State v. Tammy C. Moorer

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Tammy Caison Moorer, Appellant.
Appellate Case No. 2018-001938
Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge
Opinion No. 5987
Heard December 9, 2021 – Filed June 7, 2023
Withdrawn, Substituted and Refiled July 5, 2023
AFFIRMED
Chief Appellate Defender Robert Michael Dudek and
Appellate Defender Lara Mary Caudy, both of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia; and Solicitor Jimmy A. Richardson, II, of
Conway, all for Respondent.
HILL, A.J.: Tammy C. Moorer (Tammy) appeals her convictions for kidnapping
and conspiracy to kidnap. She argues the trial court erred in (1) failing to grant her
motion for a directed verdict; (2) admitting text messages that were sexually explicit
and referenced drug use; (3) allowing an expert in forensic video analysis to testify
the Moorers' truck was the vehicle videotaped going to and from the area where
Victim was last known to be; (4) excluding her alibi witnesses because she failed to
comply with Rule 5(e)(1), SCRCrimP; and (5) excluding several defense witnesses
because they violated the sequestration order. We affirm.
I. FACTS
Heather Elvis (Victim), a twenty-year-old woman from Myrtle Beach, disappeared
on December 18, 2013. The last known phone call Victim made was to Tammy's
husband, Sidney Moorer, a thirty-eight-year-old man with whom she had a months'
long affair that had ended on November 2, 2013. The phone call was made at 3:41
a.m. from the area of the Peachtree Boat Landing on the Waccamaw River. Victim's
unoccupied car was discovered at the Landing at 4:00 a.m. by an officer on routine
patrol. The next day, when her car remained abandoned at the Landing, the police
contacted Victim's father, and a search for Victim began. Victim has never been
found.
Based on Victim's phone records, a search of her apartment, and statements from her
coworkers and roommate, it became apparent Victim may have been pregnant with
Sidney's child, and Sidney became the prime suspect in Victim's disappearance. On
December 20, 2013, the police visited Sidney's home, roughly a five-minute drive
from the Landing. Sidney lived there with Tammy and their three children.
Tammy's mother, father, and sister lived next door. The police discovered the
Moorers had a home surveillance system that Tammy advised did not work and a
black Ford F-150 truck that Tammy told police could not be unlocked at the time.
Police observed a bag of cement, a spent shotgun shell, and a bottle of cleaning fluid
piled by the Moorers' parked camper. The day after this police visit, Sidney
purchased a new home surveillance system.
Investigators began to believe Tammy was also involved in Victim's disappearance.
Phone records and location data from the Moorers' two iPhones revealed a grim
picture of a wife irate with her husband for having an affair with a much younger
woman; who threatened Victim upon discovery of the affair; who desired to punish
Sidney; who took control of Sidney's iPhone on November 2, 2013, when she
discovered the affair; who sexted other men from Sidney's iPhone; who began
accompanying Sidney on his shifts to complete maintenance work at restaurants
around Myrtle Beach; and who began stalking Victim.
Cell phone data showed Tammy sent the following text message to Victim shortly
after Tammy discovered the affair: "You want to call me right now and explain
yourself? It would be wise thing to do. . . . Save yourself. I'm giving you one last
chance to answer before we meet in person, only one. Hey, Sweetie, you ready to
meet the Mrs., the kids want to meet you?" The State also presented several
messages reflecting Tammy's anger at both Sidney and Victim for the affair,
including a message to the Moorers' daughter that "[y]our dad is an evil, twisted
freak and I am being punished for it" and a message from Tammy to her sister stating
"that bitch is in hiding" in response to Tammy's sister's message that Victim was not
at her place of work. Tammy's texts also stated that after the affair was uncovered,
Sidney "had to stay chained to the bed until further notice while I live my life as a
single woman." Another witness testified she saw Sidney restrained at home.
On the evening of December 17, 2013, six weeks after her affair with Sidney ended,
Victim went on a date with a man her own age. During the date, Victim was happy
and laughing. Her date dropped Victim off at her apartment after 1:00 a.m. on
December 18, 2013. Meanwhile, Sidney and Tammy were, by their own admission,
together. Location data from their iPhones indicated they were at Longbeard's Bar
until 12:30 a.m. At around 1:15 a.m., Sidney purchased a pregnancy-test kit from
Walmart. Sidney and Tammy then went to an area near a Kangaroo Express Gas
Station. At 1:33 a.m., video from the Kangaroo Express showed Sidney leaving his
truck and calling Victim for the first time since their affair ended—from a payphone
at the Kangaroo Express. The call lasted four minutes and fifty seconds.
