State v. Heyward ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
James Heyward, Petitioner.
Appellate Case No. 2021-000122
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Richland County
R. Knox McMahon, Circuit Court Judge
Opinion No. 28182
Heard May 17, 2023 – Filed October 5, 2023
AFFIRMED AS MODIFIED
Madison Claire Healy, of K&L Gates LLP, of Raleigh;
Tara C. Sullivan and Jennifer Hess Thiem, of K&L Gates
LLP, of Charleston; Chief Appellate Defender Robert
Michael Dudek, of Columbia, all for Petitioner.
Attorney General Alan McCrory Wilson, Assistant
Attorney General William Joseph Maye, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, Solicitor Byron E.
Gipson, of Columbia, all for Respondent.
JUSTICE FEW: James Heyward was convicted of multiple crimes arising from the
armed robbery, brutal beating, and murder of Alice Tollison during the burglary of
her home. We granted Heyward's petition for a writ of certiorari to address the trial
court's refusal to remove Heyward's leg shackles during the striking of the jury, and
four evidentiary issues. As to three of the evidentiary issues—the authentication of
a fingerprint card, the admission of gruesome autopsy photographs, and the State's
use of Heyward's alias—we find the trial court acted within its discretion. As to the
other evidentiary issue—a firearms expert's testimony Heyward's pistol was
operational at the time of the crimes—we affirm the court of appeals' ruling that if
there was any error in the admission of that testimony it did not prejudice Heyward.
As to the leg shackles, we find the trial court erred in failing to exercise its discretion
in determining whether Heyward should be required to wear leg shackles in the
presence of the jury. However, because the State conclusively proved Heyward's
guilt through overwhelming evidence such that no rational conclusion could have
been reached other than Heyward is guilty of these crimes, we nevertheless affirm.
I. Facts and Procedural History
On Sunday October 11, 2015, Tollison and her granddaughter—then eight years
old—went to church, returned to Tollison's home, and began watching television.
When they heard a knock at the door, Tollison went to answer it. According to the
granddaughter's testimony at trial, the granddaughter stayed on the couch for a few
minutes before going into the kitchen "to get some of my toys." In the kitchen, she
found Tollison sitting at the table, and a man told the granddaughter to sit across the
table from her. The man was carrying a duffel bag, and the granddaughter saw him
take out a pistol, place it on the kitchen table, and demand money from Tollison.
After Tollison refused to give the man any money, the man strangled her
grandmother to unconsciousness while she watched. The man then ordered the
granddaughter to go into a closet and shut the door. While she was in the closet, she
heard the man rummaging through the house. He returned to the closet, moved her
to another room, and tied her arms and legs with electrical cords. The man
eventually left the house, taking with him items of Tollison's personal property. The
granddaughter testified she struggled to free herself for approximately thirty minutes
and fell asleep. When she awoke, she was able to loosen the cords enough to reach
the kitchen and call 9-1-1. When officers arrived, Tollison was dead.
Initially, officers investigating the crimes did not have a suspect. A fingerprint
expert with the Richland County Sheriff's Department—Investigator Trisha
Odom—found fingerprints at the crime scene and had them uploaded into the FBI's
Automated Fingerprint Identification System—commonly referred to as AFIS—to
search for a match. That search returned a match for James Heyward from a
fingerprint card entered into AFIS from New Jersey. Based on this match, officers
included a picture of Heyward in a photographic lineup shown to the granddaughter.
The granddaughter identified Heyward as the man who robbed and murdered her
grandmother.
Officers soon arrested Heyward for the crimes and took his fingerprints when they
booked him into jail. Investigator Odom compared fingerprints taken from him at
the time of his arrest—the "booking prints"—to the prints found at the crime scene.
From that comparison, Odom concluded the crime scene prints belonged to
Heyward. Odom testified she also compared the New Jersey prints to the booking
prints and crime scene prints and found all three sets of prints to match.
Other investigators collected DNA samples from scrapings underneath Tollison's
fingernails, the skin of her neck, and several other places. A DNA expert testified
the DNA under Tollison's fingernails and on her neck matched James Heyward to a
high degree of certainty.
During the striking of the jury, Heyward's counsel asked the trial court to remove
the shackles from around Heyward's lower legs because—counsel told the court—
the shackles were visible to the jury pool. The trial court responded without
discussion, "All right. That motion is denied."
The jury found Heyward guilty of murder, burglary in the first degree, armed
robbery, two counts of kidnapping, assault and battery in the first degree, pointing
and presenting a firearm, and unlawful possession of a firearm by a person convicted
of a crime of violence. The trial court sentenced Heyward to life in prison for both
murder and burglary, and an additional seventy years for the other crimes
consecutive to the life sentences. The court of appeals affirmed. State v. Heyward,
432 S.C. 296, 852 S.E.2d 452 (Ct. App. 2020).
II. Analysis
We will address the five substantive issues in this section and whether any error
warrants a new trial in section III.
