State v. Brooks ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Gregory Lamont Brooks, Appellant.
Appellate Case No. 2016-002301
Appeal From Lexington County
Eugene C. Griffith, Jr., Circuit Court Judge
Opinion No. 5693
Heard October 14, 2019 – Filed November 20, 2019
AFFIRMED
Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General W. Jeffrey Young, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown, Senior Assistant
Deputy Attorney General William M. Blitch, Jr., and
Assistant Attorney General Samuel Marion Bailey, all of
Columbia; and Solicitor Samuel R. Hubbard, III, of
Lexington, for Respondent.
GEATHERS, J.: Appellant Gregory Lamont Brooks seeks reversal of his
convictions for murder and possession of a weapon during the commission of a
violent crime. Appellant argues the circuit court erred by instructing the jury that
malice may be inferred from the use of a deadly weapon because there was evidence
that could have reduced the murder charge to voluntary manslaughter and, therefore,
the instruction was confusing and prejudicial. Appellant also argues the circuit court
erred by excluding from evidence two photographs found on the cell phone of a bar
patron present at the shooting and in communication with a suspect because the
photographs, which depicted a gun, were relevant to Appellant's defense of third
party guilt. We affirm.
FACTS/PROCEDURAL HISTORY
In the early morning hours of February 2, 2014, Fred Moss, Brandon Ratliff,
and Andre Bunch visited the Cockpit Bar and Grill on Berryhill Road in Columbia.
Andre drove separately and met Fred and Brandon at the bar. Andre had to park his
car in the road because all of the spaces in the parking lot were taken. The three
friends separated after they arrived, and Fred began a conversation with a female
sitting at the bar.
Two or three minutes later, Fred noticed several people on the dance floor
looking at him. A man wearing a skull cap was held back by others as he tried to
approach Fred. Fred had the impression that he must have been speaking with
"somebody['s] girl." Then a young man with dreadlocks extending past his
shoulders approached Fred, "said something slick," and asked "What's up?" Fred
responded, "What's up?," and "things started escalating." Andre observed Fred and
several other people "fussing back and forth." Andre was concerned, so he briefly
talked with Fred and, separately, with Brandon, then went to close out his tab. As
Andre was paying his tab, he noticed a bouncer escorting Fred and Brandon out of
the bar. Andre walked outside approximately five minutes later.
The group of people arguing with Fred followed him and Brandon into the
parking lot.1 Brandon went to the driver's side of Fred's car, and Fred went to the
passenger's side and tried to open the door, but it was locked. Fred then noticed the
hostile group behind him. Fred adjusted his belt in an attempt to convey the
impression he was armed and to "scare them away," but he later testified that the
hostile group did not see that. Fred testified the man with the long dreadlocks and
1
Andre testified that all of the bar patrons were leaving at that time because the bar
was closing.
Appellant, who had shorter, shoulder-length dreadlocks, were displaying their guns,
pacing back and forth, and stating, "What's up now?" As soon as Fred saw that they
were armed, Fred raised his hands to show he was unarmed.2 Nevertheless,
Appellant unleashed a hail of gunfire toward Brandon and then Fred as Appellant
paced back and forth. Appellant then started shooting at Fred's car as he paced
backwards, approaching Rickena Knightner's parked car. Rickena, who had
previously met Appellant and knew him by the nickname "Dink," testified that as he
was approaching her car, she saw he had a gun and said, "[N]o, Dink, No, Dink."
Appellant responded, "Get down" while gesturing with his arm for her to stay out of
the way. After Appellant stopped firing his gun, he immediately ran to, and entered,
a car that had pulled up behind Rickena's car and fled the scene.
Fred began looking for Brandon and discovered him lying in the middle of the
road with blood on his chest. Andre, who had been walking to his car when he heard
the gunshots, realized Fred and Brandon might be in trouble, so he jumped in his car
and raced to Brandon's location. Andre placed Brandon in the back seat of his car
with Fred and rushed to Lexington Medical Center. Tragically, Brandon bled out on
the way to the hospital due to a bullet lacerating his heart.