After receiving the payphone call, Victim called her roommate Brianna Warrelmann,
who was out of town. Victim was upset and scared. Warrelmann calmed Victim
down and told her not to call Sidney back or do anything rash. However, it appears
Victim changed into her favorite outfit and—according to the location data from her
cell phone—left her apartment at 2:31 a.m., arriving near Longbeard's Bar at 2:42
a.m. While in the vicinity of Longbeard's Bar, Victim called the Kangaroo Express
payphone nine times. None of the calls were answered. Meanwhile, the cell phone
evidence indicates Sidney and Tammy returned to their home.
After waiting at Longbeard's Bar for a while, Victim also returned home, where, at
3:16 and again at 3:17 a.m., she called Sidney's iPhone. The first call to Sidney's
iPhone went to voicemail, but the second call lasted a little over four minutes.
Location data from Victim's phone showed that after this call, Victim left her
apartment and traveled to the Landing, a place where—according to an analysis of
her cellphone location data—she was not in the habit of going. While at the Landing,
Victim called Sidney's iPhone four more times: at 3:38 a.m., 3:39 a.m., 3:40 a.m.,
and 3:41 a.m. All four calls went to voicemail. The 3:41 a.m. phone call was the
last one made from Victim's phone, and to this date, there has been no further activity
on Victim's phone. There was no activity on the Moorers' iPhones between 3:30
a.m. and 4:00 a.m. However, at 4:37 a.m., Tammy texted Sidney for the first time
since November 2, 2013, and Sidney texted back.
Police officers discovered that two surveillance systems located along a road that
goes to the Landing had captured images of a pickup truck driving between the
Moorers' home and the Landing in the early morning hours of December 18, 2013.
One was a home surveillance system located five minutes from the Landing, which
showed a dark pickup truck heading towards the Landing at approximately 3:45 a.m.
and then returning nine minutes later. The second was from a business' surveillance
system located two or three minutes from the Landing, which showed a dark pickup
truck going towards the Landing at 3:39 a.m. and returning from the Landing at 3:46
a.m. (The time stamps of the videos are not synchronized to each other, so there was
a few minutes' variation between them). The State asked a forensic video analyst,
Grant Fredericks, to assist them in identifying the truck from the videos. After
conducting many tests, including a "headlight spread pattern analysis," Fredericks
formed the opinion the truck in the video footage was the Moorers' Ford F-150.
A Horry County Grand Jury indicted Sidney and Tammy for kidnapping and
conspiracy to kidnap Victim on or about December 18, 2013. They were tried
separately.
Before his trial began, Sidney moved to exclude Fredericks' expert testimony, and
Tammy joined in the motion. Tammy and Sidney presented their own expert, Bruce
Koenig, to dispute the reliability of Fredericks' opinion that the truck in the footage
belonged to the Moorers. The circuit court qualified Fredericks as an expert but
stated that any objections to the scope of his opinion could be raised at trial.
At Tammy's trial, the State moved to exclude any alibi evidence from Tammy's
children, sister, and mother because Tammy did not comply with the alibi defense
notice procedures outlined in Rule 5(e)(1), SCRCrimP. The trial court granted the
motion. The trial court also granted Tammy's motion to sequester the witnesses.
During the trial, the State presented evidence from police investigators; a cellphone
location data analyst; Victim's coworkers; Victim's roommate; the man with whom
Victim went on her December 17, 2013 date; testimony indicating the Moorers'
surveillance system was likely functional on the night of December 18, 2013; and
over Tammy's objection, Fredericks' expert forensic video testimony. Also over
Tammy's objection, the State presented the content of Tammy's sexually explicit text
messages to a younger man, as well as messages mentioning her use of marijuana.
The State sought to paint the picture that, in the weeks before Victim's
disappearance, Tammy was infuriated with Sidney for having an affair with Victim;
did not respect Victim; was obsessed with Victim and the affair; sought revenge on
Sidney; and, upon hearing the rumors that Victim was pregnant with Sidney's child,
sought to dispose of Victim and her unborn child. The State's theory of the case was
on the night of Victim's disappearance, Tammy had control over Sidney's iPhone
and actions, and she and Sidney lured Victim to the Landing by asking Victim to
take the pregnancy test they had purchased at Walmart. Police discovered an empty
pregnancy test kit box at Victim's apartment. Tammy and Sidney destroyed their
own incriminating surveillance camera footage from the night of the disappearance;
and Tammy and Sidney had a "kidnapping kit" of cement and cleaning solution at
the end of their driveway. The State noted Tammy returned Sidney's iPhone to his
control for the first time in six weeks immediately after Victim disappeared. As a
final piece of incriminating evidence, the State called Tammy's cousin Donald
Demarino, who testified that, after Victim's disappearance, Sidney showed him a
picture of Victim on a burner cell phone. Demarino explained that from the picture,
it did not look like Victim could move or talk; he believed the picture was for
Tammy; and based on the picture, he did not expect anyone to hear from Victim ever
again. Demarino stated he did not tell anyone about the picture until he was
imprisoned for an unrelated drug offense, but he did not receive anything in
exchange for telling the State about the picture. Demarino admitted, however, he
told his mother over the phone that this story was not true. He explained he did this
to stop his mother from worrying.