A. Leg Shackles
"The law has long forbidden routine use of visible shackles during [a jury trial]; it
permits a State to shackle a criminal defendant only in the presence of a special
need." Deck v. Missouri, 544 U.S. 622, 626, 125 S. Ct. 2007, 2010, 161 L. Ed. 2d
953, 960 (2005); see also id. ("This rule has deep roots in the common law." (citing
4 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 317 (1769))). As
the Deck Court stated, "Visible shackling undermines the presumption of innocence
and the related fairness of the factfinding process." 544 U.S. at 630, 125 S. Ct. at
2013, 161 L. Ed. 2d at 963. Thus, American trial courts long ago "settled virtually
without exception on a basic rule embodying notions of fundamental fairness: Trial
courts may . . . shackle defendants . . . only if there is a particular reason to do so."
544 U.S. at 627, 125 S. Ct. at 2011, 161 L. Ed. 2d at 961; see also Holbrook v. Flynn,
475 U.S. 560, 568-69, 106 S. Ct. 1340, 1345-46, 89 L. Ed. 2d 525, 534 (1986)
(observing that "shackling" a defendant during a jury trial is an "inherently
prejudicial practice that . . . should be permitted only where justified by an essential
state interest specific to each trial"). 1
This Court addressed whether "the shackling of appellant violate[s] his
[constitutional] rights" in State v. Tucker, 320 S.C. 206, 209, 464 S.E.2d 105, 107
(1995). After first finding the trial court in that case articulated a valid reason for
requiring the defendant be shackled, we explained the trial court acted within its
discretion in balancing the prejudicial effects of shackling against the valid State
interest in having the defendant shackled. First, the trial court made sure the
defendant's shackles "were not visible to the jury." Id. We further explained,
Throughout the trial, the judge ensured appellant was
sitting at the defense table or on the stand prior to the jury's
entrances and exits into the courtroom.
The trial judge took precautions to minimize any prejudice
the restraints might have caused throughout the trial and
offered to give a curative instruction to explain appellant's
failure to stand when the judge entered and exited the
courtroom. Balancing the effect of the restraints and the
need for security, the trial judge did not err in restraining
appellant based upon appellant's prior history of escapes
and his resistance to arrest.
1
The court of appeals' statement "Heyward was not prejudiced" by being forced to
wear shackles in the presence of the jury is inconsistent with Holbrook, and thus
error. See Heyward, 432 S.C. at 325, 852 S.E.2d at 467 (stating "we find any error
in denying the motion to remove Heyward's shackles was harmless because
Heyward was not prejudiced"); see also infra note 6.
320 S.C. at 209-10, 464 S.E.2d at 107.
This careful balancing of the competing interests—and articulation of the balancing
on the record for the benefit of appellate courts—is necessary to honor the
defendant's due process rights whenever the State seeks to restrain the defendant in
the jury's presence. In United States v. Samuel, 431 F.2d 610 (4th Cir. 1970), the
United States Court of Appeals for the Fourth Circuit held, "Whenever unusual
visible security measures in jury cases are to be employed, we will require the district
judge to state for the record, out of the presence of the jury, the reasons therefor and
give counsel an opportunity to comment thereon, as well as to persuade him that
such measures are unnecessary." 431 F.2d at 615. Similarly, the Supreme Court of
the United States recognized the necessity the trial court "s[ee] the matter as one
calling for discretion," Deck, 544 U.S. at 634, 125 S. Ct. at 2015, 161 L. Ed. 2d at
966, and refused to sanction the "discretionary" use of shackles when the trial court
did not articulate a valid reason for them and "did [not] explain why, if shackles were
necessary, he chose not to provide for shackles that the jury could not see," 544 U.S.
at 634-35, 125 S. Ct. at 2015, 161 L. Ed. 2d at 966. This Court required balancing
of the competing interests in Tucker, stating, "The trial judge is to balance the
prejudicial effect of shackling with the considerations of courtroom decorum and
security." 320 S.C. at 209, 464 S.E.2d at 107 (citing Illinois v. Allen, 397 U.S. 337,
343, 90 S. Ct. 1057, 1061, 25 L. Ed. 2d 353, 359 (1970)).
Thus, a defendant in a criminal trial may not be required to wear handcuffs, leg
shackles, or other restraints in the presence of the jury unless the trial court makes
specific findings on the record as to the particular reasons the restraints are
necessary. If the court finds restraints are necessary, it must make every reasonable
effort to ensure the restraints are not visible to the jury. See Deck, 544 U.S. at 629,
125 S. Ct. at 2012, 161 L. Ed. 2d at 963 (stating the Due Process Clauses of "the
Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to
the jury absent a trial court determination, in the exercise of its discretion, that they
are justified by a state interest specific to a particular trial").
In this case, the trial court made no effort whatsoever to assess whether the shackles
were necessary, nor to ensure the jury could not see them. The trial court's failure
in this case to even consider Heyward's request was an abuse of discretion. See State
v. Hawes, 411 S.C. 188, 191, 767 S.E.2d 707, 708 (2015) ("A failure to exercise
discretion amounts to an abuse of that discretion." (quoting Samples v. Mitchell, 329
S.C. 105, 112, 495 S.E.2d 213, 216 (Ct. App. 1997))); Fontaine v. Peitz, 291 S.C.
536, 538, 354 S.E.2d 565, 566 (1987) ("When the trial judge is vested with
discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law
has occurred."). We address whether this error warrants a new trial in section III.
