State v. Dennis, Appellate Case No. 2011-192370
| Decision Date | 03 April 2013 |
| Docket Number | Appellate Case No. 2011-192370 |
| Parties | The State, Respondent, v. Alonza Dennis, Appellant. |
| Court | South Carolina Court of Appeals |
Appeal From Charleston County
Roger M. Young, Circuit Court Judge
AFFIRMED
Appellate Defender LaNelle Cantey DuRant, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., and Assistant Attorney General Julie Kate Keeney, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.
A jury convicted Alonza Dennis of assault and battery with intent to kill (ABWIK) and possession of a firearm during the commission of a violent crime. He appeals, arguing the trial court erred in (1) admitting testimony that heoffered to sell a purportedly stolen gun to buy crack cocaine shortly before the shooting; (2) refusing to charge the jury on assault and battery of a high and aggravated nature (ABHAN); (3) sentencing him to life without parole (LWOP); and (4) admitting his two written statements into evidence. We affirm.
On June 22, 2009, Dennis fired five shots at Moses Alford. Three of the bullets struck and injured Alford. Dennis was arrested nearby and charged with trespass. Later, a grand jury indicted him for ABWIK, attempted armed robbery, and possession of a firearm during the commission of a violent crime. He was convicted of ABWIK and the possession charge.
The State presented evidence that on the day of the shooting, La Seto "Quan" Gibson, Kaylab Wright, and Trevor Gibbs arranged to meet Alford, a clothing merchant from Georgetown, and buy clothes from him as he traveled through McClellanville. They encountered Dennis at the local Kangaroo convenience store and gave him a ride to Gibson's house. Gibbs testified that although Dennis was quiet when they picked him up, he became angry when they reached Gibson's house. He recalled Dennis producing a revolver and offering to sell it for fifty dollars so he could buy some crack cocaine. After no one agreed to buy the gun, Dennis, overhearing a conversation between Gibson and Alford, suggested robbing Alford.
When Gibson, Wright, and Gibbs departed to meet Alford, they left Dennis behind. However, Gibson's grandfather gave Dennis a ride back to the Kangaroo store. Dennis joined the other men in Gibson's car. After Alford arrived, Gibson suggested they move their meeting to another location in McClellanville. Alford declined. Wright looked through Alford's products, disparaged them, and returned to Gibson's car. While Gibson discussed potential purchases with Alford, Dennis approached Alford, told him to "give me everything," and shot him. Alford suffered bullet wounds in his arm, leg, and back.1
Alford ran toward the store as Wright and Gibbs sped away, leaving Gibson and Dennis behind. Dennis fled on foot across the highway and through the woods to a body shop, then ran through a residential area, chased by a state constable and a K-9 unit until his arrest. Officers detected gunshot residue on his hand and found a gun near where they arrested him. Once in custody, Dennis invoked his right to remain silent. However, he later gave conflicting written statements to the police on June 22 and 29, 2009.
Dennis objected to evidence concerning his statements and testimony purportedly establishing his motive for shooting Alford. He argued Gibbs's testimony was more prejudicial than probative because motive was not an element of the crimes charged, and thus, his motive for shooting Alford was irrelevant. Furthermore, he contended the challenged testimony was irrelevant because no other evidence suggested he was under the influence of drugs, and he was not charged with possessing a stolen gun. Finding Gibbs's testimony established a motive for the shooting and would rebut Dennis's very different account of how he came into possession of the gun, the trial court admitted the testimony into evidence.
According to Dennis, on the day of the shooting, he went to the Kangaroo store in the hope of catching a ride to see a friend who lived near Gibson. After arriving at the right road,2 Dennis began walking toward his destination. As he passed Gibson's house, the men called him over. Gibson and Wright, whom Dennis testified frightened him, were planning a robbery. Despite experiencing misgivings, Dennis did not refuse to participate for fear the men would attack him. After Gibson told Wright "you don't want to use [Dennis]," the men left him at Gibson's house. Dennis then decided to return to the Kangaroo and find a ride home. Gibson's grandfather drove him to the store.
