973) (holding the combined effect of

individual errors “denied [Chambers] a trial in accord with traditional and

71
fundamental standards of due process” and “deprived Chambers of a fair trial”).

Cumulative evidentiary errors are a constitutional violation where the errors have

“so infected the trial with unfairness as to make the resulting conviction a denial of

due process.” See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Such

“infection” occurs where the combined effect of the errors had a “substantial and

injurious effect or influence on the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.

619, 637 (1993) (internal quotations omitted). The inquiry to determine whether the

combined effect of trial errors violated a defendant’s due process rights is whether

the errors rendered his defense “far less persuasive than it might [otherwise] have

been.” See Chambers, 410 U.S. at 294.

As explained below, the evidence that the trial court erroneously admitted

without exception served to materially undermine Murdaugh’s defense, and to

bolster and to plaster over holes in State’s case. The State was allowed to present

day after day of character evidence against Murdaugh under the thin guise that his

thereby demonstrated bad character provided a motive for the murders. The State

was allowed to impeach Murdaugh’s exculpatory testimony with his exercise of his

post-Miranda right to remain silent. Improper scientific testimony was admitted in

the State’s rebuttal case to plaster over the fact that only someone other than Alex

could have thrown Maggie’s phone into the roadside brush from where it was

recovered by law enforcement. Improper expert testimony about firearms was

72
allowed, firearms unconnected to the murders were sent into the jury room during

deliberations, and gunshot residue on a raincoat unconnected to Murdaugh was

admitted into evidence to plaster over the State’s failure to recover any murder

weapons. These evidentiary errors were, standing alone, reversible errors because

they were substantial errors affecting the result of the trial. See State v. Plumer, 433

S.C. 300, 313, 857 S.E.2d 796, 802 (Ct. App. 2021), aff'd as modified, 439 S.C. 346,

887 S.E.2d 134 (2023) (holding evidentiary errors that result in prejudice to the

defendant reversible errors). Collectively they violated Murdaugh’s right to due

process of law because they rendered his defense “far less persuasive than it might

[otherwise] have been” had the trial court consistently enforced the South Carolian

Rules of Evidence. See Chambers, 410 U.S. at 294

A. Evidence of financial crimes should have been excluded under Rules

404(b) and 403 of the South Carolina Rules of Evidence.

“In order to admit evidence of bad acts not resulting in conviction, the trial

court must, ‘[a]s a threshold matter, … determine whether the proffered evidence is

relevant.’” See State v. Scott, 405 S.C. 489, 497–98, 748 S.E.2d 236, 241 (Ct. App.

2013) (quoting State v. Clasby, 365 S.C. 148, 154, 682 S.E.2d 892, 895 (2009)); see

also Rule 402, SCRE (“Evidence which is not relevant is not admissible.”). “If the

trial judge finds the evidence to be relevant, the judge must then determine whether

the bad act evidence [is admissible under the terms] of Rule 404(b).” Scott, 405 S.C.

at 497–98, 748 S.E.2d at 241 (alteration in original and internal quotation marks

73
omitted). While evidence of prior bad acts generally “is not admissible to prove the

character of a person in order to show action in conformity therewith,” a court may

admit “such evidence to show motive, identity, the existence of a common scheme

or plan, the absence of mistake or accident, or intent.” Rule 404(b), SCRE.

Importantly, admissibility of such evidence requires it “logically relate to the crime

with which the defendant has been charged,” and that it be clear and convincing.

State v. King, 424 S.C. 188, 200, 818 S.E.2d 204, 210 (2018) (quoting State v.

Fletcher, 379 S.C. 17, 23, 664 S.E.2d 480, 483 (2008)).

In the seminal case State v. Lyle, the Court explained that the trial court must

rigidly scrutinize whether evidence of other distinct crimes falls within one of the

exceptions, providing the defendant with the benefit of the doubt, and exclude all

such evidence unless its logical relevance is clearly established. 125 S.C. 406, 118

S.E. 803 (1923). The Court explained:

Whether evidence of other distinct crimes properly falls within any of

the recognized exceptions noted is often a difficult matter to determine.
The acid test is its logical relevancy to the particular excepted purpose
or purposes for which it is sought to be introduced. If it is logically
pertinent in that it reasonably tends to prove a material fact in issue, it
is not to be rejected merely because it incidentally proves the defendant
guilty of another crime. But the dangerous tendency and misleading
probative force of this class of evidence require that its admission
should be subjected by the courts to rigid scrutiny. Whether the
requisite degree of relevancy exists is a judicial question to be resolved
in the light of the consideration that the inevitable tendency of such
evidence is to raise a legally spurious presumption of guilt in the minds
of the jurors. Hence, if the court does not clearly perceive the
connection between the extraneous criminal transaction and the crime

74
 charged, that is, its logical relevancy, the accused should be given the
benefit of the doubt, and the evidence should be rejected.

Id. at 125 S.C. 406, 118 S.E. at 807 (emphasis added).

In addition, the logical relevancy between the prior criminal conduct and the

crime charged must be supported by the evidence in the record. Argument of

counsel, without more, is insufficient to satisfy the rigid scrutiny this Court must

apply when assessing evidence of prior criminal acts and other misconduct. See

State v. Smith, 309 S.C. 442, 446, 424 S.E.2d 496, 498 (1992) (evidence of drug use

is incompetent to establish motive for a crime or the state of mind of the defendant

where the record does not support any relationship between the crime and the drug

use); State v. Peake, 302 S.C. 378, 381, 396 S.E.2d 362, 364 (1990) (“The record

before us evinces no connection between appellant’s prior offer to sell marijuana to

the victim and the circumstances of her death.”); State v. Coleman, 301 S.C. 57, 60,

389 S.E.2d 659, 660 (1990) (“While there was testimony that appellant appeared

‘wired’ on the morning of the murder, there was no evidence to suggest appellant's

condition was the result of cocaine use. Further, there was nothing in the record to

support the inference that the victim and appellant were involved in a drug

transaction.”).

75
1. The State’s theory that Murdaugh murdered his wife and son in cold
blood to distract his law firm from investigating alleged financial
improprieties is illogical, implausible, and unsupported by the evidence.
The State argued that on the day of the murders, June 7, 2021, Murdaugh’s

financial schemes were about to come to light because of two reasons. First, Jeannie

Seckinger was questioning Murdaugh about the whereabouts of the attorneys’ fee

from the Farris trucking accident case he worked on with co-counsel Wilson.

Second, the State asserted that the hearing on the motion to compel financial

information from Murdaugh in the Beach case would have exposed Murdaugh’s

financial schemes. Therefore, Murdaugh murdered his wife and son to distract from

these two matters, and to garner sympathy from the community.

There was no evidence introduced to support the State’s motive theory.

Without any evidentiary support, this theory is pure, illogical speculation.

Furthermore, the State’s evidence contradicted its theory that June 7 was a tipping

point. Seckinger testified that she stopped questioning Murdaugh once she learned

his father was being admitted to the hospital again, and she offered her support to

him as a friend. Murdaugh’s father in fact died three days later. Seckinger also

testified that she and the firm did not suspect that Murdaugh was stealing money.

Rather, the concern was Murdaugh was concealing money to avoid disclosing it in

response to discovery requests in the boating accident lawsuit. In addition, Mark

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Tinsley, plaintiff’s counsel in the boating accident lawsuit, conceded that nothing

explosive was expected to occur at the June 10 hearing.

The State must provide more than just a prosecutor’s best effort at a motive

theory. Cf. Smith, 309 S.C. at 446, 424 S.E.2d at 498; Peake, 302 S.C. at 381, 396

S.E.2d at 364 (1990); Coleman, 301 S.C. at 60, 389 S.E.2d at 660. The trial court

was required to subject the State’s claim of motive to rigid scrutiny and reject

evidence of prior criminal conduct unless the court clearly perceived the connection

between the extraneous criminal transaction and the crime charged, after giving the

defendant the benefit of the doubt. See Lyle, 125 S.C. 406, 118 S.E. at 807. Here,

the State offered nothing more than a fabricated motive theory, without any

supporting evidence. The evidence, therefore, does not meet the requirements of

Lyle and Rule 404(b) and should have been excluded.

Furthermore, the case law relied upon by the State does not support the

admission of Murdaugh’s alleged prior bad acts under the State’s theory of motive.

