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State v. King

Court of Appeals of South Carolina

March 16, 2016

The State, Respondent,
v.
Tyrone J. King, Appellant

         Heard January 6, 2015.

Page 253

          Appeal From Marlboro County. Edward B. Cottingham, Circuit Court Judge. Appellate Case No. 2012-213461.

         Howard Walton Anderson III, of Law Office of Howard W. Anderson III, LLC, of Clemson; 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 Alphonso Simon Jr., all of Columbia; and Solicitor William B. Rogers Jr., of Bennettsville, for Respondent.

         MCDONALD, J. WILLIAMS, J., concurs. GEATHERS, J., dissenting.

          OPINION

Page 254

          MCDONALD, J.:

          Tyrone J. King appeals his convictions for murder, possession of a weapon during the commission of a violent crime, and assault and battery in the third degree. King argues the circuit court erred in admitting prior bad acts evidence, denying his motion for a mistrial, and denying his motion for a new trial. We remand.

         FACTS/PROCEDURAL BACKGROUND

         On November 11, 2011, King allegedly shot and killed James Galloway (Victim) in Victim's Marlboro County home. Thereafter, King purportedly hit Karen Galloway (Wife) on the head with the handle of his gun and pointed his gun at both Wife and Reggie Cousar (Cousin). After some further scuffling, King ran out the back door of the residence. Following a foot chase, King was arrested.

         During the course of the investigation, law enforcement recovered the Galloways' cordless telephone near the pick-up truck where King was apprehended, a bottle of liquor from King's pocket, and a nine-millimeter handgun with an extended clip from the wooded area behind King's residence. Law enforcement found a cartridge casing and bullet hole in the Galloways' master bedroom and recovered a cartridge casing and projectile from the living room. As a result, Marlboro County deputies conducted two videotaped interrogations of King.

         In the first interrogation, which took place on November 11, 2011, King stated he went to the Galloways' home with Aloysius McLaughlin to buy alcohol. At this time, King was facing charges for kidnapping and armed robbery against McLaughlin in the Town of McColl (McColl Charges). However, King stated that he and McLaughlin were back on " good terms" and that McLaughlin shot and killed Victim. King further explained

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that after the shooting, he tried to calm Wife, and that he " waived" or " swung" the gun at her. King claimed he then gave the gun back to McLaughlin and ran from the Galloways' home in fear.

         During the second interrogation, which took place on November 16, 2011, King claimed that he obtained the gun from an individual named " Broom." King explained that he went to the Galloway home to sell the gun, and while he was attempting to remove the clip, the gun fired and Victim was shot.

         On January 31, 2012, the Marlboro County Grand Jury returned four indictments against King for (1) murder, (2) possession of a weapon during the commission of a violent crime, (3) assault and battery of a high and aggravated nature, and (4) pointing and presenting a firearm.

         The Honorable Edward B. Cottingham called the case for a jury trial on September 10, 2012. Following jury selection, King made several pretrial motions, including a motion to " exclude any evidence of the pending armed robbery charge." The State indicated the pending charge was part of its Rule 404(b), SCRE,[1] motion " to allow the prior bad act in" under the " intent, motive, or the common plan or scheme [exceptions] to show that there [was] a lack of mistake in the defendant going into [the Galloways'] home." The State clarified that the prior armed robbery was against McLaughlin and Melissa Graham, " [t]he same two individuals that [King] says were with him when he committed this murder." The circuit court stated, " I'm not likely to let that in," but agreed to allow the State to present its evidence before making a ruling. The circuit court then explained:

[Y]ou know [I've] got to balance probative value against prejudicial [e]ffect, and in this case you've got eye witnesses as I recall from prior hearings. I'll listen to it, but [I] have some further concern about it.
. . . .
But I have some concerns with a Lyle[2] issue unless you are saying that you've got proof that [King] tried to rob this identical individual several weeks earlier. But I didn't hear you say [that]. You said some group of people, didn't you?
. . . .
I want to get that straight [in chambers], and then we'll get on the record with it.

         King then moved to exclude or redact several portions of the interrogation videos, which were later introduced as State's Exhibits 4 and 5.

         First, King moved to exclude or redact the portions of State's Exhibit 5, in which he referred to law enforcement as " motherfu**ers" and said " [f]u** the police," [3] arguing relevance and prejudice under Rules 401 and 403, SCRE.[4] The circuit court denied the motion, stating " It's his term. He chose to use it. I'm going to let it in." As to the redaction of the videotapes, the circuit court explained that the State " [c]annot do that because we don't have the capability. If you redact that word[,] you've got to redact whatever he said." The State informed the circuit court that the only way to redact portions of the videos would be to " fast forward through it."

