THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

The State, Respondent, 

v. 

Fabian Lamichael Green, Petitioner. 

Appellate Case No. 2019-001435 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Laurens County 

Donald B. Hocker, Circuit Court 

Opinion No. 28001 

Heard September 16, 2020 – Filed November 12, 2020 

AFFIRMED AS MODIFIED 

Appellant Defender Susan B. Hackett, of Columbia for 

Petitioner. 

Attorney General Alan Wilson, Chief Deputy Attorney 

General W. Jeffrey Young, Deputy Attorney General 

Donald J. Zelenka, Senior Assistant Deputy Attorney 

General Melody J. Brown, all of Columbia; Eighth 

Circuit Solicitor David M. Stumbo, of Greenwood; and 

Samuel M. Bailey, of Gilbert Law Firm, LLC, of 

Beaufort, all for Respondent. 
JUSTICE KITTREDGE: We granted a writ of certiorari to review the court of 

appeals' decision in State v. Green, 427 S.C. 223, 830 S.E.2d 711 (Ct. App. 2019). 

We affirm as modified. We refer to the excellent court of appeals' opinion for the 

facts and legal issues. Petitioner Fabian Green was convicted of murder and 

desecration of human remains. Two issues were presented on direct appeal—a 

challenge to (1) the trial court's Rule 901(b)(4), SCRE, authentication 

determination concerning social media posts, and (2) the trial court's denial of 

Petitioner's motion for a mistrial based on an alleged improper communication 

between a bailiff and a member of the jury. Finding no abuse of discretion by the 

trial court on either issue, the court of appeals affirmed. 

We have carefully reviewed Petitioner's challenges in light of the record and 

applicable law. For the reasons set forth by the court of appeals, we affirm the trial 

court's authentication determination and admission of the social media posts 

without further comment. 

We do wish, however, to clarify the court of appeals' analysis concerning the 

bailiff misconduct issue. Like the court of appeals, we recognize a criminal 

defendant's right to a fair and impartial jury. U.S. Const. amend. VI; S.C. Const. 

art. I, § 14. In the Sixth Amendment context, the Supreme Court of the United 

States has held that "any private communication, contact, or tampering . . . with a 

juror during a trial about the matter pending before the jury is . . . deemed 

presumptively prejudicial." Remmer v. United States, 347 U.S. 227, 229 (1954). 

The Court in Remmer concluded: "The presumption is not conclusive, but the 

burden rests heavily upon the Government to establish . . . that such contact with 

the juror was harmless to the defendant." Id. Our court of appeals found the 

"comments [by the bailiff] here triggered Remmer." Green, 427 S.C. at 236, 830 

S.E.2d at 717. We are not persuaded that the Remmer presumption of prejudice 

applied here. 

We readily agree with the court of appeals that the State "overthrew" any 

presumption of prejudice, if it applied. In this regard, we join the court of appeals 

in commending the trial court for its "deft handling of this issue." The trial court 

questioned each juror and the bailiff, which proved "there was no reasonable 

possibility the [bailiff's] comments influenced the verdict." Id. 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]." 347 U.S. at 228. The federal district court, without holding a 

hearing, denied the defendant's motion for a new trial. Id. at 229. 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]." Id. 

at 229–30. 

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 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. Here, the jury deliberated 

approximately four hours before reaching a verdict. The jury never indicated it 

was at an impasse. At some point in the deliberations, a juror asked the bailiff 

what would happen if the jury were not able to reach a verdict. The response by 

the bailiff, while inappropriate, did not rise to level of a violation of Petitioner's 

Sixth Amendment right to a fair and impartial jury. 

We recognize that bailiffs serve an important role in the conduct of jury trials. We 

further recognize that bailiffs must communicate with jurors. But those 

communications should be limited to procedure and logistics concerning jury 

service. Where a juror asks a bailiff a question that is of a substantive nature 

related in any manner to the case or the deliberative process, the bailiff should not 

comment except to request that the question be placed in writing so it can be 

delivered to the judge. While we decline to adopt the Remmer presumption of 

prejudice in every instance of an inappropriate bailiff communication to a juror, the 

occasion of this case presents an opportunity for our clerks of court and circuit 

judges to ensure that all bailiffs are properly trained. 

The decision of the court of appeals is 

AFFIRMED AS MODIFIED. 

BEATTY, C.J., HEARN, FEW and JAMES, JJ., concur.