A man convicted of robbing and killing a Rock Hill teenager in 2009 will receive a new trial after the state Supreme Court said prosecutors improperly used an edited confession by one of his co-defendants without the accuser ever taking the stand.
That decision might change the way York County solicitors try murder cases now that they can no longer use redacted statements made by non-testifying co-defendants whose confessions implicate someone else. But 16th Circuit Solicitor Kevin Brackett says his office is working with the state Attorney General to decide if they will appeal the ruling to the U.S. Supreme Court.
In 2011, Davontay Darrell Henson, now 21, was convicted of murder, criminal conspiracy, possession of a firearm during a violent crime, and three counts of armed robbery in connection with the shooting death of Tyrone King, 18, in Rock Hill’s Sunset Park neighborhood. Circuit Court Judge John Hayes sentenced him to life without parole.
Earlier this month, Henson was sent back to York County, where he will be held in the detention center until preparations are made for a new trial, new defense attorney and new set of jurors.
At about 11 p.m. on Oct. 1, 2009, police said King was robbed and shot in the head with a rifle while on a porch on Byars Street. Kenny Cunningham was also shot in the leg, but later recovered. Within a week, three people – Donte Reid, Aileen Newman and Samantha Ervin – were arrested and charged in connection with the slaying.
Warrants had been issued for Henson, but he remained at large until authorities found him in Baltimore, Md., a year later.
According to statements Reid gave police, he and Henson plotted to rob King and two other men while they sat on the porch. Reid tried luring the would-be victims into the street, where Henson and Newman, armed with a rifle, waited. But the men did not leave the porch as planned.
After realizing their would-be victims were unarmed, Henson and Newman, prosecutors said, ran onto the porch and robbed the men of $25, a pack of cigarettes and two cellphones. As they walked away, Henson opened fire, hitting King in the head and Cunningham in the leg and foot, prosecutors said. The third victim dialed 911. Ervin sat in a car and served as the getaway driver.
Henson and Reid were tried together despite Henson’s objections that Reid would present “antagonistic” evidence against him and he would be unable to cross-examine Reid, who did not take the stand. To avoid prejudicing Henson, who also did not testify, prosecutors presented a redacted version of Reid’s confession that replaced references to Henson’s name with the pronouns “he,” “him” and “the guy,” according to court documents.
At trial, the two surviving victims, Maurice Jackson and Cunningham, testified that the man who robbed them spoke with a “Baltimore accent.” Ervin and Newman, who had both earlier pleaded guilty, testified and identified Henson as the shooter and a Baltimore resident. The police detective who took Reid’s statement that implicated “the guy” as the shooter read it aloud in court.
Once sentenced, Henson filed an appeal, arguing that his rights were violated because prosecutors introduced the redacted statement from Reid as evidence and Henson was unable to confront his accuser.
“What is common practice and has been for years and sustained by our court for years is to make a redaction that’s not too prejudicial,” said Deputy 16th Circuit Court Solicitor Willy Thompson. “The redaction we’ve always done... is put a pronoun in its place.” When the statements are recited in court, jurors are unaware that the other defendant’s name has been replaced with a pronoun.
“The frustrating thing about the opinion (is) it changes what we normally would do in a case like that,” he said. “If we want to use that co-defendant’s statement, we have to try them all separately. To do that, it’ll cause problems in some murder cases; it takes a lot of time, effort and money to bring a case like that to trial not to mention the victim’s family who has to suffer through multiple trials when they would (have been able) to go through one.”
But Miller Shealy, a former federal prosecutor and now a professor at the Charleston School of Law, says Supreme Court justices made their decision based on precedent established from court cases years ago, calling it “a straightforward application of Supreme Court precedent.”
In their ruling, the justices cite several cases that address statements made by co-defendants who were not testifying at trial. One of the cases, decided in South Carolina in 2009, upheld a defendant’s claims her rights were violated because a co-defendant’s statement included the word “her,” inferring that she was a guilty party though her name was not mentioned.
Henson’s defense attorneys used the 2009 case to argue against Reid’s confession being introduced, but Circuit Court Judge John Hayes upheld prosecutors’ stance that pronouns were permissible and had widely been used in other court jurisdictions, said Brackett. He also said a 2012 Supreme Court decision upheld a “neutral reference” used in place of a co-defendant’s name on a redacted confession.
Brackett called the confusion over the statements “one of those areas of the law in flux.” He said he has contacted the state Attorney General’s office, which is “weighing the option” of appealing the Henson case to the U.S. Supreme Court. Mark Powell, spokesman for the Attorney General’s office, confirmed that state prosecutors are reviewing the matter.
“It has always been problematic just to strike a name out,” Shealy said. “You can use a non-testifying co-defendant’s confession, but you must omit any reference to the co-defendant. Just deleting somebody’s name or leaving a pronoun is just another way of pointing the finger.”
In Henson’s case, judges wrote that pronouns still implicated Henson, absent of any other evidence placing him at the crime scene. They could not say Reid’s statements did not directly contribute to the verdict, the ruling shows, and they said no witnesses clearly identified the shooter, aside from the co-conspirators. Jackson and Cunningham were only able to identify the shooter as a black man with a Baltimore accent, “which matches Henson but is hardly overwhelming evidence,” court documents say.
No physical evidence linked Henson to the murder, judges wrote, and the only evidence implicating Henson outside of Reid’s statement was testimony by Ervin and Newman, both of whom “had an incentive to downplay their involvement and shift blame onto others.”
“I don’t think the court wants people convicted based on the statement a co-defendant (makes) while the co-defendant’s in the custody of police,” Shealy said.
Henson’s new trial date has not been scheduled and likely won’t be until prosecutors can find witnesses and ask the Baltimore police officer who found Henson in Maryland to testify in York County, Thompson said. A boon, Thompson said, is that prosecutors can now call on Reid to testify against Henson, which he can’t refuse since he’s convicted in the case. If the attorney general decides to appeal the Henson ruling, a new trial would be delayed, Brackett said.