State v. Hughes, 2021-UP-024

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM:
• Docket Number: 2021-UP-024
• Parties: The State, Respondent, v. John Michael Hughes, Appellant. Appellate Case No. 2017-002539
• Decision Date: 27 January 2021

The State, Respondent,
v.
John Michael Hughes, Appellant.

Appellate Case No. 2017-002539

No. 2021-UP-024

Court of Appeals of South Carolina

January 27, 2021

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard September 10, 2020

Appeal From Greenville County Perry H. Gravely, Circuit Court Judge

Andrew Sims Radeker, of Harrison, Radeker & Smith P.A., and Chief Appellate Defender Robert Michael Dudek, both of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, and Assistant Attorney General Caroline M. Scrantom, all of Columbia, for Respondent.

PER CURIAM:

John Michael Hughes appeals his convictions for murder, possessing a weapon while committing a violent crime, and conspiracy; all in connection with the shooting death of his estranged son-in-law, John Ferrell. He raises six issues on appeal. We respectfully disagree with each of his arguments for reversal. Thus, we affirm.

FACTS

Victim was in a contentious custody dispute with his wife Jane. Jane and her children were living with her parents. Jane's adult brother also lived there, as did Jane's boyfriend.

Victim was invited to Jane's parents' house on the evening in question. Apart from that fact, Appellant and the State tell widely divergent stories.

Appellant testified Jane's boyfriend was asked to wait in a shed behind the house while Victim came over to discuss a family court hearing scheduled to occur a few days later. Appellant said Victim argued with others in the family before leaving and after Victim left, Appellant locked the house and everyone settled in their rooms for the evening. Appellant claimed he heard suspicious noises and grabbed his pistol before hollering for someone to call 9-1-1 and proceeding out the front door. Then, Appellant said he turned the corner of the house, saw an unidentified figure (he denied knowing it was Victim) hanging half in and half out of the kitchen window, and shouted for the man to get down. Appellant shot Victim multiple times. He said this was after Victim jumped down from the window and made two charges at him; the second charge supposedly coming after the first round of shots.

Other physical and testimonial evidence tended to show Appellant's version of events was near impossible. For one, Victim was "very large"-5'7'' and 286 pounds. The forensic pathologist explained "[a]n obese man with this degree of heart disease, an enlarged heart, emphysema[, ] and an enlarged liver with fat could not be described as healthy." The State argued these physical limitations prevented Victim from trying to climb in a window nearly six feet off the ground, jumping down, accelerating in a threatening manner, and then resuming his charge after being shot.

The State also argued the nature of Victim's gunshot wounds undermined Appellant's narrative. The gunshot wounds were all at a downward angle, suggesting Victim was likely on the ground looking up at the shooter as he was killed. On top of these things, police found Victim lying on the ground with his pants and underwear down around his ankles, and though Victim had a bullet wound in his leg, there were no corresponding bullet holes in Victim's pants, suggesting Victim's pants were pulled down when he was shot.

The State claimed this corroborated its theory of the case, which was that Appellant and others in his family coordinated to get Victim over to the house, kill him, and make it look like Victim tried to break into the home. Jane's live-in boyfriend testified that he eventually left the backyard shed to see what was going on inside the house and that when he got to the house he saw Victim crouched on the floor and trying to cover his face as Jane pummeled Victim's head with a hammer. Victim had injuries consistent with this sort of assault. Boyfriend also reported seeing Jane's brother pointing a taser at Victim and Appellant aiming a gun at Victim.

Jane's boyfriend said he convinced Jane to drop the hammer and call 9-1-1. Victim then supposedly jumped out a small kitchen window headfirst, knocking the window A/C unit outside. Appellant's wife and son allegedly grabbed at Victim as he forced his way out the window. The State believed this explained Victim's pants and underwear being around his ankles. Boyfriend said Appellant then ran outside and shot Victim.

ISSUES

1. Whether the circuit court properly allowed testimony and exhibits concerning a field test officers used to presumptively identify blood.

2. Whether the pre-trial immunity hearing held pursuant to the South Carolina Protection of Persons and Property Act^[1] (Stand Your Ground Act) was defective.

3. Whether the circuit court properly admitted data from Appellant's cell phone.

4. Whether the court properly admitted a 9-1-1 call recording under the excited utterance exception to hearsay.

5. Whether the court should have directed a verdict on the conspiracy charge.

6. Whether the court should have charged the jury that Appellant was statutorily presumed to have a reasonable fear of death or great bodily injury.

LAW/ANALYSIS

Issue 1: Leuco Crystal Violet (LCV) Testing - Field Testing For Blood

A police officer testified at trial that he used LCV testing to identify presumptive blood in various spots throughout Appellant's home. Photos of these test results were also introduced. Appellant argues LCV testing is unreliable because it can produce false positives and the officer was not properly qualified as an expert.

Rule 702, SCRE "applies its reliability standard to all 'scientific,' 'technical,' or 'other specialized' matters within its scope." State v. White, 382 S.C. 265, 270, 676 S.E.2d 684, 686 (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999)). When examining scientific, technical, or other specialized matters under Rule 702, trial courts should examine "1) the publications and peer review of the technique; 2) prior application of the method to the type of evidence involved in this case; 3) the quality control procedures used to ensure reliability; and 4) the consistency of the method with recognized scientific laws and procedures" before ruling on the admissibility of scientific or other technical matters. State v. Council, 335 S.C. 1, 19, 515 S.E.2d 508, 517 (1999).

The standard of review is deferential. Evidentiary rulings rest in "the trial court's sound discretion" and we disturb them only "upon a showing of a 'manifest abuse of discretion accompanied by probable prejudice.'" State v. Commander, 396 S.C. 254, 262-63, 721 S.E.2d 413, 417 (2011) (quoting State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48 (2006)).

Here, the officer explained LCV is "a reagent and a presumptive test. It reacts to hemoglobin in blood. When you get a positive result, it will turn a violet color when sprayed and it makes contact with suspected blood." Regarding reliability, the officer testified LCV spray is used by law enforcement agencies throughout the country, including the FBI.

The trial court qualified the officer as an expert in the "use" of LCV, but not...