Lake Wylie / Clover Office – Reeves, Aiken & Hightower, LLP – Lake Wylie Business Centre – 100th Blog Post

Celebrating our firm’s 100th blog, the attorneys of Reeves, Aiken & Hightower, LLP, want to announce the official opening of its office in Lake Wylie, South Carolina.

From our location in the Lake Wylie Business Centre, we can now serve our clients from Lake Wylie, Clover, York, and Gastonia. The office is located beside the Bi-Lo shopping center and behind the BB&T Bank and new Auto Bell carwash off Highway 55.

Our attorneys look forward to taking care of families whose members have been victims of personal injury through no fault of their own. Whether hurt on the job or on the road, we are here to help you get through some of the most difficult times of your life. We will be there for you and beside you every step of the way.

Our firm handles all personal injury cases, including automobile accidents, large truck accidents, motorcycle accidents, boating accidents, pedestrian accidents, injuries to children, workers’ compensation cases, head injury, brain injury, nursing home abuse or neglect cases, and wrongful death. Our criminal practice includes DUI and DWI, drug charges, criminal domestic violence, and probation violations.

Our lawyers are seasoned trial attorneys with over 70 years combined litigation experience. They have varied backgrounds including former insurance defense lawyers, former prosecutor, former public defender, former Registered Nurse (RN), and former District Attorney’s office intern. Two of our founding partners are inducted lifetime members of the Million Dollar Advocates Forum. Another partner was just named one of the top 100 lawyers by the National Trial Lawyers for SC in 2012.

We invite you to compare our attorneys’ credentials to any other law firm. Then call us for a private consultation. We welcome an opportunity to sit down and personally review your injury or criminal case. Call us today at 803-554-4157 and please visit our website for more information at www.rjrlaw.com.

 

SC DUI – DUI Arrests – DUI Checkpoints – Officers Honored

The article below from WBTV showcases the “6th Annual DUI Enforcement Recognition Ceremony” honoring those police officers throughout the State of South Carolina with the highest DUI “arrests” (not convictions) in 2010. While everyone certainly “applauds” getting truly “drunk drivers” off the road, this “ceremony” demonstrates the borderline obsession police agencies have with making DUI arrests, seemingly no matter what. And this was the 6th year celebrating the current public infatuation with DUI. In the seventies, marijuana possession and arrests were all the rage. In the eighties, it was cocaine. In the nineties, it was crack cocaine. Now, in our politically correct enviroment, no one is supposed to have a drink with dinner or a beer with a friend. Because of the clear financial incentive for police departments (federal grants) and personal incentives for individual officers (promotions), anyone stopped for a traffic violation who smells of alcohol is going to be arrested, handcuffed, and charged with DUI, no matter what they say or do at that point. If they attempt to perform field sobriety tests, they will invariably “fail” and be put in the back of the patrol car. If they exercise their 5th Amendment right to not incriminate themselves, they will be taken to jail. You get the idea here. Arrests are fairly easy. Convictions are a totally different matter. Better make sure your attorney understands the difference and will fight aggressively to win your case in court.

At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts.  We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys.  We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com.

Officers, agencies honored for DUI enforcement efforts
Submitted by Jeff Rivenbark
Wednesday, March 23rd, 2011

COLUMBIA – Law enforcement officers and agencies were recognized Wednesday for their efforts in 2010 to enforce the state’s DUI laws and remove impaired drivers from South Carolina roadways.

The SC Department of Public Safety (SCDPS) presented awards to officers and agencies in several categories during its 6th Annual DUI Enforcement Recognition Ceremony. SC State Attorney General Alan Wilson was the keynote speaker.

During the ceremony, SCDPS Director Mark Keel praised the efforts of law enforcement officers statewide. “Highway Patrol, State Transport Police and our local law enforcement partner agencies do a fantastic job enforcing the traffic laws of our state. But when we all work together and combine our efforts, the good that we do is multiplied. It means more drunk drivers are off our roads and behind bars. It means more people are educated about the effects of DUI. Most importantly, it means more lives are saved. That should be applauded.”

Following is a complete list of winners:

Officer of the Year (five categories based on size of agency):

  • 1-10 officers: Officer Bill Bruner, Chapin Police Department, 22 DUI arrests
  • 11-25 officers: Officer Chris Kendall, Travelers Rest Police Department, 55 DUI arrests
  • 26-50 officers: Officer Charles Carnes, Hanahan Police Department, 92 DUI arrests
  • 51-100 officers: Officer Jason T. Pearce, North Augusta Department of Public Safety, 87 DUI arrests
  • 101 or more officers: Deputy Jason Kramer, Spartanburg County Sheriff’s Office, 135 DUI arrests

Rookie of the Year:

  • Deputy Jacob Will, Dorchester County Sheriff’s Office, 7 DUI arrests

Highway Patrol Trooper of the Year:

  • Lance Corporal Jeffery L. Fortner, Troop 3 (Post D, Spartanburg), 107 DUI arrests

Highway Patrol Troop of the Year:

  • Troop 5 (Darlington, Dillon, Florence, Georgetown, Horry, Marion, Marlboro, and Williamsburg counties), 4,436 DUI arrests

State Transport Police District of the Year:

  • District 3 (Anderson, Greenville, Oconee, Pickens and Spartanburg counties)

South Carolina Law Enforcement Network Award:

  • 15th Circuit Law Enforcement Network, (Georgetown and Horry counties)

Agency of the Year (five categories based on size of agency):

  • 1-10 officers: Bonneau Police Department, 36 DUI arrests
  • 11-25 officers: Travelers Rest Police Department, 125 DUI arrests
  • 26-50 officers: Mauldin Police Department, 186 DUI arrests
  • 51-100 officers: Aiken Department of Public Safety, 234 DUI arrests
  • 101 or more officers: Mount Pleasant Police Department, 437 DUI arrests

In addition, the following nominated officers received DUI Hero pins in bronze, silver or gold to honor their DUI arrest accomplishments in 2010.

The Bronze category for 10 to 24 DUI arrests:

  • Officer Matthew L. Bramlett, Aiken Department of Public Safety
  • Officer Aaron I. Dobbs, Aiken Department of Public Safety
  • Officer George Gymer, Aiken Department of Public Safety
  • Officer Benjamin Harm, Aiken Department of Public Safety
  • Officer Scott Richardson, Aiken Department of Public Safety
  • Officer Daymon L. Spann, Aiken Department of Public Safety
  • Lance Corporal George Rioux, Beaufort County Sheriff’s Office
  • Sergeant Timothy Slupski, Beaufort County Sheriff’s Office
  • Chief Franco Fuda Bonneau, Police Department
  • Corporal Ryan Snyder, Beaufort County Sheriff’s Office
  • Corporal Justin Carabetta, Cayce Department of Public Safety
  • Officer Katie Bradacs, Cayce Department of Public Safety
  • Officer Maria Green, Cayce Department of Public Safety
  • Officer Bill Bruner, Chapin Police Department
  • Sergeant Josh Bower, Chapin Police Department
  • Officer Troy Frick, Chapin Police Department
  • Officer Mark Robinson, Chapin Police Department
  • Corporal Louis Staggers, Charleston Police Department
  • Officer Melanie Donald, Charleston Police Department
  • Officer Adam Thayer, Charleston Police Department
  • Officer Matt Wojslawowicz, Charleston Police Department
  • Deputy Nathan Walker, Cherokee County Sheriff’s Office
  • Deputy Ronnie Painter, Cherokee County Sheriff’s Office
  • Officer Greg Taylor, Clemson Police Department
  • Officer Jay Hogue, Clemson Police Department
  • Officer Kevin Shaw, Clemson Police Department
  • Sergeant Josh Caldwell, Clemson Police Department
  • Officer Jeff Jordan, Conway Police Department
  • Officer Jason Eden, Conway Police Department
  • Officer Kendall Dixon, Conway Police Department
  • Officer William Gaffey, Conway Police Department
  • Sergeant Mike Cooke, Darlington City Police Department
  • Officer Dan Romanyzyn, Darlington City Police Department
  • Officer Javon Cauthen, Darlington City Police Department
  • Officer Tiffany N. Britton, Hanahan Police Department
  • Officer Frederick J. Durant, Hanahan Police Department
  • Officer Chris McElman, Goose Creek Police Department
  • Officer Thomas Lawson, Goose Creek Police Department
  • Lieutenant Duane Rollings, Lancaster Police Department
  • Sergeant Dale Johnson, Lancaster Police Department
  • Officer Kenneth Warlick, Lancaster Police Department
  • Officer Mike Lawler, Lexington Police Department
  • Sergeant Sam Harrell, Mauldin Police Department
  • Officer Richard Montalbano, Mauldin Police Department
  • Officer Nicholas Andes, Mauldin Police Department
  • Officer Daniel Turner, Mauldin Police Department
  • Officer Nicolas Lebby, Mount Pleasant Police Department
  • Officer Kirill Misyuchenko, Mount Pleasant Police Department
  • Officer Mark Lamb, Mount Pleasant Police Department
  • Officer Jason Brandon, Mount Pleasant Police Department
  • Officer Jacqui Pastick, Mount Pleasant Police Department
  • Officer William Decker, Mount Pleasant Police Department
  • Officer Matt Tyler, Mount Pleasant Police Department
  • Officer Dan Eckert, Mount Pleasant Police Department
  • Officer Andrew Harris, Mount Pleasant Police Department
  • Officer Elliott Anderson, Mount Pleasant Police Department
  • Officer Eric Postell, Mount Pleasant Police Department
  • Officer Ryland Reed, Myrtle Beach Police Department
  • Officer Troy Spivey, Myrtle Beach Police Department
  • Officer Pete Schmidt, Myrtle Beach Police Department
  • Officer Michael Petrizzo, Myrtle Beach Police Department
  • Officer Nathan Howitt, Myrtle Beach Police Department
  • Officer Wesley A. Youngblood, North Augusta Department of Public Safety
  • Officer Robert Gooding, North Charleston Police Department
  • Officer David King, North Myrtle Beach Dept. of Public Safety
  • Officer Matthew Pasqurell, North Myrtle Beach Dept. of Public Safety
  • Officer Kenneth Pifer, Orangeburg Department of Public Safety
  • Officer Randall, Mullis Pageland Police Department
  • Deputy Robert A. Porter, Pickens County Sheriff’s Office
  • Deputy Charles Sullivan II, Richland County Sheriff’s Department
  • Deputy Joseph R. Davis, Richland County Sheriff’s Department
  • Officer Ray Hamilton, Rock Hill Police Department
  • Officer Gerald Wayne Maury, Rock Hill Police Department
  • Officer Tim Allen, Rock Hill Police Department
  • Officer Ryan Thomas, Rock Hill Police Department
  • Sergeant Jim Grayson, Rock Hill Police Department
  • First Sergeant James Bradley, Spartanburg County Sheriff’s Office
  • Officer Ryan Braga, Summerville Police Department
  • Officer Jacob Valentine, Summerville Police Department
  • Officer Marc Bailey, Summerville Police Department
  • Officer Shari Driggers, Summerville Police Department
  • Officer Kenneth Driscoll, Summerville Police Department
  • Officer Daniel Tuck, Summerville Police Department
  • Corporal Chris King, Surfside Beach Police Department
  • Officer David Trilety, Surfside Beach Police Department
  • Officer David Turbeville, Surfside Beach Police Department
  • Deputy Ryan King, York County Sheriff’s Office
  • Deputy John Riley, York County Sheriff’s Office