See Def’s Mem. In Opp’n to Mot. in Limine re: Evid. of Other Crimes & Bad Acts

at 6-7 (distinguishing cases cited in State’s Return in Opp’n to Def’s Mot. For Bill

of Particulars & State’s Mot. to Admit Evid. of Motive at 10-11). The cases the State

relies upon involve situations where the murder victim presented a threat of exposing

the defendant’s financial crimes, United States v. Seigel, 536 F.3d 306, 317 (4th Cir.

2008) (concerning defendant charged with violating 18 U.S.C. §1512(a) which

77
required that the government prove that the defendant killed the victim for the

purpose of preventing him or anyone else from providing law enforcement with

information about the federal crimes she committed); Pennsylvania v. Rizzuto, 777

A.2d 1069, 1080 (Pa. 2001) (“Appellant engaged in a premeditated course of

conduct to forge checks and cover up his forgeries. A logical inference can be drawn

that Appellant murdered Mrs. Laurenzi to cover up his theft of her funds.”), or the

defendant would obtain financial gain from the murder, California v. Thompson, 384

P.3d 693, 747 (Cal. 2016) (holding trial court did not abuse its discretion in

concluding that evidence of defendant’s prior financial misdeeds was relevant to

show her motive for killing, and conspiring to kill, her husband in order to collect

on his life insurance); Felder v. Nevada, 810 P.2d 755, 757 (Nev. 1991) (holding

evidence that defendant obtained credit cards by forgery could indicate desperation

and therefore properly admitted to prove motive where defendant was charged with

murdering victim as part of a ransom scheme).

Here, there is absolutely no evidence that Maggie or Paul posed a threat of

exposing Alex’s financial crimes. In West Virginia v. McGinnis, the West Virginia

Supreme Court rejected a similar attempt to introduce evidence of prior financial

crimes under a theory that the defendant committed murder so that he would receive

sympathy and avoid scrutiny from his financial misdeeds. 455 S.E.2d 516, 528–33

(W. Va. 1994). There, the defendant was charged with murdering his wife. Id. At

78
the time of her death, the defendant was under investigation for arson, tax evasion,

and mail fraud. Id. At trial, the prosecution spent a substantial part of the opening

statement and approximately three days of trial presenting evidence of the

defendant’s financial crimes. Id. The prosecution successfully argued to the trial

court that this evidence fit within the motive exception to Rule 404(b) because of the

defendant's pattern of portraying himself in a sympathetic role. Id. The West

Virginia Supreme Court ruled that the prosecution’s theory was implausible. Id. The

court overturned the defendant’s conviction concluding “the collateral evidence

added impermissible substance to the prosecution's otherwise weak case and created

the likelihood that the jury would convict the defendant solely because of his prior

criminal conduct.” Id. at 531.

In State v. King, the Court reversed a murder conviction where the State was

permitted to introduce evidence that the defendant previously stole from his ex-wife.

334 S.C. 504, 514 S.E.2d 578 (1999). The trial court concluded that the evidence

was relevant to establish the defendant’s need for money, which supported the State’s

motive theory that the defendant murdered the victim for money. Id. at 511, 514

S.E.2d at 581–82. The Court characterized two types of thefts—remote thefts that

occurred years before the murder, and a theft that occurred the night before the

murder. The Court concluded that evidence of remote thefts was not admissible

under any theory. Id. at 513, 514 S.E.2d at 582–83. The Court also concluded that

79
“while the remote thefts may have been minimally relevant to show motive under

Lyle, the prejudicial effect of this evidence far outweighed this slight probative

value.” Id. at 513 n.5, 514 S.E.2d at 583 n.5. The Court also concluded that the

thefts occurring the night before the murder were too attenuated for admissibility

under the res gestae14 theory or under Lyle. Id. at 513, 514 S.E.2d at 583.

Starting with Lyle, and continuing to the present, this Court has steadfastly

ensured that in a criminal case the jury is only presented with evidence relevant to

the charged crime and the Court has not hesitated to vacate a conviction where

evidence of bad conduct is improperly admitted. For example, in State v. McElveen,

the Court reversed a murder conviction where the State introduced evidence of the

defendant’s infidelity to his wife. 280 S.C. 325, 313 S.E.2d 298 (1984). In State v.

Cooley, the Court vacated a murder conviction because the defendant’s son was

permitted to testify about prior instances of spousal abuse by the defendant against

the victim. 342 S.C. 63, 536 S.E.2d 666 (2000); see also Smith, 309 S.C. at 446, 424

S.E.2d at 498 (evidence of drug use); Peake, 302 S.C. at 381, 396 S.E.2d at 364

(prior offer to sell marijuana to the victim); Coleman, 301 S.C. at 60, 389 S.E.2d at

660 (evidence of drug use).

14
The res gestae theory recognizes evidence of other bad acts may be an integral
part of the crime with which the defendant is charged or may be needed to aid the
fact finder in understanding the context in which the crime occurred. King, 334 S.C.
at 512, 514 S.E.2d at 582–83.

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 Here, the State was improperly permitted to introduce evidence of

Murdaugh’s alleged financial crimes solely to impugn his character to bolster its

otherwise weak case. This fact was revealed during the State’s closing argument

where the prosecutor essentially abandoned this motive theory and told the jury its

theory could be disregarded because the State is only required to prove malice. Trial

Tr. 5823-25.

2. Any probative value of the evidence concerning the alleged prior bad acts
was substantially outweighed by the unfair prejudice that resulted to
Defendant; therefore, it should have been precluded.

Evidence of prior bad acts deemed relevant and proffered for a permissible

purpose may nevertheless be excluded upon a determination by the trial court that

“its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by consideration of undue delay,

waste of time, or needless presentation of cumulative evidence.” Rule 403, SCRE;

see also King, 424 S.C. at 200, 818 S.E.2d at 210; Scott, 405 at 497–98, 748 S.E.2d

at 241. “‘[T]he determination of prejudice must be based on the entire record, and

the result will generally turn on the facts of each case.’” King, 424 S.C. at 200, 818

S.E.2d at 210 (quoting State v. Stokes, 381 S.C. 390, 404, 673 S.E.2d 434, 441

(2009)).

Should this Court deem the evidence relevant for a permissible purpose,

evidence of the alleged prior bad acts should have nevertheless been excluded

81
because any probative value it offered was substantially outweighed by the unfair

prejudice and undue delay that resulted from its introduction. See State v. Gilchrist,

329 S.C. 621, 627, 496 S.E.2d 424, 427 (Ct. App. 1998) (“Unfair prejudice means

an undue tendency to suggest [a] decision on an improper basis.”).

Here, the State presented ten witnesses over six days who testified about

Murdaugh’s financial misdeeds, dating back to at least 2015.15 Trial Tr. 2242–33,

2502–87, 2656–3520, 3497–3517. The firm’s chief financial officer Jeannie

Seckinger testified about the diversion of fees in the Farris trucking accident case

that she questioned Murdaugh about on June 7. She described the diversion of fees

in the Farris case as a “one off” from Murdaugh’s other schemes that she discovered

in September 2021, months after the murder. Trial Tr. 2381–82:3.

Seckinger meticulously detailed Murdaugh’s theft of client funds using the

fake Forge account. Trial Tr. 2263:25–2335:14. A summary spreadsheet of the fake

Forge account transactions totaling $2,841,512. State’s Ex. 314. involving fourteen

separate clients that she prepared was entered into evidence. The State then

introduced disbursement sheets for each of the clients’ settlements, with Seckinger

explaining how Murdaugh deceived the firm and clients with each transaction.

15
This testimony came after the Court conducted an in camera hearing spanning
three days. Trial Tr. 1536–1640, 1708–1848, 2032–79.

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State’s Exs. 317–328, 429. Seckinger also explained how the law firm repaid each

of these clients because Murdaugh stole their money.

The State also introduced a second spreadsheet that Seckinger prepared

summarizing what she described as a scheme to defraud at least four clients using

Palmetto State Bank. Trial Tr. 2335, State’s Ex. 329. According to Seckinger, Alex

used her brother-in-law as a Personal Representative on significant death cases and

had him write checks from the settlement proceeds to cover Alex’s personal

expenses. The spreadsheet identified a total loss of $2,079,826. As with the fake

Forge account transactions, Seckinger meticulously explained the disbursement

forms for each of the four client victims. Trial Tr. 2335–54. Seckinger also testified

about an incident when the firm mistakenly wrote Murdaugh a loan repayment check

that was meant for his brother, and Murdaugh cashed it, later claimed the check was

lost, got a replacement check, and cashed that one too. Trial Tr. 2258:4–60:23.

