Mar 20, 2012 | Criminal Defense, Homicide Defense, Uncategorized
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 at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Craig S. Rolen, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal from Greenville County
James E. Lockemy, Circuit Court Judge
Opinion No. 26678
Submitted December 4, 2008 – Filed June 29, 2009
REVERSED
Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Karen Ratigan, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Petitioner Craig Rolen pled guilty to voluntary manslaughter and was sentenced to twenty-five years imprisonment. Petitioner filed an application for post-conviction relief (PCR) alleging that counsel was ineffective for failing to move to withdraw his guilty plea. The PCR court denied relief. This Court granted a writ of certiorari to review that decision.
FACTUAL/PROCEDURAL BACKGROUND
On October 4, 2001, Kedrick Mahon’s (Victim) decomposed body was found in Petitioner’s car at the bottom of a ravine. Petitioner was arrested for Victim’s murder on July 16, 2003.[1] In September 2004, Petitioner contacted police and confessed to the murder and was subsequently charged.
Petitioner requested a trial and a jury was selected. However, immediately before trial, Petitioner decided to plead guilty. At the plea hearing, the solicitor told the plea judge that Petitioner confessed to stabbing the victim and driving the car into the ravine. Petitioner told the plea judge that he voluntarily made the confession and admitted to committing the murder. The plea judge formally accepted Petitioner’s plea as voluntary and having a substantial factual basis. After members of Victim’s family addressed the court, Petitioner suddenly exclaimed:
All right, this has went on far enough, I didn’t kill this man. This has went too far, I ain’t doing this. I didn’t kill your brother . . . I didn’t kill this man, I can’t do this . . . I don’t know who did, I wish I did . . . I swear to God I didn’t do it . . . Should have never pled guilty, I didn’t do this.
Counsel did not move to withdraw the plea, and the plea judge sentenced Petitioner to twenty-five years imprisonment.
At the PCR hearing, Petitioner testified that the State previously offered him a deal to plead guilty to accessory after the fact to murder with a ten-year cap, but he turned down the offer because he was innocent. He testified he was depressed, suicidal, and heavily medicated at the time he gave his confession to police and that he confessed in hopes of receiving the death penalty. Petitioner stated that he pled guilty because counsel told him that the jury that had been impaneled would likely find him guilty. Finally, Petitioner testified that counsel did not inform him of his right to appeal his guilty plea.
Counsel testified that he requested a competency test for Petitioner because he was concerned about Petitioner’s mental state and that Petitioner attempted to commit suicide following the test.[2] Counsel stated that he did not move to withdraw the plea because he believed once the plea was accepted, it was final and could not be withdrawn. Counsel testified that he did not recall whether he discussed Petitioner’s appellate rights with him.
The PCR court found that counsel was not ineffective for failing to move to withdraw Petitioner’s guilty plea. The PCR court also found that counsel informed Petitioner of his right to appeal, but regardless, counsel was under no obligation to advise Petitioner of his right to appeal. Accordingly, the PCR court denied Petitioner relief.
This Court granted Petitioner’s request for a writ of certiorari, and Petitioner presents the following issues for review:
| Did the PCR court err in ruling that counsel was not ineffective for failing to move to withdraw Petitioner’s guilty plea? |
| Did the PCR court err in ruling Petitioner was not entitled to a belated direct appeal? |
STANDARD OF REVIEW
The burden of proof is on the applicant in post-conviction proceedings to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). On appeal, the PCR court’s ruling should be upheld if it is supported by any evidence of probative value in the record. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).
LAW/ANALYSIS
I. Withdrawal of Guilty Plea
Petitioner argues that the PCR court erred in ruling that counsel was not ineffective for failing to move to withdraw Petitioner’s guilty plea. We agree.
In order for a defendant to knowingly and voluntarily plead guilty, he must have a full understanding of the consequences of his plea. Boykin v. Alabama, 395 U.S. 238, 241 (1969). A defendant who enters a plea on the advice of counsel may only attack the voluntary and intelligent character of a plea by showing that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pled guilty, but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985). When determining issues relating to guilty pleas, the Court will consider the entire record, including the transcript of the guilty plea, and the evidence presented at the PCR hearing. Anderson v. State, 342 S.C. 54, 57, 535 S.E.2d 649, 657 (2000).