B. Firearms Expert Testimony
During her testimony at trial, the granddaughter described the pistol Heyward placed
on Tollison's kitchen table as "gold and rusty." One investigator testified a similar
pistol—"silver and black and rusty"—was recovered from the house where Heyward
was renting a room. Investigator David Collins was later called to testify whether
the pistol found at Heyward's home was capable of being fired at the time he
committed the crimes. Heyward objected, arguing whether the gun was operational
was not relevant. The trial court ruled whether the gun was operational and could
cause death or great bodily injury was relevant, using armed robbery and the pointing
and presenting charge as examples to explain its ruling.
We agree with the trial court that Investigator Collins' testimony was relevant in
Heyward's trial. Whether a pistol is capable of being fired is relevant, for example,
on a charge of burglary in the first degree. See S.C. Code Ann. § 16-11-311(A)(1)
(2015) (providing a person is guilty of burglary in the first degree if he enters a
dwelling without consent with intent to a commit a crime and is either "armed with
a deadly weapon" or "uses or threatens the use of a dangerous instrument"). The
operational capabilities of a firearm could also be relevant to malice—an element of
murder—which requires the State to prove the defendant acted with an intent to
harm. See, e.g., State v. Belcher, 385 S.C. 597, 609 n.5, 685 S.E.2d 802, 808 n.5
(2009) ("The term malice indicates a formed purpose and design to do a wrongful
act . . . ." (quoting State v. Fennell, 340 S.C. 266, 275 n.2, 531 S.E.2d 512, 517 n.2
(2000))).
On appeal to the court of appeals, however, the State argued only that the testimony
was relevant as to armed robbery, pointing and presenting a firearm, and malice.
The court of appeals did not address the malice argument, apparently because the
trial court had not specifically mentioned it among the examples it cited to illustrate
its ruling, but observed that neither armed robbery nor the crime of pointing and
presenting a firearm requires the weapon to be capable of being fired. Heyward, 432
S.C. at 316-18, 852 S.E.2d at 462-63; see S.C. Code Ann. § 16-11-330 (A) (2015)
(providing a person may be guilty of armed robbery "using a representation of a
deadly weapon"); S.C. Code Ann. § 16-23-410 (2015) (making it unlawful to point
either a loaded or unloaded firearm, indicating operability is not essential to the
crime). The State now concedes the testimony was not relevant to armed robbery or
pointing and presenting a firearm. The State did not argue to this Court the testimony
was relevant to burglary or malice. Thus, we accept the State's concession the
evidence was not relevant to the two crimes it argued. As we will explain in section
III, however, the admission of Investigator Collins' testimony—if error—did not
prejudice Heyward.
C. Fingerprint Card Authentication
Fingerprints found at a crime scene can be very important evidence in a criminal
trial, and the State can use them to make a convincing connection between a suspect
and the crime. The theory behind the connection is obvious—if the State can prove
whose fingerprints they are, the State has proven the person was present at the scene
of the crime and may have proven (depending on the circumstances) who committed
the crime. The connection depends, however, on the State's ability to prove whose
prints they are. To do this, a fingerprint expert must compare the unknown prints
from the crime scene to another set of prints the expert knows belong to a particular
suspect. These are typically called "known prints," and that term is defined—
according to Investigator Odom's testimony at trial—as "a full set of ten fingerprints
taken from a known source." When the comparison of the unknown crime-scene
prints and the known prints demonstrates both sets of prints belong to the same
person, the State has established the connection.
Heyward's objection at trial and his argument before this Court are based on his
contention the State offered the New Jersey fingerprint card as the "known prints"
in Investigator Odom's comparison analysis. Thus, Heyward argues, the State was
required to meet the authentication requirements set forth in State v. Rich, 293 S.C.
172, 173-74, 359 S.E.2d 281, 282 (1987), as "clarified" in State v. Anderson, 386
S.C. 120, 128, 687 S.E.2d 35, 39 (2009). As we will explain, however, this case is
different from Rich and Anderson on two important points. First, the "known prints"
in this case are the booking prints taken from Heyward when he was arrested, so the
State was not required to rely only on a fingerprint card on file at a local law
enforcement agency or on AFIS as was the case in Rich and Anderson. 2 Second, the
2
In both Anderson and Rich, the State did not use post-arrest ("booking")
fingerprints to prove the fingerprints from the crime scene belonged to the defendant.
Rather, the State's expert compared the crime-scene prints with a fingerprint card on
file at the South Carolina Law Enforcement Division (SLED) to prove the crime-
scene prints belonged to the defendant. To make this comparison, the State was
required to authenticate the SLED fingerprint cards as "known prints." See
Anderson, 386 S.C. at 124, 687 S.E.2d at 37 (summarizing the testimony of the
Lieutenant "in charge of the crime information center at SLED" as to when the
State authenticated the New Jersey fingerprint card through Odom's comparison of
that card to the known booking prints card, an option not available to the State in
Rich or Anderson because in those cases there were no booking prints. See Rule
901(b)(3), SCRE (stating "the following are examples of authentication . . .
conforming with the requirements of this rule: (3) Comparison by Trier or Expert
Witness. Comparison . . . by expert witnesses with specimens which have been
authenticated").
