State v. Daise, Appellate Case No. 2013-002394

• Citation: 421 S.C. 442,807 S.E.2d 710
• Decision Date: 25 October 2017
• Docket Number: Opinion No. 5520,Appellate Case No. 2013-002394
• Court: Court of Appeals of South Carolina
• Parties: The STATE, Respondent, v. Earnest Stewart DAISE, Appellant.

421 S.C. 442

807 S.E.2d 710

The STATE, Respondent,

v.Earnest Stewart DAISE, Appellant.

Appellate Case No. 2013-002394

Opinion No. 5520

Court of Appeals of South Carolina.

Heard March 9, 2017

Filed October 25, 2017

Rehearing Denied December 14, 2017

Allen Mattison Bogan and Phillips Lancaster McWilliams, both of Nelson Mullins Riley & Scarborough, LLP, of Columbia; and Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General, John W. McIntosh, and Senior Assistant Deputy Attorney General Donald J. Zelenka, of Columbia; and Solicitor Isaac McDuffie Stone, III, of Bluffton, for Respondent.

MCDONALD, J.:

Earnest Daise appeals his convictions for murder, assault and battery with intent to kill, possession with intent to distribute marijuana, and trafficking in cocaine. Daise argues the circuit court erred in (1) allowing a witness to offer hearsay violative of the Confrontation Clause, (2) permitting a witness to comment on the credibility of another witness, (3) admitting testimony that a victim feared Daise, (4) failing to require the State to produce materials that allegedly amount to a "handbook" on circumventing a Batson challenge, (5) admitting a photograph of Daise in a custodial pose, and (6) admitting two photographs in which a child victim's birthday cake is visible. Finally, Daise argues the circuit court's cumulative errors denied him a fair trial. We affirm the convictions.

I. Facts and Procedural History

Jeanine Mullen was the mother of four children, Child 1, Child 2, John Doe 1 (four years old), and John Doe 2 (two years old). Jeanine was involved in a romantic relationship with Daise—the father of John Doe 2—at the time of the murders.

On the morning of November 15, 2009, Daise left Jeanine's Beaufort County home in her white van. Video surveillance showed Daise with the van at a gas station between 11:45 a.m. and 12:18 p.m. Jeanine's attempts to reach Daise to have him return the van, which she needed to prepare for John Doe 1's fourth birthday party, were unsuccessful. Phone records established that between 11:39 a.m. and 3:52 p.m. on November 15, Jeanine called Daise eighteen times. Although most of the calls went to voicemail, the 3:52 p.m. call lasted twenty-eight seconds. Around dusk,¹ Daise was seen with the van at Eddie's Disco, where he was overheard telling someone on the phone, "Who the f*** you think you talking to?"

Sometime between 6:30 p.m. and 7:00 p.m., Jeanine's father, Frank Mullen, arrived at Jeanine's home to drop off the two older children. The group noticed Jeanine's white van parked in the driveway—the doors were open and it appeared "ransacked." Inside the home, Frank found John Doe 1's body in the kitchen and Jeanine's body in her bedroom.² Although John Doe 2 was still alive, he had also been shot and was lying near Jeanine. The only item missing from the home was a .38 pistol.

Around 2:00 a.m. on the morning of November 16, police apprehended Daise at the home of his friend, Jay Simmons. Daise had his own bedroom in the home, and a search of that bedroom revealed half a pound of marijuana, an electronic scale, ammunition commonly associated with an AK-47, a set of keys that fit the doors and ignition of Jeanine's white van,³ twenty-six grams of crack cocaine, and Daise's cell phone. Police also documented a red smear on the door into the bedroom, noted what appeared to be "fresh" blood on the front-left pocket of Daise's blue jeans, and photographed a cut on Daise's right hand. During his initial interview, Daise denied being at Jeanine's home or driving her van.

At trial, the State introduced phone records showing Daise made nine calls to Simmons between 6:00 p.m. and 6:18 p.m. Simmons initially testified that sometime after 6:00 p.m., he picked up Daise on the side of the road and gave him a ride.⁴ Simmons sent Daise a text message at 6:04 p.m. that he was "on the way." On cross-examination, Simmons admitted to sending the text but insisted he never picked up Daise. Simmons claimed police threatened to charge him as an accessory if he did not say he picked up Daise.

A trace evidence expert testified she found gunshot residue on the blue jeans Daise was wearing when he was apprehended. On cross-examination, she admitted she only found one single particle of gunshot residue on each leg of the jeans and acknowledged gunshot residue can remain on unwashed clothing for many months. She also testified there was no gunshot residue on Daise's sweatshirt.

