State v. Andrews, Appellate Case No. 2015-001679

• Decision Date: 18 July 2018
• Docket Number: Appellate Case No. 2015-001679,Opinion No. 5574
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Jeffrey Dana ANDREWS, Appellant.

424 S.C. 304

818 S.E.2d 227

The STATE, Respondent,

v.Jeffrey Dana ANDREWS, Appellant.

Appellate Case No. 2015-001679

Opinion No. 5574

Court of Appeals of South Carolina.

Heard February 14, 2018

Filed July 18, 2018

Rehearing Denied September 20, 2018

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

Attorney General Alan McCrory Wilson, Assistant Attorney General Jonathan Scott Matthews, both of Columbia; and Solicitor Ernest Adolphus Finney, III, of Sumter, for Respondent.

WILLIAMS, J.:

In this criminal appeal, Jeffrey Dana Andrews appeals his convictions of voluntary manslaughter and possession of a weapon during the commission of a violent crime. On appeal, Andrews argues the circuit court erred in (1) denying him immunity under the Protection of Persons and Property Act¹ (the Act) due to inconsistent witness testimony, (2) refusing to qualify Investigator Terry Gainey as an expert in interrogation and force science when Gainey was qualified by experience and training, and (3) admitting the testimony of Emergency Medical Technician (EMT) paramedic Kimberly Graham when Graham was not an expert in crime scene investigation and her opinion was highly prejudicial. We affirm in part and reverse in part.

FACTS/PROCEDURAL HISTORY

On the evening of March 25, 2014, officers responded to a residential shooting in Sumter County, South Carolina. Corporal Jerry Kelly arrived first on the scene and found Shamar Howell (Victim) lying on Andrews's front porch with one bullet wound

above his right eye. Erika Andrews, the mother of Victim's child and Andrews's cousin, sat screaming and crying on the porch holding Victim's head. She told Corporal Kelly that Andrews killed her boyfriend and was inside the residence. When Corporal Kelly entered the residence, Andrews willingly surrendered, stating "I'm the guy you're looking for." Corporal Kelly arrested Andrews and placed Andrews in his patrol car while he secured the scene.

Andrews was indicted for murder and possession of a weapon during the commission of a violent crime. Andrews filed a motion to dismiss the charges pursuant to the Act on the ground he acted in self-defense. Prior to trial, the circuit court conducted an immunity hearing on the matter. At the hearing, Andrews testified that at the time of the incident, he lived with his wife and his father, Robert Andrews, in one of Robert's trailers. On the night of the incident, Andrews was celebrating his re-enrollment in school, and he invited his cousin Virlyn Gardner over to enjoy a bottle of brandy. Andrews, Gardner, and Robert left to eat dinner and hid the brandy bottle on the back porch next to the washer and dryer. Upon returning, Andrews noticed the dryer was in use² and the bottle of brandy was missing. Andrews discovered Erika's and Victim's clothes in the dryer. Andrews walked to Erika and Victim's nearby trailer and asked them if they had taken the bottle, which they denied, and Andrews left to get more alcohol. Later that night, Andrews and Robert were socializing at their trailer with Gardner when Erika arrived, followed shortly by Victim. Erika and Victim left and returned to the trailer soon thereafter. Andrews testified that when Victim returned, he had one forty-ounce bottle of beer wrapped in a paper bag. Later that evening, Andrews again mentioned the missing brandy bottle, which Erika and Victim repeatedly denied taking.

Andrews testified that when he asked Erika and Victim to leave, verbal and physical altercations ensued; Victim advanced towards Andrews cursing and holding the forty-ounce beer bottle. Andrews testified he removed Victim to the front porch, while Erika was still inside, and he locked the screen door and closed the wooden front door. Andrews went to Robert's bedroom to retrieve the phone to call the police when he heard the wooden front door open and Erika and Victim talking. Unable to find the phone, Andrews began to exit Robert's room when he heard Victim insinuate Andrews was scared to come outside for fear of an altercation. Andrews, still at Robert's bedroom door, heard Victim "snatch" the locked screen door open and saw Victim crossing the threshold of the front doorway. Andrews grabbed a gun sitting on Robert's dresser, turned, and shot Victim as he came through the threshold of the doorway. Robert corroborated Andrews's testimony.