Once at the store, Dennis again saw Gibson and Wright, and they invited him to join them. After he entered their car, he noticed a handgun on the back seat. Gibson and Wright instructed him to pick up the gun. They pulled next to Alford's car, and Dennis, Gibson, and Wright exited the car. With the gun in his pocket, Dennis stood and watched as Gibson and Wright engaged Alford in a discussion about his wares.
Dennis heard Gibson tell Alford, "Give me your clothes and your money." According to Dennis, Alford immediately ran forty to forty-five feet away and pulled up his sweatshirt, exposing his own gun. Seeing Alford reaching for his gun, Dennis stated he "picked up [Gibson's and Wright's gun], took it out, and aimed, pointed, like, with my hand, and fired, to keep him from shooting." Dennis stated he aimed beside Alford and shot in self-defense, intending only to scare Alford. He denied realizing the bullets he had fired had hit Alford.
With regard to the discrepancies between his statements, Dennis explained he had not told the police the whole story at first because he was "scared of being called a snitch," and he knew that snitches got hurt or killed. When he gave the June 29, 2009 statement, he believed the police "kn[e]w everything already," but he was still afraid of Gibson, who by then was in the same jail as Dennis.
After the close of evidence, Dennis requested that the trial court instruct the jury on ABHAN as a lesser-included offense of ABWIK, arguing the shooting occurred "under a heat of passion and sudden provocation" and without malice. The trial court denied his request, agreeing with the State's contention that the use of a gun implied malice. The trial court charged the jury:
Malice can be inferred from conduct showing a total disregard for human life. . . . If the facts are proven beyond a reasonable doubt sufficient to raise an inference of malice to your satisfaction, this inference would simply be an evidentiary fact to be considered by you along with other evidence of the case, and you may give it the weight you decide it should receive.
The jury convicted Dennis of ABWIK and possessing a firearm during the commission of a violent crime but found him not guilty of attempted armed robbery and the lesser-included offense of attempted strong-arm robbery. After the trial court dismissed the jury, Dennis moved for a new trial on the basis of the failure to charge ABHAN. The trial court denied his motion. This appeal followed.
In criminal cases, the appellate court sits to review errors of law only and is bound by the factual findings of the circuit court unless clearly erroneous. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). "An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law." State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006).
Dennis asserts the trial court erred in admitting Gibbs's testimony that Dennis offered to sell a stolen gun to buy crack cocaine shortly before the shooting. We disagree.
The admission or exclusion of evidence is a matter within the trial court's sound discretion, and an appellate court may disturb a ruling admitting or excluding evidence only upon a showing of "a manifest abuse of discretion accompanied by probable prejudice." State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48 (2006).
Evidence of other acts may "be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." Rule 404(b), SCRE. Under the res gestae theory, "evidence of other bad acts may be an integral part of the crime with which the defendant is charged or may be needed to aid the fact finder in understanding the context in which the crime occurred." State v. Owens, 346 S.C. 637, 652, 552 S.E.2d 745, 753 (2001), overruled on other grounds by State v. Gentry, 363 S.C. 93, 106, 610 S.E.2d 494, 501 (2005); see also State v. Gilmore, 396 S.C. 72, 83 n.9, 719 S.E.2d 688, 694 n.9 (Ct. App. 2011) (). Our supreme court has adopted the reasoning set forth by the Fourth Circuit Court of Appeals:
One of the accepted bases for the admissibility of evidence of other crimes arises when such evidence furnishes part of the context of the crime or is necessary to a full presentation of the case, or is so intimatelyconnected with and explanatory of the crime charged against the defendant and is so much a part of the setting of the case and its environment that its proof is appropriate in order to complete the story of the crime on trial by proving its immediate context . . . . And where evidence is admissible to provide this full presentation of the offense, (t)here is no reason to fragmentize the event under inquiry by suppressing parts of the res gestae. As the Court said in United States v. Roberts, (6th Cir. 1977) 548 F.2d 665, 667, cert. denied, 431 U.S. 920, 97 S.Ct. 2188, 53 L.Ed.2d 232[,]...
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