Seckinger concluded her direct exam by responding to a question of whether she

“really knew” Murdaugh, to which she replied, “I don’t think I ever knew him; I

don’t think anybody knows him.” Trial Tr. 2354:25–55:2.

The State presented evidence from Ronnie Crosby, one of Murdaugh’s law

partners, to corroborate Seckinger’s findings. In addition, Crosby testified that

Murdaugh admitted to the client thefts and said that he knew he was going to get

caught at some point in time. Trial Tr. 2413:14–17:19. The State called Murdaugh’s

83
former paralegal who testified about questioning Murdaugh about the Farris fee and

later discovering a cancelled check from the Wilson law firm that proved Murdaugh

had lied to her. Trial Tr. 2502–63. Michael Gunn, a principal with Forge Consulting,

testified that his firm did not have a Bank of America account and that the fake Forge

account was in fact fake. Trial Tr. 2563–83. Chris Wilson testified about

conversations he had with Murdaugh regarding the Farris fee, and that Murdaugh

lied to him as well. Trial Tr. 2656–2793. Jan Malinowski, the President of Palmetto

State Bank, testified about Murdaugh’s receipt of money from the various Estate

accounts held at the bank and under the control of Russell Lafitte. Trial Tr. 2814–

95.

Perhaps the most blatant unfairly prejudicial testimony came from a young

victim, Tony Satterfield. Trial Tr. 2812–40. Alex used the fake Forge account to

steal a $4,305,000 settlement against him brought by the Estate of Gloria Satterfield,

Tony’s mother and Alex’s former housekeeper, which was intended to have gone to

Tony and his disabled brother. State’s Ex 352. Although Alex stole these funds in

2019, Alex was not under investigation or even under suspicion of stealing the

Satterfield proceeds at any time leading to the murders. In fact, Tony Satterfield first

spoke with Alex to inquire about the progress of the case after the murders when he

became aware of media reports of a settlement involving his mother’s estate.

Satterfield’s phone records identify a call on June 22, 2021, almost three weeks after

84
the murders. Trial Tr. 2828:6–29:8; State’s Ex. 454. Before this call, Murdaugh

communicated with Satterfield on April 12, 2021, when he sent Satterfield a text

stating that he had “been working on case that made me think of you. Hope all is

good. Call me any time I can help.” Trial Tr. 2826:3–19, State’s Ex. 453.

Because of the extremely sympathetic nature of this victim, the fact that

Murdaugh stole from him and his vulnerable adult brother, and that his mother was

Murdaugh’s family’s housekeeper, Murdaugh offered to stipulate to the admission

of records involving this theft, in lieu of calling Tony to the stand in the presence of

the jury. Trial Tr. 2807. The State refused to consent to sterilizing this evidence in

any manner, and the trial court denied Murdaugh’s specific Rule 403 objection to

this sympathetic victim witness. Trial Tr. 2807–08.

3. Murdaugh did not waive his objections to the financial crime evidence by
testifying.

Alex took the stand in his own defense and admitted that he had committed

the financial crimes that the jury heard evidence about over a span of six days and

explained that he did so primarily to support a severe opioid addiction. Alex also

rebutted the State’s motive theory that he murdered Maggie and Paul to distract from

the impending financial investigation. By doing so, Alex did not waive his right to

challenge the lower court’s erroneous decision to admit this evidence. See Rogers v.

State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993) (error is not waived when the

evidence is brought in later in an effort to meet, rebut, destroy, deny or explain the

85
improperly admitted evidence); State v. Logan, 394 Md. 378, 390, 906 A.2d 374,

381 (2006), abrogated by Kazadi v. State, 467 Md. 1, 223 A.3d 554 (2020) (“The

defendant does not waive an error by attempting to minimize or explain improperly

admitted evidence. It would be unfair to permit the State to introduce evidence,

albeit later found to be inadmissible, but not to permit the defendant, upon pain of

waiver, to attempt to meet it, explain it, rebut it or deny it.” (citation omitted)); 1

McCormick On Evid. § 55 (8th ed.) (“However, when her objection is made and

overruled, she is entitled to treat this ruling as the ‘law of the trial’ and to negatively

rebut or explain, if she can, the evidence admitted over her protest.”).

4. The trial court erred by concluding Murdaugh “Opened the Door” to the
financial crime evidence by questioning a witness about Murdaugh’s
relationship with Maggie and Paul.
Will Loving, a friend of Paul’s, was called as a witness by the State in its case-

in-chief. On cross-examination, Loving described Paul’s relationship with his father

as “awesome,” that “it just kind of seemed like Paul was the apple of [Alex’s] eye.

Trial Tr. 1503:18-23. Loving also described Alex’s relationship with Maggie as

“awesome” as well. “[T]hey were always laughing and everybody got along . . .

nothing was out of the ordinary at all.” Trial Tr. 1503:24–25; 1504:1–4. On redirect,

the State asked Loving whether he knew anything about Murdaugh’s finances, his

law practice, where he was spending his money, anything about his bank account, or

what kind of debt Murdaugh was carrying. Trial Tr. 1511:4–25. Then the State

86
asked, “Do you know anything about him being confronted on the morning of June

7, 2021, about $792,000 of missing fees from his law firm.” Loving had no

knowledge about any of the issues raised. The trial court allowed this questioning

over objection concluding that the defense opened the door by eliciting testimony

about Murdaugh’s relationship with Maggie and Paul, which the trial court reasoned

was essentially character evidence.

The trial court abused its discretion by permitting this line of questioning.

While a party may introduce otherwise inadmissible evidence in rebuttal when an

opponent introduces evidence as to a particular fact or transaction, the trial court is

required to be “wary of a thinly-veiled attempt to show propensity by way of the

open-door doctrine.” State v. Young, 378 S.C. 101, 106, 661 S.E.2d 387, 390 (2008).

Furthermore, testimony in response must be “proportional and confined to the topics

to which counsel had opened the door.” Bowman v. State, 422 S.C. 19, 42, 809

S.E.2d 232, 244 (2018).

Testimony about a defendant’s loving relationship with his spouse is not

character evidence. Furthermore, even if it could be construed as character evidence,

Loving’s testimony did not open the door for the introduction of financial crimes

evidence. Rule 404(a) prohibits evidence of a person’s character or a trait of

character for the purpose of proving action in conformity therewith, excepting

evidence of a pertinent character trait offered by an accused, or by the prosecution

87
to rebut the same. At most, testimony about Alex’s loving relationship with Maggie

and Paul could possibly be construed as pertaining to Alex’s character trait of

peacefulness, and non-violence toward his family. If so, then the State would be

permitted to offer evidence to rebut this character trait, such as prior incidents of

domestic violence if there were any. But there was not any such evidence. The trial

court abused its discretion by allowing this line of questioning because evidence that

Alex stole money from his law firm does not in any way rebut Loving’s and other

witnesses’ testimony that Alex had a loving relationship with Maggie and Paul.

B. The State violated Murdaugh’s due process rights by using his post-
Miranda silence to impeach him.
The trial court allowed the State to use Alex’s post-Miranda silence after

being arrested on the murder charges to impeach the exculpatory trial testimony that

Alex offered about being at the kennels in violation of Alex’s due process rights, as

recognized in Doyle v. Ohio, 426 U.S. 610 (1976). During cross-examination, Alex

was questioned about Maggie finding pills in his vehicle in May 2021. Murdaugh

denied that Maggie insisted he go back to detox after this discovery. Alex testified

that Paul convinced Maggie that Alex had gotten the pills in anticipation of dental

surgery, and that Alex had not relapsed. Alex further explained that he previously

admitted to Paul that Alex was back on the pills, but struck an agreement with Paul

that he would go back to detox as soon as Pauls’ criminal charges arising from the

boating accident were resolved.

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 The prosecutor then sought to impeach Alex by questioning whether this was

the first time the State had heard his explanation. Alex responded,

A. Well, you asked me this. Mr. Waters, you keep making the issue
about the first time I—you hearing these things. When, when I got
arrested and I went to jail, we began reaching out to you to talk to you
about all of these things, to try to tell you everything that I had done, to
give you all these details, to help y’all go through the financial things.
And up until the time y’all charged me with murdering my wife and
child, you would never give Jim Griffin a response to our invitation to
sit down and meet with you.
Trial Tr. 4923:20–24:3. The prosecutor then switched the line of questioning to

impeach Alex about remaining silent after his arrest for the murders of Maggie

and Paul.

Q. Are you saying that you ever before yesterday reached out to anyone
through yourself or through your attorneys and reached out to anyone
in law enforcement or the prosecution and told them the story about the
kennels? Are you telling me that?

