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State v. Daise

Court of Appeals of South Carolina

October 25, 2017

The State, Respondent,
Earnest Stewart Daise, Appellant. Appellate Case No. 2013-002394

          Heard March 9, 2017

         Appeal From Beaufort County Carmen T. Mullen, Circuit Court Judge

          Allen Mattison Bogan and Phillips Lancaster McWilliams, both of Nelson Mullins Riley & Scarborough, LLP, of Columbia; and Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, and Senior Assistant Deputy Attorney General Donald J. Zelenka, of Columbia; and Solicitor Isaac McDuffie Stone, III, of Bluffton, for Respondent.

          MCDONALD, J.

         Earnest Daise appeals his convictions for murder, assault and battery with intent to kill, possession with intent to distribute marijuana, and trafficking in cocaine. Daise argues the circuit court erred in (1) allowing a witness to offer hearsay violative of the Confrontation Clause, (2) permitting a witness to comment on the credibility of another witness, (3) admitting testimony that a victim feared Daise, (4) failing to require the State to produce materials that allegedly amount to a "handbook" on circumventing a Batson challenge, (5) admitting a photograph of Daise in a custodial pose, and (6) admitting two photographs in which a child victim's birthday cake is visible. Finally, Daise argues the circuit court's cumulative errors denied him a fair trial. We affirm the convictions.

         I. Facts and Procedural History

         Jeanine Mullen was the mother of four children, Child 1, Child 2, John Doe 1 (four years old), and John Doe 2 (two years old). Jeanine was involved in a romantic relationship with Daise-the father of John Doe 2-at the time of the murders.

         On the morning of November 15, 2009, Daise left Jeanine's Beaufort County home in her white van. Video surveillance showed Daise with the van at a gas station between 11:45 a.m. and 12:18 p.m. Jeanine's attempts to reach Daise to have him return the van, which she needed to prepare for John Doe 1's fourth birthday party, were unsuccessful. Phone records established that between 11:39 a.m. and 3:52 p.m. on November 15, Jeanine called Daise eighteen times. Although most of the calls went to voicemail, the 3:52 p.m. call lasted twenty-eight seconds. Around dusk, [1] Daise was seen with the van at Eddie's Disco, where he was overheard telling someone on the phone, "Who the f*** you think you talking to?"

         Sometime between 6:30 p.m. and 7:00 p.m., Jeanine's father, Frank Mullen, arrived at Jeanine's home to drop off the two older children. The group noticed Jeanine's white van parked in the driveway-the doors were open and it appeared "ransacked." Inside the home, Frank found John Doe 1's body in the kitchen and Jeanine's body in her bedroom.[2] Although John Doe 2 was still alive, he had also been shot and was lying near Jeanine. The only item missing from the home was a .38 pistol.

         Around 2:00 a.m. on the morning of November 16, police apprehended Daise at the home of his friend, Jay Simmons. Daise had his own bedroom in the home, and a search of that bedroom revealed half a pound of marijuana, an electronic scale, ammunition commonly associated with an AK-47, a set of keys that fit the doors and ignition of Jeanine's white van, [3] twenty-six grams of crack cocaine, and Daise's cell phone. Police also documented a red smear on the door into the bedroom, noted what appeared to be "fresh" blood on the front-left pocket of Daise's blue jeans, and photographed a cut on Daise's right hand. During his initial interview, Daise denied being at Jeanine's home or driving her van.

         At trial, the State introduced phone records showing Daise made nine calls to Simmons between 6:00 p.m. and 6:18 p.m. Simmons initially testified that sometime after 6:00 p.m., he picked up Daise on the side of the road and gave him a ride.[4] Simmons sent Daise a text message at 6:04 p.m. that he was "on the way." On cross-examination, Simmons admitted to sending the text but insisted he never picked up Daise. Simmons claimed police threatened to charge him as an accessory if he did not say he picked up Daise.