Appellant was indicted for murder and possession of a weapon during the
commission of a violent crime. After the jury found Appellant guilty on both
charges, the circuit court sentenced Appellant to thirty-five years' imprisonment for
murder and five years' imprisonment for weapon possession, to be served
concurrently. This appeal followed.
ISSUES ON APPEAL
1. Did the circuit court err by charging the jury that malice may be inferred from
the use of a deadly weapon?
2. Was the implied malice jury charge harmless beyond a reasonable doubt?
3. Did the circuit court abuse its discretion by excluding the two gun photographs
from evidence?
2
At trial, Fred testified during direct examination, "I was standing there with my
hands like this (indicating.)." On cross examination, Fred testified, "I had my hands
up because they had the real thing. I'm over here playing[,] and they had the real
thing[,] so I just held my hands up like that." (emphases added).
STANDARD OF REVIEW
An appellate court will not reverse a trial court's decision regarding a jury
instruction unless there is an abuse of discretion. State v. Cottrell, 421 S.C. 622,
643, 809 S.E.2d 423, 435 (2017). Likewise, "[t]he admission of evidence is within
the circuit court's discretion and will not be reversed on appeal absent an abuse of
that discretion." State v. Dickerson, 395 S.C. 101, 116, 716 S.E.2d 895, 903 (2011).
"An abuse of discretion occurs when the trial court's ruling is based on an error of
law or, when grounded in factual conclusions, is without evidentiary support." State
v. Pittman, 373 S.C. 527, 570, 647 S.E.2d 144, 166–67 (2007).
LAW/ANALYSIS
I. Inferred Malice Instruction
Appellant argues the circuit court erred by instructing the jury that malice may
be inferred from the use of a deadly weapon because there was evidence that could
have reduced the murder charge to voluntary manslaughter and, therefore, the
instruction was confusing and prejudicial. In support of this argument, Appellant
cites State v. Belcher, 385 S.C. 597, 610, 685 S.E.2d 802, 809 (2009), overruled in
part by State v. Burdette, 427 S.C. 490, 505 n.3, 832 S.E.2d 575, 583 n.3 (2019).
Appellant also argues that the circuit court's error cannot be considered harmless
because the instruction was given shortly after the circuit court instructed the jury to
examine the surrounding circumstances to determine criminal intent. We will
address these arguments in turn.
A. Merits
1. Impact of State v. Burdette
In Belcher, our supreme court held that when evidence of self-defense or any
evidence that would reduce, mitigate, excuse, or justify a homicide is presented, the
circuit court may not charge the jury that malice may be inferred from the use of a
deadly weapon. 385 S.C. at 610, 685 S.E.2d at 809. However, in State v. Burdette,
our supreme court recently held in a unanimous decision, "[R]egardless of the
evidence presented at trial, a trial court shall not instruct the jury that it may infer
the existence of malice when the deed was done with a deadly weapon." 427 S.C.
at 503, 832 S.E.2d at 582 (emphasis added). The court explained that this particular
jury charge was an impermissible charge on the facts. Id. at 502–03, 832 S.E.2d at
582. The court also held that this ruling was effective in cases pending on direct
review or not yet final, as long as the issue is preserved. Id. at 505, 832 S.E.2d at
583. The court overruled "in part" prior case law, including Belcher, "insofar as it
can be construed that [the court had] approved a trial court's charge that a jury may
infer the existence of malice from the defendant's use of a deadly weapon." Id. at
505 n.3, 832 S.E.2d at 583 n.3.
In light of Burdette, the circuit court's inferred malice instruction in the present
case clearly constitutes error. Further, this new point of law is properly before the
court because the Burdette opinion was issued after the parties in the present case
filed their final briefs, and since that time, Appellant has referenced Burdette as a
supplemental citation pursuant to Rule 208(b)(7), SCACR. Nonetheless, we address
below whether the inferred malice instruction also ran afoul of Belcher to the extent
this issue could affect a harmless error analysis.
