State v. Nelson
| Decision Date | 19 August 2020 |
| Docket Number | Appellate Case No. 2017-001406,Opinion No. 5768 |
| Citation | 847 S.E.2d 480,431 S.C. 287 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Antwuan L. NELSON, Appellant. |
Appellate Defender David Alexander, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, of Columbia; Assistant Attorney General Ambree Michele Muller, of Lexington; and Solicitor Jimmy A. Richardson, II, of Conway, for Respondent.
Antwuan Levon Nelson was indicted for murder, possession of a weapon during the commission of a violent crime, and possession with intent to distribute cocaine base. He appeals from his convictions for voluntary manslaughter and possession of a weapon during the commission of a violent crime, asserting the trial court erred in refusing to grant him a continuance or declare a mistrial when his key defense witness was in the hospital. We reverse Nelson's convictions and remand for a new trial.
This matter stems from the shooting death of Michael Rogers (Victim) at an apartment complex where Victim lived. The State presented witnesses who testified as follows:
On the afternoon of January 27, 2014, police officers responded to a shooting at some apartments at 37th Avenue North in Myrtle Beach. Officers Mackin and Owens were the first on the scene, where they encountered numerous people who indicated a black male in the parking lot—wearing a black jacket and standing beside a red car—had just shot someone. The officers observed Nelson leaning against the back of the vehicle, at which time they drew their weapons. Nelson complied with their commands, and he was placed in handcuffs. When they put Nelson on the ground, they observed an AR-15 rifle—with the magazine out—on the ground behind Nelson.
The scene was described as chaotic, with about forty people making threats and yelling at Nelson. Some of the people told the officers that a bleeding victim was lying in the alley. Officer Mackin stayed with Nelson while Officer Owens went to render aid to Victim. Officer Owens testified there were probably a dozen people in the alleyway. He observed a white female, who was crying and upset, with Victim. Victim had a large bulge in his neck, and he was "bleeding out." Officer Owens attempted CPR, but he realized Victim had received a fatal blow. Victim died from a gunshot wound to the neck.
Officer Owens observed a shotgun lying close to Victim and observed two unfired shotgun shells, but no spent shells. The shotgun shells were 12 gauge No. 8 birdshot. Officer Owens stated the shotgun shells were close to Victim and the shotgun was across from him, next to a wall. He agreed that the shotgun would spit the shell out automatically when fired and there was "no telling where it's going to kick it to."
Officer Garrett arrived as backup, encountering a large, irritated crowd of people. He testified he knew he needed to remove Nelson from the scene for his own safety. Officer Garrett transported Nelson to the detention center, during which time Nelson told the officer "I shot him because he was going to shoot me."
When the officers arrived at the scene, Nelson's car was backed into a parking spot, and nothing was blocking the vehicle from leaving. Nelson was wearing clothing that was black and red trim, with red or black shoes. Officer Mackin acknowledged there were people standing all around the crime scene, and he did not know how long Victim had been lying in the alley and whether anyone had tampered with evidence prior to their arrival. However, he did not observe anyone running in and out of the alley or taking anything from there. Officer Owens testified he maintained the integrity of the scene as best he could until the Crime Scene officers arrived but stated it was difficult to do so before more officers arrived there.
Witness Michelle Cantey, who lived in a first floor condominium across from 37th Avenue North, testified she was in her unit around 4:30 on the afternoon of January 27, 2014, when she heard several shots and felt a reverberation in the building. A bullet entered her condo and embedded in an end table. Cantey heard the muffled sounds of neighbors talking outside and went to her window. When she looked out the window down an alley, she observed a black male in dark clothing with red trim on his jacket trying to reach the top of a fence. This person dropped something over the fence, which she assumed was a handgun since she had just heard the shots. After throwing the item over the fence, the man ran back toward a red car.
