State v. Stewart Jerome Middleton ( 2023 )

The Supreme Court of South Carolina
The State, Respondent,
v.
Stewart Jerome Middleton, Petitioner.
Appellate Case No. 2020-001665
ORDER
After careful consideration of the petition for rehearing, the Court is unable to
discover that any material fact or principle of law has been either overlooked or
disregarded, and hence, there is no basis for granting a rehearing. Accordingly, the
petition for rehearing is denied. However, we withdraw the original opinion and
substitute the attached opinion changing the original opinion only in section III,
Harmless Error Analysis.
s/ John W. Kittredge A.C.J.
s/ John Cannon Few J.
s/ George C. James, Jr. J.
s/ James E. Lockemy A.J.
s/ Kaye G. Hearn A.J.
Columbia, South Carolina
September 20, 2023
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Stewart Jerome Middleton, Petitioner.
Appellate Case No. 2020-001665
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Charleston County
J. C. Nicholson Jr., Circuit Court Judge
Opinion No. 28142
Heard May 19, 2022 – Filed March 22, 2023
Re-Filed September 20, 2023
REVERSED AND REMANDED
Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Petitioner.
Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch Jr.,
of Columbia; Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.
JUSTICE FEW: At Stewart Jerome Middleton's trial for criminal sexual conduct
in the third degree, the State introduced a police detective's testimony that Middleton
was evasive in response to her attempts to get Middleton to come in for an interview.
The trial court admitted this testimony over Middleton's relevance objection. The
jury found Middleton guilty and the court of appeals affirmed. We hold the trial
court erred in finding the testimony relevant because the State did not establish a
nexus between Middleton's conduct and a consciousness of his guilt. We reverse
and remand for a new trial.
I. Background
On December 14, 2013, the victim hosted an office party at the Embassy Suites hotel
in North Charleston. Around 7:30 p.m., the victim asked a friend to help her back
to her hotel room because she was too intoxicated to stay at the party. Middleton—
the victim's coworker—arrived at the party around 9:00 p.m. At 10:20 p.m., the
friend and his wife went to check on the victim and noticed Middleton was following
them. When the friend opened the victim's hotel room using a key card the victim
had given him earlier, the victim jumped out of bed, naked. The friend, his wife,
and Middleton all left the room and got back onto the elevator. As the elevator doors
closed, according to the friend's testimony at trial, Middleton "jumped out" of the
elevator and the friend did not see him again. In the interview Middleton eventually
had with the detective, he claimed he saw the victim locked out of her room covered
in a towel and he left the elevator to help her. The friend testified he did not hear or
see the victim in the hallway and, as far as he knew, the victim was safe in her room.
Middleton then went to the front desk and asked for a key card for the victim's room,
telling the guest services manager, "I came to get a key for my girlfriend who's stuck
out of her room." The victim was not Middleton's girlfriend. At about 10:25 p.m.,
Middleton claimed in the interview with the detective, he let the victim into her room
and went in with her. Middleton stated they started kissing and eventually had
consensual sexual intercourse. The victim testified at trial she did not consent to
intercourse with Middleton and was incapable of consenting because she was so
intoxicated. Around 11:15 p.m., the guest services manager found the victim
crouched in an employee-only area of the hotel. The victim told the manager she
had been raped. The manager called the police, who were dispatched at 11:38 p.m.,
and then paramedics took the victim to the hospital.
During trial, the State asked the detective, "How many times did you schedule an
interview with him?," referring to Middleton. As the detective began her response,
"I think the first --," Middleton objected on relevance grounds. The trial court
overruled the objection without discussion. The detective continued,
First time I made contact with the defendant, I want to say
it was February 3rd. Don't quote me, around there, the 3rd,
4th. I know it took about 17 to 20 days for him to come
in. He didn't show for the first two. He would call after
the fact, or, like 24 hours later. Then -- because we were
having such a difficult time getting him to actually stick to
an appointment and come in, I told him, Go home. Look
at your schedule. Find a day that suits you and your place
of employment, and then call me and you tell me what day
you want to come in, and I'll accommodate -- whatever
day, whatever time, I'll accommodate you.