The Silver category for 25 to 49 DUI arrests:

  • Corporal Chris K. Carter, Aiken Department of Public Safety
  • Corporal Timothy Clarkson, Beaufort County Sheriff’s Office
  • Corporal Adam Draisen, Beaufort County Sheriff’s Office
  • Corporal J. Elrod, Berkeley County Sheriff’s Office
  • Officer Kyle Ryan, Charleston Police Department
  • Deputy Brian Mullinax, Cherokee County Sheriff’s Office
  • Officer Justin Strickland, Conway Police Department
  • Corporal Mike Intini, Dorchester Sheriff’s Office
  • Officer Jared Skinner, Greenville County Sheriff’s Office
  • Deputy Gene Clark, Greenville County Sheriff’s Office
  • Deputy Jonathan Jackson, Greenville County Sheriff’s Office
  • Deputy Will Richter, Greenville County Sheriff’s Office
  • Deputy Matt Smith, Greenville County Sheriff’s Office
  • Deputy John Phillips, Greenville County Sheriff’s Office
  • Corporal Jimmy D. Mathis, Hanahan Police Department
  • Corporal Josh Small, Lancaster Police Department
  • Sergeant Jeremy Souter, Lexington Police Department
  • Officer Grady Johnson, Jr. Lexington Police Department
  • Officer Adam Lawrence, Mauldin Police Department
  • Officer A. J. Santos, Mount Pleasant Police Department
  • Officer Jason Smoak, Mount Pleasant Police Department
  • Officer Shon McCluskey, Myrtle Beach Police Department
  • Officer Joe West, Myrtle Beach Police Department
  • Officer Daniel Preciado, Myrtle Beach Police Department
  • Officer Louis A. Cook, North Augusta Department of Public Safety
  • Corporal Paul Wise, Orangeburg Department of Public Safety
  • Sergeant Nathan Brucke, Pageland Police Department
  • Deputy Ryan J. Galinski, Richland County Sheriff’s Department
  • Deputy David Vaughn, York County Sheriff’s Office

The Gold category for 50 or more DUI arrests:

  • Corporal Alexis Eliopoulos, Beaufort County Sheriff’s Office
  • Officer Travis Hovest, Anderson City Police Department
  • Sergeant A. B. Ashe, Berkeley County Sheriff’s Office
  • Sergeant L. Mizell, Berkeley County Sheriff’s Office
  • Officer Josh Scott, Conway Police Department
  • Officer Charles E. Carnes, Hanahan Police Department
  • Lance Corporal Jack Johnson Jr., Horry County Police Department
  • Officer David Terry, Mauldin Police Department
  • Officer Joseph Zeitner, Mount Pleasant Police Department
  • Officer Jason T. Pearce, North Augusta Department of Public Safety
  • Officer Jonathan Lawrence, North Charleston Police Department
  • Deputy James Donald Owens Jr., Richland County Sheriff’s Department
  • Officer Jason Kramer, Spartanburg County Sheriff’s Office
  • Corporal Kevin Price, Spartanburg County Sheriff’s Office
  • Officer Phillip Chappell, Spartanburg County Sheriff’s Office
  • Deputy Len Burgess, Spartanburg County Sheriff’s Office
  • Officer Patrick Lavery, Travelers Rest Police Department
  • Officer Chris Kendall, Travelers Rest Police Department
  • Senior Trooper R. D. Martin, SC Highway Patrol, Troop 1 DUI Team
  • Corporal G. D. Rothell, SC Highway Patrol Troop 1
  • Trooper First Class A. L. Antley, SC Highway Patrol, Troop 1
  • Senior Trooper Ryan Harp, SC Highway Patrol, Troop 1 DUI Team
  • Corporal C. L. Herring, SC Highway Patrol Troop 1
  • Lance Corporal W. O. Horton, SC Highway Patrol, Troop 1 DUI Team
  • Lance Corporal E. M. Koty, SC Highway Patrol, Troop 1 DUI Team
  • Senior Trooper J. T. Myers, SC Highway Patrol, Troop 1
  • Lance Corporal M. R. Danbeck, SC Highway Patrol, Troop 1
  • Senior Trooper Benji W. Humphries, SC Highway Patrol, Troop 2
  • Lance Corporal Shawn D. Brookshire, SC Highway Patrol, Troop 2
  • Senior Trooper B. S. Bryson, SC Highway Patrol, Troop 3
  • Lance Corporal J. B. Cannon, SC Highway Patrol, Troop 3
  • Lance Corporal J. L. Fortner, SC Highway Patrol,Troop 3
  • Senior Trooper F. W. Marlow, SC Highway Patrol, Troop 3
  • Lance Corporal D. C. May, SC Highway Patrol, Troop 3
  • Senior Trooper R. K. Owens, SC Highway Patrol Troop 3
  • Senior Trooper D. A. Rieser, SC Highway Patrol, Troop 3
  • Trooper First Class S. M. Williams, SC Highway Patrol, Troop 3
  • Senior Trooper R. A. Frock, SC Highway Patrol, Troop 4 DUI Team
  • Lance Corporal J. L. McCloud, SC Highway Patrol, Troop 4 DUI Team
  • Lance Corporal M. J. Shank, SC Highway Patrol, Troop 4
  • Lance Corporal J. L. Godfrey, SC Highway Patrol, Troop 4 DUI Team
  • Corporal M. Z. Hassen, SC Highway Patrol, Troop 4
  • Lance Corporal J. W. Tate, SC Highway Patrol, Troop 4 DUI Team
  • Senior Trooper C. D. Brigham, SC Highway Patrol, Troop 5 DUI Team
  • Trooper First Class C. A. Brown, SC Highway Patrol, Troop 5
  • Lance Corporal D. A. Dean, SC Highway Patrol, Troop 5
  • Senior Trooper R. E. Denham, SC Highway Patrol, Troop 5
  • Senior Trooper M. D. Dwyer, SC Highway Patrol, Troop 5
  • Senior Trooper A. B. Fox, SC Highway Patrol, Troop 5 DUI Team
  • Senior Trooper M. K. Frost, SC Highway Patrol, Troop 5
  • Lance Corporal R. J. Gannon, SC Highway Patrol, Troop 5
  • Trooper First Class M. L. Gosnell, SC Highway Patrol, Troop 5
  • Senior Trooper C. E. Graham, SC Highway Patrol, Troop 5
  • Senior Trooper W. A. Hardymon, SC Highway Patrol, Troop 5 DUI Team
  • Senior Trooper J. T. Hicks, SC Highway Patrol, Troop 5
  • Lance Corporal P. H. Hunt, SC Highway Patrol, Troop 5
  • Senior Trooper J. B. King, SC Highway Patrol, Troop 5
  • Senior Trooper M. M. McCants, SC Highway, Patrol Troop 5
  • Trooper  W. A. McInville, SC Highway Patrol, Troop 5
  • Lance Corporal B. P. Norris, SC Highway Patrol, Troop 5
  • Lance Corporal L. N. Poston, SC Highway Patrol, Troop 5
  • Senior Trooper R. M. Salter, SC Highway Patrol, Troop 5
  • Senior Trooper D. J. Sarvis, SC Highway Patrol, Troop 5
  • Senior Trooper J. T. Sarvis, SC Highway Patrol, Troop 5
  • Senior Trooper J. M. Simmons, SC Highway Patrol, Troop 5
  • Lance Corporal D. R. Weatherwalks, SC Highway Patrol, Troop 5
  • Trooper First Class M. S. Webb, SC Highway Patrol, Troop 5
  • Corporal James M. Brantley, SC Highway Patrol, Troop 6
  • Senior Trooper William C. Fawcett, SC Highway Patrol, Troop 6
  • Senior Trooper Nicolas J. Reeder, SC Highway Patrol, Troop 6
  • Trooper First Class Courtney K. Towns, SC Highway, Patrol Troop 6
  • Trooper Willie McCauley Jr., SC Highway Patrol, Troop 7