         A trace evidence expert testified she found gunshot residue on the blue jeans Daise was wearing when he was apprehended. On cross-examination, she admitted she only found one single particle of gunshot residue on each leg of the jeans and acknowledged gunshot residue can remain on unwashed clothing for many months. She also testified there was no gunshot residue on Daise's sweatshirt.

         A DNA expert testified the red smear on the door in Simmons's home was comprised of Daise's blood. Testing revealed blood from both Daise and Jeanine on the blue jeans.

         The jury found Daise guilty of two counts of murder, one count of assault and battery with intent to kill, one count of possession with intent to distribute marijuana, and one count of trafficking cocaine between ten and twenty-eight grams. Daise received sentences of life without parole on the murder charges and consecutive sentences totaling seventy years' imprisonment on the remaining charges.

         II. EMT Testimony

         Daise argues the circuit court erred when it allowed emergency medical technicians (EMTs) to testify about twenty-eight-month-old John Doe 2's responses to questioning regarding who caused his injuries.

         Before trial, the State indicated it planned to introduce evidence that John Doe 2 told EMTs "Daddy" hurt him. Relying on Michigan v. Bryant, [5] the State argued the evidence was nontestimonial in nature and, therefore, did not violate Daise's right to confront his accuser. The circuit court agreed the statement was nontestimonial and allowed the State to introduce it.

         At trial, EMT Scott Sampson testified that when he entered Jeanine's home, he found two individuals who appeared to be deceased. He also found John Doe 2, who was breathing, whimpering, and crying but only responsive to "painful stimuli." Sampson disrobed John Doe 2 to locate his injuries and turned him over to Paramedic Shayna Orsen.

         Orsen testified she arrived on the scene with EMT Crew Chief Paramedic Danny Tinnel, who remained in the ambulance. Orsen further testified John Doe 2 was "unresponsive" and "unconscious" when he was given to her. After placing him on the stretcher, Orsen and Tinnel assessed John Doe 2 for signs of trauma and found one bullet wound to his chest and another behind his ear. Tinnel administered an IV (normal saline fluid drip) while Orsen treated the chest wound.

         On the way to the hospital, John Doe 2 became responsive. Tinnel immediately began questioning him regarding "person, place, time, and event, " which Tinnel explained they do "with just about every patient." Specifically, Tinnel asked John Doe 2 for his name and it "sounded like" he responded "Dub" or "Doug."[6] Tinnel then asked John Doe 2 several more questions, including "how it happened" and "who hurt him." John Doe 2 responded "Daddy" hurt him but was unable to respond to any additional questions including "what his daddy's name was."

         A. Hearsay

         Daise argues the circuit court erred in allowing the challenged testimony because it constitutes inadmissible hearsay.[7]

         "It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review." Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000). "Error preservation requirements are intended 'to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments.'" Id. (quoting I'On v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000)). "In order to preserve for review an alleged error in admitting evidence an objection should be sufficiently specific to bring into focus the precise nature of the alleged error so it can be reasonably understood by the trial judge." State v. Prioleau, 345 S.C. 404, 411, 548 S.E.2d 213, 216 (2001).

         Our review of the record reveals that at no time during the trial proceedings did Daise make a hearsay objection to the challenged testimony. See State v. Hoffman, 312 S.C. 386, 393, 440 S.E.2d 869, 873 (1994) ("A contemporaneous objection is required to properly preserve an error for appellate review."). His only objection to John Doe 2's statement that "Daddy" hurt him was to "renew our Crawford [8] objection, " which Daise initially made at a pretrial hearing. See Rule 103(a)(1), SCRE (stating a party must state "the specific ground of objection, if the specific ground was not apparent from the context"). On appeal, Daise first argued the challenged testimony was inadmissible under the medical diagnosis or treatment exception to the hearsay rule.[9] See State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (explaining an argument advanced on appeal but not raised and ruled on below is not preserved). In his reply brief, Daise set forth additional arguments that the challenged testimony was inadmissible under the present sense impression[10] and excited utterance[11] exceptions to the hearsay rule. However, "an argument made in a reply brief cannot present an issue to the appellate court if it was not addressed in the initial brief." Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 692 (Ct. App. 2001). Therefore, we find the hearsay arguments unpreserved for our review.