A. I’m---what I’m telling you Mr. Waters---

Q. Would you answer my question first. Did you ever reach out to
anyone in law enforcement or the prosecution and tell that story you
told this jury yesterday about the kennels before yesterday?
Trial Tr. 4924:8–18.

Counsel for Murdaugh objected to this questioning citing Alex’s Fifth

Amendment right to remain silent and Doyle v. Ohio, 426 U.S. 610 (1976). Trial Tr.

4924:23–25:5, 5015:16–16:19. The State conceded that it would have been

precluded from this line of questioning if Murdaugh “had claimed his right to silence

from the beginning and had kept silent throughout,” Trial Tr. 5017:7–10, but argued

89
that Alex waived any Doyle violation by giving statements on multiple occasions.

The State, however, did not identify any statements Murdaugh gave after his arrest.

Trial Tr. 5017:21–18:15.

The trial court overruled the Doyle objection, stating:

Doyle primarily addresses the issue of post-arrest silence. If an accused

is silent following an arrest, then it’s improper to comment on a post-
arrest silence. It does not allow a person, an accused or a person who’s
suspected to give contradictory information or to voluntarily give a
statement or to voluntarily give a misstate, as has been acknowledged
here. I do not find any Doyle violation.
Trial Tr. 5017:16–23.

The trial court was factually and legally incorrect. In Doyle, the Supreme

Court held that a defendant’s due process rights are violated when a prosecutor seeks

to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-

examining the defendant about his failure to have told the story after receiving

Miranda warnings at the time of his arrest. In State v. Green, 440 S.C. 292, 304, 890

S.E.2d 761, 768 (2023), this Court held that when a defendant objects to the State’s

use of post-arrest silence for impeachment purposes and asserts that Miranda

warnings were given, the burden is on the State to prove by a preponderance of the

evidence that the defendant did not receive Miranda warnings prior to his silence.

Murdaugh’s counsel objected to the State’s attempt to impeach Murdaugh

with his post-arrest and post-Miranda silence on the murder charges. Trial Tr. 5016.

There was not any question raised as to whether Alex received Miranda warnings

90
after his arrest. Furthermore, there was no evidence that Alex made any statements

to law enforcement after being interviewed in August 2021, one month prior to his

assisted suicide attempt and subsequent arrest for financial crimes, and almost one

year before his arrest on murder charges. The State sought to impeach Murdaugh,

initially on the fact that he had never offered an explanation to the State about

Maggie’s discovery of his pills, until his trial testimony. Alex acknowledged this but

offered an explanation that he had been trying to arrange a meeting with the

prosecutor through counsel to discuss his pending charges, “up until the time y’all

charged me with murder of my wife and child.” Trial Tr. 4924:1–3.

The State then directly questioned Murdaugh about the fact that he never told

anyone with the prosecution or law enforcement about being at the kennels after

supper until his trial testimony. This is precisely the line of questioning that Doyle

prohibits. Yet, the State argued to the trial court that Murdaugh “made numerous

statements on multiple occasions, and that operates as a Doyle waiver.” Trial Tr.

5016:21–23. The trial court erroneously adopted this flawed reasoning in overruling

the defense’s Doyle objection.

Doyle prevents the State from commenting on a defendant’s post-arrest and

post-Miranda silence, irrespective of whether a defendant made pre-arrest and pre-

Miranda misstatements. The decision in Doyle is rooted in the fundamental

unfairness of advising a defendant he has a right to remain silent, then using that

91
silence for impeachment purposes. See Fletcher v. Weir, 455 U.S. 603, 605–07

(1982) (declining to broaden Doyle and holding, “[i]n the absence of the sort of

affirmative assurances embodied in the Miranda warnings, we do not believe that it

violates due process of law for a State to permit cross-examination as to post[-]arrest

silence when a defendant chooses to take the stand”). The State did not seek to

impeach Murdaugh based on contradictory statements he made after he received

Miranda warnings. Instead, the State sought to impeach Murdaugh’s testimony by

establishing that he had not given his exculpatory explanation until he testified at

trial, thereby using Alex’s post-Miranda silence against him. This tactic exemplifies

the fundamental unfairness that Doyle prohibits. The trial court once again abused

its discretion by allowing this line of questioning despite the strenuous objection

lodged by the defense.

C. The trial court committed reversible error by allowing the State to

introduce evidence of an unscientific experiment performed by an
unqualified Charleston County Deputy in its rebuttal case.

The trial court committed reversible error when it allowed the State in its

rebuttal case to introduce inadmissible scientific testimony from an unqualified

witness, Charleston County Sheriff’s Office Sergeant Paul McManigal, over the

defense’s repeated objections. As explained below, the State could not have

convicted Murdaugh without Sgt. McManigal’s improper testimony that it is

possible to throw an iPhone from a car moving over 40 miles per hour without the

92
phone screen illuminating in response to the motion of being picked up, thrown, and

bouncing on the ground. Substantial context is first needed to understand why Sgt.

McManigal testified in the State’s rebuttal case, what his testimony was about, and

why it mattered. With that context, it is easy to see why his testimony was

inadmissible and why it was highly prejudicial to allow it.

The State’s case-in-chief at first relied on witnesses from the Federal Bureau

of Investigation (FBI) to present evidence on Murdaugh’s vehicular movements in

his 2021 Chevrolet Suburban on the night of the murders. Agent Matthew Wild

testified that he and other personnel spent two days driving three cars “everywhere

all around Moselle” to map cell tower signals, then spent considerable time using

that data and records from cell service providers and data extracted from Murdaugh’s

phone to create a very rough map of his movements that night. Trial Tr. 3077:6–

3122:15. FBI electronics engineer Dwight Falkofske testified that the FBI had a

team spend a full year hacking the electronics in Murdaugh’s Suburban to extract

data like when Murdaugh’s phone connected to the vehicle via Bluetooth or when

the engine started or stopped. Trial Tr. 2605:12–2606:2. The extracted data was

somewhat accurate but contained unclear information and required a lot of

interpretive inferences. Trial Tr. 26510:25–2651:9. No location data was recovered

for the day of the murders. Trial Tr. 2655:9–12. The FBI’s year-long hacking effort

was required because the systems are encrypted by the manufacturer, General

93
Motors, and Mr. Falkofske testified no one asked General Motors for assistance

because “it’s difficult for us to get the manufacturers to work with us on data.” Trial

Tr. 2644:23–2645:8.

All that work was a useless waste of time.

Someone at General Motors was watching when Mr. Falkofske testified that

it is “difficult” to get General Motors to cooperate with a murder investigation. Six

days after Mr. Falkofske testified, General Motors senior technical expert Devin

Newell appeared as a witness to present extremely detailed data General Motors had

collected from Murdaugh’s Suburban as it was operated and stored on its own

servers. Trial Tr. 3452–3459; State’s Ex. 515. The data was disclosed to the State

only two days after Mr. Falkofske testified. Id. General Motors had recorded

Murdaugh’s precise position every three seconds and nearly every imaginable event

regarding the vehicle, such as when his phone connected to the car and when calls

were made through that connection, how fast his car was driving, when it turned on

and off, etc. Id. There was never any need for the FBI to attempt to roughly

triangulate his position from rural cell towers or to hack into the Suburban’s

electronics.

The General Motors data was offered into evidence by the State and the

defense readily conceded its accuracy—the accuracy of this unexpected information

received late in the State’s case-in-chief was a major problem for the State. Maggie

94
Murdaugh’s iPhone was found in roadside brush about fifteen feet off Moselle Road

about a half mile from the driveway entrance. Trial Tr. 1654–1657. The State and

the defense agree it was thrown from a vehicle leaving the scene after she was

murdered. See, e.g., Trial Tr. 5845. Her phone contained a database that recorded

the exact time every time the screen turned on or off. Trial Tr. 1226, 1323, 4622. It

also had the “Raise to Wake” feature common to all iPhones, meaning the screen

would turn itself on in response to slight movements corresponding to being picked

up—rotating the top of the phone up 45 degrees or more from a horizontal plane or

90 degrees on a vertical plane. Trial Tr. 4620. The last time Maggie Murdaugh’s

phone screen turned on the night of the murders was at 9:05:44 pm; at 9:06:12 pm it

recorded its last orientation change, which occurred simultaneously with an

unanswered incoming call from Murdaugh; and it turned off at 9:07:00, immediately

after another missed call from Murdaugh, and remained off until 9:31:44, at which

time Murdaugh was known to be at his mother’s home. Trial Tr. 4623–4631; Def.’s

Ex. 158; State’s Ex. 519. The new General Motors data showed Murdaugh did not

drive past the location where her phone was thrown into the roadside brush until

9:08:36 pm. Trial Tr. 3958:8–16. It also showed he was driving at 42 m.p.h. when

he passed it. Id. He did not stop, slow down, or do anything usual as he drove past

it. Trial Tr. 4051:24–4052:25.