A DNA expert testified the red smear on the door in Simmons's home was comprised of Daise's blood. Testing revealed blood from both Daise and Jeanine on the blue jeans.

The jury found Daise guilty of two counts of murder, one count of assault and battery with intent to kill, one count of possession with intent to distribute marijuana, and one count of trafficking cocaine between ten and twenty-eight grams. Daise received sentences of life without parole on the murder charges and consecutive sentences totaling seventy years' imprisonment on the remaining charges.

II. EMT Testimony

Daise argues the circuit court erred when it allowed emergency medical technicians (EMTs) to testify about twenty-eight-month-old John Doe 2's responses to questioning regarding who caused his injuries.

Before trial, the State indicated it planned to introduce evidence that John Doe 2 told EMTs "Daddy" hurt him. Relying on Michigan v. Bryant,⁵ the State argued the evidence was nontestimonial in nature and, therefore, did not violate Daise's right to confront his accuser. The circuit court agreed the statement was nontestimonial and allowed the State to introduce it.

At trial, EMT Scott Sampson testified that when he entered Jeanine's home, he found two individuals who appeared to be deceased. He also found John Doe 2, who was breathing, whimpering, and crying but only responsive to "painful stimuli." Sampson disrobed John Doe 2 to locate his injuries and turned him over to Paramedic Shayna Orsen.

Orsen testified she arrived on the scene with EMT Crew Chief Paramedic Danny Tinnel, who remained in the ambulance. Orsen further testified John Doe 2 was "unresponsive" and "unconscious" when he was given to her. After placing him on the stretcher, Orsen and Tinnel assessed John Doe 2 for signs of trauma and found one bullet wound

to his chest and another behind his ear. Tinnel administered an IV (normal saline fluid drip) while Orsen treated the chest wound.

On the way to the hospital, John Doe 2 became responsive. Tinnel immediately began questioning him regarding "person, place, time, and event," which Tinnel explained they do "with just about every patient." Specifically, Tinnel asked John Doe 2 for his name and it "sounded like" he responded "Dub" or "Doug."⁶ Tinnel then asked John Doe 2 several more questions, including "how it happened" and "who hurt him." John Doe 2 responded "Daddy" hurt him but was unable to respond to any additional questions including "what his daddy's name was."

A. Hearsay

Daise argues the circuit court erred in allowing the challenged testimony because it constitutes inadmissible hearsay.⁷

"It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review." Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000). "Error preservation requirements are intended ‘to enable the lower court to rule properly after it has considered all relevant facts, law, and arguments.’ " Id. (quoting I'On v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) ). "In order to preserve for review an alleged error in admitting evidence an objection should be sufficiently specific to bring into focus the precise nature of the alleged error so it can be reasonably understood by the trial judge." State v. Prioleau, 345 S.C. 404, 411, 548 S.E.2d 213, 216 (2001).

Our review of the record reveals that at no time during the trial proceedings did Daise make a hearsay objection to the challenged testimony. See State v. Hoffman, 312 S.C. 386, 393, 440 S.E.2d 869, 873 (1994) ("A contemporaneous objection is required to properly preserve an error for appellate review."). His only objection to John Doe 2's statement that "Daddy" hurt him was to "renew our Crawford^{[8 ]} objection," which Daise initially made at a pretrial hearing. See Rule 103(a)(1), SCRE (stating a party must state "the specific ground of objection, if the specific ground was not apparent from the context"). On appeal, Daise first argued the challenged testimony was inadmissible under the medical diagnosis or treatment exception to the hearsay rule.⁹ See State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (explaining an argument advanced on appeal but not raised and ruled on below is not preserved). In his reply brief, Daise set forth additional arguments that the challenged testimony was inadmissible under the present sense impression¹⁰ and excited utterance¹¹ exceptions to the hearsay rule. However, "an argument made in a reply brief cannot present an issue to the appellate court if it was not addressed in the initial brief." Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 692 (Ct. App. 2001). Therefore, we find the hearsay arguments unpreserved for our review.

B. Confrontation Clause

Daise further argues that even if the challenged testimony is not hearsay, it violated his Sixth Amendment right to confront his accuser.

Paramedic Tinnel testified that in response to questioning, John Doe 2 stated "Daddy" hurt him. Tinnel explained he began questioning John Doe 2 immediately after he became responsive in order to "keep him awake and talking," "find out if he had any other injuries," and "determine his level of responsiveness." Just as he does with other patients, Tinnel questioned John Doe 2 regarding "person, place, time, and event." Tinnel...