State v. Brockmeyer

• Decision Date: 27 November 2013
• Docket Number: No. 27333.,27333.
• Citation: 751 S.E.2d 645,406 S.C. 324
• Parties: The STATE, Respondent, v. William Mark BROCKMEYER, Appellant. Appellate Case No. 2011–198266.
• Court: South Carolina Supreme Court

406 S.C. 324

751 S.E.2d 645

The STATE, Respondent,

v. William Mark BROCKMEYER, Appellant.Appellate Case No. 2011–198266.

No. 27333.

Supreme Court of South Carolina.

Heard May 15, 2013.

Decided Nov. 27, 2013.

A. Mattison Bogan and Miles E. Coleman of Nelson Mullins Riley & Scarborough, LLP, and Chief Appellate Defender Robert M. Dudek, all of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, and Senior Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, and Solicitor Donald V. Myers of Lexington, for Respondent.

Justice KITTREDGE.

Appellant William Mark Brockmeyer appeals his convictions for murder and possession of a weapon during a violent crime, raising constitutional challenges to both the trial court's refusal to enforce a subpoena concerning the identity of an internet commenter and the admission of certain chain-of-custody testimony and other photographic evidence at trial. We affirm.

I.

Appellant William Mark Brockmeyer and Nicholas Rae (the victim) knew each other for seven or eight years before the shooting; the two met while working together at a tree service company, and thereafter, they both served time in the same prison facility.¹ On the night of the shooting, Brockmeyer, the victim, and several mutual friends attended a house party and then visited a bar known as Jager's Private Club in Lexington County, South Carolina. Because Jager's was a private bar, only members and their guests were permitted to enter, and every person who entered the bar was required to sign in. Among the group of friends was Gina Brakefield, who saw both Brockmeyer and the victim carrying guns—the victim had a large pellet gun and Brockmeyer carried a .380 caliber pistol.² According to several witnesses, Brockmeyer's demeanor at Jager's was agitated and aloof.

Upon arriving at Jager's, the group bought drinks, sat down at a table near the dance floor and began talking, dancing, and hanging out. Thereafter, the victim separated from the group and headed across the bar to challenge another patron, Amera Kabar, to a game of billiards. Although the victim claimed to be more skilled than Kabar, the victim lost four consecutive games of pool ³ and a total of three hundred dollars in wagers to Kabar. ⁴ According to Kabar, the victim left the pool table area to have a discussion with Brockmeyer before agreeing to the stakes for each game. During the fourth game, Brockmeyer approached the pool table and lifted his shirt to reveal the gun tucked into his waistband, threatening Kabar, “This is how we do it.” However, instead of becoming frightened, Kabar dropped all pretense of unskillfulness and “ran the table,” sinking all the remaining balls without giving the victim another turn. Kabar testified that by the last game of pool, the victim was intoxicated, and although he appeared disappointed, he remained polite, thanking her and congratulating her on a “great game.”

After finishing the pool games, the victim, clearly intoxicated,⁵ rejoined his friends at their table. The victim was helped outside by a female friend. Several people smoking outside the bar entrance saw the victim vomit and then sit down in a chair on the front porch. Brockmeyer followed the victim through the bar and watched him through the front doors of the bar. Still inside the bar, Brockmeyer pulled the gun from his waistband, despite the attempts of another female friend to stop him.

Brockmeyer walked outside and knelt in front of the victim, who was slumped over in a chair, asleep with his hands by his side. Brakefield saw Brockmeyer whisper in the victim's ear, raise his hand toward the victim's neck, and fire a shot. Brakefield screamed, ran inside the bar, and shouted for someone to call 9–1–1. Brockmeyer immediately exited the front porch and headed towards the wooded area behind the bar. The other people on the porch heard the shot and saw Brockmeyer walking towards the woods immediately afterwards. Upon realizing the victim had been shot, the witnesses left the porch, running through the bar and out the back exit before the police arrived.