2. Violation of Belcher
"The law to be charged must be determined from the evidence presented at
trial." State v. Childers, 373 S.C. 367, 373, 645 S.E.2d 233, 236 (2007). Here,
Appellant argues there was evidence that the shooting resulted from sudden heat of
passion upon sufficient legal provocation, thus reducing the offense of murder to
voluntary manslaughter. See State v. Oates, 421 S.C. 1, 23, 803 S.E.2d 911, 923–
24 (Ct. App. 2017) (defining voluntary manslaughter as "the unlawful killing of a
human being in sudden heat of passion upon sufficient legal provocation" (quoting
State v. Starnes, 388 S.C. 590, 596, 698 S.E.2d 604, 608 (2010))). Appellant asserts
the presence of this evidence in the case prohibited the circuit court from giving an
inferred malice jury instruction. However, there was no evidence of sufficient legal
provocation. See State v. Byrd, 323 S.C. 319, 322, 474 S.E.2d 430, 432 (1996)
("Both heat of passion and sufficient legal provocation must be present at the time
of the killing.").
First, there is no evidence that Brandon interacted with Appellant. Further,
assuming Fred's behavior could be considered in this analysis,3 his argument with
Appellant and his companions was not enough to constitute legal provocation. See
Byrd, 323 S.C. 319, 322, 474 S.E.2d 430, 432 ("Where death is caused by the use of
3
See State v. Wharton, 381 S.C. 209, 215, 672 S.E.2d 786, 789 (2009) ("[T]he
applicability of the doctrine of transferred intent to voluntary manslaughter cases
whe[n] the defendant kills an unintended victim upon sufficient legal provocation
committed by a third party remains an unsettled question in South Carolina."
(emphasis added)).
a deadly weapon, words alone, however opprobrious, are not sufficient to constitute
a legal provocation."). Moreover, even if Appellant saw Fred's subsequent act of
adjusting his belt and could have interpreted this act as reaching for a weapon, Fred
raised his hands before Appellant started shooting to show Appellant that he was
unarmed. Cf. Wharton, 381 S.C. at 214, 672 S.E.2d at 788 (finding there was no
evidence of sufficient legal provocation when there was no evidence showing the
victim provoked the appellant, "and although there was evidence that [the appellant]
and [a third party] argued and exchanged words, there was no evidence [the third
party] posed a threat to [the appellant] either by possessing a weapon or through
hostile acts"). Therefore, we reject Appellant's argument that there was evidence
reducing the offense from murder to voluntary manslaughter.
B. Harmless Error
"Most trial errors, even those [that] violate a defendant's constitutional rights,
are subject to harmless-error analysis." State v. Rivera, 402 S.C. 225, 246, 741
S.E.2d 694, 705 (2013). "The Supreme Court has found 'an error to be "structural,"
and thus subject to automatic reversal only in a very limited class of cases.'" Id. at
247, 741 S.E.2d at 705 (quoting Neder v. United States, 527 U.S. 1, 8 (1999)).
"When considering whether an error with respect to a jury instruction was harmless,
[the appellate court] must 'determine beyond a reasonable doubt that the error
complained of did not contribute to the verdict.'" Burdette, 427 S.C. at 496, 832
S.E.2d at 578 (quoting State v. Middleton, 407 S.C. 312, 317, 755 S.E.2d 432, 435
(2014)).
"In making a harmless error analysis, [the appellate court's] inquiry is not what
the verdict would have been had the jury been given the correct charge, but whether
the erroneous charge contributed to the verdict rendered." Id. (quoting Middleton,
407 S.C. at 317, 755 S.E.2d at 435). "To say that an error did not 'contribute' to the
ensuing verdict is not, of course, to say that the jury was totally unaware of that
feature of the trial later held to have been erroneous." Yates v. Evatt, 500 U.S. 391,
403 (1991), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62 (1991).