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 The General Motors data put the State in an unexpected bind late in the trial.

Murdaugh could have thrown Maggie’s phone from his vehicle to where it was

recovered on the roadside only if it is possible to throw an iPhone from a car going

42 m.p.h. into the woods off a rural road, without the phone moving sufficiently to

turn on the screen, even though the screen always comes on in response even to the

slight movement of being picked up off a table or car seat or taken out of a pocket.

If that is not possible, then someone else was at the scene and involved in the

murders. The State cannot admit that possibility because it would be forced to

answer questions like “who was involved?”, “what did they do?”, and “why did they

do it?” The State’s answers to those questions would be “we have no idea,” which

would create so much reasonable doubt that the case might not make it to a jury at

all.

For that purpose, the State presented Sgt. McManigal as an expert witness in

its rebuttal case. Sgt. McManigal had previously testified in the State’s case-in-

chief. He took an electronic extraction from Murdaugh’s cell phone created by

Dylan Hightower, an investigator with the Fourteenth Circuit Solicitor’s Office, on

June 10, 2021, and redacted potentially privileged contents and reduced it to a

timeframe relevant to the murder investigation pursuant to instructions from an

attorney with the Ninth Circuit Solicitor’s Office. Trial Tr. 1110. He then gave the

redacted extraction back to Mr. Hightower, performing no other analysis of the data.

96
Id. He also received Paul Murdaugh’s phone from SLED and attempted,

unsuccessfully, to unlock it, and testified as to chain-of-custody forms for it. Id. He

was just a chain-of-custody witness.

Murdaugh’s defense therefore was surprised when the State again called him

in its reply as an expert in “cell phone forensics,” defined in voir dire as using various

software tools to recover evidence from cell phones. Trial Tr. 5396–97. The defense

did not object to his qualification as an expert in that area, and he is in fact qualified

to extract data from cell phones. Id. But his testimony had nothing to do with

extracting data from a cell phone. Instead, he was asked about an experiment he

conducted while sitting alone in his office during the previous weekend. He obtained

an iPhone comparable to Maggie Murdaugh’s phone, and he sat alone in his office

over the weekend shaking it and throwing it around his office. He testified that when

he did so, “[s]ometimes the screen would turn on” but “a lot of times I would throw

it and the screen would not turn on.” Trial Tr. 5401. He testified “if the IPhone

registers a slight amount of motion, it thinks it’s being picked up, so it will turn on

the screen . . . [b]ut if it’s being picked up more aggressively it won’t” turn on the

screen. So, a violent motion like being thrown from a car would not turn on the

screen, even though much lesser movements like being picked up do turn on the

screen. He testified that in his “expert” opinion, the screen usually would not come

on if the phone were thrown “like a frisbee.” Trial Tr. 5401–02.

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 Sgt. McManigal admitted he had no basis for that opinion other than this

“experiment” during trial. Trial Tr. 5406–07. He testified that he never thought to

record these experiments or any data from these experiments:

Q. When you performed these experiments, did you record them in any
way?
A. I did not.

Q. You didn’t? Did you record doing any of this?

A. I did not.

Q. Did you consider video recording any of these experiments?

A. Actually it never crossed my mind.
Q. You just did the experiments and then just sort of orally relayed when
you could have had a video to show us?
A. That is correct.
...

Q. According to the experiments that you conducted since -- when did

you do these experiments?
A. I started it Friday afternoon and into Saturday.
Q. So, you did these experiments this week -- this last weekend?

A. Correct.

Q. Did not record any data.

A. I did not.

Q. You just played with the phone and are coming here to express your
observations.

A. That is correct.

98
 ...
Q. You just threw the phone around in your office?

A. Absolutely.

Q. So, you didn't record what you were doing, and you did not measure
any data --
A. I did not.

...

Q. Do you normally do experiments and don't record any data or video

or record anything?

A. It never crossed my mind to record video.

Q. Do you believe that you would have to disclose that data if you had
recorded it?
...
A. I believe so, yes, sir.

Trial Tr. 5402–05. It is not credible that in a televised six-week murder trial with the

Attorney General and Deputy Attorney General sitting at the prosecution table, the

State asked Sgt. McManigal to conduct this experiment during trial for the purpose

of presenting it to the jury and him as an expert witness, but everyone involved

simply forgot to record any data whatsoever. If the State sincerely wanted to know

whether the screen of an iPhone would come on if the phone is thrown from a

moving car, the State could have asked someone knowledgeable at Apple. Or the

State could have thrown a phone from a car, then extracted the data to see if the

screen came on (something Sgt. McManigal was qualified to do). The State could

99
have at least filmed Sgt. McManigal throwing his phone around his office, so

everyone could see what he saw. Or at least had someone with Sgt. McManigal

while he threw the phone around to corroborate his observations. It is obvious why

the State did none of those things—if the result was not what the State wanted, the

prosecution would have been sunk.

Further, Sgt. McManigal admitted that he was not an expert in this area at all:

Q. You’re trained in extracting data from a cell phone.

A. That’s correct.
Q. And when it comes to tossing it around and seeing how it moves,
you don’t know anything more than anyone else, do you?
A. No, sir.

...
Q. You this weekend sat around your office by yourself recording
nothing, tossing the phone around here, and are now reporting those
results as an expert in what?

A. In cell phone forensics. I understand how cell phones operate more

than most people.

Q. Do you understand electrical engineering? Do you have any

background?

A. I am not an engineer, no, sir.

Q. Do you know how accelerometers in the iPhone work?

A. Not exactly, no, sir. But I know that they exist and I know that that’s
how the iPhone determines [motion].

Q. So, there is an unknown device within the phone that detects motion
in a way that you don’t understand, and some amount of motion that

100
 you don’t know how much because you didn’t measure it does
something that only you saw in your office this weekend.

A. Well, no. I know what that is. It’s the accelerometer, and the
accelerometer is what detects the motion, and that’s what causes the
iPhone to Raise to Wake.
Q. How d[oes] an accelerometer detect motion?

A. I’m not an engineer. I don’t know how it detects motion. I just know
that it does.16

Q. But, sir, you really haven’t said anything you couldn’t quickly find
out on Google. Isn’t that correct?

A. Probably, yes, sir.

Trial Tr. 5408, 5410–11. Sgt. McManigal even admitted that his experiment was not

statistically reliable. Trial Tr. 5414–15.

It was reversible error to admit Sgt. McManigal’s testimony over the defense’s

objections. Rule 702 of the South Carolina Rules of Evidence provides, “[i]f

scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may testify thereto in

the form of an opinion or otherwise.” “To admit expert testimony under Rule 702,

the proponent—in this case the State—must demonstrate, and the trial court must

find, the existence of three elements: ‘the evidence will assist the trier of fact, the

16
An accelerometer in a phone detects motion by detecting the movement of an
internal “proof mass” relative to fixed electrodes, which changes the capacitance
between them.

101
expert witness is qualified, and the underlying science is reliable.’” State v. Wallace,

440 S.C. 537, 543–44, 892 S.E.2d 310, 313 (2023) (quoting State v. Council, 335

S.C. 1, 20, 515 S.E.2d 508, 518 (1999)). “When admitting scientific evidence under

Rule 702 . . . [t]he trial judge should apply the Jones factors to determine reliability.”

Council, 335 S.C. at 20, 515 S.E.2d at 518. These are “(1) the publications and peer

review of the technique; (2) prior application of the method to the type of evidence

involved in the case; (3) the quality control procedures used to ensure reliability; and

(4) the consistency of the method with recognized scientific laws and procedures.”

Id. at 19, 515 S.E.2d at 517.

The defense moved to strike his testimony immediately when Sgt. McManigal

admitted that he was not an expert. Trial Tr. 5408–09. The trial court overruled the

objection. At the first break in proceedings after his testimony, outside of the

presence of the jury, the defense renewed the objection to his testimony in the form

of a motion to exclude his opinion under Council. Trial Tr. 5434–5436. The trial

court denied that motion as well, without any cogent reasoning. Id. In doing so, the

trial court erred for two reasons.