Commotion ensued, both inside and outside the bar. Several patrons surrounded the victim and attempted to administer first aid. Brockmeyer reappeared several minutes later, having removed his white Sean John brand t-shirt and wearing only a tank-top undershirt. Police officers arrived shortly and began collecting evidence and interviewing witnesses. That night, Brockmeyer offered several conflicting explanations about what had happened, including that he was inside when the victim was shot, that the victim committed suicide, and that “black guys” shot the victim. Brockmeyer was taken to the police station for questioning where he eventually admitted shooting the victim but claimed the gun went off accidentally. Brockmeyer was arrested and charged with murder and one count of possession of a weapon during the commission of a violent crime.

At trial, Brockmeyer contended the shooting was an accident—he saw the victim slumped over with the .380 pistol in his lap, and when Brockmeyer claimed he reached for the gun, a shot went off. Brockmeyer admitted possessing the gun earlier in the evening and disposing of it in the woods behind the bar after the shooting. However, Brockmeyer claimed he only temporarily held onto the .380 pistol while the victim played pool (at the victim's request) and that he was unarmed at the time he followed the victim outside. Brockmeyer contended he did not realize the victim was hurt until after he disposed of the gun, and upon hearing the victim was injured, he became very emotional because the two were close friends. One witness, Mariko Clack, testified Brockmeyer was weeping and was “really shaky and frantic” after he was told the victim had been shot.

The autopsy revealed the victim died as a result of a .380 caliber gunshot wound to the neck. The pathologist testified the gunshot wound was a “ hard contact” wound, meaning the weapon was pushed firmly against the skin at the time the shot was fired—so firmly as to leave a visible a muzzle imprint.

A jury convicted Brockmeyer of murder and the weapon charge, and Brockmeyer was sentenced to an aggregate term of forty years in prison. Brockmeyer appealed, and this matter was transferred to this Court from the court of appeals pursuant to Rule 204(b), SCACR.

II.

Brockmeyer argues the trial court committed reversible error in failing to grant his motion to enforce a subpoena directed at a news media outlet. We disagree.

“[C]riminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). However, “the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses.' ” United States v. Valenzuela–Bernal 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Rather, to demonstrate a Compulsory Process Clause violation, an appellant must make some plausible showing of how the testimony of an absent witness would have been both material and favorable to his defense. Id.

Less than twenty-four hours after the shooting, a news article about the shooting was published on a website operated by WLTX, a local television station. The WLTX website allows users to establish an account which they may use to post comments and exchange messages on the WLTX website. The online registration process requires a person to submit his or her gender, year of birth, and zip code, and, for users who wish to access discussion forums and sharing pages, the user's name and email address are also required. The WLTX Privacy Notice, which all users had to accept, included a notification that WLTX could release user information “if required to do so by law or if, in [WLTX's] business judgment, such disclosure is reasonably necessary to comply with legal process.”

The day after the shooting, someone using the pseudonym “AndTheTruth” posted the following comment on the WLTX website in response to the online article about the shooting:

Were you there, did you see what happened, did you see the tears on his young confused face when he realized he had just accidentally killed his friend ...

-God makes provision for an accidental or carelessly caused death. Judge not, and ye shall not be judged:

....

-My Heart & Prayers go out to both families & all of my friends who had to see this happen, may God be with you all ...

The theory of Brockmeyer's defense was that the shooting was an accident. Brockmeyer wanted evidence supporting his claim of accident and being emotionally upset after the shooting. Brockmeyer contends the anonymous comment suggests its author had direct knowledge of the incident and supports Brockmeyer's claim of an accidental shooting. Accordingly, Brockmeyer wished to explore the possibility that the commenter might be a potential defense witness and served WLTX with a subpoena seeking the following information:

Any and all registration information for the username “AndTheTruth” that replied on July 12, 2010 @ 1:36 AM EDT to the news article regarding William Mark Brockmeyer being charged with the shooting death of [the victim].

WLTX objected to the subpoena, arguing the commenter's identity was protected anonymous speech under the First and Fourteenth Amendments.⁶ Brockmeyer acknowledged the position of WLTX in the abstract, but insisted that his constitutional right to a fair trial required disclosure of the identity of the anonymous commenter.⁷

Based on WLTX's objection, Brockmeyer thereafter filed a motion to enforce the subpoena, contending he was entitled to explore potential witnesses and present a defense by virtue of the Sixth and Fourteenth Amendments. At...