After the State rested, Tammy moved for a directed verdict, arguing the State had
not presented substantial circumstantial evidence to support the charges of
kidnapping or conspiracy to kidnap. The trial court denied the motion.
Before the defense's case began, the trial court ruled that Tammy's children and
mother had violated the trial court's sequestration order and excluded them from
testifying.
During the defense's case, Tammy's sister testified Tammy texted her when Tammy
and Sidney came home at 3:10 a.m. on December 18, 2013, and she then sent
Tammy's children home when she saw the Moorers outside their door waiting for
their children. Tammy testified she did not go to the Landing on December 18, 2013,
and, to her knowledge, neither did the Moorers' Ford F-150. Tammy further testified
she and Sidney were trying to conceive a child around the time of Victim's
disappearance, and the pregnancy test purchased was for her. While in custody,
Tammy received a positive pregnancy test at a local hospital on March 28, 2014,
showing she was almost seven weeks pregnant (she later miscarried). Tammy
testified she was not angry with Victim and had quickly forgiven her; she had an
open relationship with Sidney; and she and Sidney purchased the new surveillance
cameras because her family was the object of harassment after Victim's
disappearance.
The jury found Tammy guilty of both kidnapping and conspiracy to kidnap. The
trial court sentenced her to concurrent sentences of thirty years' imprisonment for
each charge.
II. STANDARD OF REVIEW
In criminal cases, we review only for errors of law, and we are bound by the trial
court's factual findings unless they are clearly erroneous. State v. Baccus, 367 S.C.
41, 48, 625 S.E.2d 216, 220 (2006).
III. DIRECTED VERDICT
Tammy argues the trial court erred in denying her motion for a directed verdict on
her kidnapping and conspiracy to kidnap charges. Tammy asserts the State
presented no direct or substantial circumstantial evidence Victim was kidnapped
because there was no evidence of struggle at the Landing or in the Moorers' truck
and the State's evidence raised only a mere suspicion she and Sidney were involved
in Victim's disappearance. As to the conspiracy to kidnap charge, Tammy argues
the State presented no evidence that she and Sidney conspired to kidnap Victim. We
disagree.
The offense of kidnapping is defined by statute: "Whoever shall unlawfully seize,
confine, inveigle, decoy, kidnap, abduct or carry away any other person by any
means whatsoever without authority of law, except when a minor is seized or taken
by his parent, is guilty of a felony . . . ." S.C. Code Ann. § 16-3-910 (2015). The
act of inveigling or decoying alone can satisfy the unlawful act requirement of the
kidnapping statute. State v. East, 353 S.C. 634, 637, 578 S.E.2d 748, 750 (Ct. App.
2003) ("South Carolina's kidnapping statute requires proof of an unlawful act taking
one of several alternative forms, including . . . inveiglement[ or] decoy . . . ."
(emphasis added)). "Inveigling has [] been defined as 'enticing, cajoling, or tempting
the victim, usually through some deceitful means such as false promises.'" State v.
Stokes, 345 S.C. 368, 373 n.6, 548 S.E.2d 202, 204 n.6 (2001) (quoting United States
v. Macklin, 671 F.2d 60, 66 (2d Cir. 1982)). "The definition of 'decoy' is 'to lure
successfully.'" Id. (citation omitted). Kidnapping "commences when one is
wrongfully deprived of freedom and continues until freedom is restored." State v.
Tucker, 334 S.C. 1, 13, 512 S.E.2d 99, 105 (1999).
The offense of conspiracy to kidnap is also statutorily defined: "If two or more
persons enter into an agreement, confederation, or conspiracy to violate the
provisions of Section 16-3-910 and any of such persons do any overt act towards
carrying out such unlawful agreement, confederation, or conspiracy, each such
person shall be guilty of a felony . . . ." S.C. Code Ann. § 16-3-920 (2015).