Rather, it is "to find that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record." Id."Thus, whether or not the error was harmless is a fact-intensive inquiry."
Middleton, 407 S.C. at 317, 755 S.E.2d at 435. The appellate court "must review
the facts the jury heard and weigh those facts against the erroneous jury charge to
determine what effect, if any, it had on the verdict." State v. Kerr, 330 S.C. 132,
145, 498 S.E.2d 212, 218 (Ct. App. 1998). Further, "[w]hen considering whether an
incorrect jury instruction constitutes harmless error, [the appellate court is] required
to review the trial court's charge to the jury in its entirety." Burdette, 427 S.C. at
498, 832 S.E.2d at 580 (citing State v. Stanko, 402 S.C. 252, 264, 741 S.E.2d 708,
714 (2013), overruled on other grounds by Burdette, 427 S.C. at 505 n.3, 832 S.E.2d
at 583 n.3); Stanko, 402 S.C. at 264, 741 S.E.2d at 714 ("Jury instructions should be
considered as a whole, and if as a whole, they are free from error, any isolated
portions [that] may be misleading do not constitute reversible error.").
Moreover, in Stanko, our supreme court acknowledged, "[O]ften in murder
cases there will be overwhelming evidence of malice, apart from the use of a deadly
weapon." 402 S.C. at 264, 741 S.E.2d at 714. In evaluating the evidence of malice
in the case before it, the court observed that the State presented uncontested evidence
showing the appellant "shot the Victim, his elderly and unarmed friend, in the back
using a pillow as a silencer," then robbed him, "and for the next several days used
his automobile to travel across the state, where he engaged in social activities and
drinking." Id. The court further observed, "Authorities apprehended [the a]ppellant
in possession of the Victim's vehicle and the gun used in the murder. Thus, the
evidence of malice in this case is not limited to [the a]ppellant's use of a deadly
weapon." Id.
The court also examined the malice instruction in light of all of the jury
instructions as a whole. Id. at 265, 741 S.E.2d at 714. The court stressed that in
addition to instructing the jury that malice could be inferred from the use of a deadly
weapon, the circuit court "also stated that malice 'can be inferred from conduct
showing total disregard for human life'" and that the appellant challenged merely the
"deadly weapon" language. Id. at 265, 741 S.E.2d at 715. The court concluded the
jury could have found that the appellant's conduct showed a total disregard for
human life and, therefore, the appellant could not have suffered prejudice from any
separate inference that his use of a deadly weapon also gave rise to an inference of
malice. Id. Based on its examination of the jury instructions as a whole and the
evidence of malice aside from the use of a deadly weapon, the court held that the
circuit court's Belcher violation did not constitute reversible error. Id.
In the present case, Appellant argues, "[I]t is conceivable that the evidence to
support a finding of malice was the use of the weapon . . . ." However, Appellant
does not argue it is conceivable that his use of the gun was the only evidence of
malice. Cf. Belcher, 385 S.C. at 612, 685 S.E.2d at 810 ("It is entirely conceivable
that the only evidence of malice was Belcher's use of a handgun. We need go no
further than saying we cannot conclude the error was harmless beyond a reasonable
doubt." (emphasis added)). Appellant also maintains that the State "cannot prove
the error was harmless beyond a reasonable doubt." Appellant argues that the
erroneous instruction was given shortly after the circuit court instructed the jury to
examine the surrounding circumstances to determine criminal intent and that the
circumstances involved the use of a gun. Yet, Appellant does not explain why the
State could not prove malice through the other circumstances of the case. See Kerr,
330 S.C. at 145, 498 S.E.2d at 218 ("The appellate court "must review the facts the
jury heard and weigh those facts against the erroneous jury charge to determine what
effect, if any, it had on the verdict."). Here, as in Stanko, the circuit court included
the following statement in its jury instructions on malice: "Malice also may be
inferred from conduct showing a total disregard of human life." Appellant has not
challenged this instruction. Further, as in Stanko, the jury could have found that
Appellant's conduct showed a total disregard for human life.