As to the first point, the following dates are important. The crimes occurred on
Sunday, October 11. Odom had the crime-scene prints uploaded into AFIS on
October 12 and promptly received back the New Jersey fingerprint card bearing
Heyward's name. Odom compared the unknown crime-scene prints to the New
Jersey prints the same day and concluded both sets of prints belonged to the same
person. Based in part on Odom's conclusion, investigators presented the
photographic lineup to the granddaughter later on October 12. The granddaughter
identified Heyward as the man she watched strangle her grandmother. Officers
arrested Heyward and took the booking prints on October 13. Odom compared the
crime-scene prints to the booking prints on October 16 and again concluded the
crime-scene prints belonged to Heyward.
During Odom's testimony at trial, Heyward objected to statements Odom made in
three reports prepared on October 12 in which she indicated the crime-scene prints
and the New Jersey prints were a match. After the trial court excused the jury to
hear the objection, Heyward argued, "Judge, the analysis and the evidence that they
are about to bring into the record is that the items analyzed on the 12th were
compared against a . . . print card [Odom] received from the AFIS system." Here,
Heyward correctly argued the October 12 comparison could not make the necessary
connection to show his presence at the crime scene unless the State authenticated the
New Jersey fingerprint card as known prints by proving the fingerprints on the New
Jersey card were Heyward's prints, as we found the State failed to do in Rich and
succeeded doing in Anderson. See Rich, 293 S.C. at 173, 359 S.E.2d at 282 (finding
the State did not prove the prints on the card belonged to the defendant); Anderson,
386 S.C. at 128-32, 687 S.E.2d at 39-41 (stating, "we find . . . the State presented
defendant's fingerprint card was made and how it was stored to demonstrate the
prints on the card belonged to the defendant); Rich, 293 S.C. at 173, 359 S.E.2d at
281 (stating the fingerprint expert used an "inked card bearing a name and signature"
from SLED's files to compare to the crime-scene prints).
sufficient evidence to authenticate the ten-print card," and then discussing four
subsections of Rule 901, SCRE, the State satisfied).
The State then made authenticating the New Jersey fingerprint card as Heyward's
known prints unnecessary, however, by having Investigator Odom explain to the
trial court—still outside the jury's presence—that her opinion the crime-scene prints
belong to Heyward was based on her comparison of the crime-scene prints and the
booking prints, not based only on the comparison she originally made to the New
Jersey prints.
Solicitor: In doing your analysis, did you only rely on the card
originally that came from AFIS on the 12th or did
you rely on his booking prints as well?
Odom: The first three reports, which were all written on the
12th, I obviously used the only card we had, which
was the one generated through [AFIS]. When I did
the kind of shoring up of everything else and did the
remainder of the comparisons, I then had that card
that had been rolled at [the jail].
Solicitor: So when you did your final comparison on the -- I
believe it was the 16th -- you used both the original
card obtained from AFIS and the South Carolina
card obtained at booking?
Odom: Yes.
This is the first point that distinguishes this case from Rich and Anderson. Having
thus established that the crime-scene prints belonged to Heyward by comparing the
crime-scene prints to Heyward's booking prints, it was unnecessary for the State to
offer the October 12 comparison results into evidence, and unnecessary for Odom
to discuss the New Jersey fingerprint card, to make the connection between the
known booking prints and the crime-scene prints.
What is required to authenticate a particular piece of evidence is necessarily
determined by what the proponent claims the evidence is. "The requirement of
authentication . . . as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims." Rule 901(a), SCRE (emphasis added). Unlike in Anderson and Rich, the
State in this case did not need to claim the New Jersey fingerprint card was the
"known prints" component of Investigator Odom's final October 16 comparison
analysis. Rather, it appears the State was using the New Jersey card to explain to
the jury how Heyward became a suspect. In other words, the State claimed the New
Jersey fingerprint card, with Heyward's name on it, was the thing that made Heyward
a suspect and led officers to put his picture in the photographic lineup presented to
the granddaughter. Focusing on the authentication requirement the State prove the
New Jersey card is what the State claimed it is, the authentication requirement would
be satisfied in this case simply by having Odom testify "this is the fingerprint card I
received back from AFIS, based on which we developed Heyward as a suspect."
That testimony by itself would be sufficient for the trial court to find the card was
what the State claimed, and thus that it was properly authenticated.
Even so, the State authenticated the New Jersey fingerprint card as illustrated in Rule
901(b)(3) when Odom testified she compared the New Jersey card to the booking
prints and both sets of prints were made by the same person. Thus, the trial court
acted within its discretion to admit the New Jersey fingerprint card as properly
authenticated.
D. Autopsy Photos
The State called Dr. Amy Durso—the pathologist who conducted Tollison's
autopsy—as an expert witness. Dr. Durso testified the cause of Tollison's death was
"strangulation." In addition, she explained "all of the violence, including all of the
bruising and contusions, fractures, not only to her neck, but also her head and her
left arm." She began her explanation by describing the injuries apparent from her
exterior examination of Tollison's body. She stated, for example,
So the things that really stood out to me were the findings
mostly around her neck. She had a [ligature] furrow where
it looked like she had been strangled with some kind of –
something wrapped around her neck. She had bruises and
abrasions around her neck. She had what we call
"petechial hemorrhages" around her face and her eyes, and
she had other bruises and injuries primarily involving her
left arm.
