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State v. Brown

Court of Appeals of South Carolina

August 2, 2017

The State, Appellant,
Marvin Reginald Brown, Respondent. Appellate Case No. 2014-002129

          Heard April 18, 2017

         Appeal From Charleston County Stephanie P. McDonald, Circuit Court Judge.

          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 Respondent.

          KONDUROS, J.

         In this 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.


         Davon 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.

         On 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."

         The 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."

         While 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.

         At the 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 noted:

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.

         Goodwin's 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.

         Goodwin's father also testified his son "was in a deep stare, and always ...

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