In other words, aside from any inference of malice the jury may have drawn
from Appellant's use of a deadly weapon, the evidence of Appellant's other conduct
satisfied the definition of malice. See In re Tracy B., 391 S.C. 51, 69, 704 S.E.2d
71, 80 (Ct. App. 2010) ("'Malice' is the wrongful intent to injure another and
indicates a wicked or depraved spirit intent on doing wrong." (quoting State v.
Kelsey, 331 S.C. 50, 62, 502 S.E.2d 63, 69 (1998))); id. ("It is the doing of a wrongful
act intentionally and without just cause or excuse." (emphasis added) (quoting Tate
v. State, 351 S.C. 418, 426, 570 S.E.2d 522, 527 (2002))); id. ("Malice can be
inferred from conduct [that] is so reckless and wanton as to indicate a depravity of
mind and general disregard for human life. In the context of murder, malice does
not require ill-will toward the individual injured, but rather it signifies "a general
malignant recklessness of the lives and safety of others, or a condition of the mind
[that] shows a heart regardless of social duty and fatally bent on mischief." (emphasis
added) (citation omitted) (quoting State v. Mouzon, 231 S.C. 655, 662, 99 S.E.2d
672, 675–76 (1957))).
Appellant's conduct preceding, and immediately after, his choice to use a gun
showed a "total disregard for human life."4 After Fred and Brandon exited the
Cockpit and went to Fred's car, Appellant and another man appeared behind Fred,
displayed their guns, paced back and forth, and taunted Fred, who was locked out of
his car. As soon as Fred saw that they were armed, Fred raised his hands to show he
was unarmed, but Appellant was unaffected by this capitulation. Aside from his
mere use of a deadly weapon, Appellant's reckless behavior began with a hail of
gunfire, first in the direction of Brandon, then Fred, as he paced back and forth, and
4
Stanko, 402 S.C. at 265, 741 S.E.2d at 715; see In re Tracy B., 391 S.C. at 69, 704
S.E.2d at 80 (quoting Mouzon, 231 S.C. at 662, 99 S.E.2d at 675–76).
finally toward Fred's car as he paced backwards, approaching Rickena's parked car.5
Rickena testified that as Appellant approached her car, she saw he had a gun and
said, "[N]o, Dink, No, Dink." Appellant responded, "Get down" while gesturing
with his arm for her to stay out of the way. After Appellant stopped firing his gun,
he immediately ran to, and entered, a car that had pulled up behind Rickena's car and
fled the scene.
Additionally, Appellant's efforts to cover up his guilt indicate his malice. Cf.
State v. Ballington, 346 S.C. 262, 273, 551 S.E.2d 280, 286 (Ct. App. 2001),
overruled on other grounds by Belcher, 385 S.C. at 612, 685 S.E.2d at 810("[E]vidence Ballington attempted to cover up how his wife died suggests he killed
her with a wicked or depraved spirit."). During her closing argument, the prosecutor
highlighted several of these efforts. First, between 6:00 and 7:00 a.m. on the
morning of the shooting, Appellant made thirteen calls from his cell phone, all
originating from the area surrounding the Cockpit, and then changed his cell phone
number the next day. Second, when Appellant gave a statement to police on
February 10, 2014, he lied about who picked him up at the Cockpit, stating that his
son's mother, Denique Banks, picked him up "around 2:30 to 3:00 a.m." Denique
testified that when she informed police that she had picked up Appellant from the
Cockpit on the morning in question, she was lying. She did not, in fact, pick him up
that morning. Eric Brown, who was with Appellant inside the Cockpit before the
shooting, testified that Appellant got into Eric's car as Eric was leaving.