She then explained that "petechial hemorrhages" are "the breaking of tiny blood
vessels . . . below the skin surface or within the sclera of the eyes, the white parts of
your eyes," and those result "often in the more violent strangulations." She also
described a "bruise on the underside of her chin," which she explained "is a very
common finding in strangulations."
After describing the injuries she could see from her external examination, Dr. Durso
began to explain what she found on the inside of Tollison's body. She explained the
work she did in Tollison's torso and neck area and then turned to her work on
Tollison's head after she "reflected" the scalp.3 She stated,
At that point, we realized that she had multiple bruises
around her head, not just to one surface, but . . . to at least
four different planes, which is not – it can't just be from a
fall. You know, there had to be some kind of multiple
blunt force injuries.
When asked, "[W]hen you did the external exam, were you able to see those injuries
or do they only manifest internally," Dr. Durso answered essentially that she could
see the head injuries only after reflecting the scalp. At this point, the State offered
two gruesome autopsy photographs that showed what Tollison's head looked like
after Dr. Durso reflected the scalp. The photos showed the inside of Tollison's scalp
and the tissue normally covered by the scalp. Heyward objected pursuant to Rule
403, SCRE, and the trial court excused the jury from the courtroom.
To begin the hearing that followed, the trial court asked the State to proffer Dr.
Durso's testimony regarding the photos.
Solicitor: Dr. Durso, when you reflected the scalp back and
noticed these injuries, please tell the Court what
significance they had in your ultimate conclusions
and in the performance of this autopsy?
Dr. Durso: So it demonstrates that there was a struggle and that
there – it was a violent death, the fact that her head
had to have been struck on multiple different planes,
not just one from a terminal fall, but it actually
demonstrates that there was more than just a
3
Dr. Durso explained "reflecting" the scalp begins "by making the incision on the
back of the head" and pulling the scalp forward over the face to expose the inside of
the scalp and the tissue normally covered by the scalp.
strangulation, that her head had been struck on
multiple different areas.
Solicitor: And are these injuries part of the cause of death in
this case?
Dr. Durso: It contributes to it, yes.
Dr. Durso then testified the two photos—which she called "the best examples that
were gathered at the autopsy"—were "necessary" to assist her "in explaining these
injuries to the jury and the cause of death."
After the proffer, the trial court heard arguments from Heyward and the State on
Heyward's Rule 403 objection. See Rule 403, SCRE ("Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice . . . ."). The trial court then put its analysis of the objection on the
record, beginning with its assessment of the probative value of the photographs.
After summarizing Dr. Durso's testimony during the proffer, the trial court found the
photographs were "corroborative of the testimony that has been previously presented
. . . [and] corroborative of the testimony of Dr. Durso." The court stated "the
probative value is high."
Turning to unfair prejudice, this Court has consistently recognized since at least
1986 that gruesome autopsy photographs carry the inherent tendency to cause an
emotional reaction on the part of the jury. See, e.g., State v. Middleton, 288 S.C. 21,
24, 339 S.E.2d 692, 693 (1986) (explaining autopsy photographs similar to the ones
at issue in this case have potential "to arouse the sympathies and prejudices of the
jury"). We recently discussed a long line of our cases in which we criticized the
casual admission of gruesome autopsy photographs because of the emotional
reaction they tend to cause. State v. Nelson, ___ S.C. ___, 891 S.E.2d 508, 511-13
(2023). See also State v. Torres, 390 S.C. 618, 624, 703 S.E.2d 226, 229 (2010)
("Today, we strongly encourage all solicitors to refrain from pushing the envelope
on admissibility in order to gain a victory which, in all likelihood, was already
assured because of other substantial evidence in the case."). This potential for an
emotional reaction is the essence of the danger of unfair prejudice. See State v.
Jones, 440 S.C. 214, 259, 891 S.E.2d 347, 371 (2023) (stating "photographs are
unfairly prejudicial if they 'create a "tendency to suggest a decision on an improper
basis, commonly, though not necessarily, an emotional one"'" (quoting State v.
Franklin, 318 S.C. 47, 55, 456 S.E.2d 357, 361 (1995))); see also Old Chief v. United
States, 519 U.S. 172, 180, 117 S. Ct. 644, 650, 136 L. Ed. 2d 574, 587-88 (1997)
("The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of
some concededly relevant evidence to lure the factfinder into declaring guilt on a
ground different from proof specific to the offense charged."). In every case in
which the State seeks to introduce gruesome autopsy photographs, therefore, the trial
court must acknowledge the significant danger that the photos will cause unfair
prejudice.4
In two recent cases—Jones and Nelson—we found the trial court erred in admitting
gruesome photos because the inherent tendency of the photos to cause unfair
prejudice substantially outweighed what we found was very little probative value.
In Nelson, for example, we found, "Under a Rule 403, SCRE, analysis, the photos
had limited probative value." ___ S.C. at ___, 891 S.E.2d at 514. Our finding in
Nelson of limited probative value was based on two important observations we made
after a careful study of the record of the trial. First, in defense counsel's opening
statement to the jury in that case, he admitted the truth of every potentially disputed
fact except who committed the crime. ___ S.C. at ___, 891 S.E.2d at 510. "We
disagree about one thing," defense counsel told the jury, "Who killed her." Id.