First, the trial court erred in overruling the objection to Sgt. McManigal’s

expert opinion after he admitted he was not an expert. He was admitted as an expert

without objection in the field of downloading information from a cell phone. Trial

Tr. 5396–97. His testimony had nothing to do with that. In response to that

102
argument, the trial court merely ruled that he had been admitted as an expert without

objection, ignoring the argument that his testimony had nothing to do with the area

in which he was admitted as an expert. Trial Tr. 5408–09. And later, when the

objection was renewed as a Council motion:

THE COURT: Your motion is late. You stipulated, you agreed that he
was an expert. I gave you an opportunity to voir dire him, question him
in any way.

MR. BARBER: Your Honor, we had no notice that he was going to offer
this experiment. We -- he was offered as a cell phone forensics expert,
which he is, and there was no notice that he had done this engineering
analysis, throwing his phone around.
THE COURT: He did not do an engineering analysis; he said he didn’t
do an engineering analysis. And what was scientific about his
testimony?
Trial Tr. 5435:4–21. It was an abuse of discretion for the trial court to simply state

that Sgt. McManigal was admitted as an expert without objection while repeatedly

refusing to address the argument that his testimony was not within the scope of that

expertise and that he that he himself testified that he lacked expertise in the subject

matter of his opinion. See Wallace, 440 S.C. at 543, 892 S.E.2d at 313 (holding “the

trial court—when ruling on the admission or exclusion of evidence—must think

through the objection that has been made, the arguments of the attorneys, and the

law—particularly the applicable evidentiary rules—and must thoughtfully apply the

correct law to the information and evidence before it”).

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 Second, the trial court erred in admitting testimony about Sgt. McManigal’s

experiment regardless of his qualifications. Scientific evidence can only be admitted

if reliable, and the Jones factors determine reliability. Council, 335 S.C. at 20, 515

S.E.2d at 518. Sgt. McManigal’s experiment satisfied none of the Jones factors.

There are no publications or peer review of the “technique” of him sitting alone in

his office on a weekend throwing a phone around while recording no data. The State

did not suggest that there has been any “prior application” of his “method” of

throwing his phone around his office. There are no “quality control procedures used

to ensure reliability” in sitting alone in an office throwing a phone on the floor

without recording any data about it. And Sgt. McManigal admitted his “method”

was not consistent with recognized scientific procedures when he admitted it was

not statistically reliable. Trial Tr. 5414–15.

Instead of applying the Jones factors, the trial court incredibly ruled that his

experiment was admissible because his testimony was not “scientific testimony.”

Trial Tr. 5435:4–21. There is no colorable basis for the ruling that testimony

reporting the result of an experiment purporting to determine whether a specific

amount of motion causes a specific proof mass move between electrodes so as to

change the capacitance between them within a range that causes a given connected

computing device to illuminate an attached video screen is not at least as scientific

in character as, for example, accident reconstruction. Cf. Hamrick v. State, 426 S.C.

104
638, 649, 828 S.E.2d 596, 602 (2019) (“Accident reconstruction is a highly technical

and specialized field in which experts employ principles of engineering, physics, and

other knowledge to formulate opinions as to the movements and interactions of

vehicles and people, under circumstances lay people—even trained officers—simply

cannot understand.”). The trial court simply refused to conduct the required analysis,

which is an abuse of discretion. State v. Phillips, 430 S.C. 319, 340-41, 844 S.E.2d

651, 662 (2020) (reversing a trial court’s ruling to admit expert testimony when the

trial court did not “meaningfully exercise that discretion” and “we are actually

conducting the analysis for the first time”); Hamrick, 426 S.C. at 648-49, 828 S.E.2d

at 601 (holding the trial court erred because it “failed to make the necessary findings

that the State established the foundation required by Rule 702”).

Sgt. McManigal’s testimony was extremely prejudicial, and its erroneous

admission was therefore reversible error. Cf. State v. Pagan, 369 S.C. 201, 212, 631

S.E.2d 262, 267 (2006) (“Generally, appellate courts will not set aside convictions

due to insubstantial errors not affecting the result.”). The General Motors data

obtained near the end of the State’s case-in-chief meant it was now known exactly—

to the second—when Murdaugh drove past Maggie Murdaugh’s phone, and her

phone’s extracted data showed its screen was dark from more than 90 seconds before

he drove past until after his arrival at his mother’s home in a different town. So, the

State unexpectedly and late in the trial had to find evidence that he could have thrown

105
the phone without the screen turning on. To do so, it had a chain-of-custody witness

from the case-in-chief, Sgt. McManigal, sit alone in his office over a weekend and

then emerge saying what the State needed him to say as an expert while studiously

making sure not to record any data that would allow anyone to validate his

experiment. Without his inadmissible testimony, the State would have been forced

to admit that someone other than Murdaugh was present at the scene of the murders

when they occurred, had taken Maggie Murdaugh’s phone from her dead body, and

had left the Moselle dog kennels with it and threw it onto the side of the main road

leaving Moselle while Murdaugh was still at home. The State could not have

convicted Murdaugh with that admission and therefore could not have convicted

Murdaugh without Sgt. McManigal’s inadmissible testimony.

D. The Trial Court erred by admitting irrelevant and unreliable firearms

evidence.

1. The trial court erred by allowing SLED’s firearms examiner to provide

irrelevant, unreliable, and confusing opinion testimony. 17
At the crime scene, the ballistic evidence around Paul’s body included one

shot cup and one shot wad (collectively Item 1), two 12-gauge shotshells (Items 9-

10), as well as bullet jacket fragments (collectively Item 11), a fired bullet (Item 12),

a buckshot pellet (Item 13) and birdshot pellets (collectively Item 14). Trial Tr. 344–

17
Murdaugh filed a pre-trial motion seeking to preclude or limit firearm ballistic
opinion testimony, Mot. In Limine to Preclude or Limit Firearm Ballistic Testimony.
After a Council hearing, the trial court allowed the opinion testimony.

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347; Court’s Ex. 1. The Colleton County Sherriff’s Office identified six 300

Blackout caliber cartridges around Maggie’s body (Items 2–7) and one bullet (Item

8). Id. Law enforcement also seized fired 300 Blackout caliber cartridge cases

(Items 35–39) from the ground at the side entrance of the house on the Moselle

property—approximately 300 yards from the crime scene. Additional 300 Blackout

cartridge cases (Items 108–124, 126–128), as well as 12-gauge shotshells (Items

125, 129–135) were found in an area by a pond near Moselle Road in a field which

was frequented by the Murdaugh family and guests for target practice. Id.

The above evidence, as well as four 12-gauge shotguns (Items 22, 30, 31, and

32) and one 300 Blackout caliber rifle (Item 33) collected from the Moselle property

were submitted to the Firearms Department at SLED for forensic examination. Id.

The laboratory then fired laboratory-supplied ammunition through each shotgun and

rifle to create test specimens. The SLED examiner compared the various items of

firearms ballistic evidence submitted from the crime scene with the test specimens

created by the lab using the naked eye and a microscope. Based on the observable,

physical characteristics of the items submitted to the lab, he concluded that some of

the 300 Blackout cartridges retrieved from the firing range and near the residence

were fired or loaded into, extracted, and ejected by the 300 Blackout rifle taken from

the property. Court’s Ex 1 at 7. While he was unable to reach any conclusions as to

whether the 300 Blackout cartridges found beside Maggie’s body were fired by the

107
300 Blackout retrieved from the residence, he reported that “[m]atching individual

identifying characteristics were found in the mechanism marks of Items 2-7, [spent

shell cartridges found at the crime scene], and Items 35-37, 39, 108, 113, 116-117,

and 122, [cartridges found at the shooting range and near the residence], to conclude

that these Items were loaded into, extracted, and ejected from the same firearm at

some previous time.” Trial Tr. 1944–45.

However, the SLED examiner was unable to conclude that the breech

markings on the firing pins of the spent casings found at the murder scene near

Maggie’s body matched the breach markings on the firing pins of the spent casings

located near the residence or the shooting range. Trial Tr. 1963:15–66:25. And the

SLED examiner was unable to identify the weapon that fired the bullets that killed

Maggie. Trial Tr. 1966.

To reach this conclusion about extractor and ejector markings, the SLED

firearms examiner necessarily had to presume that every 300 Blackout manufactured

in the world makes unique extraction and ejection markings. Trial Tr. 1967:22–69:9.

But the examiner did not rely upon any studies, literature or scientific data to support

this hypothesis. Trial Tr. 349:10–15, 363:17–64:12. The examiner simply

concluded that because the ejection and extraction marks looked similar to him, only

one 300 Blackout manufactured could have made the marks. The examiner admitted

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that the “identification portion” of his analysis is “subjective in nature.” Trial Tr.