Officer Kenneth Harlow arrived on the scene with his K-9, Roscoe. Officer Harlow secured the AR-15 rifle that was in the area of the car. He found the rifle with the magazine out and also observed spent shell casings near a trash can. Upon learning something may have been thrown over a fence, he and Roscoe conducted an article search all the way down the fence on the opposite side of the apartments, retrieving a ball of saran wrap with a green leafy substance and white powder that looked like cocaine.1
Officer Rhett Ammons testified that when he arrived at the scene, he saw numerous irate people. Looking down the alley that runs behind the building, Officer Ammons observed a black male on the ground, with a white female and Officer Owens over him. He did not recall if there were other people in the alley. Officer Ammons testified that while looking down the alley he did not see anyone pick up any items and that nothing was picked up; however, he acknowledged "all the attention was to the victim." Officer Ammons stated he never saw anyone approach the shotgun that was in the alley, and no one picked up anything from the ground.
Crime Scene Investigator Michelle McSpadden collected the unloaded AR-15 rifle, and the magazine found next to it, at the back of the Crown Victoria car. Officer McSpadden testified the fired shell casings from a rifle were recovered by the side of trashcans. The State presented expert testimony that three .223 Remington caliber cartridge cases recovered from the scene were fired from the AR-15 rifle.2 Officer McSpadden testified she spent quite a bit of time at the crime scene. She located a couple of places where a round could have struck: the hole in the wall of Cantey's home and a chip in the brick of the breezeway at the apartment complex that appeared to be fresh damage. In her examination of the alley, she found an unfired rifle round, an unloaded shotgun, and two unfired shotgun rounds that were filled with birdshot. She did not find any spent shotgun shells or any wadding from a fired shotgun shell. She also did not find any pellets or holes in the fence that looked like a strike from that kind of ammunition. She agreed, though, that such a shot would have to hit something for her to see physical evidence of a strike. Officer McSpadden also acknowledged she could not say that a shotgun shell was not removed from the scene; however, there was no evidence a shotgun had been fired. She reiterated she spent quite a bit of time at the scene and felt confident they would have seen evidence of a shotgun blast had it been there. Further, because birdshot contains dozens and dozens of pellets, it would have been difficult for someone to pick up every single one. Officer McSpadden also testified that she collected gunshot residue evidence from Nelson, and she checked Nelson for injuries. She stated she probably spent ten minutes looking at his hands and saw no injuries.
The State's Trace Evidence expert testified gunshot residue tests performed on Nelson and Victim revealed the presence of gunshot residue on Nelson's hands, but not on Victim's. She stated gunshot residue on a deceased person would remain on the hands until physically removed by an outside force. She acknowledged blood could dissolve the residue.
Kristen Bloomer, with whom Victim lived and shared a child, testified she was in the living room of her 37th Avenue North apartment in Myrtle Beach sometime after 3:00 p.m. on January 27, 2014, when Victim and Nelson entered the home. As they went into the kitchen area, their demeanors were calm. However, Bloomer started hearing them speak in a hostile manner. When she stood up, she saw Nelson throw a punch at Victim. Bloomer heard Victim—who sold drugs on occasion—say, "No, I'm not buying these, it does not look correct." In response, Nelson said, "You will, you will buy these." Bloomer was under the impression that whatever was being bought was not up to the standard of what someone else would want to purchase. Once Nelson threw the punch and hit Victim, the two started scuffling in the kitchen. At some point, Victim was on the ground with Nelson on top of him continuing to hit Victim. Victim yelled for Bloomer to get his gun. Bloomer froze because of the situation that was occurring and also because she did not know where the gun was. She then opened the door and told Victim to hit Nelson and get him out of the home. Not long after she opened the door, Nelson "took off running and went out [her] front door and went down the stairwell out of the building." The gun that Victim told her to retrieve was a shotgun.
After Nelson fled, Bloomer tried to calm Victim down and get him to stay in the apartment, but that did not happen as Victim was furious from having been attacked in his own home. Bloomer and Victim started walking down the stairs of the building, passing Victim's son, Jerome, who was staying there at the time. The three stopped and talked for a moment and then proceeded around to the front of the building. Bloomer could not remember if Victim had a gun when he went down the steps. She estimated two to two and a half minutes passed from the time Nelson left her home until she went down the steps of the building. Victim ran down the steps and, after Bloomer walked down them herself, she saw Victim at the front...
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