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State v. Hurell

Court of Appeals of South Carolina

August 1, 2018

The State, Respondent,
v.
Tashon Hurell, Appellant. Appellate Case No. 2016-000275

          Heard May 22, 2018

          Appeal From Dorchester County Edgar W. Dickson, Circuit Court Judge

          Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General J. Benjamin Aplin, and Assistant Attorney General Jennifer Ellis Roberts, all of Columbia, and Solicitor David Michael Pascoe, Jr., of Summerville, all for Respondent.

          SHORT, J.

         Tashon Earl Hurell appeals his convictions of attempted murder, armed robbery, and kidnapping, arguing the trial court erred by 1) refusing to direct verdicts, 2) admitting irrelevant testimony regarding his brother, 3) admitting irrelevant evidence regarding shoes, 4) admitting evidence of his laughter when shown a photograph, and 5) refusing to declare a mistrial. We affirm.

         BACKGROUND FACTS

         Mary Pecorora (the victim) testified she was working the night shift at the Kangaroo convenience store in Summerville on April 23, 2014. While in the bathroom to get supplies, she heard the store buzzer, indicating someone had entered the store. As she approached the front door, someone came around a corner, yelled at her, and hit her in the head with a bat. The perpetrator wore a mask, told her, "You gonna get it[, ] *itch," and threatened to cut her throat. The victim testified the perpetrator grabbed her by the neck, dragged her to the cash register, and forced her to open it. He grabbed the money, jumped over the counter, and left. The victim described the perpetrator as approximately 5' 10" or 5' 11", "kind of slender," and African American. She testified he was wearing a ski mask, a bandana, a hooded jacket, gloves, and red shoes. The victim called 911, and officers responded. The victim's injuries required facial and sinus surgeries.

         Bernard Nelson of the Summerville Police Department testified he responded to the 911 call. Nelson took numerous photographs of the scene, including photos of a footprint on the counter. Nelson also viewed the store's video surveillance tape. Based on the victim's description and the videotape, Nelson passed a description to other police units of a "black male subject wearing a light hoodie with . . . multicolored graphic designs on the front. Bright lime green hoodie, black pants, red shoes, black gloves, dark colored bandanna over his face." Nelson also testified the suspect was of medium build, had a husky voice, and was carrying a baseball bat.

         Hobie Williams, then of the Summerville Police Department, testified he was a K-9 handler on the night of the robbery. He arrived at the scene and deployed his dog near the rear of the store to track the freshest human odor to be found. The canine tracked to apartments near the store. There is a footpath between the locations, and it takes between thirty and ninety seconds to walk the path. Williams and another officer walked around the first building of the apartment complex and spoke to a male, who was outside on his upper level balcony. The male reported seeing a black male running from around the building carrying a baseball bat and wearing a dark tee shirt, baseball cap, and dark shorts. He also reported the man jumped the balcony beneath his, drove away in a white Mustang, returned, jumped the balcony again, and left a second time in the Mustang. The witness had never before seen the car at the apartment complex.

         Williams testified he saw a dollar bill laying on the ground in the balcony area[1] of the lower unit. Although the ground was wet, the bill was dry and appeared to have blood on it. Williams testified he went into the building and made contact with the occupant of the unit in question. Hurell's sister, Tashima Jones, answered the door. Jones permitted Williams to retrieve the dollar bill from her balcony. Hurell's brother, Traquan, was also in the apartment. Williams identified the dollar bill during the trial.

         Lucas Hartman testified he was the man interviewed by Williams. Hartman testified he was on his balcony at approximately 1:30 a.m. when he saw a man wearing black shorts and carrying a baseball bat and backpack approaching from behind the building across from Hartman's building. The men nodded at each other. Hartman next witnessed the man jump over the balcony beneath his balcony. Hartman heard the door open and close before the man came back out, drove away in a white Mustang, returned, and did the "same exact thing." According to Hartman, he assumed the man entered the apartment for a few minutes on each return. Hartman testified that although he was unequivocal about the make of the vehicle in his initial statement, he was not an expert on vehicles and the vehicle may not have been a Mustang. During cross-examination, he admitted he first learned the vehicle could have been a Pontiac Grand Am from Officer Williams. On re-direct examination, Hartman insisted he was never positive the vehicle was a Ford Mustang.

         Michael Weaver, a detective with the Summerville Police Department, testified he was the on-call detective on April 23, 2014. Later that day, Weaver obtained a search warrant for Jones's apartment. Because no one was home when he attempted to search, Weaver obtained a key to the apartment from the apartment manager. His search resulted in a bat, a bandanna, and two pairs of red shoes, all of which were found to be irrelevant and returned to Jones. After his search and visit to the manager's office to return the key, Weaver noticed a white Pontiac Grand Am in front of the apartment. Because one of the reports had listed a white vehicle rather than a white Mustang, Weaver went back to the apartment because he believed the two vehicle makes were similar. Hurell and his mother, Jana Hurell, were there. The white vehicle was a Pontiac owned by Mrs. Hurell.