Proper Case Investigation and Trial Presentation in Criminal Cases

This recent SC Court of Appeals decision demonstrates what is expected and required of attorneys in complex criminal cases, including pre-trial investigation and court room presentation. Every potential defense must be evaluated and called at trial to properly defend a criminal defendant. Alibi witnesses, DNA evidence, any discrepancies in testimony must be aggressively pursued as part of your client’s defense. If these requirements are not met, your client can pay for a crime they may not have committed. It is the criminal defense attorney’s role to pursue every lead, every possible avenue. Better make sure your attorney knows where to look and what to look for and is willing to fight every aspect of the case against you in court.

At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts.  We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys.  We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Joseph Walker, Respondent,

v.

State of South Carolina, Petitioner.


Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge


Opinion No.  4946
Heard October 5, 2011 – Filed February 22, 2012


REVERSED


Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mary S. Williams, Assistant Attorney General Robert D. Corney, all of Columbia, for Petitioner.

Appellate Defender Kathrine H. Hudgins, of Columbia, for Respondent.

FEW, C.J.: This is a post-conviction relief (PCR) action arising out of Joseph Walker’s convictions for kidnapping and first-degree criminal sexual conduct.  The circuit court granted Walker’s PCR application based on trial counsel’s failure to investigate a potential alibi witness and the cumulative prejudicial effect of three other alleged instances of deficient performance.  We agree with the PCR court that trial counsel’s performance regarding the alibi witness was deficient under the Sixth Amendment.  However, we find the witness’s testimony presented at the PCR hearing did not meet the legal definition of an alibi, and thus Walker failed to prove prejudice.  We also find the PCR court erred in granting relief based on the cumulative effect of counsel’s deficient performance.  We reverse.

I.   Facts and Procedural History

The victim testified that on March 2, 2002, she sought a man’s help in fixing her broken-down car at a BP gas station in Denmark, South Carolina.  The man fixed her car with a wire he purchased nearby for $30.  The victim did not have enough money with her, so she told the man to follow her home so she could pay him.  She said the man came into her house uninvited, blindfolded her, drove her to his house, and raped her throughout the night.  Early the next morning the man blindfolded her again, drove her home, and threatened to kill her if she told anyone.  The victim testified that a few hours after she got home, she drank a rum and coke to calm her nerves.

The victim identified a man in the surveillance videotape from the BP station as her assailant.  The BP store manager then identified the man as Joseph Walker.  Prior to this incident, the victim had never met Walker or been to his house.  However, the police were able to match precisely the detailed descriptions the victim gave of her assailant’s truck and house with Walker’s truck and house.  Walker was arrested on March 22, 2002, twenty days after the alleged crime.  He submitted to a video interview with the police in which he claimed he was with his girlfriend, Robina Reed, on the night of the crime.  Walker was convicted of first-degree criminal sexual conduct and kidnapping.  The trial court sentenced him to concurrent terms of twenty-four years in prison.  This court affirmed the convictions and sentences.  State v. Walker, Op. No. 2004-UP-618 (S.C. Ct. App. filed Dec. 9, 2004).

In January 2005, Walker filed a PCR application alleging ineffective assistance of counsel.  Walker argued trial counsel was ineffective because she did not (1) investigate Reed as an alibi witness, (2) ask for a continuance to await the written results of a DNA test, (3) cross-examine the victim about her alcohol use, and (4) cross-examine the victim and call other witnesses about the victim’s conflicting statements as to the time of the incident.

Trial counsel testified at the PCR hearing that she watched the DVD of Walker’s interview.  In the interview, Walker referred to Reed numerous times and claimed he could not have committed the crimes because he spent the night with her on March 2, 2002.  Specifically, Walker admitted he was at the BP station on March 2, but denied helping the victim fix her car.  He said he left the BP station and went to see Reed at Hardee’s, where she worked as a manager.  Walker said he then stayed at a friend’s house until about 10:00 p.m., when he drove to Reed’s house to spend the night.

Despite watching the DVD of the interview, trial counsel did not investigate Reed as a potential witness.  At the PCR hearing, she claimed she thought her investigator was following up on Reed.  Walker testified he told the investigator about Reed, and the investigator wrote Reed’s name in the case file.  Trial counsel said she did not know what, if anything, her investigator did to investigate Reed.  She also testified she “was not aware of any claim that [Walker] was with anyone on” the night of the crime.  The PCR court summed up trial counsel’s knowledge of Reed as a potential alibi witness in the following question:

The court: So, there is an interview tape of the defendant that says he was with . . . Ms. Reed on the night of the incident.  That name appears in the file, but we don’t know what was done as far as finding out what Ms. Reed would or would not have said; is that correct?

[Trial counsel]: Yes, your honor.

Reed testified at the PCR hearing that Walker was her boyfriend on March 2, 2002.  She said Walker had a key to her house and spent most weekend nights with her.  When asked if she and Walker spent the night together on March 2, 2002, Reed answered: “I guess I did.”  The judge asked Reed: “You’re telling me that you spent – [Walker] was staying with you that first weekend in March of 2002.”  Reed answered “Yes.”  On cross-examination, however, she changed her answer as follows:

Q: 2002 is when y’all broke up?

A: Yea.

Q: You know the exact date?

A: No, sir.

Q: But you knew he was with you that night?

A: Huh?

Q: You knew he was with you on March 2?

A: Well, I know he was with me, but I can’t say a particular date.  No, I don’t know what date y’all want.

Q: But you can’t remember the date y’all broke up?

A: Right.

Q: Do you know what you were doing the night of March 1, 2002?

A: No, I can’t go back that far.

Q: Well, that’s just the day before when you said Mr. Walker was with you?

A: You said he was with me, but that’s all I can say.

Q: So, you don’t know what you were doing March 1, 2002?

A: We could have been together in 2002.  I don’t even know what day that was.

Q: But you don’t know specifically?

A: Right, that’s what I’m saying.

Q: But you know specifically right now what you were doing March 2, 2002?

A: No, I ain’t said that.

Q: So, you don’t know what you were doing March 2, 2002 that night?

The Court: Ma’am, do you know whether or not you were with this man over here Mr. Walker?

The Witness: I know we spent a lot of days together.  I can’t tell you no particular day.

Q: So you can’t tell –

A: A particular day; right.

Q: You can’t tell us you were with him March 2, 2002?

A: Right.

As to Reed’s testimony, the PCR court found:

[Walker] and Reed had an intimate relationship that was ongoing at the time of the alleged incident    . . . .  [Reed] further testified that [Walker] was usually with her during the time frame of [the] incident.  [Walker] testified that he had been spending many nights, and most, if not all, weekends with Reed prior to, and including, the date of the alleged incident . . . .  While Reed’s memory of specific dates is not perfect since it has been approximately five years since the incident, and approximately four years since the trial, her testimony corroborated that of [Walker].

. . . [T]he Court finds that the testimony of Reed at the PCR hearing was credible.

The jury would have weighed the credibility of the testimony of the witness, and it is reasonable to assume that the outcome of the deliberations may have been different had this witness testified in light of the facts of this case.

The PCR court granted Walker’s application on two grounds.  First, the court found the failure to investigate the alibi witness was deficient and prejudiced the defense.  Second, the court found Walker independently established a second ground for prejudice with the cumulative effect of Trial Counsel’s error in her failure to investigate [the victim’s] alcohol use, her failure to move to continue the hearing to await the written results of the forensic testing, her failure to cross-examine the witnesses as to the discrepancy of the conflicting times of the incident, and her failure to investigate or interview Reed, the combination of which prejudiced [Walker].

The judge explained that, standing alone, none of the first three instances of deficient performance established prejudice, but when they were added together with the failure to investigate Reed as an alibi witness, “[these] failures cumulatively prejudiced” Walker.  The State appeals both grounds upon which the PCR judge granted the application.[1]

II.    Applicable Law and Standard of Review

To obtain post-conviction relief based on the alleged denial of effective assistance of counsel under the Sixth Amendment, the applicant must satisfy the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984).  First, the applicant must show that trial counsel’s performance was deficient based on a standard of “‘reasonableness under prevailing professional norms.'”  Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011) (quoting Strickland, 466 U.S. at 688).  Second, the applicant “must demonstrate that this deficiency prejudiced him to the point that he was deprived of a fair trial whose result is reliable.”  Id.  To satisfy this second prong, the applicant “must demonstrate that his attorney’s errors had an effect on the judgment against him.”  392 S.C. at 458-59, 710 S.E.2d at 65.  An error will be found to affect the judgment if the applicant proves “‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.'”  392 S.C. at 459, 710 S.E.2d at 66 (quoting Strickland, 466 U.S. at 694).  “In other words, [the applicant] must show that ‘the factfinder would have had a reasonable doubt respecting guilt.'”  Id.  (quoting Strickland, 466 U.S. at 695).

