February 14, 2018
From Sumter County W. Jeffrey Young, Circuit Court Judge
Appellate Defender Robert Michael Dudek, of Columbia, for
Attorney General Alan McCrory Wilson, Assistant Attorney
General Jonathan Scott Matthews, both of Columbia; and
Solicitor Ernest Adolphus Finney, III, of Sumter, for
criminal appeal, Jeffrey Dana Andrews appeals his convictions
of voluntary manslaughter and possession of a weapon during
the commission of a violent crime. On appeal, Andrews argues
the circuit court erred in (1) denying him immunity under the
Protection of Persons and Property Act (the Act) due to
inconsistent witness testimony, (2) refusing to qualify
Investigator Terry Gainey as an expert in interrogation and
force science when Gainey was qualified by experience and
training, and (3) admitting the testimony of Emergency
Medical Technician (EMT) paramedic Kimberly Graham when
Graham was not an expert in crime scene investigation and her
opinion was highly prejudicial. We affirm in part and reverse
evening of March 25, 2014, officers responded to a
residential shooting in Sumter County, South Carolina.
Corporal Jerry Kelly arrived first on the scene and found
Shamar Howell (Victim) lying on Andrews's front porch
with one bullet wound above his right eye. Erika Andrews, the
mother of Victim's child and Andrews's cousin, sat
screaming and crying on the porch holding Victim's head.
She told Corporal Kelly that Andrews killed her boyfriend and
was inside the residence. When Corporal Kelly entered the
residence, Andrews willingly surrendered, stating
"I'm the guy you're looking for." Corporal
Kelly arrested Andrews and placed Andrews in his patrol car
while he secured the scene.
was indicted for murder and possession of a weapon during the
commission of a violent crime. Andrews filed a motion to
dismiss the charges pursuant to the Act on the ground he
acted in self-defense. Prior to trial, the circuit court
conducted an immunity hearing on the matter. At the hearing,
Andrews testified that at the time of the incident, he lived
with his wife and his father, Robert Andrews, in one of
Robert's trailers. On the night of the incident, Andrews
was celebrating his re-enrollment in school, and he invited
his cousin Virlyn Gardner over to enjoy a bottle of brandy.
Andrews, Gardner, and Robert left to eat dinner and hid the
brandy bottle on the back porch next to the washer and dryer.
Upon returning, Andrews noticed the dryer was in
and the bottle of brandy was missing. Andrews discovered
Erika's and Victim's clothes in the dryer. Andrews
walked to Erika and Victim's nearby trailer and asked
them if they had taken the bottle, which they denied, and
Andrews left to get more alcohol. Later that night, Andrews
and Robert were socializing at their trailer with Gardner
when Erika arrived, followed shortly by Victim. Erika and
Victim left and returned to the trailer soon thereafter.
Andrews testified that when Victim returned, he had one
forty-ounce bottle of beer wrapped in a paper bag. Later that
evening, Andrews again mentioned the missing brandy bottle,
which Erika and Victim repeatedly denied taking.
testified that when he asked Erika and Victim to leave,
verbal and physical altercations ensued; Victim advanced
towards Andrews cursing and holding the forty-ounce beer
bottle. Andrews testified he removed Victim to the front
porch, while Erika was still inside, and he locked the screen
door and closed the wooden front door. Andrews went to
Robert's bedroom to retrieve the phone to call the police
when he heard the wooden front door open and Erika and Victim
talking. Unable to find the phone, Andrews began to exit
Robert's room when he heard Victim insinuate Andrews was
scared to come outside for fear of an altercation. Andrews,
still at Robert's bedroom door, heard Victim
"snatch" the locked screen door open and saw Victim
crossing the threshold of the front doorway. Andrews grabbed
a gun sitting on Robert's dresser, turned, and shot
Victim as he came through the threshold of the doorway.
