April 18, 2017
From Charleston County Stephanie P. McDonald, Circuit Court
Attorney General Alan McCrory Wilson and Deputy Attorney
General Donald J. Zelenka, both of Columbia; and Solicitor
Scarlett Anne Wilson, of Charleston, for Appellant.
Appellate Defender Susan Barber Hackett, of Columbia, for
criminal case, the State appeals the circuit court's
decision finding the statement of the victim inadmissible as
a dying declaration exception to hearsay. The State argues
the circuit court erred in (1) finding the statement
inadmissible as hearsay, (2) making conclusions regarding the
medical records, and (3) finding the victim was planning to
seek revenge. We affirm.
Goodwin, a nineteen-year-old man, sustained a gunshot wound
to his abdomen on April 26, 2011. Emergency medical services
transported Goodwin to the hospital, and the medical records
indicate he arrived at the hospital "alert" and
"spitting up or coughing up bright red blood" with
a severe abdominal wound requiring immediate surgery. Goodwin
was intubated and doctors performed emergency surgery to
repair his abdominal wounds. Doctors performed another
surgery the next day, April 27, which included the placement
of drains and tubes. The medical records indicate Goodwin was
extubated on the morning of April 28.
April 29, Detective Jerome Fleming with the City of
Charleston Police Department, went to the hospital to
interview Goodwin in the intensive care unit. Goodwin
identified Marvin Reginald Brown from a six-pack photographic
line-up as the person who shot him. On the same day Goodwin
made the identification to Detective Fleming, Goodwin was
moved out of the intensive care unit "to the
floor." Medical records reveal "the decision was
made that he was ready for transfer to the floor;"
"[h]e is up and out of bed-to-chair and [physical
therapy] has been consulted to work with ambulation;"
"[h]is abdominal incision is closed and the skin is
closed with staples and is clean, dry, and intact;" and
"[h]e has been tolerating tube feeds through [the tube]
without any difficulty."
medical records also indicate Goodwin continued to have pain
and was not interested in physical therapy. For example, the
"[Physical] Therapy Charting Report" of April
30-the day after Goodwin gave the identifying statement to
Fleming-indicates his "[a]verage pain over the last 24
hours" was "8/10, " his goal was "not
[to] do [physical therapy], " and his response to the
treatment was noted as "fatigued" with impairments
of "decreased endurance, pain, limited mobility."
On the other hand, the same physical therapy record that day
states: "Patient is alert and oriented to name, place[,
] and date;" he "[t]olerates 5 to 15 minutes of an
uninterrupted exercise bout;" his physical therapy
prognosis is "good;" and the long term outcome
"as discussed with patient and/or family" includes
a notation that Goodwin "will be able to return to
work/school full time" and "will be independent
with all self care including driving."
still in the hospital, on the morning of May 4, Goodwin was
found to be unresponsive. Efforts to revive Goodwin failed,
and he was pronounced dead. The medical records include
notations that a pulmonary embolism was the suspected cause
of Goodwin's death and his death was a "[s]udden,
unexpected, unexplained death." However, the Forensic
Autopsy Final Report established the cause of death as
"[c]omplications of a single penetrating gunshot wound
to abdomen." Brown was indicted for murder, armed
robbery, and possession of a firearm during the commission of
a violent crime. Before trial, Brown moved to exclude
Goodwin's identifying statement to Detective Fleming as
hearsay and a violation of the Confrontation Clause.
suppression hearing, Detective Fleming described Goodwin as
"very weak" and "unable to really raise his
hands or arms . . . and speak loudly." Detective Fleming
answered affirmatively when asked whether Goodwin "was
able to communicate, " "was lucid and alert, "
and "was able to correct you if you misheard something
he said." Detective Fleming also testified he had to
encourage Goodwin to identify the person who shot him,
explaining "[i]t is common knowledge, as far as a lot of
victims . . . they don't want to be identified as being
an individual that assisted police." Detective Fleming
My comments to him [were] that he's the victim here of
this shooting, and very fortunate at that time to say that
--to be alive. And . . . there was no one out there really to
come forward to say that they witnessed this shooting, and he
was the only guy that could say -- we could say establish who
the perpetrator of the crime was and bring him to justice.
family members also testified at the hearing. Goodwin's
grandfather testified Goodwin told him he would not be able
to ride with him in the car, an activity they had enjoyed
together: "I was sitting there holding his hand, and we
were talking about the times we had, and the subject came up
about us riding around. . . . And he said he wouldn't be
able to ride with me, and that my other grandson . . . would
have his seat." Goodwin's grandfather also testified
Goodwin told him "he wasn't going to make it."
However, Goodwin's grandfather could not remember with
specificity at what point during Goodwin's
hospitalization these conversations occurred. Of
Goodwin's demeanor after surgery, Goodwin's father
testified Goodwin was
[a]lmost like a -- a child just happy to see his parents,
because . . . he know[s] I'm dad, I'm going take care
of him, you know. You know, more like, for example, like if
your child got in a fight at school or beat up with a gang
and be happy to see their parents when they see them, because
they [are] scared.
father also testified his son "was in a deep stare, and