An appellate court must affirm the factual findings of the PCR court if they are supported by any probative evidence in the record. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).  This court “will reverse the PCR court only where there is either no probative evidence to support the decision or the decision was controlled by an error of law.”  Edwards, 392 S.C. at 455, 710 S.E.2d at 64.

III.   Ineffective Assistance of Counsel—Alibi Witness

A.   First Prong of Strickland

We agree with the PCR court’s finding that trial counsel’s failure to investigate Reed as an alibi witness was deficient performance.  Counsel admitted she watched the DVD of Walker’s interview.  Therefore, she was aware of Walker’s claim that he was with Reed on the night of the crime.[2]  “[C]riminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case.” Edwards, 392 S.C. at 456, 710 S.E.2d at 64.  The duty to investigate a potential witness is even more critical when the witness might provide an alibi.  Accordingly, the Sixth Amendment requires that criminal defense attorneys thoroughly investigate potential alibi witnesses.

Trial counsel did nothing personally to investigate Reed as a witness.  Her claim that her investigator was exploring Reed’s role in the case also does not satisfy her obligations under the Sixth Amendment.  The duty to represent the client belongs to the lawyer.  While it may be reasonable to allow investigators and paralegals to do some or all of the investigatory work, trial counsel has a duty to supervise the investigation, make sure it is completed, and familiarize herself with the results.  Trial counsel’s failure to adequately investigate Reed as an alibi witness under the circumstances presented in this case was unreasonable under prevailing professional norms, and therefore deficient performance under the Sixth Amendment.

The State points out, however, that the defense presented a theory that Walker and the victim had consensual intercourse and there was no rape.  The State argues this was “a far better theory” than an alibi defense because an alibi would not have explained the victim’s detailed and accurate description of Walker’s house and truck.  The State thus argues that trial counsel’s failure to investigate Reed as an alibi witness is justified as a valid strategic decision.  This argument mischaracterizes the role of strategy in the analysis of trial counsel’s performance.  If counsel had properly investigated the alibi defense, and then made an informed strategic decision not to pursue it, the State’s argument would be persuasive.  However, because trial counsel did not conduct an adequate investigation of the alibi defense, she could not have made an informed strategic choice.

In Strickland, the Supreme Court stated that

strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.     . . . [C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

466 U.S. at 690-91; see Council v. State, 380 S.C. 159, 175, 670 S.E.2d 356, 364 (2008).  Here, trial counsel articulated no reasonable basis for her decision not to investigate Reed as an alibi witness.  Therefore, reasonable professional judgment does not support the limitation on the investigation.  Moreover, such a decision could not have been reasonable professional judgment.  Because an alibi is a complete defense to a criminal charge,[3] there is no conception of sound judgment that will permit trial counsel to choose not to investigate the testimony of a witness whom counsel has reason to believe could provide an alibi.

We find, therefore, that there is evidence to support the PCR court’s ruling that Walker met the first prong of the Strickland test.  We agree with the court’s conclusion that trial counsel’s performance was deficient because we find “‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'”  Edwards, 392 S.C. at 456, 710 S.E.2d at 64 (quoting Strickland, 466 U.S. at 687).

B.  Second Prong of Strickland

As to the second prong of Strickland, however, we find the PCR court’s ruling that trial counsel’s deficient performance prejudiced Walker was controlled by an error of law.  To qualify as an alibi, a witness’s testimony must account for the defendant’s whereabouts during the time of the crime such that it would have been physically impossible for the defendant to commit the crime. Glover v. State, 318 S.C. 496, 498, 458 S.E.2d 538, 540 (1995).  Reed’s testimony at the PCR hearing did not meet the definition of alibi.  Therefore, trial counsel’s failure to present the testimony cannot form the basis of a finding of prejudice under StricklandGlover, 318 S.C. at 498, 458 S.E.2d at 539-40.

This case is similar to Glover.  There, the PCR applicant “argued trial counsel was ineffective for failing to contact several witnesses who could have testified [the applicant] was in Florida when the crimes were committed.”  318 S.C. at 497, 458 S.E.2d at 539.  One witness initially said he “believed” the applicant was in Florida, but then said he could not remember and “knew ‘nothing.'”  Id.  The second witness testified the applicant was in Florida eleven hours before the crime was committed at a location only approximately six-and-a-half hours away.  318 S.C. at 497-98, 498 n.1, 458 S.E.2d at 539-40, 540 n.1.  The testimony of either witness would have made it less likely the applicant committed the crime.  Nevertheless, the supreme court found “no evidence to support the PCR judge’s finding of prejudice” because “neither witness’s PCR testimony established an alibi defense.”  318 S.C. at 498, 458 S.E.2d at 539-40.  In support of its finding, the supreme court cited State v. Robbins, 275 S.C. 373, 271 S.E.2d 319 (1980) for the following proposition: “[S]ince an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused’s guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all.”  Glover, 318 S.C. at 498, 458 S.E.2d at 540.

We interpret Glover to establish a framework for analyzing an alleged failure to investigate an alibi witness.  When a PCR applicant alleges trial counsel failed to investigate or present an alibi witness, the PCR court must make two findings to determine if counsel’s deficient performance constitutes prejudice under Strickland.  First, the court must find as a matter of law whether the witness’s testimony meets the legal definition of an alibi.  Second, the court must assess the witness’s credibility.  In making the first finding, the court must consider the entire record to determine what the testimony would have been if it had been presented at trial.  The PCR court must consider the testimony as a whole, take it as true and credible, and view it in the light most favorable to the PCR applicant.

Analyzing Reed’s testimony under the Glover framework, we conclude her testimony does not qualify as an alibi.  Reed’s testimony makes it less likely Walker is guilty.  Taken as a whole, however, her testimony does not account for Walker’s whereabouts on March 2, 2002, such that it was physically impossible that he committed the crimes.  Although Reed began by saying Walker spent the weekend with her, she eventually said she could not specifically remember whether Walker spent the night with her on March 2.  Even her specific testimony that Walker “was staying with [her] that . . . weekend” does not foreclose the possibility that he arrived at her house on Saturday morning after committing the crimes on Friday night.  Therefore, like the testimony of the two witnesses in Glover, Reed’s testimony does not establish an alibi because it leaves open the possibility that Walker is guilty.[4]

Because Reed’s testimony does not meet the legal definition of an alibi, Walker failed to show a reasonable probability the result of the trial would have been different if trial counsel investigated and presented Reed’s testimony.  Therefore, the PCR court committed an error of law in finding that Walker satisfied the second prong of the Strickland test.

IV.    Ineffective Assistance of Counsel—Cumulative Prejudice

The PCR court found that trial counsel’s performance was deficient in three additional instances.  The PCR court determined that Walker had not independently met the prejudice prong of the Strickland test as to any one of these deficiencies.  However, the court found that the cumulative effect of the three, combined with the failure to investigate the alibi, did satisfy the prejudice prong.  We disagree.  We find no evidence to support the PCR court’s ruling that two of the instances were deficient performance.  The other instance, which was deficient performance, and the failure to investigate Reed as an alibi witness have no cumulative prejudicial effect.[5]  Therefore, the PCR court erred in granting relief.

A.   Continuance to Await the Written Results of a DNA Test

The PCR court found trial counsel’s performance was deficient because she did not ask for a continuance to wait for the written report from the South Carolina Law Enforcement Division showing that no DNA evidence linked Walker to the crime.  We do not find evidence in the record to support this finding.

SLED tested a “bite mark” with the victim’s blood and found “no DNA profile unlike the victim.”  SLED did not release the written results of this analysis until a month after Walker’s trial.  However, both the assistant solicitor and trial counsel were aware of the test results before trial.  The assistant solicitor testified at the PCR hearing that the verbal SLED report generally becomes available “much earlier” than the written report.  The PCR court found counsel should have sought a continuance to wait for the written SLED report because she “could have shown [the report] to the jury in order to stress that the only evidence linking the Applicant to the incident was [the victim’s] identification.”

First, the victim’s identification of Walker is not the only evidence linking him to the crime.  The victim’s descriptions of Walker’s truck and house were detailed and accurate.  Based on these descriptions, the State was able to argue persuasively that the victim was in Walker’s house.

Moreover, the trial transcript shows that counsel did stress to the jury the results of the DNA test—that no DNA evidence was found linking Walker to the crime.  On direct examination of the police officer assigned to the case, the officer admitted that no DNA evidence was found in Walker’s house or truck.  On cross-examination, the officer admitted that the rape kit was never sent to SLED for DNA testing, he was unable to collect any samples for DNA testing from Walker’s house, and hairs collected from Walker’s car were not sent to SLED.  Accordingly, the SLED report would have been only marginally helpful to Walker because the contents of the report were made known to the jury through the testimony of the officer.  Moreover, the report would have been offered to prove the truth of what is asserted in the report.  Thus, the report would likely have been inadmissible hearsay.  See State v. Jennings, 394 S.C. 473, 479, 716 S.E.2d 91, 94 (2011) (finding portions of a written report constituted inadmissible hearsay).  Trial counsel’s decision not to seek a continuance so that a marginally helpful and probably inadmissible report containing the same information counsel could present to the jury in other forms is not deficient performance.