363:13-16.

Indeed, the field of tool mark analysis is inherently subjective and not

scientifically valid. Because the conclusions drawn by the firearms examiner are not

based on methods that are scientifically valid or reliable, such evidence should have

been excluded under Rule 702 of the South Carolina Rules of Evidence.

Additionally, given the unreliable nature of such evidence and the import a jury

attributes to expert testimony, such evidence should have also been excluded because

any probative value it might offer is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, and misleading the jury. See Rule 403, SCRE.

“When admitting scientific evidence under Rule 702, SCRE, the trial judge

must find the evidence will assist the trier of fact, the expert witness is qualified, and

the underlying science is reliable.” Council, 335 S.C. at 20, 515 S.E.2d at 518. In

determining whether evidence is admissible pursuant to Rule 702, SCRE, the Court

“must assess not only (1) whether the expert’s method is reliable (i.e., valid), but

also (2) whether the substance of the expert’s testimony is reliable.” State v. Warner,

430 S.C. 76, 86, 842 S.E.2d 361, 265 (Ct. App. 2020) (internal citations omitted).

The Court’s determination of reliability requires consideration of “(1) the

publications and peer review of the technique; (2) prior application of the method to

the type of evidence involved in the case; (3) the quality control procedures used to

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ensure reliability; and (4) the consistency of the method with recognized scientific

laws and procedures.” Council, 335 S.C. at 1, 515 S.E.2d at 517 (citing State v.

Ford, 301 S.C. 485, 392 S.E.2d 781 (1990)). The proponent of scientific evidence

has the burden of providing the Court with the factual and scientific information

needed for the Court to carry out its gatekeeping function. See Phillips, 430 S.C. at

334, 844 S.E.2d at 659. If the Rule 702 evidence is deemed relevant and reliable,

the Court must then consider whether the probative value of the evidence is

substantially outweighed by its potential for unfair prejudice, confusion of the issues,

or misleading the jury. Council, 335 S.C. at 1, 515 S.E.2d at 517.

The lower court erred in concluding that the opinion testimony regarding the

300 Blackout shell casings met the Council criteria. The examiner’s opinions were

confusing, unreliable and were more likely to confuse the jury than assist them. The

State failed to establish the “assist the trier of fact” element, and the probative value

of the DNA evidence is substantially outweighed by danger the evidence would

confuse the issues and mislead the jury. The examiner admitted that his opinions are

subjective and that there are no objective criteria for determining whether tool

markings are sufficiently similar to constitute a match. Trial Tr. 363:13–16; 1979–

1983.

Firearms analysis is a “feature-comparison” method that attempts to

determine “whether a questioned sample is likely to have come from a known source

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based on shared features.” President’s Council of Advisors on Sci. and Tech.,

Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-

Comparison Methods (2016), https://www.justice.gov/d9/2023-07/07.13.23.%20-

%20PCAST%20-%20Interim.pdf. It is an inherently subjective forensic field given

the methodology depends largely, if not exclusively, on examiner judgment. Id. For

this reason, authoritative scientific bodies conducting objective reviews of firearms

analysis have concluded it is neither scientifically valid nor reliable. In 2009, the

National Research Council of the National Academy of Sciences, issued a report (the

“NAS Report”), identifying the following issues which plague the reliability of

firearms analysis:

• “[E]ven with more training and experience using newer techniques, the
decision of the toolmark examiner remains a subjective decision based on
unarticulated standards and no statistical foundation for estimation of error
rates.” Id. at 153–154.

• “Sufficient studies have not been done to understand the reliability and
repeatability of the methods.” Id. at 154.

• The Association of Firearm and Tool Mark Examiners’ (AFTE) theory of

identification does not address “questions regarding variability, reliability,
repeatability, or the number of correlations needed to achieve a given degree
of confidence.” Id. at 155.

See Nat’l Res. Council, Strengthening Forensic Science in the United States: A Path

Forward (2009), available at https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf.

A second objective critique of this discipline was presented in a report issued

by the President’s Council of Advisors on Science and Technology in 2016 (“PCAST

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Report”). Like the NAS Report, it concluded that firearms analysis as a field “still

falls short of the scientific criteria for foundational validity.” Specifically, the

PCAST Report raised the following concerns:

• The AFTE’s “theory of identification” that “two toolmarks have a ‘common

origin’ when their features are in ‘sufficient agreement’” is circular. Id. at 60
(“[AFTE] declares that an examiner may state that two toolmarks have a
“common origin” when their features are in “sufficient agreement.” It then
defines “sufficient agreement” as occurring when the examiner considers it a
“practical impossibility” that the toolmarks have different origins.”)

• Relying on “training and experience” and “uniqueness” in lieu of empirical

demonstration of accuracy. Id. at 60-61. (Practitioners’ “honest belief that
they are able to make accurate judgments about identification based on their
training and experience” is a “fallacy’’; “‘[e]experience is an inadequate
foundation for drawing judgments about whether two sets of features could
have been produced by (or found on) different sources” and “‘training’ is an
even weaker foundation.”

• Firearms analysis has never been satisfactorily validated. Id. at 64 (“There is

no known study assessing “the overall firearm and toolmark discipline’s
ability to correctly/consistently categorize evidence by class characteristics,
identify subclass marks, and eliminate items using individual
characteristics.”)

President’s Council of Advisors on Sci. and Tech., supra.

In short, two independent, non-partisan groups comprised of accomplished

experts have each issued reports—which rely on countless other scientific reports—

reflecting a consensus in the scientific community that the firearms examiner’s

opinions that the State introduced have not been validated and are unreliable.

Furthermore, the firearms examiner was unable to express his opinions with a

reasonable degree of certainty, as required of expert opinions in South Carolina.

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Trial Tr. 347:22–49:9, 942:11–17; see also, e.g., Clark v. Greenville County, 313

S.C. 205, 208, 437 S.E.2d 117, 119 (1993) (holding expert testimony must state that

the result “most probably” came from the cause alleged). Moreover, trial courts have

begun to place limitations on firearms examiners’ testimony in view of the recent

criticisms of the field, and the Department of Justice guidelines for such testimony,

and specifically prohibit firearms examiners to express opinions with any level of

certainty. See United States v. Richardson, No. 19-20076-JAR, 2024 WL 961228, at

*11 (D. Kan. Mar. 6, 2024) (holding that a firearms examiner may not “assert that

two toolmarks originated from the same source to the exclusion of all other sources”

because such an assertion “is ultimately an examiner's decision and is not based on

a statistically-derived or verified measurement or comparison to all other firearms

or toolmarks”).

The trial court therefore abused its discretion by allowing this confusing and

unreliable opinion testimony to be introduced at trial.

2. The trial court erred by allowing the State to introduce multiple guns
seized from Murdaugh’s residence when no evidence linked the guns to
the murders.

SLED seized three 12-gauge shotguns and one 300 Blackout rifle from the

gunroom at Murdaugh’s residence. Trial Tr. 935–946; State’s Exs. 88–91. These

firearms were examined and tested by SLED’s firearm examiner who concluded that

none of these shotguns was used to fire the shotshells located in the feed room next

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to Paul’s body. 18 The SLED forensic examiner could not reach any conclusion

regarding the 300 Blackout. Trial Tr. 1934, 1938:15–25, 1951:9-52:3, 1952:10–17,

1959:1–11, 959:12–61:5. Therefore, there was no forensic evidence or any other

evidence whatsoever linking these firearms to the murders. Trial Tr. 1008:5–09:14.

Yet the State was permitted to introduce the firearms into evidence, over objection,

arguing that the weapons are proof that SLED did a thorough job of investigating

the murders. Trial Tr. 935–46:1-3, 960:14–61:1.

These firearms were not relevant to any issue in the trial and should not have

been admitted into evidence. Rule 402, SCRE (providing that evidence which is not

relevant is not admissible). “Relevant evidence” means evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence. Rule 401, SCRE. A “thorough” investigation produces evidence

probative of the guilt of the accused; the “thoroughness” of SLED’s investigation

otherwise has no bearing on whether Murdaugh committed the crimes with which

he was charged. Further, the number of guns located in the Murdaugh gun room was

18
Appellant did not object to the admission of State’s Exhibit 4, which was the
shotgun Mr. Murdaugh had brought to the scene of the crime. Trial Tr. 472. The
SLED examiner was unable to determine whether this firearm was used to fire the
shells located at the scene. Trial Tr. 1951.

