State v. Bailey ( 2016 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Marcus Bailey, Appellant.
Appellate Case No. 2013-001680
Appeal From Richland County
Robert E. Hood, Circuit Court Judge
Unpublished Opinion No. 2016-UP-068
Heard September 9, 2015 – Filed February 17, 2016
AFFIRMED
S. Jahue Moore and Stanley Lamont Myers, Sr., both of
Moore Taylor Law Firm, P.A., of West Columbia, for
Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka, Senior
Assistant Attorney General Melody Jane Brown, and
Solicitor Daniel Edward Johnson, all of Columbia, for
Respondent.
PER CURIAM: Marcus Bailey appeals his murder conviction, asserting the trial
court erred in (1) admitting testimony of a cadaver dog handler, (2) failing to direct
a verdict in his favor, (3) admitting the testimony of an inmate without permitting
defense counsel to fully cross-examine the inmate concerning his pending criminal
charges, (4) admitting character evidence of Bailey, (5) refusing to suppress or
strike evidence gathered pursuant to a search warrant, and (6) admitting Bailey's
statement into evidence. We affirm.
1. We find no reversible error in the admission of the cadaver dog evidence.
First, we find admission of this evidence was not prejudicial to Bailey in light of
the other evidence presented by the State. "A trial court's decision to admit or
exclude expert testimony will not be reversed absent a prejudicial abuse of
discretion." State v. White, 382 S.C. 265, 269, 676 S.E.2d 684, 686 (2009). "There
is no reversible error in the admission of evidence that is cumulative to other
evidence properly admitted." State v. Griffin, 339 S.C. 74, 77-78, 528 S.E.2d 668,
670 (2000); see also State v. Hill, 409 S.C. 50, 57, 760 S.E.2d 802, 806 (2014)
(holding admission of a letter into evidence did not amount to reversible error, as
the evidence contained in the letter was merely cumulative to other evidence).
Contrary to Bailey's arguments, the evidence showed the cadaver dog was trained
to detect human cadaver scent, not simply to find dead human bodies.
Investigators Lee, Bouknight, Mauldin, and Martin all testified, without objection,
that they smelled the odor of a decomposing body in the laundry room area of the
house. Thus, evidence that the cadaver dog detected the odor of decay from a
cadaver in the home was merely cumulative to the testimony of the four officers
who likewise detected an odor of decomposition in the house. Accordingly, we
find no prejudicial error in the admission of the cadaver dog evidence.
Further, we find any possible error in the admission of the cadaver dog evidence
was harmless.
The key factor for determining whether a trial error
constitutes reversible error is whether it appears beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained. Whether an error is
harmless depends on the circumstances of the particular
case. No definite rule of law governs this finding; rather,
the materiality and prejudicial character of the error must
be determined from its relationship to the entire case.
Error is harmless when it could not reasonably have
affected the result of the trial.
Engaging in this harmless error analysis . . . our
jurisprudence requires us not to question whether the
State proved its case beyond a reasonable doubt, but
whether beyond a reasonable doubt the trial error did not
contribute to the guilty verdict.
State v. Tapp, 398 S.C. 376, 389-90, 728 S.E.2d 468, 475 (2012) (internal citations
omitted).
Further, whether an error is deemed harmless depends on the particular facts of the
case, and includes consideration of the following factors:
the importance of the witness' testimony in the
prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of cross-
examination otherwise permitted, and of course the
overall strength of the prosecution's case.
State v. Mizzell, 349 S.C. 326, 333, 563 S.E.2d 315, 318-19 (2002) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
In considering the materiality and prejudicial character of any error in relation to
the entire case, we find, beyond a reasonable doubt, any possible error in the
admission of the cadaver dog evidence did not contribute to the verdict obtained.
On the whole, Deputy Pearrow's testimony concerning the cadaver dog was of
limited importance. First, his testimony established that the cadaver dog alerted to
the odor of decomposition inside the house, but the testimony of the four
investigators likewise established the odor of decomposition was inside the house.
