Heard January 6, 2015
Appeal From Berkeley County Kristi Lea Harrington, Circuit Court Judge. Appellate Case No. 2012-213393.
James Kristian Falk, of Bush Law Group, P.C., of Charleston, and Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Kaycie Smith Timmons, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.
[413 S.C. 917] WILLIAMS, J.
Ron McCray appeals his murder conviction, arguing the circuit court erred in (1) denying his request to charge the jury with the language from section 16-11-440(C) of the South Carolina Code (Supp. 2014); (2) allowing an expert who did not prepare a forensic report to testify and act as a conduit for the admission of the report; (3) refusing to admit testimony relating to Reginald Porcher's criminal record, drug use, and previous violent acts; and (4) restricting his cross-examination of two witnesses when the State failed to produce relevant impeachment evidence prior to his initial cross-examination of the two witnesses. We affirm.
On September 16, 2009, an officer with the City of Charleston Police Department was called to the scene of a shooting on Jack Primus Road in Berkeley County, South Carolina. Upon arriving at the scene, the officer saw a female on her knees with Reginald Porcher's head cradled next to her body. He noticed blood around Porcher, who did not appear to be conscious. The officer cleared the group of people who had gathered around the woman and secured the scene. Police arrested McCray the following day and charged him with the murder of Porcher. His case was called for trial on October 29, 2012.
At trial, the State called Joyce Wright to testify. Joyce testified she was sitting on her friend's porch when Porcher was shot. She stated she saw a tall person wearing a white t-shirt walking toward a crowd near a tree with something in his hand. Joyce testified she then heard a gunshot and the children who were playing nearby began to run away from the tree. According to Joyce, she also heard the children yelling " Ron shot Reggie" as they fled the area. Joyce stated she observed Porcher walking around in a circle and holding his neck before he fell to the ground.
Felicia Coaxum, who lived with Joyce, also testified at trial. Coaxum testified that, at the time of the shooting, she was asleep in her mother's room and was awakened by a loud noise. She looked outside and saw Porcher's truck rolling backwards toward the [413 S.C. 918] woods. Coaxum testified that--as the truck was rolling back--she saw Porcher lying on the ground, and McCray was standing over him holding something that had a " metal, wooden handle." According to Coaxum, McCray stomped on Porcher while saying " die mother-f***er, die." While Porcher was lying on the ground, Coaxum stated McCray asked the other people in the area if they had a problem and said " that he's God." Coaxum testified that, after stomping on Porcher, McCray got into a car and left.
In addition to Joyce and Coaxum, the State offered the testimony of Akeem Ashby. Ashby testified he was at the tree when McCray pulled up in his car and got out with a shotgun in his hand. As Ashby began to run away from the area, he said he heard a gunshot. Ashby also testified he heard McCray say " [s]omething like . . . I assure you all I'm God."
At the conclusion of Ashby's testimony, the State recalled Joyce and questioned her about a 2001 fraudulent check charge. Joyce confirmed she had a fraudulent check charge on her record, and the State did not ask any additional questions. On cross-examination, McCray asked Joyce if she knew Abdullah Fishburne, but the circuit court instructed McCray that this cross-examination was limited to Joyce's prior convictions. McCray withdrew the question, and Joyce was dismissed. Next, the State recalled Coaxum and questioned her about a 2004 breach of trust charge. McCray had no additional questions for Coaxum on cross-examination.
Porcher's father (Father), Robert Porcher Jr., also testified during the trial. During his testimony, the State asked Father if Porcher would have had a professional football career like Porcher's older brother, and Father responded that an automobile accident prevented Porcher from playing football. McCray argued that Father's testimony opened the door for testimony regarding prior bad acts because the jury could construe the testimony about a potential football career as evidence of Porcher's good character. As it pertained to the automobile accident, the circuit court limited McCray's cross-examination to the effect the accident had on Porcher's physical abilities. However, after McCray cross-examined Father, the circuit court allowed McCray to proffer testimony from Father regarding Porcher's prior criminal convictions. McCray then questioned Father about Porcher's previous convictions for burglary, disturbing schools, and fighting.
After McCray's cross-examination of Father--but before proffering his additional testimony--McCray argued he should be allowed a second unlimited opportunity to cross-examine Joyce and Coaxum because he did not receive their criminal records in discovery. According to McCray, knowledge of their previous convictions would have altered the way he prepared for and questioned the witnesses. The State acknowledged its failure to immediately turn over the reports was a mistake, but noted it did not realize this mistake until the witnesses were on the stand. The circuit court denied McCray's request for a second unlimited cross-examination of Coaxum and Joyce.
Next, the State called James Boykin to testify. Boykin testified that--after McCray shot Porcher--McCray called him and told him, " I shot that mother-f***er" and " I hope he died." McCray also told Boykin he spit in Porcher's face and said " die mother-f***er, die." According to Boykin, McCray arrived at his house the morning after the shooting and told him " he needed to go get his check and stuff because he had to handle some business because he kn[ew] he was in trouble." Boykin testified McCray called his supervisor to have his check put in Boykin's name. Boykin drove to the construction site where McCray had previously worked to pick up McCray's check and work tools. Boykin stated that, while he was at the site, he spoke with a former employer and the owner of the site, after which he decided to call 911 out of fear of being charged as an accomplice to murder. Next, Boykin testified he took McCray's check to the bank, cashed the check, and gave the money to McCray. Boykin said he then took McCray to a pawn shop where he planned to sell his work tools, but because Boykin had called 911, the police were waiting at the pawn shop where they arrested Boykin and McCray in the parking lot.