Third, Appellant lied about the time he left the Cockpit. He told police that
Denique picked him up around 2:30 or 3:00 a.m., but Fred, Brandon and Andre did
not even arrive at the Cockpit until that time, and police did not arrive to investigate
the shooting until 6:00 a.m., around the same time Appellant was making calls from
his cell phone while still in the vicinity. He also lied about his nickname, denying
that it was Dink.
Finally, Appellant cut his hair after the February 2 shooting and lied to police
about it. When he gave a statement to police on February 10, he told police that he
had cut his hair two to three weeks prior to that day. That would mean that Appellant
cut his hair before the shooting. Yet, when Fred picked out Appellant from a photo
lineup on April 14, he noticed Appellant's hair was shorter in the photo than it was
at the time of the shooting. Rickena noticed the same discrepancy when she picked
out Appellant from a photo lineup. Appellant also told police that he cut his
dreadlocks for his job, he "wanted people to look at [him] differently," and he "was
5
Ten shell casings were later collected at the scene.
tired of being judged." However, the assistant manager at his place of employment,
Zaxby's, testified that dreadlocks were allowed and that it would not be Zaxby's
policy to ask an employee to cut them; rather, employees with hair extending below
the shoulders would have to tie their hair back. Appellant interviewed for the job at
Zaxby's on February 5 and started working there on February 7, just a few days after
the shooting. Denique testified that Appellant had worn dreadlocks at other
restaurants where he had worked before working at Zaxby's.
Based on the foregoing evidence, the jury could have found that Appellant's
conduct showed a total disregard for human life, allowing the jury to infer malice
from this conduct after having been correctly instructed by the circuit court that they
could do so. See supra. Accordingly, Appellant "could not have suffered prejudice
from any separate inference that his use of a deadly weapon also gave rise to an
inference of malice." Stanko, 402 S.C. at 265, 741 S.E.2d at 715. We acknowledge
our supreme court's exposition of the prejudice resulting from a "court-sponsored
emphasis of a fact in evidence." Burdette, 427 S.C. at 503, 832 S.E.2d at 582; see
id. at 502–03, 832 S.E.2d at 582 ("Even telling the jury that it is to give evidence of
the use of a deadly weapon only the weight the jury determines it should be given
does not remove the taint of the trial court's injection of its commentary upon that
evidence."). Nevertheless, the circuit court's "commentary" on the use of a deadly
weapon in the present case could not have eclipsed the impact of Fred's powerful
testimony that he raised his hands to show he was unarmed and this capitulation had
no effect on Appellant. See Yates, 500 U.S. at 403 ("To say that an error did not
contribute to the verdict is . . . to find that error unimportant in relation to everything
else the jury considered on the issue in question, as revealed in the record."
(emphasis added)); Burdette, 427 S.C. at 496, 832 S.E.2d at 578 ("When considering
whether an error with respect to a jury instruction was harmless, we must 'determine
beyond a reasonable doubt that the error complained of did not contribute to the
verdict.'" (quoting Middleton, 407 S.C. at 317, 755 S.E.2d at 435)).
We also note the jury submitted three questions to the circuit court, two of
which concerned malice, and none of these questions concerned the inference of
malice from the use of a deadly weapon. Rather, the jury's questions about malice
concerned how to "consider . . . intoxication [with] respect to the state of mind" and
whether the jury could consider intoxication if not presented with "explicit evidence"
of it. The third question asked if the jury could "convict someone of possession of
a deadly weapon without a weapon."6 In response, the circuit court instructed the
jury that voluntary intoxication is not a defense to a crime. The circuit court also
6
Police did not recover a gun connected to the shooting.
instructed the jury that (1) the State accused Appellant of possession of a weapon
while committing a violent crime, (2) the State had to prove the violent crime of
murder or voluntary manslaughter, and (3) the testimony and evidence was what the
jury could consider. The jury's questions and the circuit court's response suggested
that the jury was not focused on, or affected by, the erroneous inferred malice
instruction. See Yates, 500 U.S. at 403 ("To say that an error did not contribute to
the verdict is . . . to find that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record.").
