May 22, 2018
From Dorchester County Edgar W. Dickson, Circuit Court Judge
Appellate Defender Robert Michael Dudek, of Columbia, for
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
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.
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.
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.
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.
testified he saw a dollar bill laying on the ground in the
balcony area 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.
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.
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.
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.
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,  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
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.
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.
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.
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.
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
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 ...