The trial court did not err in denying Tammy's motion for a directed verdict as the
State presented substantial circumstantial evidence of her guilt. See State v. Owens,
291 S.C. 116, 118–19, 352 S.E.2d 474, 475–76 (1987) (corpus delicti may be proven
by circumstantial evidence in kidnapping prosecution); see also State v. Lewis, 434
S.C. 158, 166, 863 S.E.2d 1, 5 (2021) ("[O]n appeal from the denial of
a directed verdict, an appellate court views all facts in the light most favorable to the
nonmoving party."); id. ("When ruling on a motion for a directed verdict, the trial
court is concerned with the existence or nonexistence of evidence, not its weight."
(quoting State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006))); State v.
Larmand, 415 S.C. 23, 30, 780 S.E.2d 892, 895 (2015) ("If there is either any direct
evidence or any substantial circumstantial evidence reasonably tending to prove the
defendant's guilt, appellate courts must find that the trial judge properly submitted
the case to the jury."). The State presented evidence Victim disappeared against her
will, including: (1) Victim was a reliable worker, who typically notified her
employer if she was going to miss work; (2) Victim did not take any of her
belongings with her when she disappeared; (3) Victim has not used her phone—
which her coworkers testified she kept with her at all times—since her
disappearance; (4) Victim's car was left at the Landing; (5) shortly before her
disappearance, Victim called Warrelmann, and Warrelmann testified Victim seemed
"hysterical" after talking to Sidney and Warrelmann told Victim to not do anything
rash or call Sidney back.
The State also presented substantial circumstantial evidence the Moorers kidnapped
Victim, including proof that: (1) Tammy sent Victim and others angry texts about
the affair during the six weeks preceding Victim's disappearance; (2) Sidney called
Victim's manager, and Tammy took over the call, demanding that the manager fire
Victim because Victim was "spreading rumors she was pregnant" by Sidney; (3)
Sidney went to Walmart a few hours before Victim disappeared to purchase a
pregnancy test when Victim was showing symptoms of pregnancy; (4) Tammy
controlled both her and Sidney's iPhones from November 2, 2013, when she
discovered the affair, until the early morning hours of December 18, 2013, when
Victim disappeared; (5) based on their iPhone location data, the Moorers' life pattern
changed drastically after Tammy discovered the affair, and this change showed the
Moorers' iPhones were increasingly located in the same vicinity as Victim—
suggesting the Moorers were stalking Victim; (6) Tammy admitted she and Sidney
were together in the early morning hours of December 18, 2013, when Sidney spoke
to Victim from a payphone and later from his own iPhone; (7) Victim repeatedly
called Sidney on the night of her disappearance, including at 3:41 a.m. when Victim's
phone stopped reporting any data; (8) the Landing, which Victim's cell phone data
showed she did not frequent, was only a short distance from the Moorers' home; (9)
video surveillance from the morning of Victim's disappearance showed a dark truck
going to and from the area of the Landing around the time of Victim's disappearance;
(10) Fredericks, an expert in forensic video analysis, opined the truck seen in the
surveillance videos was the Moorers' black Ford F-150; (11) there was evidence the
SD card in the Moorers' truck had been removed, so no GPS data of the truck's
movements was recorded during the time Victim disappeared; (12) someone with
access to the Moorers' electronic devices ran a software program on November 13,
2013, and attempted to delete text messages, including threatening texts Tammy had
sent to Victim; and (13) Sidney showed Demarino a picture of Victim after her
disappearance depicting her unable to talk or move.
The State presented sufficient evidence that Sidney and Tammy conspired to kidnap
Victim. Tammy and Sidney's iPhones' locations demonstrated they tracked Victim's
whereabouts following Tammy's discovery of the affair. This and other evidence
illustrated vividly that Sidney and Tammy were operating in tandem, focusing their
joint attention on Victim before she vanished. Tammy controlled Sidney's iPhone
from November 2, 2013, until the very hour of Victim's disappearance, when Sidney
began using it again. Tammy admitted that she and Sidney were together in their
Ford F-150 in the early morning hours of December 18, 2013, including at the
payphone where Sidney called Victim on the night of Victim's disappearance.
Demarino testified the picture of Victim Sidney showed him was "for Tammy."