Even if the officers' testimony in this regard was not specifically cumulative to the
cadaver dog evidence that a dead body itself may have been within the home, their
testimony at least corroborated that the scent of a decomposing body was found in
the home, and it was similarly incriminating inasmuch as it showed the odor of a
decomposing body was on a blanket located in a dryer in the home where Bailey
had been staying. Additionally, Bailey was allowed extensive cross-examination
of Deputy Pearrow, at which time he thoroughly and effectively challenged the
deputy on his and the dog's qualifications, possible inconsistencies between his
report and his testimony, and the value of his testimony based upon concerns of
contamination. Further, the overall strength of the prosecution's case was very
high. Aside from the testimony of the officers concerning the smell of
decomposition emanating from the blanket inside the dryer in the laundry room,
evidence was presented that Bailey was living in Victim's home, driving Victim's
car, and using Victim's financial cards for various purchases during the time
Victim was uncharacteristically out of contact with friends, co-workers, neighbors,
and family members. Victim's body was discovered in the front yard of her home
the morning after Bailey was informed Victim's mother would be given a key and
was coming to the Victim's home that next day. Bailey claimed to have seen
Victim alive the day before she was found dead on the front lawn, which was
impossible given the state of decomposition of her body. When officers entered
the home on the day Victim's body was discovered, they observed numerous odor
eliminating products in the house and found an overwhelming smell of fragrances.
Bailey admitted he had a disagreement with Victim on the evening of August 16,
the last known contact Victim had with anyone other than Bailey. Bailey
complained to a friend that Victim was controlling and confided he had visions of
taking Victim's life, stating his vision included suffocating Victim, which was
encompassed in the cause of Victim's death attributed by the forensic pathologist.
Finally, an inmate incarcerated with Bailey testified Bailey told him he strangled
Victim as a result of an argument. Based upon this other substantial evidence, we
find, beyond a reasonable doubt, any possible error in admission of the cadaver
dog evidence did not contribute to Bailey's guilty verdict and, therefore, would be
harmless.
2. We find no merit to Bailey's contention the trial court erred in failing to
direct a verdict in his favor because the State failed to admit evidence Victim died
by means of a homicide.
The State must produce proof aliunde of the corpus
delicti aside from the extrajudicial confession of the
defendant. In a murder trial, the corpus delicti consists
of two elements: the death of a human being and the
criminal act of another causing the death. This Court has
held that the corpus delicti of murder may be established
by circumstantial evidence when it is the best evidence
obtainable. Furthermore, this Court has held that
circumstantial evidence may be sufficient to establish the
corpus delicti of murder even though the cause of death
[cannot] be determined.
Brown v. State, 307 S.C. 465, 467-68, 415 S.E.2d 811, 812 (1992) (internal
citations omitted). In Brown, the forensic pathologist testified at trial that she
could not determine a cause of death and, although she found no evidence of foul
play, she could not rule out strangulation. Id. at 467, 415 S.E.2d at 811. Our
supreme court found, in light of the condition of the body and since strangulation
was a possible cause of death, the case was properly submitted to the jury. Id. at
468, 415 S.E.2d at 812. Thus, the State is not required to present medical evidence
establishing with certainty the cause of death of an alleged homicide victim. See
State v. Saltz, 346 S.C. 114, 138, 551 S.E.2d 240, 253 (2001) (finding unavailing
appellant's argument that certain facts cited in support of circumstantial evidence to
establish the corpus delicti were equally consistent with death by accident or
sudden illness, and concluding the trial court properly denied appellant's motion
for a directed verdict). Indeed, our courts have determined, even when a body was
never found, circumstantial evidence surrounding the person's disappearance was
sufficient to survive a directed verdict motion. See State v. Owens, 293 S.C. 161,
167-68, 359 S.E.2d 275, 278 (1987) (holding circumstantial evidence of the
victim's personal habits and relationships raised an inference that the victim's
sudden disappearance was the result of death by a criminal act and was thus
sufficient to establish the corpus delicti of murder or that the victim was dead by
the criminal act of another). Accord State v. Weston, 367 S.C. 279, 293, 625
S.E.2d 641, 649 (2006) (holding, under Owens, the prosecution's presentation of
evidence concerning the victim's habits, coupled with her mysterious
disappearance and the fact that she had not been seen nor heard from for an
extended period of time, were sufficient to establish the corpus delicti of murder
and that, along with other evidence presented by the prosecution, warranted the
denial of the appellant's motion for directed verdict).