Primarily because of this concession, we found "the information gained from the
autopsy photos was not in question," and the "facts evidenced by the autopsy photos"
were "undisputed." ___ S.C. at ___, 891 S.E.2d at 513. Second, we found "these
photos provide no insight as to who killed Victim." ___ S.C. at ___, 891 S.E.2d at
514. "Thus," we stated, "we do not believe the autopsy photos corroborate Daniel's
testimony that Carmie killed Victim." Id.
This case is different from Nelson on both points. Here, Heyward conceded nothing
in his trial. As to the head injuries Dr. Durso testified were shown by the autopsy
photos, Heyward specifically denied Tollison suffered those injuries during the
crime sequence. In his argument to the trial court that the photos should be excluded,
Heyward's counsel stated, even after hearing Dr. Durso's testimony to the contrary,
"Again, this is just rabid speculation. There is no proof that those injuries happened
during the course of the struggle which, again, unfortunately ended Ms. Tollison's
4
The court of appeals stated "we find [the photographs] were not unduly
prejudicial." Heyward, 432 S.C. at 323, 852 S.E.2d at 466. As we have explained
here and in previous cases, however, and as Justice Kittredge explains in his
concurring opinion, gruesome autopsy photographs always carry an inherent danger
of unfair prejudice. The question, therefore, is not whether autopsy photographs
pose a danger of unfair prejudice, but whether that danger substantially outweighs
the probative value under Rule 403.
life." Counsel then suggested the head injuries occurred in the very manner Dr.
Durso testified the photos refute—that the injuries occurred from a fall. This leads
to the second point. If Heyward had accepted Dr. Durso's finding the head injuries
did not occur during a fall, or even if he had not specifically challenged the finding,
her testimony might not have needed corroboration. In either circumstance, we
would likely agree with Justice Kittredge's conclusion the photos had little probative
value. Given counsel's specific challenge to the finding, however, it made perfect
sense for the trial court to find "high" probative value in the extent to which the
photos corroborate Dr. Durso's testimony.
It is important here that the granddaughter—the only eyewitness to the crimes—did
not testify Heyward beat Tollison in the head. Thus, the only evidence Tollison
suffered "multiple blunt force injuries" to her head was Dr. Durso's testimony from
her observations after reflecting Tollison's scalp and the autopsy photographs
corroborating Dr. Durso's testimony. The State stresses this "gap in the testimony
from the granddaughter" in its brief as support for the probative value of the autopsy
photographs and points out that in her closing argument the solicitor argued
Heyward returned to Tollison after he put the granddaughter in the closet "to finish
her off." This would explain why the granddaughter did not see Heyward hit
Tollison in the head. Also, while the head injuries were not the direct cause of
Tollison's death, these injuries independently support Heyward's conviction for
assault and battery in the first degree.
Rule 403 requires the trial court to balance the probative value of the evidence
against the danger of unfair prejudice. In this case, the trial court engaged in that
balancing and placed its reasoning on the record. When a trial court finds the
evidence has "high" probative value and—importantly—when we find evidence in
the record that logically supports the trial court's finding, our discretionary standard
of review requires that we affirm.
In recent years, this Court has scrutinized the admission of gruesome autopsy
photographs more and more closely. We will continue to do so. It remains true,
however, that when the trial court actually exercises its discretion in balancing the
inherent danger of unfair prejudice posed by these photographs against "high"
probative value, and puts its reasoning on the record for the appellate court to
review, 5 the trial court's ruling that the danger of unfair prejudice does not
5
Dr. Durso's testimony the photographs were "necessary" for her explanation to the
jury of the head injuries is not insignificant, but the testimony is by no means
dispositive of the Rule 403 objection. Rather, whether the trial court's ruling is
substantially outweigh the probative value is a decision that we will almost always
find within the trial court's discretion. See Morris v. BB&T Corp., 438 S.C. 582,
587, 885 S.E.2d 394, 397 (2023) ("The exercise of discretion is then to follow a
thought process that begins with the trial court's clear understanding of the applicable
law, continues with the court's sound analysis of the situation before it in light of the
law, and ends with the trial court's ruling that follows the law and is supported by
the facts and circumstances. The trial court's recognition of its responsibility to
exercise discretion will be apparent when the record indicates the court followed
such a thought process." (citations omitted)).
E. Heyward's Alias
We affirm the court of appeals as to this issue for the reasons it explained, Heyward,
432 S.C. at 318-20, 852 S.E.2d at 463-64, and pursuant to Rule 220(b), SCACR, and
the following authorities: Rule 403, SCRE ("[E]vidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice . . . .");
Vasquez v. State, 388 S.C. 447, 459, 698 S.E.2d 561, 567 (2010) (describing
circumstances in which arguments meant to arouse religious animosity are
prohibited).