So he left city hall, and he never called me back. So I had
to reach out to him again. It was 12 or 13 days after not
hearing from him, and then we finally met on February
20th.
On cross-examination, defense counsel attempted to mitigate the effect of the
detective's testimony by asking if she experienced delays in interviewing other
witnesses in the case. After the detective conceded she "played some phone tag"
with one other witness, counsel stated, "Right, and so – it goes back to when you
were trying to get people in," and asked, "Sometimes they're not able to do that
immediately, are they?" The detective responded, "Your client is the only one who
was ducking and dodging me." Middleton did not object to this comment.
The jury convicted Middleton of criminal sexual conduct in the third degree, and the
trial court sentenced him to six years in prison, suspended upon service of six months
in prison and five years of probation. Middleton appealed, and the court of appeals
affirmed. State v. Middleton, Op. No. 2020-UP-271 (S.C. Ct. App. filed Sept. 30,
2020). We granted Middleton's petition for a writ of certiorari to address whether
the trial court acted within its discretion in admitting the detective's testimony about
Middleton's attempts to avoid coming in to see her for an interview.
II. Admissibility of the Testimony
We begin with the central premise of the law of evidence: "All relevant evidence is
admissible . . . ," and, "Evidence which is not relevant is not admissible." Rule 402,
SCRE. "'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.
The State argues the detective's testimony was relevant because it showed "the
process and direction of the investigation" and "the avoidance indicated a
consciousness of guilt." We begin with the latter point.
A. Consciousness of Guilt
In State v. McDowell, 266 S.C. 508, 224 S.E.2d 889 (1976), this Court stated, "As a
general rule, any guilty act, conduct, or statements on the part of the accused are
admissible as some evidence of consciousness of guilt." 266 S.C. at 515, 224 S.E.2d
at 892. In subsequent decisions, this Court and our court of appeals have clarified
that for such an act by a defendant to be relevant as "consciousness of guilt" under
Rule 401, "there [must be] a nexus between the [conduct] and the offense charged."
State v. Pagan, 369 S.C. 201, 209, 631 S.E.2d 262, 266 (2006) (citing State v.
Robinson, 360 S.C. 187, 195, 600 S.E.2d 100, 104 (Ct. App. 2004)). In State v.
Cartwright, 425 S.C. 81, 819 S.E.2d 756 (2018), we held there must be "an
unmistakable nexus . . . by clear and convincing evidence linking the [conduct] to a
guilty conscience derivative of the offense for which the defendant is on trial." 425
S.C. at 92, 819 S.E.2d at 762; see also State v. Martin, 403 S.C. 19, 28, 742 S.E.2d
42, 47 (Ct. App. 2013) (requiring "a nexus between the [conduct] and the offense
charged").
In Pagan, the conduct at issue was what we called "flight," 369 S.C. at 208-09, 631
S.E.2d at 265-66, and in Cartwright, the conduct was a suicide attempt, 425 S.C. at
90, 819 S.E.2d at 760. Our reasoning in those cases transcends their specific facts,
however, and applies to any case in which the State contends the defendant's guilty
act or evasive conduct is relevant because it shows a consciousness of guilt. See
Martin, 403 S.C. at 28, 742 S.E.2d at 46 (stating "because flight is merely one form
of evasive conduct, we find the . . . test used to determine the admissibility of flight
evidence is equally useful in determining the admissibility of evidence of other types
of evasive conduct"). Referring to our decision in McDowell, the Martin court
explained,
The rationale underlying the admissibility of flight
evidence, that "it is not to be supposed that one who is
innocent and conscious of that fact would flee," applies to
other forms of evasive conduct as well. The courts should
not suppose a person who knew he was innocent but under
suspicion would disguise himself, hide from the police, or
lie to officers investigating the crime of which he is
suspected. Accordingly, we find the test for determining
the admissibility of evidence concerning flight also applies
to evidence of evasive conduct.