B.  Cross-Examination of the Victim on Alcohol Use

The nurse who performed the victim’s rape kit noted that the victim told her she planned to attend “ETOH treatment”[6] that week.  The PCR court found trial counsel’s performance deficient because she did not investigate the reference to “ETOH treatment” in the nurse’s notes or the smell of alcohol noted by the police.  The court found trial counsel’s lack of an investigation was deficient because the “only evidence linking [Walker] to [the victim] was [her] identification of [Walker]” and counsel’s failure “prevented the jury from considering [the victim]’s credibility in her identification of [Walker].”  We do not find any evidence in the record to support this finding.

As explained above, there is more evidence linking Walker to the crime than the victim’s identification.  Additionally, the jury was not prevented from considering the victim’s alcohol use on the day of the crime in assessing her credibility.  The record contains several instances of trial counsel bringing the victim’s alcohol use to the jury’s attention.  Counsel asked the victim about beer she drank while at the assailant’s house.  Counsel cross-examined the victim about the rum and coke she drank when she got home on the morning of March 3, 2002.  Counsel cross-examined the victim’s cousin about the victim bringing an alcoholic drink with her to the cousin’s house on March 3.  Finally, counsel mentioned the victim’s alcohol use in her closing argument.  Thus, the trial transcript reflects that trial counsel investigated and brought to the jury’s attention, through cross-examination and in closing argument, the victim’s use of alcohol during and after the incident, allowing the jury to consider how the alcohol could have affected her credibility in identifying Walker.

We recognize that the nurse’s note shows more than merely that the victim drank alcohol during and after the crime.  Rather, the reference to alcohol treatment paints the victim as an alcoholic.  However, evidence that the victim is an alcoholic is not admissible to prove she was intoxicated at a particular time.  See Rule 404(a), SCRE (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.”).  While “[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused” is admissible under Rule 404(a)(2) in some circumstances, the victim’s alcoholism is not a pertinent trait of character in this case.  See State v. Mizell, 332 S.C. 273, 278, 504 S.E.2d 338, 341 (Ct. App. 1998) (“[T]he ‘prevailing view is that only pertinent traits—those involved in the offense charged—are provable.'” (quoting John W. Strong, McCormick on Evidence § 191 (4th ed. 1992))).

Moreover, evidence of the victim’s alcoholism is not admissible under Rule 608(a), SCRE, because it is not evidence of her character for truthfulness or untruthfulness.   See Rule 608(a), SCRE (“The credibility of a witness may be attacked . . . subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness.”); see also State v. Aleksey, 343 S.C. 20, 34, 538 S.E.2d 248, 255 (2000) (“Narcotics offenses are generally not considered probative of truthfulness.”).  While evidence of a person’s intoxication at a specific point in time may be admissible to show credibility, evidence that a person is an alcoholic is not.

C.  Cross-Examination on Conflicting Evidence as to the Time of the Incident

The PCR court found trial counsel’s performance was deficient because she did not “adequately prepare for trial through her failure to call witnesses” whose testimony would have shown the victim initially stated she was at the BP station at night and then later stated she was there in the afternoon.  The nurse’s report states that the victim said “on 3/2/02 at approx 7PM, she was at a gas station and her car wouldn’t start back up.”  The PCR transcript refers to a police incident report that says the victim recounted she stopped at the BP station “at approximately 8 P.M.”  The videotape from the BP station shows the victim was there at approximately 3:30 in the afternoon.  At trial, she testified she was at the BP station in the afternoon while it was still light outside.  Counsel had both reports in her case file, but did not ask the victim about the conflicting times.  The PCR court found counsel should have explored the discrepancy to place doubt in the minds of the jury as to whether the victim accurately identified Walker.  We uphold the PCR court’s finding of deficient performance in this respect because there is evidence in the record to support the finding.

D.  The Cumulative Effect of Counsel’s Deficient Performance

We find two instances of trial counsel’s deficient performance—her failure to investigate Reed as a potential alibi witness and her failure to cross-examine the victim or call witnesses to testify about conflicting evidence as to the time of the incident.  To the extent the failure to investigate Reed as a potential alibi witness caused some prejudice, we have determined the prejudice did not rise to a level warranting relief under Strickland.  As to the failure to bring out the victim’s conflicting statements on the time of the incident, the PCR court found any prejudice resulting from that deficiency did not independently warrant relief under Strickland.  Even if South Carolina did allow PCR based on the cumulative prejudicial effect of two or more instances of deficient performance,[7] Walker would still have to demonstrate “a reasonable probability that, but for [the cumulation of] counsel’s unprofessional errors, the result of the proceeding would have been different.”  Edwards, 392 S.C. at 459, 710 S.E.2d at 66 (quoting Strickland, 466 U.S. at 694).  We find he has not.  These instances of deficient performance are unrelated to each other and neither one makes the other more prejudicial.  Therefore, even if we could evaluate them together, there is no cumulative prejudicial effect that would warrant relief under Strickland.

V.  Conclusion

The judgment of the PCR court granting a new trial is

REVERSED.

THOMAS and KONDUROS, JJ., concur.

[1] The State also contends the PCR court applied an incorrect standard by requiring counsel to articulate a trial strategy for each alleged instance of deficient performance.  However, we do not read the PCR court’s order to include such a requirement.  We read the order as merely noting that trial counsel did not articulate a strategy in defense of her performance.

[2] Walker never personally told trial counsel about Reed.  However, trial counsel could not have watched the interview without knowing Reed was a potential alibi witness.

[3] See State v. Robbins, 275 S.C. 373, 375, 271 S.E.2d 319, 320 (1980).

[4] Because Reed’s testimony does not meet the legal definition of an alibi, it is not necessary to make the second finding.

[5] “[W]hether the cumulation of several errors, ‘which by themselves are not prejudicial, would warrant relief is an unsettled question in South Carolina.'”  Lorenzen v. State, 376 S.C. 521, 535 n.3, 657 S.E.2d 771, 779 n.3 (2008) (quoting Green v. State, 351 S.C. 184, 197, 569 S.E.2d 318, 325 (2002)).  As discussed below, we find it unnecessary to answer this question because Walker has failed to prove prejudice under any interpretation of the law.

[6] ETOH is an abbreviation for ethanol and refers to alcohol and alcohol abuse.  Trial counsel knew this.

[7] See footnote 5.

Probation Violation – Required Findings to Revoke

This case demonstrates the critical arguments necessary to win probation violation charges. In these difficult economic times, it may be impossible to pay court costs, fines, and/or restitution. However, having your suspended sentence converted to real time in prison only makes things worse. Better make sure your criminal defense attorney understands the critical rules here and is willing to fight to keep you out of jail and working to support your family.

At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts.  We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys.  We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Phillip Coker, Appellant.


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


Opinion No. 4945
Heard January 25, 2012 – Filed February 22, 2012


REVERSED


Appellate Defender Elizabeth A. Franklin-Best and Assistant Appellate Defender Breen Stevens, both of Columbia, for Appellant.

John Benjamin Aplin, of Columbia, for Respondent.

FEW, C.J.: The circuit court revoked Phillip Coker’s probation based solely on the failure to pay money and imposed a portion of the prison sentence originally suspended.  Coker appeals arguing the circuit court failed to make the necessary findings of fact as to whether the violation was willful.  We agree and reverse.

In Bearden v. Georgia, 461 U.S. 660, 672 (1983), the Supreme Court of the United States held that a court may not revoke probation solely on the basis of the failure to pay money unless the court makes certain findings of fact regarding the willfulness of the failure to pay.  In Barlet v. State, 288 S.C. 481, 343 S.E.2d 620 (1986), our supreme court stated: “Probation may not be revokedsolely on the ground the probationer failed to pay fines or to make restitution.  The judge must determine on the record that the probationer failed to make a bona fide effort to pay.”  288 S.C. at 483, 343 S.E.2d at 622 (citing Bearden, 461 U.S. at 672).

In State v. Spare, 374 S.C. 264, 647 S.E.2d 706 (Ct. App. 2007), we provided the trial bench a roadmap for making the findings required under Bearden and Barlet.  We held the circuit court may not revoke probation solely on the basis of a failure to pay money unless the record reflects the court made the following findings:

(1) “[T]he State has presented sufficient evidence to establish that a probationer has violated the conditions of his probation.”  374 S.C. at 268, 647 S.E.2d at 708 (internal quotation marks omitted).

(2)   “[T]he probationer made a willful choice not to pay” in that the probationer had the funds to pay and chose not to do so or lacked the funds to pay and did not make a bona fide effort to acquire the funds.  374 S.C. at 268-69, 268 n.2, 647 S.E.2d at 708-09, 708 n.2 (internal quotation marks omitted).

(3)  “[I]f the court finds the probationer ‘could not pay despite sufficient bona fide efforts to acquire the resources to do so,'” the court may not imprison the probationer unless it also finds that “‘alternate measures are not adequate to meet the State’s interests in punishment and deterrence.'”  374 S.C. at 268 n.2, 270, 647 S.E.2d at 708 n.2, 709 (quotingBearden, 461 U.S. at 672, 673).

The circuit court did not make any of the required findings in this case.  We therefore reverse and remand to the circuit court with instructions to make the findings required by Spare, along with findings of fact to support each.