We conclude that, beyond a reasonable doubt, the challenged inferred malice
instruction did not contribute to the verdict and, thus, did not constitute reversible
error.
II. Exclusion of Photographs
Appellant asserts the circuit court erred by excluding from evidence two
photographs found on the cell phone of a bar patron present at the shooting and in
communication with a suspect. He argues the photographs showed a gun of the same
caliber as shell casings found at the scene and, thus, were relevant to his defense of
third party guilt. He maintains that the photographs "would have assisted the jury in
determining whether [he] was the person who shot Brandon or whether someone
else was the triggerman." We conclude that the circuit court acted within its
discretion in excluding the photographs from evidence. See Dickerson, 395 S.C. at
116, 716 S.E.2d at 903 ("The admission of evidence is within the circuit court's
discretion and will not be reversed on appeal absent an abuse of that discretion.").
It is well-established that a criminal defendant's offer of evidence concerning
a third party's commission of the charged crime "must be limited to such facts as are
inconsistent with his own guilt[] and to such facts as raise a reasonable inference or
presumption as to his own innocence." State v. Gregory, 198 S.C. 98, 104, 16 S.E.2d
532, 534 (1941) (quoting 16 C.J. 560) (cited with approval in Holmes v. South
Carolina, 547 U.S. 319, 328 (2006)). "[E]vidence [that] can have [no] other effect
than to cast a bare suspicion upon another, or to raise a conjectural inference as to
the commission of the crime by another, is not admissible." Id. (third alteration in
original) (quoting 16 C.J. 560).
[B]efore such testimony can be received, there must be
such proof of connection with it, such a train of facts or
circumstances, as tends clearly to point out such other
person as the guilty party. Remote acts, disconnected and
outside the crime itself, cannot be separately proved for
such a purpose. An orderly and unbiased judicial inquiry
as to the guilt or innocence of a defendant on trial does not
contemplate that such defendant be permitted, by way of
defense, to indulge in conjectural inferences that some
other person might have committed the offense for which
he is on trial, or by fanciful analogy to say to the jury that
someone other than he is more probably guilty.
Id. at 104–05, 16 S.E.2d at 535 (emphasis added) (quoting 20 Am. Jur. 254).
"[T]he Gregory rule requires the trial judge to consider the probative value or
the potential adverse effects of admitting proffered third-party guilt evidence." State
v. Swafford, 375 S.C. 637, 641, 654 S.E.2d 297, 299 (Ct. App. 2007) (citing Holmes,
547 U.S. at 329). In Holmes, the United States Supreme Court characterized the
Gregory rule's purpose as focusing "the trial on the central issues by excluding
evidence that has only a very weak logical connection to the central issues." 547
U.S. at 330. The Holmes court recognized that evidence of third-party guilt is
appropriately managed by evidentiary rules such as Rule 403, SCRE. 547 U.S. at
327. Rule 403 states, "Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." "A trial judge's decision regarding
the comparative probative value and prejudicial effect of evidence should be
reversed only in exceptional circumstances." State v. Collins, 409 S.C. 524, 534,
763 S.E.2d 22, 28 (2014) (quoting State v. Adams, 354 S.C. 361, 378, 580 S.E.2d
785, 794 (Ct. App. 2003)). The appellate court reviews the circuit court's Rule 403
ruling "pursuant to the abuse of discretion standard and [is] obligated to give great
deference to the [circuit] court's judgment." Id.Here, when defense counsel proffered the photographs at trial, she explained
that the gun from the photographs was a .22 caliber gun that held nine .22 caliber
"shell casings or bullets" and nine shell casings were collected from the scene after
the shooting. However, the record indicates that ten, rather than nine, shell casings
were collected at the scene. Counsel stated that the photographs were discovered
the day after the shooting on the cell phone of Josie Paxton, who was inside the
Cockpit at the time of the shooting. Counsel also stated that Josie gave a statement
to police and they took her phone because Antonio "Bling" Williams, her ex-
boyfriend, "texted her and called her and told her that [his] home dog just shot [his]
other home dog." Yet, there is no evidence in the record substantiating the contents
of Bling's alleged text to Josie. Ultimately, the circuit court ruled that the
photographs were inadmissible because they would be confusing to the jury. In light
of the other evidence presented at trial, this ruling was correct.