403 S.C. at 29-30, 742 S.E.2d at 47 (internal citation omitted) (quoting State v.
Orozco, 392 S.C. 212, 220, 708 S.E.2d 227, 231 (Ct. App. 2011), overruled on other
grounds by State v. Stukes, 416 S.C. 493, 500 n.5, 787 S.E.2d 480, 483 n.5 (2016),
and abrogated by Cartwright, 425 S.C. at 91, 819 S.E.2d at 761).
In this case, therefore, we must consider whether the State established a nexus
between Middleton's conduct and his charge for criminal sexual conduct in the third
degree such that the conduct had "any tendency" to make Middleton's consciousness
of guilt "more probable . . . than it would be without the evidence." Rule 401, SCRE.
As our court of appeals stated in Martin, we consider the "chain of inferences leading
from evidence of [the defendant's conduct]" to determine whether the inferences
logically "lead to consciousness of guilt of the crime charged." 403 S.C. at 29, 742
S.E.2d at 47 (quoting United States v. Porter, 821 F.2d 968, 976 (4th Cir. 1987)).
We begin this inquiry by looking at the typical scenario in which courts have found
a defendant's conduct does in fact demonstrate a consciousness of guilt—flight. For
this typical scenario, we turn to Porter, a case relied on by our court of appeals in
Martin. In Porter, a federal Drug Enforcement Administration agent
testified . . . he was executing a search warrant at Porter's
residence in Charlotte, North Carolina, when Porter called
from Tennessee and the agent answered the phone. He
told Porter that a federal grand jury in Florida had indicted
him for importation and possession and that he had a
warrant for Porter's arrest. After the agent advised him to
turn himself in, Porter hung up. Porter remained a fugitive
until . . . more than a year later.
821 F.2d at 975.
The Fourth Circuit found the evidence of flight reasonably demonstrated Porter's
consciousness of guilt and was therefore properly admitted. 821 F.2d at 976. The
court stated, "The jury reasonably could find that he became a fugitive to escape any
prosecution for his numerous violations of the drug laws . . . ." Id. Our court of
appeals addressed this typical scenario in Robinson, stating, "Flight from
prosecution is admissible as evidence of guilt." 360 S.C. at 194, 600 S.E.2d at 104
(quoting State v. Pagan, 357 S.C. 132, 140, 591 S.E.2d 646, 650 (Ct. App. 2004),
aff'd as modified, 369 S.C. 201, 631 S.E.2d 262) (collecting South Carolina "flight"
cases). The Robinson court went on to caution, however, "the relevance of flight
evidence is premised on a nexus between the flight and the offense charged." 360
S.C. at 195, 600 S.E.2d at 104.
When we compare Middleton's conduct in this case with the typical scenario of
evasive conduct—flight—three differences stand out. First, in Porter, Robinson,
and the cases cited in Robinson, the fleeing suspect/defendant was aware of an
existing arrest warrant or indictment for his crimes. At the time the detective in this
case sought an interview with Middleton, however, he had not been indicted and
there was no warrant for his arrest. Rather, Middleton was free to refuse to meet
with the detective altogether if he so chose.
Second, in every other case in which our courts have considered evidence of
consciousness of guilt, the defendant's guilty act or evasive conduct was primarily
some form of action. See Cartwright, 425 S.C. at 91, 819 S.E.2d at 761 (attempting
suicide); State v. Edwards, 383 S.C. 66, 68, 678 S.E.2d 405, 406 (2009) (threatening
a victim); Martin, 403 S.C. at 25, 742 S.E.2d at 45 (lying to the police to conceal his
identity); State v. Crawford, 362 S.C. 627, 636, 608 S.E.2d 886, 891 (Ct. App. 2005)
(fleeing the scene of arrest); State v. Walker, 366 S.C. 643, 655, 623 S.E.2d 122, 128
(Ct. App. 2005) (fleeing residence after investigator requested defendant "stay at or
nearby his home"); Robinson, 360 S.C. at 190, 600 S.E.2d at 101 (fleeing from a
patrol car). In this case, Middleton's failure to show up for voluntary interview
appointments and his delay in giving a statement to the detective were primarily
inaction.