REVERSED AND REMANDED. 

THOMAS and KONDUROS, JJ., concur.


SC Involuntary Manslaughter – Dangerous Dogs – Gruesome Autopsy Photographs

This case involved a horrific, gruesome death involving dangerous dogs and a 10 year old child. Autopsy photographs were described by the forensic pathologist as the worst he had ever encountered. Such graphic evidence can easily upset a jury to the point where the criminal defendant charged cannot get a fair trial. As the court outlined in this opinion, each photograph or piece of evidence must be carefully analyzed to determine whether its probative value is sufficient to overcome the danger of unfair prejudice and warrant introduction into the record. Such analysis is always fact specific to each case but can make the difference between being found guilty and being acquitted. Better make sure your criminal defense attorney understands these critical arguments and is willing to fight for you in court.

At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts.  We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys.  We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Bentley Collins, Appellant.


Appeal From Dillon County
Paul M. Burch, Circuit Court Judge


Opinion No.  4941
Heard November 2, 2011 – Filed February 15, 2012


REVERSED AND REMANDED


Senior Appellate Defender Joseph L. Savitz, III, and Appellate Defender Susan Hackett, both of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot, Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor William B. Rogers, Jr., of Bennettsville, for Respondent.

FEW, C.J.: Bentley Collins was convicted of involuntary manslaughter and three counts of owning a dangerous animal after his dogs killed a ten-year-old boy.  Collins appeals the convictions claiming the trial court erred by (1) admitting seven autopsy photographs of the boy’s partially eaten body and (2) denying his directed verdict motions as to both crimes.  Because we find the trial court abused its discretion in admitting the photos, we reverse and remand for a new trial.

I.   Facts

At around 7:00 p.m. on November 3, 2006, the boy’s mother returned from a trip to find her son had not come home for dinner.  After looking for him at neighbors’ houses, she called the sheriff’s department.  The responding officers searched the neighborhood with her.  They found the boy’s body in Collins’ yard surrounded by at least three dogs.[1]  The boy’s mother later testified “he was torn to pieces.  Pieces.”

Collins was indicted for involuntary manslaughter and three counts of owning a dangerous animal under the Regulation of Dangerous Animals Act.  S.C. Code Ann. §§ 47-3-710 to -770 (Supp. 2011).  After a jury convicted him of all charges, the trial court sentenced him to five years in prison, followed by five years of probation.[2]

II.  Admissibility of the Photographs

The State offered into evidence ten photos of the boy’s body.  The photos were taken by a forensic pathologist before he performed an autopsy.  Collins objected to the admission of the photos under Rule 403, SCRE, arguing that the danger of unfair prejudice substantially outweighed their probative value.  After a hearing outside of the jury’s presence, the trial court admitted seven of the photos.

A.   Standard of Review

“The admission of evidence is within the circuit court’s discretion and will not be reversed on appeal absent an abuse of thatdiscretion.”  State v. Dickerson, 395 S.C. 101, 116, 716 S.E.2d 895, 903 (2011).  A trial court has particularly wide discretion in ruling on Rule 403 objections.  See State v. Adams, 354 S.C. 361, 378, 580 S.E.2d 785, 794 (Ct. App. 2003) (“A trial judge’s decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances.  We . . . are obligated to give great deference to the trial court’s judgment [regarding Rule 403].” (internal citation omitted)).  We nevertheless hold that in this case the trial court abused its discretion.

B.  Probative Value

Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”  “Probative” means “[t]ending to prove or disprove.”  Black’s Law Dictionary 1323 (9th ed. 2009).  Probative value is the measure of the importance of that tendency to the outcome of a case.  It is the weight that a piece of relevant evidence will carry in helping the trier of fact decide the issues.  “[T]he more essential the evidence, the greater its probative value.” United States v. Stout, 509 F.3d 796, 804 (6th Cir. 2007) (internal quotation marks omitted).  Thus, a court analyzing probative value considers the importance of the evidence and the significance of the issues to which the evidence relates.  As our supreme court stated in State v. Torres, 390 S.C. 618, 703 S.E.2d 226 (2010), “[p]hotographs calculated to arouse the sympathy or prejudice of the jury should be excluded if they are . . . not necessary to substantiate material facts or conditions.”  390 S.C. at 623, 703 S.E.2d at 228 (emphasis added).  The evaluation of probative value cannot be made in the abstract, but should be made in the practical context of the issues at stake in the trial of each case.  See State v. Lyles, 379 S.C. 328, 338, 665 S.E.2d 201, 206 (Ct. App. 2008) (“When [balancing the danger of unfair prejudice] against the probative value, the determination must be based on the entire record and will turn on the facts of each case.” (citing State v. Gillian, 373 S.C. 601, 609, 646 S.E.2d 872, 876 (2007))).

Understanding the practical context of the trial of this case begins with the elements of the crimes charged.  A person is guilty of owning a dangerous animal when the State proves (1) he owned or had custody or control of an animal; (2) he knew or reasonably should have known the animal had a propensity, tendency, or disposition to attack unprovoked, cause injury, or otherwise endanger the safety of human beings; (3) the animal made an unprovoked attack; (4) the attack caused bodily injury to a human being; and (5) the attack occurred while the animal was unconfined on the owner’s premises.  S.C. Code Ann. §§ 47-3-710(A)(1)-(2)(a), (D); -720; -760(B) (Supp. 2011).

To convict a defendant of involuntary manslaughter, the State must prove one of the following: “(1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.”  State v. Crosby, 355 S.C. 47, 51-52, 584 S.E.2d 110, 112 (2003).

On the dangerous animal charges in this case, the trial focused almost exclusively on issues relating to the second and third elements.  Importantly, the fourth element—that the dogs’ attack caused bodily injury to a human being—was never in dispute.  In the hearing regarding admissibility of the photos, the State argued they would be important for the testimony of both the pathologist and the dog behavior expert.  The State then explained how the photos were important, arguing only that they were probative of the third element.  The State did not argue the photos were probative of any other element of the dangerous animal charges or any element of involuntary manslaughter.

The State thus argued the probative value of the photos was primarily to establish that the dogs’ attack on the boy was unprovoked.  The State’s theory on this point was that Collins underfed the dogs, and because the dogs were hungry, they became aggressive and attacked the boy for food.  On appeal, the State makes two specific arguments as to how the photos support its theory: the pathologist needed the photos to explain that the dogs ate the boy, and the photos corroborate the testimony of its dog behavior expert.

As to the State’s first argument, the photos do show that the dogs ate a significant portion of the boy’s flesh.  Prior to the introduction of the photos, however, the State presented convincing testimony to prove the same thing.  The pathologist testified:

There were extensive traumatic injuries consisting of loss of skin and soft tissue in a tearing fashion about the face, the ears, the eyes, the neck, the chest.  There was loss of skin and soft tissue with exposure of the bones of both shoulders.  Essentially, the humeral bone in the upper arm, both right and left, was exposed from the shoulder to the elbow.

The State also put the autopsy report into evidence prior to the photos.  The pathologist testified to the contents of the report as follows:

I described it as extensive traumatic injury, loss of skin to the face to include the nose, the ears and all soft tissues around the lips with exposure of the mandible, which is the lower jaw, teeth, and the underlying bony part of the skull. . . . The ears and nose were completely eaten away.

The State asked the pathologist what led him to conclude the ears and nose were “eaten away.”  He responded: “There was a virtual complete absence of the ear structures on the right side and just remnants, shredded remnants of skin and what were probably portions of the ear on the left.  They were essentially gone.”  Finally, the pathologist said he normally does not take photos of an autopsy, but did so in this case because “[t]his autopsy showed tremendous traumatic injury to this young man.  This degree of injury was [as] significant [a] traumatic injury as I’ve seen.  I’ve never seen an attack by animals of this type . . . .”  Thus, before the photos were admitted, the pathologist’s testimony conclusively established that the dogs ate the boy.  The photos add very little to the jury’s ability to understand the pathologist’s testimony on this point.

The State’s second argument relates to its dog behavior expert, who testified the dogs attacked the boy out of hunger, not provocation.  The expert used photographs of the dogs to describe physical features that showed they were malnourished.  The officers who responded to the scene testified there were no visible food bowls for the dogs.  Based on this evidence, the dog behavior expert gave an opinion that the dogs attacked the boy because they were hungry.[3]

The State argues the photos corroborate the dog behavior expert’s testimony and thus tend to prove the attack was unprovoked.  However, the photos relate to the expert’s opinion only to the extent they show the same fact testified to by the pathologist, that the dogs ate the boy.  As discussed above, the photos add little to the pathologist’s testimony.  Moreover, the expert hardly mentioned the photos of the boy.  The assistant solicitor asked this expert only one question regarding the photos: “Could you tell the jury what you found significant in reviewing those particular photos . . . as it relates to the level of aggression with the dogs[?]”  The witness’s response to the question did not relate the photos to his opinion or to how he arrived at it.  Rather, the response highlights the unfair prejudice in the photos.

Based on – in ten years going back on reports that I’ve noted on dog bites and dog attacks and deaths caused by dogs this is the worst case I’ve ever seen.  I worked for the sheriff’s office for over a decade, and I have never seen something so gruesome.

The photos add little to the jury’s ability to understand the dog behavior expert’s testimony.