III. Harmless Error
We have repeatedly observed we will not reverse a criminal conviction for the
erroneous admission of evidence unless the defendant shows on appeal the error was
prejudicial. See, e.g., State v. Byers, 392 S.C. 438, 444, 710 S.E.2d 55, 58 (2011)
("To warrant reversal based on the wrongful admission of evidence, the complaining
party must prove resulting prejudice."). In this case, Heyward was convicted of
murder by violent strangulation, burglary in the first degree, armed robbery, two
within its discretion is determined by the trial court's analysis, as reflected on the
record. This is another point on which this case differs from Nelson. In that case,
as far as we can tell from the record, the trial court simply relied on the testimony of
the pathologist who stated, according to the trial court, "it would help him show the
jury the cause of death." ___ S.C. at ___, 891 S.E.2d at 510. The record in Nelson
contains no other analysis by the trial court. In this case, on the other hand—in
remarkable contrast to the lack of analysis on the shackling issue—the trial court did
put its own analysis on the record, noted the importance of considering the particular
crimes being tried and their elements, and stated the photographs "indicate[] a
struggle, a violent death, multiple injuries, . . . more than just strangulation."
counts of kidnapping, assault and battery in the first degree, pointing and presenting
a firearm, and unlawful possession of a firearm by a person convicted of a crime of
violence. The evidence showed Heyward not only strangled Tollison to death but
also severely beat her about her head and body, and he tied up a child victim with
electrical cords and kept her restrained in a closet while he rummaged around the
house looking for items to steal. In this case, the fact a witness testified the pistol
Heyward used to accomplish the crimes was operational in the sense that it was
capable of firing a bullet could not possibly have had any impact on the outcome of
the trial. We find any error in the admission of Investigator Collins' testimony was
harmless beyond a reasonable doubt because it could not possibly have prejudiced
Heyward. See State v. Reyes, 432 S.C. 394, 405–06, 853 S.E.2d 334, 340 (2020)
("Some errors—when considered in the context of the facts of a particular case—are
so insignificant and inconsequential they do not require reversal of a conviction.").
Visible shackles on a defendant, however, are "inherently prejudicial," and thus,
when "a court, without adequate justification, orders the defendant to wear shackles
that will be seen by the jury, the defendant need not demonstrate actual prejudice to
make out a due process violation." Deck, 544 U.S. at 635, 125 S. Ct. at 2015, 161
L. Ed. 2d at 966 (first quoting Holbrook, 475 U.S. at 568, 106 S. Ct. at 1345, 89 L.
Ed. 2d at 534). Rather, the error requires reversal unless the State "prove[s] 'beyond
a reasonable doubt that the [shackling] error complained of did not contribute to the
verdict obtained.'" Id. (first alteration added) (quoting Chapman v. California, 386
U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967)).
We find the State did that in this case by conclusively proving Heyward's guilt with
other overwhelming evidence such that no other rational conclusion could be
reached except that he is guilty of each crime. Reyes, 432 S.C. at 406, 853 S.E.2d
at 340. We have already recounted much of the evidence on which we rely to reach
this conclusion, including—most notably—the fact Heyward's DNA was found
under Tollison's fingernails and on her neck. The State's DNA expert testified "the
frequency of seeing this [DNA] profile in . . . the African-American population [is]
approximately one in 21,000,000,000,000,000,000. We also rely on the fact
Heyward's fingerprints were found at the crime scene. As context for this DNA and
fingerprint evidence, there is no evidence Heyward had ever been inside Tollison's
house, nor that Heyward had any other contact with Tollison that could have led to
his DNA being under her fingernails. The only other times Heyward and Tollison
ever met were within one week before the crimes when, first, Tollison stopped
briefly by the home of Mattie Canzater—where Heyward rented a room—to drop
off yard sale signs, and second, two days before the crimes when Canzater asked
Heyward for help retrieving tables Tollison offered to loan Canzater for use at the
yard sale. Heyward provided the help, but did not go inside Tollison's home. The
court of appeals discussed other evidence that supports our conclusion no other
rational conclusion could be reached except that Heyward is guilty. Heyward, 432
S.C. at 318, 852 S.E.2d at 463.
In light of this overwhelming evidence of Heyward's guilt, we find the trial court's
error in shackling him in the presence of the jury was harmless error beyond any
reasonable doubt.6
IV. Conclusion
For the reasons stated above, we affirm Heyward's convictions.
AFFIRMED AS MODIFIED.
JAMES, J. and Acting Justices Kaye G. Hearn and Stephanie P. McDonald,
concur. KITTREDGE, Acting Chief Justice, concurring in a separate opinion.
6
The State argues the error is harmless for the separate reasons "nothing in the record
indicates that any juror could or did see his shackles" and "the shackles were
removed [after the jury was sworn] for [the] trial." We do not accept this argument,
nor do we agree with the portion of the court of appeals' opinion that appears to
accept it. See Heyward, 432 S.C. at 325-27, 852 S.E.2d at 467-68 (discussing State
v. Johnson, 422 S.C. 439, 458, 812 S.E.2d 739, 749 (Ct. App. 2018), and other cases
distinguishable from this one). When Heyward's counsel raised the issue by asking
the shackles be removed, it was the trial court's responsibility—as explained
above—to justify the shackling as in some legitimate State interest, and if justified,
to make every reasonable effort to ensure the shackles were not visible to the jury.
The reason "nothing in the record indicates" the jury could see the shackles is the
trial court refused to fulfill this responsibility. We will not find harmless error on
this basis.