Conspiracy often can only be proven by circumstantial means, as the crime often
lurks in dark caverns, far from the light of day. We conclude there was evidence of
a common design and mutual tacit agreement between Tammy and Sidney that went
well beyond mere association or suspicion. See State v. Fleming, 243 S.C. 265, 274,
133 S.E.2d 800, 805 (1963). Given the timelines and conduct the evidence bore out,
the Moorers' truck's path to the Landing was a fateful link in their long-laid plans,
plans that required Sidney and Tammy's mutual cooperation. See State v. Jeffcoat,
279 S.C. 167, 170, 303 S.E.2d 855, 857 (1983).
Signs of struggle do not have to be present to prove the crime of kidnapping. In
cases of inveigling or decoying, there may not be signs of struggle because the victim
is tricked into going with his or her kidnapper willingly. See Stokes, 345 S.C. at 373,
548 S.E.2d at 204; McAninch et. al., The Criminal Law of South Carolina at 320
(6th ed. 2013) ("The act of kidnapping need not involve force. The victim could be
inveigled or decoyed to her doom."). The State alleged the Moorers lured Victim to
the Landing. Thus, the State did not have to prove the Moorers kidnapped Victim
by force or prove there was a struggle. See Ray v. State, 330 S.C. 184, 188, 498
S.E.2d 640, 642 (1998) (kidnapping was proven when evidence showed the
defendant inveigled victim into his truck under the pretense he was taking her to the
hospital); see also United States v. Hughes, 716 F.2d 234, 239 (4th Cir. 1983)
(providing the policy behind the kidnapping statute does not "justif[y] rewarding the
kidnapper simply because he is ingenious enough to conceal his true motive from
his victim until he is able to transport her" to another location). Accordingly, we
affirm the trial court's denial of the directed verdict motion.
IV. ADMISSION OF TEXT MESSAGES AND OTHER PHONE DATA
The State presented messages from the Moorers' iPhones that referenced Tammy's
use of marijuana. Tammy objected to these messages, arguing they amounted to
character evidence barred by Rule 404, SCRE, and were unduly prejudicial under
Rule 403, SCRE. The trial court admitted the messages, accepting the State's
argument the messages demonstrated Tammy was not attempting to become
pregnant before Victim's disappearance, and therefore, the pregnancy test purchased
by Sidney on the night of Victim's disappearance was not for Tammy.
The State also presented proof Tammy conducted internet searches for the term
"Cougar Life" and sent a series of sexually explicit messages from Sidney's iPhone
to a much younger man on December 16, 2013. Tammy objected, arguing this
evidence violated Rule 403 and was improper character evidence. The State asserted
the messages showed Tammy had control of Sidney's iPhone as late as the day before
Victim's disappearance, and the trial court allowed the messages. However, when
the State went into excessive detail about the messages including that the young
man's mother had called to ask why Tammy was messaging her underage son,
Tammy objected again. The trial court sustained this objection, noting the details
dealt "more with character and ha[d] zero probative value."
The State claimed they introduced the messages to show Tammy had control of
Sidney's phone, Tammy was punishing Sidney for the affair, and their marriage was
not open and happy as Tammy claimed. Although the trial court chastised the State
for the putting "salty materials that were pretty prejudicial that did get into the
defendant's character" into evidence, it denied Tammy's motion for a mistrial.
Tammy argues the trial court abused its discretion in admitting the text messages
that referenced marijuana use and were sexually explicit. See State v. Hatcher, 392
S.C. 86, 91, 708 S.E.2d 750, 753 (2011) ("The admission of evidence is within the
discretion of the trial court and will not be reversed absent an abuse of discretion."
(quoting State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006))); Rule
404(b), SCRE ("Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible to show motive, identity, the existence of a common scheme
or plan, the absence of mistake or accident, or intent."); State v. Faulkner, 274 S.C.
619, 621, 266 S.E.2d 420, 421 (1980) ("While the State may not attack a criminal
defendant's character unless he has placed it in issue, relevant evidence admissible
for other purposes need not be excluded merely because it incidentally reflects upon
the defendant's reputation." (citations omitted)).
Although the messages referencing drug use constituted prior bad act evidence, they
were relevant and logically pertinent to the State's attempt to discount Tammy's
testimony that she and Sidney were trying to get pregnant at the time of Victim's
disappearance and that Sidney went to Walmart to purchase a pregnancy test for her,
not Victim. See Johnson v. State, 433 S.C. 550, 860 S.E.2d 696, 699 (Ct. App. 2021)
(stating in criminal cases, "the State must convince the trial court that the prior bad
act evidence is logically relevant to a material fact at issue in the case: 'If it is
logically pertinent in that it reasonably tends to prove a material fact in issue, it is
not to be rejected merely because it incidentally proves the defendant guilty of
another crime'" (quoting State v. Lyle, 125 S.C. 406, 417, 118 S.E. 803, 807 (1923)));
see also State v. Perry, 430 S.C. 24, 34, 842 S.E.2d 654, 659 (2020). The State's
evidence showed Victim was possibly pregnant with Sidney's child at the time of
her disappearance, and its theory of the case was that Tammy and Sidney lured
Victim to the Landing in order to take a pregnancy test. Moreover, the State alleged
Victim's possible pregnancy was also part of Tammy's motive to kill Victim, i.e.,
Tammy was already angry with Victim and Sidney for the affair, but her anger
increased when she learned Victim may have been pregnant. While the State's
presentation of Tammy's drug use was prejudicial, we find the prejudicial effect of
these text messages did not substantially outweigh their probative value as to the
State's theory of Tammy's motive.