We find that counsel was deficient in failing to move to withdraw Petitioner’s guilty plea. Petitioner requested a jury trial and only decided to plead guilty after counsel advised him that the impaneled jury would likely find him guilty. Petitioner repeatedly asserted his innocence during the plea hearing before the plea judge sentenced him. In our view, at this point in the hearing, it was clear that Petitioner wanted to withdraw his guilty plea.
While counsel was deficient in failing to move to withdraw Petitioner’s guilty plea, we must determine whether Petitioner was prejudiced by counsel’s performance. The plea judge had formally accepted the guilty plea prior to Petitioner’s protestation of his innocence. Therefore, even if counsel had moved to withdraw the guilty plea, the plea judge may have denied this request, and Petitioner could not have proceeded to trial. See State v. Riddle, 278 S.C. 148, 150, 292 S.E.2d 795, 796 (1982) (holding that the withdrawal of a guilty plea is generally within the sound discretion of the trial court). In this way, the prejudice analysis in this case does not fit squarely within the traditional guilty plea prejudice framework as set forth in Hill. Nonetheless, we hold that Petitioner was prejudiced by counsel’s deficient performance because due to counsel’s failure to make such a motion, the plea judge was not able to exercise his discretion. Even if the plea judge had denied Petitioner’s motion to withdraw his plea, Petitioner could have raised this issue on direct appeal. Moreover, Petitioner proved he would have insisted on going to trial had the plea judge granted the motion to withdraw.
Accordingly, we hold that counsel was ineffective for failing to move to withdraw Petitioner’s guilty plea. However, we find that granting Petitioner the relief of an entire new plea hearing is inappropriate. Once the plea judge found that Petitioner’s plea was voluntary and supported by a factual basis and formally accepted the plea of guilt, Petitioner forfeited his ability to withdraw the plea as a matter of right. State v. Bickham, Op. No. 26581 (S.C. Sup. Ct. filed Jan. 12, 2009) (Shearouse Adv.Sh. No.2 at 43) (Kittredge, J., concurring). Accordingly, we remand the case to the point in the guilty plea proceeding in which counsel should have sought to withdraw the plea. In our view, this tailored relief remedies the precise prejudice resulting from plea counsel’s deficient performance.[3] See United States v. Morrison, 449 U.S. 361, 364 (1981) (recognizing that the remedy for a violation of the Sixth Amendment right to counsel “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests”).
II. Belated Direct Appeal
Petitioner argues that the PCR court erred in ruling he was not entitled to a belated direct appeal. We decline to address this issue.
Absent extraordinary circumstances, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea, and the bare assertion that a defendant was not advised of appellate rights is insufficient to grant relief. Weathers v. State, 319 S.C. 59, 61, 459 S.E.2d 838, 839 (1995). Instead, there must be proof that extraordinary circumstances exist, such as where a defendant inquires about an appeal, in order for counsel to be required to advise a defendant of the right to appeal. Id.
We decline to rule on whether the PCR court erred in finding that Petitioner was not entitled to a belated direct appeal. Had Petitioner filed a direct appeal, any issues regarding withdrawal of the guilty plea would not have been preserved for the appellate court’s review because counsel never made such a motion. Additionally, as stated above, we hold that counsel was ineffective for failing to make a motion to withdraw, and thus, the most appropriate relief is a new plea hearing. Because we find that a belated direct appeal would not afford Petitioner suitable relief, a ruling from the Court on this matter would have no practical effect. See Seabrook v. Knox, 369 S.C. 191, 197, 631 S.E.2d 907, 910 (2006) (recognizing that this Court will not decide questions in which a judgment rendered will have no practical legal effect).
CONCLUSION
For the foregoing reasons, we reverse the PCR court’s order denying relief and remand the case to the point after formal acceptance of the guilty plea. If the plea court grants the motion to withdraw the plea, the case shall be placed on the trial docket and proceed in the usual manner; if the court denies the motion to withdraw the plea, the prior sentence will stand, and Petitioner may pursue his right to a direct appeal.
WALLER, BEATTY and KITTREDGE, JJ., concur. PLEICONES, J., dissenting in a separate opinion.
JUSTICE PLEICONES: I respectfully dissent. We granted certiorari to review a post-conviction relief (PCR) order denying petitioner’s claim that his trial counsel was ineffective in failing to move to withdraw petitioner’s plea. Since the question of “ineffectiveness” embraces both deficient performance and prejudice, we err if we decline to make a finding on both prongs. I would find no prejudice, and affirm.