The State subsequently called Stephanie Stanley, a forensic analyst with the State [413 S.C. 919] Law Enforcement Division (SLED), to testify. Stanley, who was qualified as a forensic science expert, testified that she worked as the peer reviewer for Katie Urka, the forensic scientist who performed a DNA analysis on samples taken from the scene of Porcher's death. Stanley testified about the procedures a peer reviewer follows in reviewing a DNA analyst's work. McCray objected to her testimony on the grounds that Stanley could not testify as to the results of an investigation she did not conduct. The circuit court, however, allowed Stanley to continue to testify regarding the conclusions she drew from Urka's report. At the conclusion of her testimony, Stanley testified that Porcher's blood was found on swabs from a Toyota Tacoma Truck, the ground on Jack Primus Road, and a gold Nissan Maxima.
After questioning an expert pathologist about Porcher's autopsy, the State rested and McCray moved for directed verdict. The circuit court denied McCray's motion for directed verdict.
In support of his theory of self-defense, McCray submitted Porcher's South Carolina Department of Corrections (SCDC) medical and disciplinary records into evidence and listed several witnesses who were going to testify about Porcher's past criminal history, drug use, and previous violent incidents. The State filed a motion in limine, arguing the records and testimony were inadmissible because they were irrelevant and highly prejudicial. The circuit court required McCray to proffer the evidence and testimony to rule on its admissibility.
During Lieutenant Frank Jackson's proffer, he testified he investigated Porcher in a burglary and safecracking incident that occurred in 2002. According to Jackson, Porcher was convicted of burglary, second-degree burglary as a violent offense, and safecracking after he and two others took an ATM from a convenience store. After Jackson's testimony was proffered, the circuit court denied the admission of the SCDC records and Jackson's testimony because the incidents described in the documents and the testimony were situation-specific, and neither Porcher nor McCray were near a convenience store or an ATM at the time of the homicide.
Subsequently, McCray proffered Lieutenant David Brabham's testimony. Brabham testified that he arrested Porcher in June 2000 for driving under suspension, failure to stop for a blue light, and the unlawful carrying of a pistol. The circuit court did not admit Brabham's testimony because the incident was " not so closely connected with the homicide as to indicate the deceased's state of mind," finding no indication that the incident would cause a reasonable apprehension of great bodily harm.
Next, McCray proffered Chavis Wright's testimony. Chavis testified he was with Porcher in the Jack Primus Road area purchasing marijuana from Abdulla Fishburne the night before Porcher was killed. According to Chavis, Porcher was " very upset and very angry [and] [h]e was carrying on about the situation with [Fishburne] and [McCray] earlier that day." Chavis testified he saw Porcher pull out a handgun and fire it in the air. When asked what he learned about Porcher and McCray that evening, Chavis stated, " I learn[ed] . . . that he had animosity towards him, and he was going to retaliate on him the next day." The circuit court found Chavis's testimony about Porcher being with him when he purchased marijuana and Porcher firing a gun into the air was not relevant to Porcher's death. The circuit court also found the testimony regarding the drugs and the gun was more prejudicial than probative, noting " there is absolutely no . . . indication that they were so closely connected with the homicide as to justify their inclusion." However, the circuit court stated it would allow Chavis to testify that Porcher was upset with McCray for beating up his friend.
After Chavis testified, McCray took the stand on his own behalf to present his theory of self-defense. McCray testified about the events that led to Porcher being shot. According to McCray, on the day in question, he was riding in a car with Christopher Cleggett on Jack Primus Road when he saw Porcher's truck parked near the tree and told Cleggett to pull over because he wanted to talk to Porcher. McCray testified that he got out of the car and yelled to Porcher that he was coming to speak with him. McCray [413 S.C. 920] stated Porcher then ran toward his own truck, got in the driver's side door, grabbed something from under the seat, and got back out of the truck. McCray testified he believed Porcher was grabbing a weapon. In response, McCray said that he went back to the car and grabbed a shotgun. McCray stated he believed Porcher was pointing a gun at him, so he shot at Porcher.
Next, McCray testified that Porcher's truck began rolling backward and ran over Porcher's leg. McCray stated he ran toward Porcher and kicked him while he was lying on the ground in an attempt to " take the weapon off of him." McCray, however, then testified that he never saw a weapon. McCray further testified that Porcher did not appear to have been shot. However, he then stated Porcher had been shot--and that he kicked Porcher--but " nothing was wrong with him."
After closing arguments, the circuit court first charged the jury with the elements of murder. Then, because McCray argued he shot Porcher in self-defense, the circuit court charged the jury with the law regarding self-defense. In addition, the circuit court instructed the jury that " [i]f the defendant was on his own premises, the defendant has no duty to retreat before acting in self-defense." McCray objected to the circuit court's charges and requested the court charge ...