Here, there was evidence as follows: Victim suddenly disappeared; Bailey told
various individuals and the authorities he had seen Victim alive the day before she
was found, which was an impossibility given her state of decomposition; Bailey
complained to others of difficulties he was having in his relationship with Victim
and admitted to the authorities the two had fought on the day of Victim's last
known contact with others; Bailey discussed with a friend his visions of killing
Victim by strangulation; Bailey spent the days during which Victim had lost
contact with others driving Victim's car and using her financial cards; there was a
clear attempt to cover up smells in Victim's home—where Bailey was staying—
and the home was noted to be cool when officers entered; four different officers
noted the smell of decomposition coming from the dryer inside the home; and
other medical findings showed Victim's body was stored indoors some time, was
put outside shortly before it was discovered, and was found in her front yard on the
morning after Bailey had been informed Victim's mother was going to get a key to
the house and come over there the next day. Accordingly, there is ample evidence
supporting the trial court's denial of his directed verdict motion.
3. We find no error in the trial court's admission of inmate Walker's testimony
and refusal to allow Bailey to cross-examine Walker as to his guilt or innocence on
pending charges. Although a defendant has a right to meaningful cross-
examination of an adverse witness, the trial court nonetheless retains wide latitude
to impose reasonable limits on such cross-examination. State v. Turner, 373 S.C.
121, 130, 644 S.E.2d 693, 698 (2007).
[R]eversal need not result from every limitation of
permissible cross-examination and a witness' testimony
may, in some cases, be used against a defendant, even
though the witness invokes his privilege against self-
incrimination during cross-examination. In determining
whether the testimony of a witness who invokes the
privilege against self-incrimination during cross-
examination may be used against the defendant, a
distinction must be drawn between cases in which the
assertion of the privilege merely precludes inquiry into
collateral matters which bear only on the credibility of
the witness and those cases in which the assertion of the
privilege prevents inquiry into matters about which the
witness testified on direct examination. Where the
privilege has been invoked as to purely collateral matters,
there is little danger of prejudice to the defendant and,
therefore, the witness's testimony may be used against
him. On the other hand, if the witness by invoking the
privilege precludes inquiry into the details of his direct
testimony, there may be a substantial danger of prejudice
because the defense is deprived of the right to test the
truth of his direct testimony and, therefore, that witness's
testimony should be stricken in whole or in part.
United States v. Cardillo, 316 F.2d 606, 611 (2nd Cir. 1963) (internal citations
omitted). Thus, "[q]uestions on cross-examination are collateral if they relate
solely to the witness's credibility and bear no relation to the subject matter of the
direct examination." State v. Hill, 382 S.C. 360, 367, 675 S.E.2d 764, 768 (Ct.
App. 2009). Here, questions concerning Walker's guilt or innocence to unrelated
pending criminal charges were collateral to his direct testimony in this case,
bearing no relation to the subject matter. Additionally, we note Walker's
credibility was otherwise challenged before the jury through both direct and cross-
examination.1 We therefore find Walker's invoking of the privilege against self-
incrimination did not prejudice Bailey, the trial court properly precluded inquiry
into the collateral matters on cross-examination, and there was no error in the
admission of Walker's direct testimony.
4. We also find no error in the trial court's rulings concerning character
evidence of Bailey. In particular, Bailey asserts the trial court erred in admitting
(1) the testimony of witness Perkins that he was kicked out of the military on a bad
conduct discharge and (2) the testimony of Captain Parker that he had a number of
mental issues following his return from Iraq, including a threat made to himself
and other soldiers.
As to Perkins' testimony, we first note Bailey does not argue on appeal that the trial
court erred in denying his motion for mistrial. Rather, he asserts error in the
admission of character evidence from Perkins, i.e., that Bailey "was kicked out of
the military on a bad conduct discharge." However, it is clear from the record that
the trial court did not sanction admission of this evidence. Rather, the trial court
informed the jury the evidence was improper and struck it, instructing the jury to
"disregard any testimony from Ms. Perkins in regard[] to a discharge from the
Army." Additionally, the trial court instructed the jury that the parties had
stipulated "Bailey was discharged from the United States Army in January of 2012,
and that his term of service was characterized as general under honorable
conditions." Bailey agreed to both of these instructions by the trial court and raised
no objection when they were given. Accordingly, the trial court did not err in
admitting Perkins' testimony in this regard, as it was struck by the trial court. See
State v. Parris, 387 S.C. 460, 465, 692 S.E.2d 207, 209 (Ct. App. 2010) ("When
1
Aside from his testimony concerning his pending charges for murder, attempted
armed robbery, and armed robbery, Walker also acknowledged before the jury he
intended to plead guilty to the unrelated murder charge. Further, Investigator
Martin testified he was involved in an investigation in which Walker was charged
with murder along with four other codefendants, and Investigator Martin indicated
in that case Walker had "told on himself, and he told on the other four." (emphasis
added). Accordingly, the jury was ultimately presented with evidence that Walker
admitted some guilt in regard to the unrelated murder charge.