Josie Paxton testified that she was inside the Cockpit when the shooting
occurred. She spoke with the police later that morning and advised them that Bling
had information about the shooting. However, she did not identify Bling as the
shooter. Sergeant Cathy Etheredge, a deputy with the Lexington County Sheriff's
Office, spoke to Josie in a parking lot near the Cockpit and took photographs of text
messages on Josie's cell phone. Sergeant Etheredge stated that Josie was agitated
with Bling, with whom she had just spoken by phone, and she was upset about the
shooting. Sergeant Etheredge also stated that Bling "showed up at the club where
[Josie] was," but she did not state when this occurred. Sergeant Etheredge later met
with Bling as part of her investigation, but she did not provide any useful information
about this interview during her testimony.
Appellant maintains that the probative value of the photographs was high
because the police had not recovered a gun connected to the shooting and the
photographs cast doubt on Appellant's guilt by showing "Bling was the shooter."
Appellant also maintains that the jury would not have been confused or misled "into
believing the photographs purported to be anything except what they were—
evidence of a gun capable of shooting the same caliber of bullets as those shot at
Brandon and of holding the same number of bullets as shell casings found at the
scene." However, ten shell casings were found at the scene, and Appellant has
asserted the gun in the photographs could hold only nine bullets. Further, there is
no evidence placing Bling at the scene before or during the shooting. The only
testimony placing Bling at the Cockpit was from Sergeant Etheredge, who stated
that Bling "showed up at the club where [Josie] was" without any indication of when
this occurred.
Moreover, Josie described Bling as tall with dreadlocks that extended below
his shoulders and a tattoo of the letter "L" in the middle of his forehead. On the other
hand, Fred, who interacted with the shooter, never mentioned seeing any tattoos on
him. Rather, he described the shooter as approximately five feet, eight inches tall
with shoulder-length dreadlocks, dark skin, and small eyes. Fred also described the
shooter as short. Likewise, Sergeant Etheredge recounted Rickena's description of
the shooter as small in stature with small eyes and dreadlocks. In contrast, Sergeant
Etheredge described Bling as a "taller" black male with long dreadlocks and an "L"
tattoo in the center of his forehead. Therefore, the evidence indicates that Bling did
not match the description of the shooter.
Based on the foregoing, we conclude that Appellant has not presented the
requisite "train of facts or circumstances" tending "clearly to point out [the] other
person as the guilty party." Gregory, 198 S.C. at 105, 16 S.E.2d at 535. Therefore,
there are no exceptional circumstances warranting a reversal of the circuit court's
exclusion of the photographs from evidence. See Collins, 409 S.C. at 534, 763
S.E.2d at 28 ("A trial judge's decision regarding the comparative probative value and
prejudicial effect of evidence should be reversed only in exceptional
circumstances."). We conclude that the circuit court acted within its discretion in
excluding the photographs from evidence. See Dickerson, 395 S.C. at 116, 716
S.E.2d at 903 ("The admission of evidence is within the circuit court's discretion and
will not be reversed on appeal absent an abuse of that discretion."); Pittman, 373
S.C. at 570, 647 S.E.2d at 166–67 ("An abuse of discretion occurs when the trial
court's ruling is based on an error of law or, when grounded in factual conclusions,
is without evidentiary support.").
CONCLUSION
Accordingly, we affirm Appellant's convictions.
SHORT and THOMAS, JJ., concur.