Heard May 13, 2014
Appeal From Richland County. Appellate Case No. 2012-209426. G. Thomas Cooper, Jr., Circuit Court Judge.
Appellate Defender David Alexander, of 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 W. Edgar Salter, III, and Solicitor Daniel Edward Johnson, all of Columbia, for Respondent.
SHORT and GEATHERS, JJ., concur.
[408 S.C. 604] FEW, C.J.
The State indicted Henry Gray for murder and first-degree lynching, and the jury convicted him of both charges. Gray argues the trial court erred by not excluding graphic autopsy photographs under Rule 403, SCRE. We find the trial court acted within its discretion, and affirm.
I. Facts and Procedural History
On the afternoon of February 13, 2010, Kenneth Mack was severely beaten during the course of two fights. The first fight occurred on McDuffie Street near Gonzales Gardens--a public housing complex in Columbia consisting of thirty apartment buildings. The second fight occurred moments later between two buildings in Gonzales Gardens. Mack died several days later from injuries he received during the fights.
Multiple eyewitnesses testified to the details of the two fights. According to their accounts, Gray and his co-defendant Robin Reese, who is also his sister, were involved only in the second fight. They were both charged with murder and first-degree lynching. The following testimony was presented at their joint trial.
[408 S.C. 605]A. Testimony Regarding the First Fight
Issac Weathers, who lived in Gonzales Gardens, testified the first fight began when Mack and a " young lady," later identified as Reese's thirteen-year-old daughter and Gray's niece, started " arguing . . . and they fell" to the ground. Weathers testified that after they fell, " a bunch of guys went and jumped on [Mack]" and began attacking him.
Amber Hardy testified she called 911 when she witnessed four men and a girl " beating up [Mack]." She described the fight as " brutal" and claimed the group members " took turns" kicking and punching Mack. Hardy testified that after the fight ended, Mack stood up and walked away, but was unsteady on his feet and kept " reaching out to . . . brace himself."
Two men involved in the first fight--Marcellius Brooks, who lived in Gonzales Gardens, and Angelo Boyd, who lived in a house next to Gonzales Gardens--testified they were walking down McDuffie Street when they saw Reese's daughter arguing with Mack. Brooks claimed that when Mack " pick[ed her] up and slam[med] her to the ground," Brooks " tackled [Mack] off her." Brooks admitted hitting Mack twice with a " closed fist," but denied kicking him and stated no one else was involved in the fight. Boyd admitted kicking Mack once, and stated Reese's daughter hit him " a couple times," but similarly denied that anyone else was
involved. Both testified that after the fight, Mack got up and ran toward Gonzales Gardens.
B. Testimony Regarding the Second Fight
Reese, who lived in Gonzales Gardens, testified she learned about the assault on her daughter shortly after it occurred and became upset. Although Reese initially denied calling Gray, she later admitted she called Gray and told him " some grown man [was on] my daughter." She then decided to search for the man who attacked her daughter. According to Reese, she discovered Mack lying on the ground in front of her father's apartment building in Gonzales Gardens. Reese testified she " tried to kick [Mack] but [she] slipped and fell." She then " reached over and slapped him across his face and told him 'you stay away from my kid.'" At that point, Gray arrived and [408 S.C. 606] pulled her off Mack and told her " let the police handle it." She testified she was still angry, so she grabbed a chair, which other witnesses described as a " metal lawn chair," and " slung it" at Mack, although " [i]t didn't even come in contact with his body."
Several eyewitnesses described the second fight much differently. Donnetti Perry, who lived in Gonzales Gardens, testified he saw Gray and Mack talking in front of the building where Gray and Reese's father lived. According to Perry, Gray received a phone call during this conversation, and when he hung up, Gray " swept [Mack's] feet out from under him," causing him to fall and hit his head on the ground. He claimed Gray kicked Mack " all over" and yelled, " [W]hat [did] you do to my niece?" He testified Reese arrived at that point and said to Gray, " [T]hat's him," and started kicking Mack and yelling, " I'm going to teach you for messing with my daughter." He claimed Reese then " got [the] chair and hit him" two or three times, and Gray also hit Mack with the chair a couple of times. Perry testified Mack remained on the ground throughout the fight and did not " resist" or otherwise defend himself.
Kara Chase, who was staying with a friend in Gonzales Gardens, gave a statement to police shortly after the second fight. In this statement, which was introduced into evidence, she claimed Gray " swept [Mack] from under his feet causing [him] to hit his head on the pavement." Afterward, Reese " [ran] up the street saying 'that's him'" and " kick[ed] [Mack] repeatedly, picking up an old metal chair and throwing it on top of [him]." Gray " continued to kick and stomp [Mack] in his face," and Mack " laid on the ground the whole time this was occurring." At trial, however, Chase testified to a different version of events. She denied Gray kicked Mack's legs out from under him, or that Reese hit Mack with the metal chair. She also claimed Mack got up during the fight and did not remain on the ground the entire time.
C. Medical Testimony
The State called Dr. Bradley Marcus, the pathologist who performed Mack's autopsy, as an expert witness. During Dr. [408 S.C. 607] Marcus's testimony, the State offered into evidence eleven photographs taken before and during the autopsy. Both Gray and Reese objected to the admission of the photos under Rule 403, SCRE, arguing the danger of unfair prejudice substantially outweighed their probative value. After a hearing outside of the jury's presence, the trial court admitted the photos.
Dr. Marcus continued his testimony and relied on the photos to describe Mack's injuries to the jury. He testified " the cause of death was a closed head injury due to blunt head trauma." He explained that during the autopsy, he discovered Mack suffered a skull fracture to the back right side of his head and had " a massive amount of subdural hemorrhage" where the skull fracture was located. He testified this was " a significant injury" and the " ultimate cause of death." Although he could not determine if the fatal injury occurred during the first or second fight, Dr. Marcus testified the brain ...