Second, we find Tammy's internet searches for "Cougar Life" and her sexual text
messages to a younger male were character evidence and, because the recipient may
have been underage, prior bad act evidence. However, this evidence was relevant
and logically pertinent to show Tammy's motive for kidnapping Victim, her anger at
Sidney for the affair, her desire for revenge against Sidney, and to prove she had
control over Sidney's phone, which was used to lure Victim to the Landing. Both
Tammy's motive and identity as one of the kidnappers were material issues of fact
in this case, and thus, the probative value of this evidence was high.
Even if the trial court erred in admitting these messages, we find the error harmless
given Tammy's statements–during police interviews and her testimony–that she and
Sidney had an open relationship. Tammy's trial testimony also included gratuitous
and vulgar descriptions of sexual acts.
V. EXPERT WITNESS
The State called Grant Fredericks, who was qualified as an expert in video forensic
analysis. Fredericks testified he used a process known as reverse projection analysis
to form his opinion that the truck seen on the surveillance cameras on the road to the
Landing between 3:35 a.m. and 3:45 a.m. on December 18 was in fact the Moorers'
truck.
On appeal, Tammy does not quibble with Fredericks' qualifications or his
methodology, but she claims the trial court erred in allowing Fredericks to testify to
his identification of the Moorers' truck because the opinion was unreliable. The
State claimed Tammy did not preserve this issue, but she did. We do, however,
disagree with her argument that Fredericks' opinion lacked sufficient reliability.
Before admitting expert testimony, trial courts, as the gatekeepers of evidence, must
ensure the proffered evidence is beyond the ordinary knowledge of the jury; the
witness has the skill, training, education, and experience required of an expert in his
field; and the testimony is reliable. Watson v. Ford Motor Co., 389 S.C. 434, 445–
46, 699 S.E.2d 169, 174–75 (2010); Rule 702, SCRE. In South Carolina, a trial court
minding the Rule 702 gate must assess not only (1) whether the expert's method is
reliable (i.e., valid), but also (2) whether the substance of the expert's testimony is
reliable. See State v. Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999) (trial court
must determine whether underlying science is reliable); Watson, 389 S.C. at 446,
699 S.E.2d at 175 ("[T]he trial court must evaluate the substance of the testimony
and determine whether it is reliable."). South Carolina has not adopted Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594–95 (1993), by name, nor has
it revised Rule 702, SCRE, to incorporate the Daubert framework. Nevertheless,
our approach is "extraordinarily similar" to the federal test. Young, How Do You
Know What You Know?, 15 S.C. Law. 28, 31 (2003); see also State v. Phillips, 430
S.C. 319, 343–44, 844 S.E.2d 651, 664 (2020) (Beatty, C.J., concurring).
Our state supreme court has set out four factors to be considered in determining the
admissibility of novel scientific evidence: (1) publications and peer review; (2) prior
application of the method to the type of evidence in the case; (3) quality control
procedures utilized; and (4) consistency of the method with recognized scientific law
and procedures. State v. Jones, 273 S.C. 723, 730–32, 259 S.E.2d 120, 124–25
(1979); see also State v. Mealor, 425 S.C. 625, 647–48, 825 S.E.2d 53, 65–66 (Ct.
App. 2019). "The trial judge should apply the Jones factors to determine reliability."
Council, 335 S.C. at 20, 515 S.E.2d at 518.
The substance of an expert's testimony is reliable if it adheres to the rigors of the
method. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). As long as the
trial court is satisfied the expert's testimony consists of a reliable method faithfully
and reliably applied, the gate of admissibility should be opened. The correctness of
the conclusion reached by an expert's faithful application of a reliable method (and
the credibility of the expert who reached it) is for the jury, for the trial judge must
remain at the gatepost and not tread on the advocate's or the jury's turf. See State v.
Jones, 423 S.C. 631, 639–40, 817 S.E.2d 268, 272 (2018) ("There is always a
possibility that an expert witness's opinions are incorrect. However, whether to
accept the expert's opinions or not is a matter for the jury to decide. Trial courts are
tasked only with determining whether the basis for the expert's opinion is sufficiently
reliable such that it be may offered into evidence.").