         King next moved to exclude or redact the portion of State's Exhibit 5 in which he discussed a " prior murder charge," arguing Rule 404(b)'s " prior bad acts" provision prohibited this discussion. The circuit court

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granted the motion, stating " I want that redacted . . . . make sure you [fast forward] in the right place . . . I don't want to hear anything about that." Subsequently, King moved to exclude or redact another portion of the video in which he again discussed a " prior murder charge," arguing it was inadmissible under Rules 403 and 404(b). The circuit court granted this motion, stating " I want to redact any reference to any prior conduct." However, the circuit court declined to " exclude or redact" the following portion of State's Exhibit 5:

Investigator: I mean if you didn't do it, why didn't you just go out in the front yard, give the gun to the police and say hey man, Aloysius just ran out of the back door?
King: They did not give me a godd**n chance. Man she steady screaming about my godd**n--I already got--I already got a murder kidnapping charge on my record. She didn't see s**t--she was in [another] room.

         Defense counsel again argued that this " prior bad acts" evidence was inadmissible under Rule 404(b). Although the State informed the court that King " does not have a conviction for murder on his record," the circuit court stated, " I'm going to leave it where it is."

         Thereafter, King moved pursuant to Rule 404(b) to exclude or redact the portion of State's Exhibits 4 and 5 in which he discussed the McColl Charges. The circuit court denied the motion as to State's Exhibit 5 but granted the motion as to State's Exhibit 4. In the first reference, King stated, " I already got a murder kidnapping charge on my record," as quoted above,[5] and the second reference arose during the following exchange:

Investigator: Who is that?
King: Aloysius, [the] same dude that I robbed. Me and him got back on good terms.
Investigator: Aloysius?
King: From McColl, that one--same dude that signed a warrant on me back in February. Me and him back on good terms.

         The circuit court ruled, " I think it's appropriate based on the totality of what he's saying."

         King next moved to exclude or redact the portion of the video in which he admitted " he had shot a gun" and that " he carries a gun," arguing relevance, prior bad acts, and prejudice under Rules 401, 403, and 404(b).[6] The circuit court denied the motion, stating " there is evidence of carrying a gun in this case. I'm going to let that stay in. . . . His possession of the gun is a critical part of the State's case, and I'm going to let it in." King also moved to exclude or redact the portion of the video in which King discusses " a lawyer on his old charge." The circuit court ruled, " I'll let that part in. Let's see where he goes." Subsequently, the circuit court denied King's motion to exclude or redact the portion of State's Exhibit 5 in which King refers to himself as a criminal. The circuit court explained that " [t]his is his characterization of himself. I'm not going to redact that. . . . Well, you understand that some of his prior record is coming in . . . that alone is sufficient." Although defense counsel explained that " unless he testifies . . . none of his prior record is coming in," the circuit court stated, " I'm going to leave it in."

         Additionally, King moved to exclude or redact the portion of the video in which he discusses his own stabbing during an alleged armed robbery, again arguing relevance, prior bad acts, and prejudice under Rules 401, 403, and 404(b).[7] In response, the State argued that this portion of the tape was relevant because " [King] is saying . . . that he carried a gun because he was stabbed 20 times whereas we know that the guy that stabbed him said he did so because [King] was trying to rob him." The circuit court noted that the parties discussed this particular segment in chambers and denied the motion, stating " I'm leaving that because the individual is coming in, and [King is] saying he was stabbed 20 times in self-defense. [However,] [t]here is a witness coming in [to

Page 257

testify] that's not true. . . . I'm letting that in based on the totality of the evidence that's here." The circuit court concluded its ruling with, " I'm not going to let the jury hear solely that he was stabbed [twenty] times without the truth coming out as to why he was stabbed." Subsequently, the circuit court ordered stricken the portion of the video in which King pulled up his shirt and said, " You see this because I been stabbed."

         Lastly, King moved to exclude or redact the portion of the video in which he discussed " different members of the Marlboro County Sheriff's Department and the Marlboro County Jail with some familiarity," arguing lack of relevance and prior bad acts under Rules 401 and 404(b).[8] The circuit court denied the motion, explaining Marlboro County does not have the " capabilities to stop and start every phrase . . . . I want to redact everything that we can that's proper. We can't start redacting every word [be]cause you don't like it."

         On the morning of trial, the State moved to admit the interrogation videos into evidence as State's Exhibits 4 and 5. Defense counsel noted the videos were admitted " [p]ursuant to the redactions" and " the previous objection I've made." Defense counsel reiterated that he wanted to preserve the following two objections, both of which were denied by the circuit court: (1) the reference to the prior stabbing, and (2) any mentioning of the ...


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