Finally, we address the trial court’s statement that the photos are probative of the cause of the boy’s death.  In explaining his ruling to admit the photos, the trial court stated “we’ve got to keep in mind . . . involuntary manslaughter, which involves cause of death.”  We find the photos add very little to the pathologist’s ability to explain or the jury’s ability to understand the cause of death.  The pathologist testified the boy “died as a result of extensive traumatic injury secondary to being mauled by dogs.”  In particular, the pathologist testified the dogs “lacerated, basically transected the jugular vein on the left side.”  When the pathologist discussed the photos, however, he had already completed his explanation of the cause of death.  The only mention the pathologist made of the cause of death during his discussion of the photos was his description of one of the photos as “an enlarged view showing the degree of injury to the left neck of this young man.”  As to that photo, he stated that the torn jugular vein was “very hard to see in this picture.”  Other than to discount the importance of the photos with this statement, the pathologist did not use any of them to explain the cause of death.

We agree that the photos have some probative value in helping the jury understand each of the three points argued by the State: (1) the pathologist’s testimony that the dogs ate the boy, (2) the dog behavior expert’s opinion that the dogs’ attack on the boy was unprovoked, and (3) the pathologist’s testimony that the dogs’ attack in general and the torn jugular vein in particular caused the boy’s death.  However, the photos add little to the testimony of the witnesses on these three points.  Referring to the supreme court’s statement in Torres that “[p]hotographs calculated to arouse the sympathy or prejudice of the jury should be excluded if they are . . . not necessary to substantiate material facts,” the photos in this case are hardly “necessary.”  390 S.C. at 623, 703 S.E.2d at 228.

More importantly, the issues the State argues the photos relate to are hardly “material.”  The three points argued by the State relate to the conduct of the dogs.  As to the elements of the crimes, the focus of the trial should have been on Collins’ conduct and whetherhis conduct was criminal in nature.  The conduct of the dogs is important, but only to the extent the dogs’ conduct shows Collins’ conduct.  The photos are far removed from Collins’ conduct, and even farther removed from whether Collins’ conduct was criminal.  The photos show the boy’s body after the dogs attacked and killed him.  The condition of the boy’s body circumstantially shows the conduct of the dogs on the day of the attack—they ate the boy.  From the conduct of eating the boy, the State argues the jury should infer the dogs were hungry, from which in turn the State argues the jury should infer that Collins starved them.  At this point in the chain of inferences that the State asks the jury to draw from these photos, Collins has not violated the Dangerous Animals Act.  At least two more steps are required.  From the fact that he starved the dogs, the State argues Collins must have done so knowingly, and from this he reasonably should have known the dogs “had a propensity, tendency, or disposition to make an unprovoked attack” on a child to get food.  In the practical context of the issues at stake in the trial of this case, these photos are of little significance.

For these reasons, we find the probative value of the photos is minimal.

C. The Danger of Unfair Prejudice

The probative value of the photos must be balanced against “the danger of unfair prejudice.”  Prejudice that is “unfair” is distinguished from the legitimate impact all evidence has on the outcome of a case.  “‘Unfair prejudice does not mean the damage to a defendant’s case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.'”  State v. Gilchrist, 329 S.C. 621, 630, 496 S.E.2d 424, 429 (Ct. App. 1998) (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993)).  “All evidence is meant to be prejudicial; it is only unfair prejudice which must be [scrutinized under Rule 403].”  Id. (quoting United States v. Rodriguez–Estrada, 877 F.2d 153, 156 (1st Cir. 1989)); see also United States v. Mohr, 318 F.3d 613, 619-20 (4th Cir. 2003) (“Rule 403 only requires suppression of evidence that results in unfair prejudice—prejudice that damages an opponent for reasons other than its probative value, for instance, an appeal to emotion . . . .”).

Photographs pose a danger of unfair prejudice when they have “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.”  State v. Holder, 382 S.C. 278, 290, 676 S.E.2d 690, 697 (2009) (internal quotation marks omitted).  This definition of unfair prejudice was taken originally from the Advisory Committee Notes to the formerly identical federal rule 403.[4]  See State v. Alexander, 303 S.C. 377, 382, 401 S.E.2d 146, 149 (1991) (adopting the definition of unfair prejudice recited in the Notes of the Federal Rules Advisory Committee).  Regarding this definition, the Supreme Court of the United States stated: “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”  Old Chief v. United States, 519 U.S. 172, 180 (1997).  Like probative value, unfair prejudice should be evaluated in the practical context of the issues at stake in the trial of the case.  See State v. Wilson, 345 S.C. 1, 7, 545 S.E.2d 827, 830 (2001) (“The determination of prejudice must be based on the entire record and the result will generally turn on the facts of each case.”).

The seven photos admitted are graphic and shocking.  They depict a ten-year-old boy’s body on an autopsy table after being partially eaten by dogs.  The photos are in color.  One photo provides an encompassing view of what remains of the boy’s upper body.  Three close-up photos show the remains of his face.  The exposed skull and jaw bone are plainly visible in these photos.  Two of these close-ups also show the exposed arm, shoulder, and rib bones, where the flesh was eaten away from the middle of his chest, across his shoulder and down to his elbow, on both sides.  One photo shows the left side of the boy’s face from the back, again with the exposed jaw bone visible.  The remaining two photos are of the body from the waist down, showing his blood-stained shorts and the bite marks on his legs.  The pathologist described what the photos show, but seeing the photos draws an intense emotional response and a level of sympathy for the dead child that does not come from the testimony.  It is difficult to look at each photo, and the combined effect of all seven is disturbing.  The photos that show what remains of the child’s face are chilling.  The danger of unfair prejudice of the admitted photos is extreme.

D.  Balancing Probative Value and Unfair Prejudice

We have noted that a trial court has particularly wide discretion in ruling on Rule 403 objections.  Adams, 354 S.C. at 378, 580 S.E.2d at 794.  In this case, however, we find the danger of unfair prejudice in these photographs substantially outweighs their probative value, and the trial court abused its discretion in ruling otherwise.

Our analysis depends heavily on the capacity of these photos to draw the jury’s attention away from the elements of the crimes charged, which are framed to focus the jury primarily on the conduct of the defendant.  Seeing the photos of the child’s partially eaten body lying on the autopsy table prompts an intense emotional response.  The photos evoke sympathy for the boy and also for his mother for what she must have endured when she saw her son in this condition in Collins’ yard.  Consequently, the photos have precisely the effect contemplated by the definition of unfair prejudice: “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.”  Holder, 382 S.C. at 290, 676 S.E.2d at 697 (internal quotation marks omitted).  As stated in Old Chief, the photos “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”  In Old Chief, the improper ground for declaring guilt was the defendant’s propensity to commit crimes.  519 U.S. at 180-81.  Other courts have identified additional improper grounds, such as when the evidence “appeals to the jury’s sympathies [or] arouses its sense of horror.”  United States v. Thompson, 359 F.3d 470, 479 (7th Cir. 2004) (internal quotation marks omitted).

These gruesome photos have an overwhelming capacity to lure the jury into declaring guilt on the emotional basis of sympathy for the boy and his mother and horror at the sight of the boy’s body.  This is the unfair prejudice that substantially outweighs the probative value of the photos.  We recognize that the photos add a visual element not present in the testimony of the witnesses.  However, this visual element does far more to create a danger of unfair prejudice than it does to add probative value.  These photos are beyond “the outer limits of what our law permits a jury to consider.”  See Torres, 390 S.C. at 624, 703 S.E.2d at 229.  For this reason, we find the trial court abused its discretion in admitting the photos.[5]

E.  The Probative Value of Corroboration

The State argues, however, that the photos corroborate the testimony of the pathologist and the dog behavior expert, and thus have sufficiently high probative value that it is not substantially outweighed by the danger of unfair prejudice.  The State is correct that the extent to which an autopsy photograph corroborates other evidence or testimony increases its probative value.  However, the probative value from a photograph’s tendency to corroborate will vary depending on the facts of an individual case.  In some cases, photographs that corroborate important testimony on issues significant to the case may have very high probative value.  As we have already explained, however, the photos in this case have minimal probative value, even considering the limited extent to which they corroborate the testimony of the witnesses.

This conclusion is supported by our opinion in State v. Jarrell, 350 S.C. 90, 564 S.E.2d 362 (Ct. App. 2002).  In Jarrell, we stated: “A test to determine whether the trial court abused its discretion is whether the photographic evidence serves to corroborate the testimony of witnesses offered at trial.  ‘If the photograph serves to corroborate testimony, it is not [an] abuse of discretion to admit it.'”  350 S.C. at 106, 564 S.E.2d at 371 (quoting State v. Rosemond, 335 S.C. 593, 597, 518 S.E.2d 588, 590 (1999)).  As our opinion in Jarrell indicates, however, the photographs admitted in that case corroborated important testimony on significant issues to such an extent that their probative value was very high.

