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State v. Palmer

Court of Appeals of South Carolina

February 24, 2016

The State, Respondent,
v.
Marc A. Palmer, Appellant

Heard: November 3, 2015.

Appeal fro Williamsburg County. Appellate Case No. 2013-000700. W. Jeffrey Young, Circuit Court Judge.

Ryan Lewis Beasley, of Ryan L. Beasley, P.A., of Greenville, and Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Alphonso Simon, Jr., all of Columbia, and Solicitor Ernest Adolphus Finney, III, of Sumter, for Respondent.

SHORT, J. GEATHERS and MCDONALD, JJ., concur.

OPINION

SHORT, J.:

Marc Palmer appeals his convictions for murder and possession of a weapon during the commission of a violent crime. He argues the trial court erred in: (1) granting the State's Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion; (2) denying his motion for a mistrial and a motion for a new trial; (3) denying his motion for a speedy trial; (4) admitting his statement to law enforcement after he invoked his right to counsel; and (5) sentencing him for possession of a weapon during the commission of a violent crime after sentencing him to life imprisonment without parole for murder. We affirm and vacate in part.

FACTS

On October 28, 2010, at about 10:30 p.m., Therris Keels (Victim) was shot and killed. Victim was shot twice: once in the head and once in the abdomen.

There were several witnesses to the shooting. Maurice Smith saw Palmer point a gun at Victim. Victim put his hands up as if to let Palmer know he did not have a gun. Palmer shot Victim two times and walked away. He then turned around, shot Victim another time as he lay on the ground, and ran off. Smith then heard the familiar squealing sound of Palmer's car.

Brittany Croskey also observed the shooting. She saw someone pacing back and forth along the road and recognized the distinctive walk as belonging to Palmer. She saw Victim hold his hands up and heard two gun shots. She then saw the person who was pacing walk over to Victim, who was on the ground, and shoot him again.

Levar Wesley Walker saw a man walk towards Victim, and Victim held his hands out. The man then reached in his pants, pulled out a gun, and shot Victim two times. He testified the man had a " ponytail puffed up with hair." Walker said that prior to the shooting, he had seen Palmer wear his hair in a " ponytail puffed out."

Witnesses also testified that Victim and Palmer had a history of fighting. Smith testified he saw Palmer and Victim in a physical fight prior to the night Victim was shot, and Palmer told Victim it " wasn't over." Smith also saw Palmer fighting a few weeks prior to the shooting with another man, Dominique McBride, and during the fight, Palmer " dropped" a gun.

Detrel Matthews likewise testified he saw Palmer and Victim in an argument prior to the shooting. Matthews also saw Palmer fight McBride a few weeks prior to the shooting and saw what appeared to be a gun fall out of Palmer's waistband. Investigator Wayne McFadden with the Williamsburg County Sheriff's Office testified Matthews told him his brother returned a .45 caliber handgun to Palmer before the shooting.

Investigator McFadden obtained surveillance video from a business close to the shooting, and observed a greenish-colored Neon, missing a hubcap on the front driver's-side tire, traveling down the road at about the same time the 9-1-1 call was received. Smith testified Palmer drove a greenish-blueish Neon. Palmer later admitted it was his car on the video. Police recovered three .45-caliber shell casings from the scene of the shooting.

John Creech, a senior agent with the South Carolina Law Enforcement Division (SLED), interviewed Palmer on October 29, 2010, at 4:40 p.m. He gave Palmer his Miranda [1] rights, and Palmer waived them. Palmer told the police he and Victim had an argument earlier on the day of the shooting. He said he left the club that night at about 10:10 p.m. and drove until he ran out of gas. He then called a person named " Smoke" for a ride home at 3:00 a.m. Creech testified no one could account for Palmer's whereabouts from 10:10 p.m. until 3:00 a.m. Investigator McFadden viewed video surveillance at a gas station where Palmer told police he was during the time of the shooting, but he did not see Palmer's vehicle on the footage. The police did not find any gunshot residue or blood on Palmer's clothes. No fingerprints were found on the shell casings or a soda can found at the scene of the shooting. The only DNA recovered that could be analyzed belonged to Victim.

A trial was held March 11-14, 2013. The jury found Palmer guilty of murder and possession of a weapon during the commission of a violent crime. Palmer moved for a new trial for the same reasons asserted in his motion for directed verdict, motion for mistrial, motion in limine, and a speedy trial. The court denied the motion. The court sentenced him to life in prison for murder, plus five years for possession of a weapon during the commission of a violent crime, to be served consecutively. This appeal followed.

STANDARD OF REVIEW

In criminal cases, this court sits to review errors of law only, and is bound by the trial court's factual findings unless those findings are clearly erroneous. State v. Edwards, 384 S.C. 504, 508, 682 S.E.2d 820, 822 (2009). Thus, on review, the court is limited to determining whether the trial court abused its discretion. Id. An

abuse of discretion occurs when the court's decision is unsupported by the evidence or controlled by an error of law. State v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012). The appellate court " does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence." Edwards, 384 S.C. at 508, 682 S.E.2d at 822.

LAW/ANALYSIS

I. Preemptory Challenges

Palmer argues the trial court erred in granting the State's Batson v. Kentucky motion. We disagree.

In Batson, 476 U.S. at 89, the Supreme Court of the United States held the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States forbids a prosecutor from challenging potential jurors solely on account of their race or on the assumption that African American jurors as a group will be unable to impartially consider the State's case against an African American defendant. In Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), the Supreme Court held the Constitution also prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges. Additionally, the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States prohibits the striking of a potential juror based on race or gender. State v. Evins, 373 S.C. 404, 415, 645 S.E.2d 904, ...


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