The State nevertheless argues Middleton's conduct was active: Middleton
intentionally scheduled two appointments with the detective knowing he would not
show up, all as an effort to hinder the investigation of his criminal activity. Here,
we are drawn back to the point we noted earlier that the trial court overruled
Middleton's objection "without discussion." This theory that Middleton's conduct
was active—had it been presented to the trial court—could have made a valid nexus,
but it must have been based on evidence and should have been subjected to the trial
court's exercise of discretion. With no discussion of this potential nexus at trial,
there is no basis to support the State's theory, just as there is nothing to support or
refute other "innocent" reasons Middleton may have had for missing the
appointments. Cf. Commonwealth v. Molina, 104 A.3d 430, 451 (Pa. 2014) ("[A]
defendant's silence in the face of police questioning is 'insolubly ambiguous' as it
could be indicative of a busy schedule, a distrust of authority, an unwillingness to
snitch, as much as it is indicative of guilt.").
Third, as our cases require, we must consider precisely how a particular piece of
evidence might show a defendant's consciousness of guilt. We look to see whether
the "chain of inferences leading from [the] evidence," Martin, 403 S.C. at 29, 742
S.E.2d at 47, shows "a guilty conscience derivative," Cartwright, 425 S.C. at 92, 819
S.E.2d at 762, of "the offense charged," Robinson, 360 S.C. at 195, 600 S.E.2d at
104 (emphasis removed). At the time of Middleton's interview—and presumably
beforehand as well—he did not contest he was with the victim and had intercourse
with her on the night of December 14. We can hypothesize several reasons
Middleton may have wanted to avoid discussing with the detective—or anyone—
even the innocent version of what happened the night of December 14. Perhaps he
wanted to keep his wife or a girlfriend from knowing about it, or he may simply have
been embarrassed that he had even consensual sex with a coworker. Middleton's
"guilt" depended not on whether he had sex with the victim, but on whether she
remained too intoxicated to consent to having sex at 10:25 p.m. and, if so, whether
Middleton knew or should have known that. See S.C. Code Ann. § 16-3-654(1)(b)
(2015) ("A person is guilty of criminal sexual conduct in the third degree if the actor
engages in sexual battery with the victim and if . . . [he] knows or has reason to know
that the victim is . . . mentally incapacitated[] or physically helpless . . . ."). It is
difficult to discern a nexus between Middleton's inaction in this case and a
consciousness that the victim was too drunk to consent to sex weeks earlier.
Considering these three points, we see a significant difference between a
suspect/defendant actively fleeing from authorities with knowledge of an arrest
warrant or indictment for what was clearly a crime—Porter, for example—and this
case. Here, Middleton did not flee, but avoided coming in for a voluntary interview
about a situation for which no arrest warrant or indictment existed and which—
according to his version of events—may not have even been a crime.
We have explained that to demonstrate the relevance of any type of evasive conduct
or guilty act, the State must show a nexus between the conduct and the defendant's
consciousness he is guilty of the specific crime. See Martin, 403 S.C. at 28-30, 742
S.E.2d at 46-47. For some types of such conduct, however, it is simply very difficult
for the State to make the required showing. See Cartwright, 425 S.C. at 97, 819
S.E.2d at 764 (Hearn, J., concurring) ("I do not, for example, find evidence of a
suicide attempt similar to evidence of flight or witness intimidation or other
incriminating behavior following the commission of a crime."). Middleton argued
in his brief that from merely the fact he avoided the detective under the
circumstances of this case, "it was unclear just what [he] morally or legally may have
been guilty of doing." We agree. As the Cartwright majority found regarding
evidence of attempted suicide, we find missing voluntary appointments to speak to
the police under these circumstances "is not easily analogized to evidence of guilt."
425 S.C. at 91, 819 S.E.2d at 761.1
Therefore, the detective's testimony Middleton missed two scheduled appointments
with her, she had "such a difficult time getting him to actually stick to an
appointment and come in," and he delayed seventeen to twenty days before meeting
with her for an interview was not relevant to show a consciousness of guilt.
B. Process and Direction of the Investigation
The State also argues the evidence was relevant to explain "the process and direction
of the investigation." It is widely recognized there can be a legitimate purpose for
explaining events that occurred or did not occur in the course of an investigation.