Fredericks testified that reverse projection is a form of photogrammetry, which is a
process to conduct measurements by using the reflection of light to determine the
shape, size, and distance of objects. He explained that, as used in this case, reverse
projection photogrammetry "is the examination of reflective patterns off the vehicle
and off the headlight spread pattern, that is the headlight projection onto the
roadway." He stated he had used these methods and techniques for over thirty years
and had tested them with his peers. He distinguished his technique from mere
"eyeballing" video images for comparison, explaining that the method involves the
technical science of analyzing the compression involved in the production of the
video images. Fredericks elaborated that comparing video images by "eyeballing"
can lead to error because the viewer does not have the experience to test the
comparison by taking compression into account. The scientific process of evaluating
compression enables him to determine whether the video accurately reproduces the
image. Fredericks further testified that he follows the methodology "universally
accepted" in the field of forensic identification for decades, known as "ACEVR:
analyze, compare, evaluate, verify, and report."
Fredericks' testimony illustrated the verification and testing inherent in the method
he employed. He stated that, although he is often consulted to identify a specific
vehicle for a case, he can only do so less than ten percent of the time, mainly due to
the low-quality resolution of the video evidence. He also related an episode that
highlighted the testability and reliability of his method: he once opined that, after
conducting the reverse projection analysis, the "questioned" vehicle was not the
same model as the "known" vehicle, and it later transpired that he had not been
furnished with the correct "questioned" vehicle. As to identifying a specific vehicle
by headlight pattern spread analysis, Fredericks testified headlight spread pattern is
one of the "very, very unique features of a vehicle," and has been the subject of
numerous publications and testing. He noted he once tested sixty new vehicles of
the same make and model and found all of their headlights reflected off the roadway
in different ways.
In arriving at his opinion that the truck seen on the surveillance video riding to and
from the Landing area between 3:35 and 3:46 a.m. on December 18, 2013, was the
Moorers', Fredericks overlaid the images captured at that time on images captured
by the cameras during a recreation using the Moorers' truck in February 2014, under
similar light and other conditions. He concluded that the headlight pattern
reflections off the roadway were identical in both videos. He then compared the
reflective images from over a dozen other trucks, including some of the same make
and model. None of them matched the headlight pattern seen on the December 18th
video. Fredericks further reviewed images of some 3,910 trucks that the surveillance
cameras had captured over several months and found none had the unique
characteristics of the Moorers' truck.
Fredericks explained he had adhered to the "strict" methodology of ACEVR in
reaching his opinion. He emphasized his opinion was not based exclusively on the
headlight pattern analysis, but also on the analysis of the light reflections off various
other parts of the truck and found the "reflections were identical and different from
all of the other vehicles."
We conclude the trial court was well within its discretion in admitting Fredericks'
identification testimony as a reliable expert opinion. Fredericks' expertise was based
on his vast experience with forensic video analysis, as well as the facts that his report
and conclusion in this case had been peer reviewed by another certified forensic
video examiner and his headlight spread analysis was a peer reviewed technique.
The reliability of the reverse projection methodology was demonstrated by
Fredericks' own experience. The text of Rule 702 states expertise can be based on
experience. See also Kumho Tire Co., 526 U.S. at 156 (stating that "no one denies
that an expert might draw a conclusion from a set of observations based on extensive
and specialized experience").
The reliability of expertise is often proven by its success. See, e.g., State v. White,
382 S.C. 265, 271, 676 S.E.2d 684, 687 (2009) (dog handler deemed reliable in part
because of his record of some 750 tracks with the same dog). A leading
commentator has stressed that when an expert's opinion is based on inferences
derived from historical facts (and that—along with the technical knowledge of how
forensic video analysis and light reflections work–is essentially all reverse projection
analysis is), a judge should measure reliability as follows:
[T]he judge should insist on a foundation demonstrating
that the expert's technique "works"; that is, the
methodology enables the expert to accurately make the
determination as to which she proposes to testify. The
foundation must include a showing of the results when the
technique was used on prior occasions. Do the outcomes
demonstrate a connection between facts A and B?
1 McCormick on Evidence § 13 (8th ed.) (2020). Fredericks' testimony about his
successful results did precisely that. Our supreme court has emphasized the
importance of empirical verification to reliability. See, e.g., State v. Chavis, 412
S.C. 101, 108, 771 S.E.2d 336, 339 (2015) ("[E]vidence of mere procedural
consistency does not ensure reliability without some evidence demonstrating that the
individual expert is able to draw reliable results from the procedures of which he or
she consistently applies."). To sum up, we hold the trial court did not err in admitting
Fredericks' opinion as it satisfied the Jones factors and met the reliability standard
of Rule 702.