         Hurell objected to any testimony of his interactions with Weaver, arguing he attempted to end the conversation with law enforcement because Hurell told Weaver, "I'm not giving you anything." During a proffer of the evidence, Weaver's report indicated Hurell walked away from him, then came back and laughed when shown a photograph of the lime green sweatshirt, saying, "[W]hy would someone wear something like this?" The trial court admitted the evidence, and Weaver testified Hurell laughed when shown the photo of the suspect wearing the sweatshirt during the robbery. Weaver claimed Hurell then asked why anyone would wear a sweatshirt like that during something like this.

         Travis Holdorf testified he knew Hurell at the time of the robbery and knew Hurell's cell phone number at the time as ***-2320. Marilyn Dilly, of Sprint as a reseller for TracFone, [2] testified as a records custodian of Hurell's cell phone records for the period April 22-24, 2014. George Floyd of Verizon Wireless also testified as a records custodian, and the records for Hurell's cell phone were introduced. Floyd testified there were cell towers at 10870 Dorchester Road and at 132 Trailing Alley, both in Summerville. According to Floyd, towers in rural areas such as the Summerville towers are between three and five miles apart.

         Detective Weaver testified he obtained Traquan's phone records. At the time of the robbery, Traquan was on the phone from 12:21 a.m. until 2:11 a.m. He then hung up for a few moments and got back on the phone at 2:12 a.m. As to Hurell's phone, there was no activity during the time the robbery was commenced between 12:55 a.m. and 1:10 a.m. His phone was used beginning at 1:10 a.m. and pinged off the cell tower on Dorchester Road near the store. It switched to the cell tower near Hurell's mother's house, then back to the tower on Dorchester Road over an eighteen minute period. The phone was used again at 7:08 a.m. at the tower near the store. The phone then repeatedly called the telephone number for the Greyhound Bus Lines at 8:41 a.m.

         The State called Shelby Bradt, the former girlfriend of Hurell's brother, Tremaine. Hurell objected, arguing her testimony would be to claim the perpetrator on the store videotape was not Tramaine, the evidence was inadmissible as lay opinion testimony, and it was irrelevant. The court overruled the objection, and Bradt testified she viewed the store videotape and the perpetrator did not look or sound like Tramaine. Bradt also testified she had never seen Tramaine wearing the green sweatshirt.

         Weaver retrieved the South Carolina Department of Motor Vehicle (DMV) records for Jones's address, which indicated the residents were Jones, Hurell, and Traquan. Weaver created three six-pack photo lineups, each of which included one of the three Hurell brothers: Hurell, Traquan, and Tramaine. The victim identified Tramaine, whom she recognized as a regular customer, as having been outside the store when her shift began the night of the robbery, but she could not identify the perpetrator. Weaver also testified he reviewed the video of the robbery with the victim and neither he nor the victim thought the perpetrator sounded like Tramaine.

         Tashima Jones, Hurell's sister, testified she lived in the apartment with Traquan and her son at the time of the robbery. According to Jones, Hurell alternately lived with their mother and his girlfriend. She testified she did not recognize the green sweatshirt. During direct testimony, Jones was asked about Hurell listing her address as his own with the DMV. She replied, "Prior to him getting out from serving some time, . . ." Hurell moved for a mistrial. After conferring with Hurell, his attorney withdrew the motion. Outside of the presence of the jury, the court questioned Hurell about the withdrawal of the motion and cautioned Jones, Tramaine, and Traquan about referring to Hurell's prior criminal activities while testifying.

         Detectives Weaver and Nick Santana interviewed Hurell's brother, Traquan, at Bi-Lo, where Traquan worked. Traquan testified he was shown the video of the robbery, he did not recognize the perpetrator, and the green sweatshirt was not his. Detective Weaver was recalled and testified Traquan told him during an initial interview that the character on the sweatshirt was a Tasmanian Devil and the sweatshirt had been given to him by a friend. Santana testified he assisted during the investigation and was present when Traquan recognized the sweatshirt.

         Weaver reviewed Hurell's Facebook page and saw photographs of shoes similar to those worn by the perpetrator. Derek Cheek, then of the Dorchester County Sheriff's Office, testified he reviewed the Facebook photographs in the investigatory file and noted Hurell wearing red and black shoes similar to those worn by the perpetrator in the surveillance videotape. Cheek also testified he reviewed websites of shoes, and a tread pattern in blood found at the site of the robbery was consistent with ...


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