the defendant receives the relief requested from the trial court, there is no issue for
the appellate court to decide."). Further, even if Bailey were challenging the denial
of his mistrial motion on appeal, we would find no error. The trial court's explicit
instruction to the jury to disregard Perkins' testimony in regard to Bailey's Army
discharge and to not consider it for any purpose cured any possible error, and any
prejudicial effect was minimal such that a mistrial would not have been warranted.
See State v. Herring, 387 S.C. 201, 216, 692 S.E.2d 490, 498 (2009) (noting the
granting of a motion for a mistrial is an extreme measure to be taken only when an
incident is so grievous that the prejudicial effect can be removed in no other way,
and a curative instruction to disregard the testimony is usually deemed to cure any
alleged error).
In regard to Captain Parker's testimony, we find Bailey's appellate argument is not
preserved. The record reflects some discussion developed off the record
concerning Captain Parker's testimony, but when the trial court addressed it on the
record, Bailey agreed he had no objection to Captain Parker's testimony.
Sometime later in the trial, just before Captain Parker testified, trial counsel
indicated he had not waived his objection and began to reference a discussion he
had with Captain Parker during the break over the weekend, but never stated any
basis for any objection to Captain Parker's testimony. Additionally, our review of
the record indicates Bailey failed to make any contemporaneous objection before
the jury to the testimony elicited by the State from Captain Parker, much less to the
testimony concerning Bailey's mental issues and possible threats he made to
himself or other soldiers. "An objection must be made on a specific ground."
State v. Stahlnecker, 386 S.C. 609, 617, 690 S.E.2d 565, 570 (2010). "[A] general
objection which does not specify the particular ground on which the objection is
based is insufficient to preserve a question for review." State v. Patterson, 324
S.C. 5, 17, 482 S.E.2d 760, 766 (1997) (citations omitted) (alteration in original).
Further, "[t]he burden is on appellant to provide a sufficient record for review."
State v. Williams, 321 S.C. 455, 464 n.4, 469 S.E.2d 49, 54 n.4 (1996). Here, it is
not only unclear what Bailey's specific objection was to Captain Parker's
testimony, there is no indication in the record to which testimony, in particular,
Bailey had an objection, much less that he objected to the testimony of Captain
Parker he now complains of on appeal. At any rate, even assuming proper
preservation of the argument, there was no error in the admission of the evidence
inasmuch as Bailey opened the door to testimony concerning his military career.
See State v. Nelson, 331 S.C. 1, 6, 501 S.E.2d 716, 718 (1998) ("In a criminal case,
the State cannot attack the character of the defendant unless the defendant first
places his character in issue.") (emphasis added); State v. McEachern, 399 S.C.
125, 137, 731 S.E.2d 604, 610 (Ct. App. 2012) ("It is firmly established that
otherwise inadmissible evidence may be properly admitted when opposing counsel
opens the door to that evidence."). This rule is not limited to the introduction of
evidence, but applies as well when a party opens the door to the admission of
evidence by virtue of an opening statement. See State v. Dunlap, 353 S.C. 539,
541, 579 S.E.2d 318, 319 (2003) (holding a criminal defendant's opening
statement, which created the impression he had no prior connection to the sale of
narcotics, opened the door to the introduction of evidence rebutting the contention
that the defendant was merely an addict).
5. We find no merit to Bailey's contention the trial court abused its discretion
in refusing to suppress or strike evidence gathered pursuant to the search warrant
because it was based upon an affidavit of an officer with no personal knowledge of
the facts. In particular, Bailey argues the search warrant was invalid because it
was not based on personal knowledge, and a hearsay exception would not apply
because there is no evidence the issuing magistrate was aware Investigator
Mauldin, the affiant for the search warrant, was testifying upon hearsay.
"Generally, affidavits must be made on the affiant's personal knowledge of the
facts alleged in the petition. The affidavit must in some way show that the affiant
is personally familiar with the facts so that he could personally testify as a
witness." State v. Dunbar, 361 S.C. 240, 248, 603 S.E.2d 615, 619 (Ct. App.
