State v. Liverman

• Citation: 386 S.C. 223,687 S.E.2d 70
• Decision Date: 04 December 2009
• Docket Number: No. 4635.,4635.
• Parties: The STATE, Respondent, v. Chris Anthony LIVERMAN, Appellant.
• Court: Court of Appeals of South Carolina

687 S.E.2d 70

The STATE, Respondent, v. Chris Anthony LIVERMAN, Appellant.

No. 4635.

Court of Appeals of South Carolina.

Heard October 7, 2009.

Decided December 4, 2009.

Rehearing Denied January 20, 2010.

Appeal From Richland County; James W. Johnson, Jr., Circuit Court Judge.

Chief Appellate Defender Joseph L. Savitz, III, South Carolina Commission on Indigent Defense Division of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Sr., Assistant Attorney General William Edgar Salter, III, Office of the Attorney General, of Columbia, Warren Blair Giese, Fifth Circuit Solicitor's Office, of Columbia, for Respondent.

HUFF, J.

Chris Anthony Liverman was convicted of two counts of murder and was sentenced to two consecutive sentences of life imprisonment. Liverman appeals asserting (1) the trial court erred in failing to conduct an in camera hearing on the reliability of the identification of Liverman by one of the State's witnesses and (2) the trial court erred in allowing one of the State's experts in gang activity and recognition to testify concerning body markings on Liverman indicating Liverman had committed two prior murders. We affirm.

FACTUAL/PROCEDURAL HISTORY

On the night of August 26, 2004, Brian D. was on the porch outside his home with his friend, Christopher, when several boys came around the corner and asked them if there were any "Slobs" around there.¹ Brian and Christopher responded they had not seen any, and did not know. Brian saw the boys walk off behind the house, at which time he went inside his home and told his step-father, Teddy, that something "didn't look right." Brian stepped back outside and started talking to Christopher. As Brian began to reenter his home, he heard shooting and ran inside the house. Courtney D., Brian's sister, and Terrence M. were in the front yard at that time. After the shots rang out, Brian heard Christopher say that Courtney and Terrence had been shot.

Teddy testified he and Courtney were inside the house when Brian went outside and started talking to his friend on the porch. Courtney told her father she needed to get something from a friend's house. Brian came inside and told Teddy that something did not look right. Brian stepped back outside, followed by Courtney a few seconds later. Just seconds after that, Brian "jumped in the door" and Teddy heard gunshots. Realizing his daughter had just walked out the door, Teddy went outside to find Courtney was not moving and had blood coming from her head. He glanced to his right and saw Terrence out there too. Twelve year-old Courtney and sixteen year-old Terrence subsequently died from their gunshot wounds.

On the same day, but prior to the shooting of Courtney and Terrence, at least two other incidents occurred on T.S. Martin Drive where Courtney lived. The first situation involved Brady B., who drove his white Ford Escort down this street with Travis W., Travis B., Demetrius B., and Paris A. in the car. The boys in the white Escort had an unfriendly encounter with a male in the neighborhood, and words having gang-related undertones were exchanged.² Brady drove away from the situation, and subsequently went to a parking lot at Bethel Bishop Apartments with Paris.

While at Bethel Bishop, Brady and Paris spoke to some of the people outside. Brady testified he, Paris, and Carl Smith, also known as Pooh, were joined by Praylow. Pooh, who was a member of the same gang as Appellant, the Folk Nation Gang, testified he, Paris, and Brady were joined by someone named Sherod,³ and that they drove back to T.S. Martin looking for a person named Delshawn. Pooh testified Brady and Paris had indicated to the others they had a problem and wanted to go fight.

According to Brady, they turned down T.S. Martin and saw a young girl, about twelve years-old. Brady asked her if she knew the boy they had encountered earlier and the girl cussed at them. They told the girl to go back in her house. They turned around and drove back down the street, parked the car and exited the vehicle. The group walked up the street, but everyone in the neighborhood began closing their doors. There was no one outside, so they walked back to the car and drove away. After leaving T.S. Martin this second time, Brady stated he did not return to the location again, and denied being there during the shooting. He further testified, to his knowledge, no one in his group had a gun during this encounter.

Pooh testified when they exited the car at T.S. Martin, he was wearing a black bandana around his head, signifying the Folk Nation Gang. As they were looking for Delshawn, a female called out Pooh's name as they crossed the street.⁴ The others began walking around, but Pooh called them back, realizing that if they jumped someone at that time he would be the one caught since the female recognized him.⁵ They got back in the car, and Brady dropped Pooh and Sherod off at Bethel Bishop.