ACTING CHIEF JUSTICE KITTREDGE: I concur in result. I join Justice Few's
well-reasoned majority opinion, with one exception. I respectfully disagree with the
majority's determination that the trial court did not abuse its discretion in admitting
the challenged autopsy photographs. Pathologist Dr. Amy Durso testified in great
detail as to the victim's additional injuries beyond the strangulation. Dr. Durso
graphically described the nature and extent of these additional injuries, which she
referred to as "multiple blunt force injuries." As stated in the majority opinion, "the
State offered two gruesome autopsy photographs that showed what [the victim's]
head looked like after Dr. Durso reflected the scalp." In my firm judgment, the trial
court erred in admitting the two gruesome autopsy photographs. Given the graphic
and detailed testimony of the pathologist, the horrific autopsy photographs were
unnecessary. See State v. Kornahrens, 290 S.C. 281, 288–89, 350 S.E.2d 180, 185
(1986) ("[P]hotographs of the murder victims should be excluded where the facts
they are intended to show have been fully established by competent testimony."). I
am convinced the photographs were intended for the sole purpose of arousing "the
sympathies and prejudices of the jury." See State v. Middleton, 288 S.C. 21, 24, 339
S.E.2d 692, 693 (1986). I find as a matter of law that the probative value of the
autopsy photographs here is substantially outweighed by the danger of unfair
prejudice. I nevertheless concur in result on the basis of harmless error, as
demonstrated in the majority opinion.
I add two observations. First, this Court has repeatedly cautioned restraint in the
admission of gruesome autopsy photographs due to their inherent tendency to evoke
an emotional reaction from the jury. I respectfully urge our state's fine prosecutors
and trial court judges to heed our admonition rather than rely on the possibility of an
appellate court rescuing a conviction on harmless error grounds. In doing so, I
harken back to a fundamental principle: "Prosecutors are ministers of justice and not
merely advocates." State v. Quattlebaum, 338 S.C. 441, 449, 527 S.E.2d 105, 109
(2000). They must ensure an accused is afforded his constitutional rights and that
any conviction is based on proper evidence admissible under the rule of law. See
Rule 3.8 cmt. 1, RPC, Rule 407, SCACR. Should a prosecutor instead push the
envelope and pursue a guilty verdict at all costs—for example, by seeking to
introduce dubious evidence designed to improperly inflame the emotions of the
jury—the prosecutor's actions fail to serve justice. See State v. Jones, 343 S.C. 562,
578, 541 S.E.2d 813, 822 (2001).
Second, returning to the case here, and in keeping with its past practices in similar
cases, the State at trial and on appeal sought to justify the admission of the autopsy
photographs largely on the basis that the gruesome photographs proved malice. 7
According to the State, the more horrific and gruesome autopsy photographs are, the
greater the malice. However, this reflects a fundamental misunderstanding of
malice.
Malice is a legal term of art that "indicates a wicked or depraved spirit intent on
doing wrong." State v. Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998). Malice
"signifies . . . a general malignant recklessness of the lives and safety of others."
State v. Mouzon, 231 S.C. 655, 662, 99 S.E.2d 672, 675–76 (1957) (quoting State v.
Heyward, 197 S.C. 371, ---, 15 S.E.2d 669, 671 (1941)). Thus, in the legal context,
malice connotes "a formed purpose and design to do a wrongful act under the
circumstances that exclude any legal right to do it." State v. Fennell, 340 S.C. 266,
275 n.2, 531 S.E.2d 512, 517 n.2 (2000) (citation omitted).
There are no degrees of malice—it either exists, or it does not. It follows, then, that
a "gruesome" murder does not necessarily contain a greater degree of malice than a
less violent murder. Take the following scenarios to illustrate this simple fact. In
the first scenario, Defendant A has no history with the victim but, after drinking too
much at a bar, gets into an argument with another bar patron and violently murders
him with a broken beer bottle. The murder scene is bloody and gruesome, as are the
autopsy photographs. In the second scenario, Defendant B slowly poisons and
ultimately murders a close family member over an extended period of time. The
presence of the poison is detected through testing of tissue samples, yet the autopsy
reveals no visible injuries. Malice exists in both scenarios, but no one with a
minimum understanding of the law would suggest Defendant A demonstrated
greater malice than Defendant B.
In this case, the solicitor relied primarily on the malice argument to justify the
admission of the autopsy photographs. The trial court followed suit in remarking
that the autopsy photographs were "essential in proving the necessary element such
as malice." The trial court further observed: "Courts and juries cannot be too
squeamish about looking at unpleasant things . . . especially when the truth is on
trial." I agree that "the truth is on trial," but the pursuit for truth must be done in a
manner that ensures a fair process. In law, the ends do not justify the means. In our
justice system, "the truth" is not the sole criteria for the admissibility of evidence,8
7
The majority opinion avoids reliance on the malice argument, instead articulating
its own (and more convincing) rationale for the admission of the photographs.
8
There are numerous examples where "the truth" is excluded from evidence,
including—among a host of other examples—evidence seized as a result of an
including autopsy photographs. To find otherwise would mean all autopsy
photographs must be admitted into evidence, for they are "the truth." We can do
better.
unlawful search and seizure; confessions to law enforcement obtained in violation
of constitutional rights; propensity evidence; and relevant (and perhaps truthful)
evidence for which the probative value is substantially outweighed by the danger of
unfair prejudice.