See, e.g., State v. Brown, 317 S.C. 55, 63, 451 S.E.2d 888, 894 (1994) (explaining
statements were not hearsay because they were offered "to explain why the officers
began their surveillance"). When it is important to do this, the evidence will be
relevant. In many cases, however, it is not at all important to explain the course of
the investigation. See, e.g., State v. King, 422 S.C. 47, 66-68, 810 S.E.2d 18, 28-29
(2017) (explaining that the course of the investigation is not always "relevant and
1
In Cartwright, because of the unique difficulties associated with evidence of
suicide, we imposed specific requirements for the admission of the evidence such as
"a hearing outside of the presence of the jury" in which the State must show "the
defendant was aware of the occurrence of the alleged crimes" and the trial court must
find "a clear and unmistakable nexus linking the suicide attempt to a guilty
conscience derivative of the offense" demonstrated "by clear and convincing
evidence." 425 S.C. at 91-92, 819 S.E.2d at 761-62. While we believe a hearing on
the admissibility of evidence of evasive conduct will usually be necessary, and the
trial court must find evidence to support the defendant's knowledge of the allegations
against him, we do not find it necessary here to impose a higher standard of proof as
we did in Cartwright.
probative" (citing Ruiz v. Commonwealth, 471 S.W.3d 675, 681 (Ky. 2015))). We
understand the potential importance of explaining to the jury why the detective
assigned to investigate a rape allegedly occurring on December 14 did not contact
the only suspect until February 3 and did not conduct an interview with him until
February 20. Such an explanation would logically begin, however, not with what
did not happen and why between February 3 and 20, but with why the detective did
not contact Middleton until February 3, over seven weeks after the crime was
reported. As the detective was not asked to explain this much-larger portion of the
delay—and made little effort on her own to explain it—we discount the importance
of explaining how any portion of the delay in the investigation was supposedly
attributable to Middleton.
The State's argument the testimony was relevant to explain the process and direction
of the investigation takes us back to the detective's "ducking and dodging" comment.
We have not previously discussed this comment as being inadmissible because—as
noted above—Middleton did not object. We do find the comment important,
however, in understanding whether the assistant solicitor genuinely sought, and the
detective genuinely offered, an explanation of the process and direction of the
investigation. First, the comment was not actually evidence of Middleton's conduct.
Rather, the detective used the terms "ducking and dodging" in a figurative sense to
characterize Middleton's actual conduct as evasive—a clearly improper and
inadmissible characterization. 2 Second, the comment demonstrates the detective
was not attempting to explain the process and direction of the investigation. At oral
argument before this Court, counsel for Middleton argued, "She blew us up. She
meant to hurt us, and she accomplished her mission." We agree. Rather than
showing an attempt to explain the investigation, we are convinced the detective's
only intent in giving even the testimony to which Middleton did object was to show
Middleton had engaged in evasive conduct. As we explained thoroughly, this type
of evidence is admissible only after the State has demonstrated the necessary nexus.
As the State failed to demonstrate the relevance of the detective's testimony, the trial
court acted outside of its discretion in overruling Middleton's relevance objection.
III. Harmless Error Analysis
2
In addition to the fact the State established no nexus between the conduct and a
consciousness of guilt, the detective's characterization of Middleton's conduct as
"ducking and dodging" was unsubstantiated guesswork disguised as the detective's
opinion as to Middleton's intent.
The State argues that even if the testimony should not have been admitted, the error
was harmless. The State first argues the error is harmless because other
overwhelming evidence of guilt made this error harmless beyond a reasonable doubt.
See State v. Reyes, 432 S.C. 394, 406, 853 S.E.2d 334, 340 (2020) (explaining that
error may be found harmless when "the 'defendant's guilt has been conclusively
proven . . . such that no other rational conclusion can be reached,'" or when there is
other "'overwhelming evidence' of a defendant's guilt" (omission in original) (first
quoting State v. Collins, 409 S.C. 524, 538, 763 S.E.2d 22, 29-30 (2014), then citing
State v. Kromah, 401 S.C. 340, 361-62, 737 S.E.2d 490, 501 (2013))). We disagree.