2004) (quoting 3 Am. Jur. 2d Affidavits § 14 (2002)). It is permissible, however,
for a magistrate to issue a search warrant based upon hearsay information that is
not a result of direct personal observations of the affiant, and information given to
the affiant by other officers can support probable cause for the search warrant. Id.
at 249, 603 S.E.2d at 620. Unlike the affiant in Dunbar, it is clear the affiant here,
Investigator Mauldin, was supplied with the information by other officers in
support of the affidavit. Accordingly, the use of hearsay information from other
officers by Investigator Mauldin to support probable cause for the search warrant
was proper. See id. ("[M]agistrates can issue search warrants based upon hearsay
information that is not a result of direct personal observations of the affiant" and
"[p]robable cause for a search warrant can be supported by information given to
the affiant by other officers."). Further, nothing in Dunbar suggests that an issuing
magistrate must specifically be told that the affiant is basing his affidavit on
hearsay when it is not based on personal knowledge, and Bailey cites no other law
in support of such a position. At any rate, as the trial court properly observed, a
fair reading of the affidavit reveals information that would indicate to the
magistrate that Investigator Mauldin had obtained the information from other
officers.
6. Lastly, Bailey contends the trial court erred in admitting his statement
because he was not provided with a copy of his statement at the time it was given.
We find no error.
Section 8-15-50 of the South Carolina Code provides as follows:
Whenever any person employed by the State, or any
county, city or municipality thereof, or any part of any
such governing body, shall take a written statement in any
investigation of any kind or nature from any person, the
person receiving or taking the written statement shall give
to the person making the statement a copy thereof and
shall obtain from the person making the statement a
signed receipt for the copy so delivered.
S.C. Code Ann. § 8-15-50 (1986). Section 19-1-90 provides, "Unless the
provisions of Sections 8-15-50 and 19-1-80 have been complied with, no statement
such as is referred to in those sections shall be admissible in evidence in any case,
nor shall any reference be made to it in the trial of any case." S.C. Code Ann. §
19-1-90 (2014).
In State v. Butler, 277 S.C. 452, 290 S.E.2d 1 (1982), overruled in part on other
grounds by State v. Torrence, 305 S.C. 45, 69 n. 5, 406 S.E.2d 315, 329 n. 5
(1991), Butler asserted the trial court erroneously admitted two written confessions
into evidence which violated sections 8-15-50 and 19-1-90 because a copy was not
provided at the time the statements were made. Id. at 455, 290 S.E.2d at 3. The
failure to provide the copies was due to a malfunction of the copy machine at the
police station; however, Butler was given a copy three weeks later, prior to the
preliminary hearing and approximately four months before trial. Id. Our supreme
court disagreed with Butler's assertion, refusing to apply the code sections "in a
hypertechnical manner." Id. The court found nothing in the record to indicate there
was any prejudice to Butler's rights, noting he had ample time to prepare his case
after he received a copy of his confession. Id. The court observed, "Appellant is
due a fair trial, not a perfect one." Id.In Bannister v. State, 333 S.C. 298, 509 S.E.2d 807 (1998), Bannister was not
provided with a copy of his statement until the very morning of trial. Id. at 301,
509 S.E.2d at 808. Nonetheless, our supreme court found trial counsel was not
ineffective in failing to move to have the statement suppressed pursuant to the
statutory requirement that he be provided a copy of his statement. Id. at 304, 509
S.E.2d at 810. The court found there was no evidence Bannister did not have
adequate time to review the statement in preparation for trial, citing Butler for the
proposition "as long as the witness has time to prepare for trial after receiving a
copy of the written statement, the failure to provide the statement at the time it is
made is not reversible error." Id.
We find this issue is controlled by Butler and Bannister, and because Bailey had
ample time to prepare for trial after receiving a copy of his written statement, the
failure to provide the statement at the time it was taken is not reversible error. At
any rate, we note these statutory provisions requiring copies of written statements
would not apply to the oral statements made by Bailey at the hospital and,
accordingly, there is not a similar objection to Investigator Clarke's testimony
regarding Bailey's statements made at the hospital, including Bailey's timeline of
last seeing Victim. Thus, considering the evidence from his oral statements at the
hospital, along with all the other substantial evidence properly admitted, we find
any possible error in admission of the written statement did not contribute to
Bailey's guilty verdict and therefore would have been harmless.
AFFIRMED.
HUFF, A.C.J., and WILLIAMS and THOMAS, JJ., concur.