Robert corroborated Andrews's testimony.
point in the hearing, the eyewitness testimony of Andrews and
Robert varied substantially from Erika, the only other
eyewitness to testify. Erika testified Victim chose to leave
peacefully when Robert asked him to leave, and Victim never
tried rushing back into the residence or pulling the screen
door open after exiting. She testified Andrews went to
Robert's bedroom as Victim peacefully said goodbye, and
Andrews followed Victim closely behind as Victim exited the
residence onto the front porch. Erika testified she was still
inside the residence when she heard a gunshot, and she ran to
the front door to see Andrews holding a gun. She also
testified that, prior to the shooting, Victim never had a
forty-ounce bottle of beer at the residence and he never
threatened or hit Andrews.
proffered Investigator Gainey as an expert in interrogation
and force science during the immunity hearing. No court had
previously qualified Investigator Gainey as an expert in this
field. However, Investigator Gainey had twenty years of law
enforcement experience and previously attended one
forty-hour, week-long force science course about
officer-involved shootings and the timeline for interviewing
officers after fatally shooting someone. Investigator Gainey
testified the "golden rule" was to wait
"[forty-eight] hours or two good sleep cycles"
before interviewing an officer involved in a fatal shooting.
He stated shootings typically caused "memory
fragmentation[, a]nd after a couple of sleep cycles[, ]
you're able to consolidate your memories" and
remember the event more clearly. Furthermore, Investigator
Gainey testified that if a shooter was interviewed thirteen
minutes after a shooting, he or she would have a
"completely fragmented" memory and would need time
to decompress to chronologically sort out the events.
However, the circuit court declined to qualify Investigator
Gainey as an expert, noting his one-week course was
response, the State called Corporal Kelly. After he arrested,
Mirandized,  and placed Andrews in his patrol car,
Corporal Kelly asked Andrews why he shot Victim. Corporal
Kelly testified Andrews's initial answer was that Victim
took the brandy bottle but later stated he shot Victim
because Victim refused to leave when he was asked. At trial
and during the immunity hearing, Corporal Kelly stated
Andrews did not mention a physical altercation until his
second or third conversation with Corporal Kelly, and Andrews
did not mention fearing for his life until police interviewed
him at the police station.
end of the hearing, Andrews argued he was entitled to
immunity under the Act because he was in imminent fear of
bodily harm when Victim forcefully entered his residence. The
circuit court rejected his argument, finding "very
inconsistent" witness testimony created a jury question
and finding Andrews failed to meet his burden of proof of a
preponderance of the evidence. The case proceeded to trial.
trial, both parties presented evidence similar to the
evidence presented at the immunity hearing. The State called
Graham, the responding EMT paramedic. The circuit court
qualified Graham as an expert in the field of Emergency
Medical Services (EMS) without objection. Graham testified
she received her Basic EMT certification in 1992; received
her paramedic certification in 1998; and was certified in
pediatric trauma life support, Hazmat, and cardiopulmonary
resuscitation (CPR). Graham had responded to thousands of
emergencies and was trained in taking vital signs, bandaging
wounds, administering drugs and IVs, using a defibrillator,
and intubating patients. Upon arriving on scene, Graham's
job was to find the most critical patient and "begin
life saving advances" on him or her. Graham testified
that, when she arrived at Andrews's residence, Erika was
screaming and lying on top of Victim on the front porch. She
testified Victim was on his back with a gunshot wound above
his right eye, his pupils were nonreactive, and the back of
his head was "mushy," which she believed could have
been attributed to the bullet or the back of his head hitting
the concrete. The State further questioned Graham on direct
[The State]: [C]ould [Victim] have talked?
[Graham]: No sir. When [Victim] was shot, the amount of force
that it takes to go through and fracture the skull and then
go through the brain, my opinion is whenever [Victim] was
shot, he dropped."
. . . .
[The State]: So based on your observation of the body, and
your observation of the injury, where was [Victim] when he
[Graham]: He was standing on the porch.
[The State]: Outside?
[Andrews's Counsel]: Your Honor, I am going to object to
that. Even as an expert, as an EMT, I don't think
she's qualified with crime scene reconstruction work.
THE COURT: I think based upon her testimony that was not
objected [to], that he dropped right there. I think she can
say where he dropped. Overruled.
State later called Dr. Janice Ross, who the court qualified
as an expert in forensic pathology. Dr. Ross testified that
Victim would have "collapsed" after he was shot due
to his injuries, but she conceded "my findings don't
exactly tell me the positions of the shooter and the
victim." She acknowledged her findings were consistent
with: (1) Victim entering the residence, seeing the gun,
backing up, and turning, which led to Victim ...