Where an applicant claims his guilty plea counsel was ineffective, that applicant bears the burden of showing both that counsel’s performance was deficient and that the deficient performance resulted in prejudice, that is, it affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985). Ordinarily “prejudice” is established by evidence that had counsel not been deficient, there is a reasonable probability that the applicant would not have pled guilty but would instead have insisted on going to trial.[4] Id. As the Hill Court recognized, a determination of prejudice in this context will depend on the likelihood that had counsel done that which the applicant asserts he should have, counsel’s act would have been successful, i.e., had counsel investigated, he would have found evidence causing him to change his advice to plead guilty. The Court acknowledged that in judging prejudice, it was necessary to make objective “predictions of the outcome at a possible trial.” Id. at 59-60.
Speculation is a necessary component of most PCR cases since prejudice is judged by the “reasonable probability” standard: would the jury have acquitted had it not heard the improper evidence? Would the trial judge have suppressed the evidence had a suppression motion been made? Where, as here, counsel’s deficiency is the failure to request some form of relief committed to the trial judge’s discretion, the PCR applicant establishes prejudice by demonstrating that had the request been made, it would have been an abuse of discretion to have denied it. E.g., Wolfe v. State, 326 S.C. 158, 485 S.E.2d 367 (1997) (continuance).
Here, the majority holds counsel was deficient in failing to make a motion to withdraw petitioner’s plea. It acknowledges that whether to grant such a request lies in the plea judge’s discretion. The Court then declines to decide whether petitioner has shown the requisite prejudice – i.e., whether it would have been an abuse of discretion to have denied the motion if made. Instead, the majority appears to create a new standard of prejudice: counsel renders ineffective assistance when she neglects to preserve an issue, whether or not that issue has merit, for direct appeal. Under this standard, the remedy is not a new proceeding, but instead a rewind,[5] returning all characters to the point in the guilty plea when petitioner maintains the motion to withdraw should have been made. Among the unanswered questions raised by this extraordinary remedy,[6] is whether, henceforth, a PCR judge who finds deficient performance will be able to avoid the prejudice issue by remanding the matter to criminal court.
The majority goes on to hold that if the motion is made and then denied, petitioner may appeal from this ruling made in the new proceeding. While ordinarily the State would not be able to appeal the granting of a motion to withdraw a guilty plea made in the plea proceeding, I question whether such an appeal would lie from a ruling on remand.
On the merits, I agree that counsel was deficient when she failed to move to withdraw petitioner’s guilty plea. I do not find the requisite prejudice, however, since I do not find a reasonable probability that had such a motion been made it would have been granted. First, had the plea judge believed the integrity of the plea was in question, he should have sua sponte refused to continue. In my view, it is more likely that he viewed petitioner’s outburst as unfortunate but not unusual. Since I find no prejudice from counsel’s deficient performance, I would affirm the order denying petitioner’s PCR application.
[1] Petitioner testified at the PCR hearing that after he was arrested on the murder charges, he was released on bond and placed on house arrest.
[2] Petitioner was found competent to stand trial.
[3] We disagree with the dissent’s assertion that we are creating a new standard of prejudice or that this tailored relief is an extraordinary remedy. Rather, we have merely provided a remedy for what we find, under the specific facts of this case, to be ineffective assistance of counsel. See Morrison, at 365 (noting that the United States Supreme Court’s “approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel”); see also Davie v. State (holding plea counsel was ineffective for failing to communicate a plea offer and crafting specific relief to remedy the violation).
[4] A different prejudice analysis is appropriate where, for example, the ineffective assistance claim is that plea counsel failed to communicate a plea offer. Davie v. State, 381 S.C. 601, 675 S.E.2d 416 (2009).
[5] Although characterized as a remand, such a remand is not possible since the matter before us is a civil action brought in the Court of Common Pleas, and the “remand” would be to a long-concluded proceeding in the Court of General Sessions.
[6] While the United States Supreme Court has held that in a direct appeal raising a claim of a 6th amendment violation the relief must be tailored based upon the violation, the Court still required the defendant demonstrate prejudice in order to receive relief in her criminal proceeding. United States v. Morrison, 449 U.S. 361, 366-367.
Feb 28, 2012 | Criminal Defense, Homicide Defense, Uncategorized
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.”).