According to Pooh, he first saw Appellant that night coming out of Bayberry Apartments, located right behind Bethel Bishop. Appellant was accompanied by Pooh's deaf friend, Goo, and two other individuals Pooh did not know. Pooh explained to appellant what had happened at T.S. Martin and appellant told Pooh someone from T.S. Martin "had run him out there a couple of days before." Appellant then showed Pooh three or four .22 caliber bullets and said he "might go on a lick." Appellant also told Pooh he had just obtained a .22 caliber gun. Appellant kept telling Pooh he was about to go back to T.S. Martin, but Pooh asked appellant not to, fearing that if anything occurred he would be the person suspected, as the female had called out his name earlier. Appellant then told Pooh he was going to walk Goo home and probably was not "going to go up there."

Diego T., who was seventeen years-old at the time of trial, testified regarding his role in the incidents that occurred that night. Diego testified he ran into appellant, who went by the name Baby Jesus, at Bethel Bishop Apartments as it started to get dark. Appellant told Diego he had to go handle something at T.S. Martin, and asked Diego to go with him. Diego agreed, and as they walked they met up with Ty, Goo, and Little Chris. After appellant had a conversation with these three, they also agreed to accompany him to T.S. Martin. As they walked through Bethel Bishop they saw Pooh, and appellant had a conversation with Pooh. Pooh told them to be careful "because they had pulled some guns on some Slobs."

It was nighttime and dark when the five of them, appellant, Diego, Ty, Goo, and Little Chris, walked over to T.S. Martin. Appellant put a black "flag," or bandana, around his neck, indicating he was representing his set, the Folk Nation Gang. As they arrived there, Little Chris asked a boy sitting on a porch if he was a "Slob." The boy responded that there was "no gang banging" around there. The boy then got on the phone, at which time Diego told the rest of them it was time to go, as he believed the boy was calling the police or other boys to come over there. Appellant responded that he wanted him to call his boys. At that point, Diego saw appellant pull out a .22 rifle. When appellant pulled out the gun, he was across the street from the house where they saw the boy on the porch. Diego told them it was time to leave and he started to back away. He then saw Goo with a "shotgun at his hand" and appellant sign to Goo to shoot at the house. After appellant pointed the rifle at the house, Ty, Goo and Little Chris started running away and Diego heard gunshots. When he looked back, he saw appellant throw down the rifle and pick up the shotgun and point it. However, he did not hear any more shots. Appellant eventually caught up with them, and Diego saw appellant wrap the guns and place them under a log.⁶ Some weeks thereafter, appellant called Diego and asked him to get the guns from under the log and move them. However, Diego did not do so because he knew someone else had already moved them. The only person Diego observed pointing the .22 rifle or shooting that night was appellant. Diego described appellant as wearing two shirts, one black and the other white, along with long, black Dickey shorts and a pair of black and white shoes on that night.

Shante B., who was also a member of the Folk Nation Gang, testified to her encounter that night with appellant and Pooh. Shante was standing in front of a building at Bethel Bishop when appellant told her he was going to T.S. Martin to "ride with some Slobs." Pooh told appellant not to go over there. Appellant left the area with Goo, Mirage and Diego. A little while later, Shante saw appellant running back to Bethel Bishop from the woods in the direction of T.S. Martin "at full speed." Shante overheard appellant telling one of his friends he had just left T.S. Martin, that he was "spraying" when he was shooting, and that two little kids were shot. Appellant stated he had done this because earlier in the evening "they had got in something with some Bloods." Appellant then ran away from Bethel Bishop.

After the second incident, where the boys drove back to T.S. Martin in Brady's car looking to fight the individual they previously encountered, the police were called. Officer Reynolds was dispatched to T.S. Martin at 9:11 p.m. on August 26, 2004, in regard to a civil disturbance. After being informed that some irate black males in a small white vehicle had come to the area looking for someone named "Delshawn," Officer Reynolds, along with another policeman who responded to the call, left the neighborhood to find Delshawn and see if he could identify the people involved. The officers spoke with Delshawn for ten to fifteen minutes, and upon leaving received a call at 9:44 regarding another disturbance on T.S. Martin. The dispatch then immediately changed to a "shots...