Jarrell was charged with homicide by child abuse, accessory before and after murder, criminal sexual conduct, and unlawful conduct towards a child.  350 S.C. at 95, 564 S.E.2d at 365.  Like the photos in this case, the photographs admitted in Jarrell showed the extent of the child’s injuries.  Unlike this case, however, the child’s injuries in Jarrell were essential to the State’s ability to prove the crimes of homicide by child abuse, criminal sexual conduct, and unlawful conduct towards a child.  This is because the elements of those crimes require the jury to focus on the effect the defendant’s conduct had on the child.  Thus, we placed importance on the fact that the Jarrell photographs “corroborated the testimony about the condition of the child.”  350 S.C. at 106, 564 S.E.2d at 371.  Further, the time of the child’s death was an important issue in Jarrell.  The fact that the baby had been dead long enough for rigor mortis to set in and decomposition to begin, as shown by the photographs, “corroborated the pathologist’s testimony about the time of death” and “support[ed] the charge against Jarrell of accessory after the fact.”  Id.

Most importantly, the Jarrell photographs corroborated testimony supporting the State’s theory of motive.  Jarrell discussed the abuse and death of the child with inmates while she was in jail awaiting trial.  “She . . . stated that she and Father planned to kill the baby . . . because the baby had an upcoming doctor’s appointment and the abuse would be readily apparent to anyone examining the baby.”  350 S.C. at 96, 564 S.E.2d at 366.  We explained the significance of the photos to Jarrell’s motive as follows:

We agree that the photographs were necessary to corroborate the testimony presented at trial. A photograph displaying the anal injuries due to the sexual abuse corroborated both the pathologist’s testimony regarding the extent of those injuries and the witnesses’ testimony that Jarrell’s motive for planning to kill the baby was because the sexual abuse was readily apparent. 350 S.C. at 106, 564 S.E.2d at 371.

The supreme court has also placed importance on the fact that autopsy photographs corroborate the testimony of witnesses.  InHolder, the court stated: “‘If the offered photograph serves to corroborate testimony, it is not an abuse of discretion to admit it.'”  382 S.C. at 290, 676 S.E.2d at 697 (quoting State v. Nance, 320 S.C. 501, 508, 466 S.E.2d 349, 353 (1996)).  Holder was also a homicide by child abuse case.  Thus, as in Jarrell, the injuries to the child were critical to the State’s ability to prove the elements of the crime.  The supreme court explained: “The photographs corroborated the pathologist’s testimony about the extensive bruising on the child, which was in various stages of healing, and showed that even internal organs manifest signs of bruising.  This is particularly helpful to jurors who are unversed in medical matters.”  382 S.C. at 290-91, 676 S.E.2d at 697.  The photos also corroborated the pathologist’s testimony refuting Holder’s testimony.

Although Holder testified she was unaware of any marks on her son prior to his death and thought he was suffering from simple food poisoning, it is abundantly clear from the extensive bruising on the child, which was in various stages of healing, and the torn internal organs, that he had been seriously injured. These photographs demonstrate that the damage to the child would have been difficult to ignore. 382 S.C. at 291, 676 S.E.2d at 697.

Because the photographs in Jarrell and Holder strongly corroborated important testimony on significant issues, the photographs were found to have very high probative value.  The supreme court explained this in Holder: “We find the photographs clearly demonstrate the extent and nature of the injuries in a way that would not be as easily understood based on the testimony alone.”  382 S.C. at 290, 676 S.E.2d at 697.

Depending on the facts of a specific case, there may be other ways in which evidence challenged under Rule 403 corroborates evidence.  See Black’s Law Dictionary 636 (9th ed. 2009) (“[C]orroborating evidence” is “[e]vidence that differs from but strengthens or confirms what other evidence shows (esp. that which needs support).”).  Trial courts should consider the corroborating effect of evidence when analyzing its probative value.  However, the limited extent to which these photos corroborate the testimony of the witnesses does not significantly increase the minimal probative value of the photos.  A photograph of the partially eaten body of a child is not necessary to demonstrate that the dogs killed the boy and ate a significant portion of his flesh.  These facts are readily understood based on the pathologist’s testimony alone.  Thus, we disagree with the State that these photos sufficiently corroborate the testimony of the pathologist or the dog behavior expert such that the probative value of the photos is not substantially outweighed by the extreme danger of unfair prejudice.

F.  Deference to the Trial Court’s Analysis

The State also argues the trial court’s exclusion of several photographs indicates it did exercise discretion, and we should not disturb that exercise.  The State correctly points out that both the supreme court and this court have deferred to the judgment of the trial court when the record reveals the trial court actually exercised its discretion.  See, e.g.Jarrell, 350 S.C. at 106, 564 S.E.2d at 371 (“Significantly, the trial court did not admit all the photographs, giving the State a choice between two photographs depicting the same injury. . . . [T]he trial court’s exclusion of photographs demonstrates it exercised its discretion.”); see also Torres, 390 S.C. at 624, 703 S.E.2d at 229 (“[T]he trial judge did exercise his discretion by excluding three of the State’s photographs, ruling that they were duplicative and prejudicial.”).

The record in this case, however, shows that the trial court did not independently analyze the probative value of the photos.  Therefore, the trial court did not properly exercise its discretion.  See State v. Mansfield, 343 S.C. 66, 86, 538 S.E.2d 257, 267 (Ct. App. 2000) (“The failure to exercise discretion, however, is itself an abuse of discretion.”).  The State called the pathologist to testify during the admissibility hearing.  The court began its examination of the pathologist by telling him the State wanted to admit the photos at issue because they were “necessary for you to explain your findings.”  The court then asked the pathologist to “confirm” whether or not he “need[ed]” each photo.  The pathologist answered the question in conclusory fashion: “Your honor, these would certainly enable me to describe the degree of injury and show the extent of it. . . . [T]hese I think would be very beneficial to explain exactly what happened to this young man.”  The court then asked the pathologist: “Are there some in there that we could pull out that are merely repetitious?”  The pathologist identified three photos, which were not admitted.  The court then stated:

Okay, based on [the pathologist’s] testimony [that] he needs it in his scientific explanation I’m allowing those in . . . .

After counsel for Collins and the State questioned the pathologist, the trial court ruled:

It is an unusual case, however, we’ve got to keep in mind that we’ve got involuntary manslaughter which involves death, cause of death.  You’ve got [the pathologist] here who is one of the best, and he’s informed the Court that he needs it.  All right.  I’m standing by what I’ve done.  I’m overruling the objections

Without evaluating the probative value of the photos, the trial court was unable to balance that probative value against the danger of unfair prejudice, as required by Rule 403.  The trial court’s failure to independently make that evaluation is particularly significant in this case because, as we discussed earlier, the pathologist’s explanation of the importance of the photos does not withstand scrutiny.  Moreover, while the pathologist is fully capable of understanding the importance of the photos to medical considerations such as cause of death, the pathologist is not the person charged with the responsibility of relating that importance to the legal issues in the case.  The trial court is charged with that responsibility.

The danger of unfair prejudice is so high that it required little analysis.  The probative value, on the other hand, required careful analysis.  In Jarrell and Torres the appellate court deferred to the judgment of the trial court when it admitted some autopsy photographs but excluded others.  The deference in those cases, however, was not simply to the trial court’s decision.  Rather, the appellate court deferred to the trial court’s analysis.  We do not defer to the trial court’s decision in this case because the record reflects it was not based on the court’s own analysis.

III.  Harmless Error

We have considered whether the admission of the photographs was harmless beyond a reasonable doubt.  See State v. Myers, 359 S.C. 40, 48, 596 S.E.2d 488, 492 (2004) (declining to reverse for error under Rule 403 because the error was harmless).  In making the determination that the error was not harmless, we have considered the fact that the other evidence of the condition of the child’s body also has potential to cause a similar emotional reaction we find constitutes the unfair prejudice in these photographs.  Thus, we have evaluated whether the additional emotional impact of the photographs over and above that caused by other evidence in the case is such that the erroneous admission of the photographs is harmless.  Given the intense emotional reaction caused by viewing these photos, we cannot say that their admission into evidence was harmless beyond a reasonable doubt. Accordingly, we reverse the trial court’s decision to admit the photos and remand for a new trial.

IV.  Directed Verdict

Collins argues the trial court erred in denying his motions for directed verdict as to both crimes.  We find evidence in the record to support each element of both crimes.  Therefore, the trial court ruled correctly in denying Collins’ motions for directed verdict.  SeeState v. Phillips, 393 S.C. 407, 412, 712 S.E.2d 457, 459 (Ct. App. 2011) (“An appellate court may reverse the trial court’s denial of a directed verdict motion only if no evidence supports the trial court’s ruling.”).

Accordingly, the decision of the trial court to admit the photos is REVERSED and the case is REMANDED for a new trial.

THOMAS and KONDUROS, JJ., concur.

[1] Collins was not home at the time of the incident or when the officers and the boy’s mother arrived.

[2] The specific sentences were five years for involuntary manslaughter and three years concurrent for two of the dangerous animal convictions.  On the third dangerous animal conviction, the sentence was three years consecutive suspended on five years’ probation and the payment of $8,000 in restitution to the boy’s family for funeral expenses.

[3] The dog behavior expert also testified the dog bites on the lower part of the boy’s body indicated “the dogs had bitten the ten-year-old in the legs taking him down first. . . . They would go for the legs first and take him down which shows from the bites and the tissue loss.”

[4] Rule 403 and other federal rules of evidence were amended on December 1, 2011, “as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules.”  Rule 403, FRE, advisory committee’s note.  The changes to Rule 403, FRE, are “stylistic only,” with “no intent to change any result in any ruling on evidence admissibility.”  Id.

[5] See Old Chief, 519 U.S. at 182-83 (“If an alternative [is] found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk.”).