January 6, 2015.
From Marlboro County. Edward B. Cottingham, Circuit Court
Judge. Appellate Case No. 2012-213461.
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.
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.
J. WILLIAMS, J., concurs. GEATHERS, J., dissenting.
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.
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.
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.
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
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.
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
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.
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, 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
[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 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.
then moved to exclude or redact several portions of the
interrogation videos, which were later introduced as
State's Exhibits 4 and 5.
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,"
arguing relevance and prejudice under Rules 401 and 403,
SCRE. 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."
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
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
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.
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."
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, 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.
King: From McColl, that one--same dude that signed a warrant
on me back in February. Me and him back on good terms.
circuit court ruled, " I think it's appropriate
based on the totality of what he's saying."
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). 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
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). 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
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
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). 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."
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 ...