VI. EXCLUDING DEFENSE WITNESSES
Before the defense began its case, the State asserted Tammy's children and mother
had violated the trial court's sequestration order by watching a live feed of the trial.
After an evidentiary hearing, the trial court ruled Tammy's mother and children had
willfully and knowingly violated the sequestration order and excluded their
testimony. Tammy asked to proffer the witnesses, but the trial court refused.
Tammy later objected to the exclusion of the witnesses on due-process grounds,
asserting the suppression of her witnesses and their alibi testimony1 prevented her
from presenting a full defense.
Tammy asserts the trial court abused its discretion in excluding the testimony of her
defense witnesses because it was an extreme and disproportionate remedy for the
violation of sequestration order, especially, when it appeared the defense witnesses
heard, at most, the testimony of two State witnesses on one morning of the trial. We
disagree.
Whether the testimony of a witness who has violated the sequestration rule should
be excluded depends upon the circumstances of the case and lies within the sound
discretion of the trial court. State v. Huckabee, 388 S.C. 232, 241, 694 S.E.2d 781,
785 (Ct. App. 2010). "The purpose of the exclusion rule is . . . to prevent the
possibility of one witness shaping his testimony to match that given by
other witnesses at the trial; and if a witness violates the order he may be disciplined
by the court." State v. Washington, 424 S.C. 374, 409, 818 S.E.2d 459, 477 (Ct.
App. 2018), aff'd in part, vacated in part, rev'd in part on other grounds, 431 S.C.
394, 848 S.E.2d 779 (2020).
A proffer allows us to evaluate to what extent the exclusion of the testimony was
prejudicial. State v. Cabbagestalk, 281 S.C. 35, 36, 314 S.E.2d 10, 11 (1984); State
v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 402–03 (1986). The trial court should
have granted Tammy's proffer request, as that would have enhanced our review of
the materiality of evidence, as well as the prejudicial effect of its exclusion. State v.
Jenkins, 322 S.C. 360, 367, 474 S.E.2d 812, 816 (Ct. App. 1996) ("The reason for
the rule requiring a proffer of excluded evidence is to enable the reviewing court to
discern prejudice."). We do not need to reach the question of what prejudice Tammy
experienced as a result of the exclusion of her witnesses because we believe the trial
court was within its discretion to exclude their testimony.
1
As for the trial court's exclusion of alibi testimony from Tammy's mother, children,
and sister after finding Tammy did not give adequate notice of an alibi defense to
the State pursuant to Rule 5(e)(1), SCRCrimP, we find this exclusion was not
prejudicial because: (1) Tammy's sister testified that she saw Tammy arrive at her
home at 3:10 a.m.; (2) Tammy's mother and children were excluded from testifying
for violating the sequestration order; and (3) the State did not need to prove Tammy
was at the Landing when Victim disappeared to prove Tammy lured Victim to the
Landing or conspired with Sidney to lure Victim to the Landing. See, e.g., Glover
v. State, 318 S.C. 496, 498, 458 S.E.2d 538, 540 (1995) (stating "a purported alibi
which leaves it possible for the accused to be the guilty person is no alibi at all").
Here as in Washington, the trial court conducted an evidentiary hearing and made a
specific finding that the State's witness, Deputy Pike, was credible. Deputy Pike
detailed she observed Tammy's children and mother watching a live stream of the
trial in the sequestration room. During the hearing, one of Tammy's children
admitted he was watching YouTube on his cell phone, which meant he had access
to the internet. This is important because several days before, the trial court had
been confronted with someone in the sequestration room live-streaming the trial. At
that juncture, the trial court exercised its discretion not to impose sanctions. Defense
counsel affirmed that defense counsel had "made it clear that no one who is
sequestered for the defense is allowed to have access to a device which could connect
to the internet." In short, the sequestered witnesses were told what not to do and did
it anyway, despite the first admonition. We find no error.
Consequently, we also reject Tammy's claim that the exclusion of her witnesses
infringed her right to present a complete defense, thereby violating her right to due
process. See California v. Trombetta, 467 U.S. 479, 485 (1984) (finding the Due
Process Clause of the Fourteenth Amendment affords criminal defendants a
meaningful opportunity to present a complete defense); see also State v. Lyles, 379
S.C. 328, 342, 665 S.E.2d 201, 209 (Ct. App. 2008) (finding the right to present a
defense is not unlimited).
Tammy's convictions for kidnapping and conspiracy to kidnap are therefore
AFFIRMED.
KONDUROS and HEWITT, JJ., concur.