At this point in the hearing, the eyewitness testimony of Andrews and Robert varied substantially from Erika, the only other eyewitness to testify. Erika testified Victim chose to leave peacefully when Robert asked him to leave, and Victim never tried rushing back into the residence or pulling the screen door open after exiting. She testified Andrews went to Robert's bedroom as Victim peacefully said goodbye, and Andrews followed Victim closely behind as Victim exited the residence onto the front porch. Erika testified she was still inside the residence when she heard a gunshot, and she ran to the front door to see Andrews holding a gun. She also testified that, prior to the shooting, Victim never had a forty-ounce bottle of beer at the residence³ and he never threatened or hit Andrews.⁴

Andrews proffered Investigator Gainey as an expert in interrogation and force science⁵ during the immunity hearing. No court had previously qualified Investigator Gainey as an expert in this field. However, Investigator Gainey had twenty years of law enforcement experience and previously attended one forty-hour, week-long force science course about officer-involved shootings and the timeline for interviewing officers after fatally shooting someone. Investigator Gainey testified the "golden rule" was to wait "[forty-eight] hours or two good sleep cycles" before interviewing an officer involved in a fatal shooting. He stated shootings typically caused "memory fragmentation[, a]nd after a couple of sleep cycles[,] you're able to consolidate your memories" and remember the event more clearly. Furthermore, Investigator Gainey testified that if a shooter was interviewed thirteen minutes after a shooting, he or she would have a "completely fragmented" memory and would need time to decompress to chronologically sort out the events. However, the circuit court declined to qualify Investigator Gainey as an expert, noting his one-week course was insufficient qualification.

In response, the State called Corporal Kelly. After he arrested, Mirandized ,⁶ and placed Andrews in his patrol car, Corporal Kelly asked Andrews why he shot Victim. Corporal Kelly testified Andrews's initial answer was that Victim took the brandy bottle but later stated he shot Victim because Victim refused to leave when he was asked. At trial and during the immunity hearing, Corporal Kelly stated Andrews did not mention a physical altercation until his second or third conversation with Corporal Kelly, and Andrews did not mention fearing for his life until police interviewed him at the police station.⁷

At the end of the hearing, Andrews argued he was entitled to immunity under the Act because he was in imminent fear of bodily harm when Victim forcefully entered his residence. The circuit court rejected his argument, finding "very inconsistent" witness testimony created a jury question and finding Andrews failed to meet his burden of proof of a preponderance of the evidence. The case proceeded to trial.

At trial, both parties presented evidence similar to the evidence presented at the immunity hearing.⁸ The State called Graham, the responding EMT paramedic. The circuit court qualified Graham as an expert in the field of Emergency Medical Services (EMS) without objection. Graham testified she received her Basic EMT certification in 1992; received her paramedic certification in 1998; and was certified in pediatric trauma life support, Hazmat, and cardiopulmonary resuscitation

(CPR). Graham had responded to thousands of emergencies and was trained in taking vital signs, bandaging wounds, administering drugs and IVs, using a defibrillator, and intubating patients. Upon arriving on scene, Graham's job was to find the most critical patient and "begin life saving advances" on him or her. Graham testified that, when she arrived at Andrews's residence, Erika was screaming and lying on top of Victim on the front porch. She testified Victim was on his back with a gunshot wound above his right eye, his pupils were nonreactive, and the back of his head was "mushy," which she believed could have been attributed to the bullet or the back of his head hitting the concrete. The State further questioned Graham on direct examination:

[The State]: [C]ould [Victim] have talked?

[Graham]: No sir. When [Victim] was shot, the amount of force that it takes to go through and fracture the skull and then go through the brain, my opinion is whenever [Victim] was shot, he dropped ."

....[The State]: So based on your observation of the body, and your observation of the injury, where was [Victim] when he got shot?

[Graham]: He was standing on the porch.

[The State]: Outside?

[Andrews's Counsel]: Your Honor, I am going to object to that. Even as an expert, as an EMT, I don't think she's qualified with crime scene reconstruction work.

THE COURT: I think based upon her testimony that was not objected [to], that he dropped right there. I think she can say where he dropped. Overruled.

(emphasis added).

The State later called Dr. Janice Ross, who the court qualified as an expert in forensic pathology. Dr. Ross testified that Victim would have "collapsed" after he was shot due to his injuries, but she conceded "my findings don't exactly tell me the positions of the shooter and the victim." She acknowledged her findings were consistent with: (1) Victim entering the residence, seeing the gun, backing up, and turning, which led to Victim falling backwards onto the porch; or (2) Victim leaving the residence and looking back when he was shot.

After the State rested, Andrews called numerous witnesses and testified on his own behalf. Andrews called ...