The State also argues the evidence had no prejudicial effect on Middleton because it
"was cumulative to more damaging testimony elicited by [Middleton] on cross-
examination." The State's argument is that the detective's "ducking and dodging"
comment during cross-examination was "more damaging" than the testimony she
gave on direct examination. While it is certainly true the "ducking and dodging"
comment was very damaging, it does not render the trial court's error harmless. As
we explained, the "ducking and dodging" comment was not evidence of Middleton's
conduct. There is no contention Middleton was literally "ducking" or "dodging" the
detective. Rather, the comment was a clearly improper and inadmissible
characterization of the fact Middleton did not keep two appointments for an
interview. Thus, the comment cannot be "cumulative" in the sense it rendered the
direct testimony not prejudicial. Rather, it made the prejudicial testimony from
direct more impactful by spinning Middleton's actual conduct as evasive when it was
not necessarily so. We reject the State's harmless error argument.
IV. Issue Preservation
The State makes a strong argument none of this is preserved for our review. The
State's argument is essentially that the question, "How many times did you schedule
an interview with him?" calls only for a harmless, numerical answer, and defense
counsel never objected to the testimony the detective gave later concerning the
details of Middleton's conduct. The State argues Middleton never made clear to the
trial court the reason he claimed the testimony was not relevant—that it was evidence
of consciousness of guilt.
We find the issue is preserved. In the simplest terms, Middleton made a timely
objection on the grounds of relevance, the evidence was not relevant, and the trial
court overruled the objection. See State v. Jones, 435 S.C. 138, 144, 866 S.E.2d 558,
561 (2021) (an issue is preserved for appellate review when a timely objection is
ruled upon by the trial court). Even at the initial objection, the trial court should
have realized this testimony was not relevant. First, if the "how many times"
question sought a harmless, numerical answer, the detective's start to her answer was
a clear indication that was not the answer she planned to provide.
Second, the "how many times" question clearly sought information regarding events
that occurred long after the alleged crime was over. As we explained, this post-event
conduct could have been relevant to establish a consciousness of guilt or it could
have been relevant to the course of the investigation. However, our courts have
cautioned against a trial court's casual acceptance of either basis for relevance. See
Pagan, 369 S.C. at 209, 631 S.E.2d at 266 (requiring a "nexus" for evidence of
"flight"); Martin, 403 S.C. at 28, 742 S.E.2d at 46 (stating "because flight is merely
one form of evasive conduct, we find the . . . test used to determine the admissibility
of flight evidence is equally useful in determining the admissibility of evidence of
other types of evasive conduct"); King, 422 S.C. at 67-68, 810 S.E.2d at 29(cautioning trial courts to not immediately accept the probative value of
"investigative information"). The State offered no other basis on which even the
numerical answer the solicitor's first question called for could be relevant. While
we are careful to acknowledge that any party is entitled to elicit general background
information regarding the testimony of any witness, this is not general background
information. Because the "how many times" question did not relate to the alleged
crime itself, and no other basis exists for the relevance of the information the
question would elicit, the trial court should have sustained the objection.3
V. Conclusion
We find the detective's testimony that Middleton missed two scheduled
appointments for an interview, she had "such a difficult time getting him to actually
stick to an appointment and come in," and he delayed seventeen to twenty days
before meeting with her was not relevant. The trial court should have sustained
Middleton's relevance objection. We reverse and remand for a new trial.
3
Optimally, when the detective began to provide details of Middleton's conduct
beyond a numerical answer to the "how many times" question, two things should
have happened. First, trial counsel should have asked for an opportunity to explain
the objection. Under other circumstances, trial counsel's failure to more clearly
explain the objection may render the issue not preserved. Second, the trial court
should have realized it erroneously overruled the initial relevance objection and
initiated a hearing outside the jury's presence. Nevertheless, under the circumstances
of this case, we find the issue is preserved.
REVERSED AND REMANDED.
KITTREDGE, Acting Chief Justice, JAMES, J., and Acting Justices James E.
Lockemy and Kaye G. Hearn, concur.