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not unexpected, considering it was a very large hunting plantation. Trial Tr.

1014:15–15:5.

The Court has had occasion to consider the propriety of admitting weapons

into evidence that have no connection to the crime charged. In State v. McConnell,

the Court reviewed the trial court’s decision to admit into evidence a pistol that

“uncontradicted testimony showed . . . was not in appellant’s possession at the time

of the shooting incident.” 290 S.C. 278, 280, 350 S.E.2d 179, 180 (1986). The Court

concluded that the pistol “should not have been admitted” because it was “not

properly connected with the incident, irrelevant, incompetent, and raised spurious

inferences of prior bad acts.” Id. at 280, 350 S.E.2d at 180. Further, because “[t]here

was insufficient connection between the evidence and the crime with which

appellant was charged, . . . the cumulative prejudicial effect of the enumerated

evidence far outweighed its probative value.” Id. Based on these findings, the Court

reversed the trial court and ordered a new trial. Id.

Likewise, in Holman v. State, the Court considered a petition to review an

order denying post-conviction relief for ineffective assistance of counsel where the

petitioner’s trial attorney failed to object to the introduction of a handgun seized

from the petitioner’s residence that “was in no manner connected to the shooting

incident” for which the petitioner was charged. 381 S.C. 491, 674 S.E.2d 171

(2009). The Court reversed the trial court and granted a new trial upon finding that

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“the failure to object to this clearly inadmissible evidence was ineffective assistance

of counsel.” Id. at 493, 674 S.E.2d at 172. Citing McConnell, the Court observed

that counsel’s failure to object to the admission of the unrelated firearm resulted in

“[s]ubstantial, and easily avoidable, prejudice,” and further chided the State for

introducing the weapon in the first place. Id. (“We are troubled by the State’s effort

to admit the unrelated firearm in evidence.”).

These cases demonstrate that it is manifest error to admit into evidence

firearms unconnected to the crime charged. Owing to the prejudicial effect of such

evidence and this Court’s prior rulings on this issue, reversal is warranted on this

basis alone. And in this case introduction of these irrelevant weapons into evidence

was especially prejudicial because it served to confuse and mislead the jury into

believing one of the weapons about which the SLED firearms examiner could not

reach a conclusion was likely the murder weapon that the State in fact never

recovered.

3. The trial court erred by allowing the State to introduce gunshot residue
results of a raincoat into evidence when no evidence linked the raincoat
to Murdaugh.

Mushelle “Shelley” Smith, who was present when Alex visited his mother on

the night of the murders, testified that three days after Alex’s father’s funeral, Alex

came to his mother’s Almeda home early in the morning, changed vehicles, moved

a four-wheeler, and then came into the residence with a blue tarp. Trial Tr. 2106–

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17, 2122, 2125, 2138, 2151–54; Def.’s Exs. 86, 87. When Smith left the residence,

the blue tarp was spread out over a chair, and she never saw it again. Trial Tr.

2124:6–13.

In September 2021, SLED executed a search warrant at the Almeda property

and located a blue tarp in an upstairs closet with dishes wrapped in it. Trial Tr. 2155–

2162. The agents concluded that it did not have any evidentiary value and did not

conduct any analysis of it. Trial Tr. 2163. The agents then located and seized a blue

raincoat also in the same upstairs closet and delivered it to the SLED lab for testing.

There was gunshot residue on the interior portion of the blue raincoat. Trial Tr. 1934;

1938, 1951–52, 1959.

The State offered the blue raincoat and gunshot residue testing results as

evidence at trial. Murdaugh objected because Smith testified that she did not see

Murdaugh with the blue raincoat, that she had never seen the blue raincoat, and that

she was sure that Murdaugh was carrying a tarp, of the type one would place on a

car. Trial Tr. 2142:6–43:6. Nevertheless, the trial court overruled Murdaugh’s

objection and admitted both the blue raincoat and gunshot residue test results into

evidence. Trial Tr. 2187:5–91:6, 2229:3–40:8; 2466:13–80:12. The trial court

abused its discretion in doing so.

Despite Smith’s unequivocal testimony that the item she observed Murdaugh

carrying was not a blue rain jacket, but instead a blue tarp, the trial judge ruled that

117
it was for the jury to decide whether she saw a tarp or a raincoat. The trial judge

explained that the witness equivocated as to whether she observed Murdaugh with a

raincoat or tarp. Trial Tr. 2236–40.

But Smith was not equivocal: She was crystal clear that Murdaugh was

carrying a tarp. On direct examination, she testified that Murdaugh had “a blue tarp,

a blue something in his hand, something blue . . . like a tarp that they put on a car to

keep your car covered up.” Trial Tr. 2109:3–21. Further, the State never showed

Smith the blue raincoat, not even during trial. Trial Tr. 2122:16–24. Instead, Smith

was shown a photograph of the blue raincoat balled up in the bottom of the closet,

where no one could readily see that it was a raincoat. Trial Tr. 2112:2–17; State’s

Ex. 411. In fact, Smith had never looked in any upstairs closets, did not even know

where the picture was taken, and had only been upstairs twice in three years working

at Mrs. Murdaugh’s home. Trial Tr. 2124:14–25:7.

On cross examination, Smith was shown an actual tarp, the type that would

cover a car, Trial Tr. 2123:1–8, Def.’s Ex. 86, and testified as follows:

Q. Is this the type of tarp that Mr. Murdaugh came into the Almeda
house on the day that we’re talking about?

A. Yes.
Q. A tarp like this that would maybe cover up a car, Is that right?

A. Yes.

Q. Any way to confuse this with a rain jacket?

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 A. No.
Trial Tr. 2123:6–15.

The trial court’s finding that a jury could infer that Smith saw a raincoat, rather

than a tarp is clearly erroneous. There is no mistaking that Smith testified she

observed Murdaugh with a tarp, not a raincoat. The trial court exacerbated this error

by permitting the State to introduce evidence that a significant amount of gunshot

residue was present on the raincoat.19

The State then argued in closing that Murdaugh disposed of the murder

weapons by wrapping them in the blue raincoat. Trial Tr. 5827:18–31:3 (“Gunshot

residue inside, inside the rain jacket, that blue type garment that Shelley said I saw

him carrying something like that. And he got rid of the guns and he’s hiding it there

for some reason. Thank goodness he did, and thank goodness for Shelley for

bringing that in. That’s what he disposed of the guns with.”). Trial Tr. 5830:23–

31:3. The jury never should have seen the blue raincoat or heard testimony about

gunshot residue located on it because there was no evidence that Murdaugh ever

possessed the raincoat. The trial court abused its discretion by admitting this

extremely harmful and prejudicial evidence without any testimony whatsoever

linking Murdaugh to the raincoat.

19
Gunshot residue is inorganic, not biodegradable, and therefore there is no way to
determine when gunshot residue was transferred to the raincoat—the transfer could
have occurred many years ago. Trial Tr. 2489–90.

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 CONCLUSION

Any person accused of a crime—even Alex Murdaugh—has a constitutional

right to a fair trial. When a fair trial is denied, he is entitled to a new, fair trial—he

is not required to earn it by proving he would have been acquitted had he been given

a fair trial the first time. Judges’ opinions regarding the strength of the State’s

evidence against the accused are not a substitute for the presentation of that evidence

at a fair trial. The Court should therefore reverse the trial court’s denial of

Murdaugh’s motion for a new trial and vacate his murder and firearms convictions.

Additionally, the Court should vacate Murdaugh’s convictions because the

improperly admitted evidence deprived Murdaugh of a fair trial and its consideration

by the jury was not harmless beyond a reasonable doubt.

s/Richard A. Harpootlian
Richard A. Harpootlian, SC Bar No. 2725
Phillip D. Barber, SC Bar No. 103421
Andrew R. Hand, SC Bar No. 101633
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street (29201)
Post Office Box 1090
Columbia, SC 29202
(803) 252-4848
rah@harpootlianlaw.com
pdb@harpootlianlaw.com
arh@harpootlianlaw.com

James M. Griffin, SC Bar No. 9995

Margaret N. Fox, SC Bar No. 76228
GRIFFIN HUMPHRIES LLC
8906 Two Notch Road, Suite 200 (29223)
Post Office Box 999

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 Columbia, South Carolina 29202
(803) 744-0800
jgriffin@griffinhumphries.com
mfox@griffinhumphries.com

Attorneys for Appellant Richard Alexander

Murdaugh

Columbia, South Carolina

December 10, 2024.

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