March 9, 2017
From Beaufort County Carmen T. Mullen, Circuit Court Judge
Mattison Bogan and Phillips Lancaster McWilliams, both of
Nelson Mullins Riley & Scarborough, LLP, of Columbia; and
Chief Appellate Defender Robert Michael Dudek, of Columbia,
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
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.
Facts and Procedural History
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.
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,  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?"
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. 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.
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,
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.
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. 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.
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.
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.
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.
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.
trial, the State indicated it planned to introduce evidence
that John Doe 2 told EMTs "Daddy" hurt him. Relying
on Michigan v. Bryant,  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.
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.
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
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." 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
argues the circuit court erred in allowing the challenged
testimony because it constitutes inadmissible
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).
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  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. 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 and excited
utterance 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.
further argues that even if the challenged testimony is not
hearsay, it violated his Sixth Amendment right to confront
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."
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
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)).
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.
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 ...