         B. Confrontation Clause

         Daise further argues that even if the challenged testimony is not hearsay, it violated his Sixth Amendment right to confront his accuser.

         Paramedic Tinnel testified that in response to questioning, John Doe 2 stated "Daddy" hurt him. Tinnel explained he began questioning John Doe 2 immediately after he became responsive in order to "keep him awake and talking, " "find out if he had any other injuries, " and "determine his level of responsiveness." Just as he does with other patients, Tinnel questioned John Doe 2 regarding "person, place, time, and event." Tinnel clarified "[t]he purpose we were going after was to determine his level of consciousness and to determine his cognitive thought process, especially with the possibility of a gunshot wound to the head."

         The Confrontation Clause of the Sixth Amendment to the United States Constitution demands that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. In Pointer v. Texas, the United States Supreme Court held "the Sixth Amendment's right of an accused to confront the witnesses against him is . . . a fundamental right and is made obligatory on the States by the Fourteenth Amendment." 380 U.S. 400, 403 (1965).[12]

         The Supreme Court again addressed the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004). Crawford was convicted of assaulting a man who allegedly tried to rape his wife. Id. at 38. At trial, the State introduced the wife's tape-recorded statement describing the stabbing to the police, despite the fact Crawford had no opportunity to cross-examine her. Id. The Court reversed Crawford's conviction and held the admission of a testimonial hearsay statement against an accused violates the Confrontation Clause if: (1) the declarant is unavailable to testify at trial, and (2) the accused has had no prior opportunity to cross-examine the declarant. Id. at 54. Thus, the Confrontation Clause may operate to render otherwise admissible hearsay evidence inadmissible if it is testimonial in nature. See id. at 68. Although the Court declined to comprehensively define "testimonial, " it did declare that the "core class of 'testimonial' statements" includes: (1) "ex parte in-court testimony or its functional equivalent"; (2) "'extrajudicial statements . . . contained in formalized testimonial materials'"; (3) statements made under circumstances leading an objective witness to reasonably believe they would be available for use at a later trial; and (4) "[s]tatements taken by police officers in the course of interrogations." Id. at 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment)).

         In Davis v. Washington, decided jointly with Hammon v. Indiana, the Supreme Court addressed the Confrontation Clause in the context of two domestic violence cases. 547 U.S. 813 (2006). Announcing what has come to be known as the "primary purpose" test, the Court explained "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose . . . is to enable police assistance to meet an ongoing emergency, " however, statements "are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. at 822. The Court found the Davis victim's identification of her abuser in response to initial questioning from a 911 emergency operator was nontestimonial. Id. at 826-29. In Hammon, however, the Court held that when police responded to a domestic disturbance, found the couple at home, and took a statement from the wife about the husband's abuse while the husband was in another room, wife's statements were testimonial. Id. at 829-34.

         In Michigan v. Bryant, police officers responding to a radio dispatch found a man lying in a gas station parking lot with a gunshot wound to his abdomen. 562 U.S. at 349 (2011). Before the victim was removed from the scene, the police officers asked "what had happened, who had shot him, and where the shooting had occurred." Id. (quoting People v. Bryant, 483 Mich. 132, 143, 768 N.W.2d 65, 71 (2009). At trial, the officers were permitted to testify that the victim, who was now deceased, told them Bryant shot him as well as when and where the shooting occurred. Id. The Supreme Court held the victim's statement to police was nontestimonial because the officers' "primary purpose was simply to address what they perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted [the victim] to or focused him on the possible future prosecutorial use of his statements." Id. at 377. "[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." Id. at 360. "[T]he statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation." Id. at 367. The Court carefully added that "giv[ing] controlling weight to the 'intentions of the police'" would be "a misreading of our ...

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