State v. Pagan, No. 26172.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Burnett
• Citation: 631 S.E.2d 262
• Parties: The STATE, Respondent, v. Charles PAGAN, Petitioner.
• Decision Date: 19 June 2006
• Docket Number: No. 26172.

631 S.E.2d 262 The STATE, Respondent,
v.
Charles PAGAN, Petitioner. No. 26172. Supreme Court of South Carolina. Heard April 5, 2006. Decided June 19, 2006. Rehearing Denied July 10, 2006.

Page 263

COPYRIGHT MATERIAL OMITTED

Page 264

Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters; and Acting Solicitor W. Barney Giese, all of Columbia, for Respondent.

Justice BURNETT:

Charles Pagan (Petitioner) was convicted of the murder of Gloria Cummings (the victim), and was sentenced to life imprisonment. We granted Petitioner's petition for writ of certiorari to review the Court of Appeals' decision. State v. Pagan, 357 S.C. 132, 591 S.E.2d 646 (Ct.App.2004). We affirm as modified.

FACTUAL AND PROCEDURAL BACKGROUND

The victim's body was discovered in a vacant lot in Florence County about 8 a.m. on December 11, 1997. A police officer testified the victim's head had been severely beaten and her pants were down around her ankles. Dr. Edward Proctor, a forensic pathologist, performed an autopsy on the victim's body and opined the cause of death was massive blunt force injury to the head.

An investigation revealed semen found on the victim's pants and body belonged to Stephen Blathers, who lived near the vacant lot where the victim's body was discovered. When confronted with the results of the investigation, Blathers admitted having sex with the victim on the night of the murder. He further testified he heard screaming outside his house about 2 a.m. that night and he saw a shadow run across the yard. Blathers thought the shadow was the same man he had previously seen with the victim on the night of the murder, and he later identified Petitioner as that man.

Jessie Jones, who also lived near the vacant lot, testified that about 2 a.m. on December 11, he heard people hitting a sign outside his house, and he told the people to leave. He then observed a man and a woman hitting each other with sticks, and thought they were arguing over money. Jones did not think the man arguing with the woman was Blathers because Blathers is five feet tall and the man he saw was six feet tall.

On December 11 and 13, 1997, Monique Ellerbee Cooks called Crime Stoppers and reported she went to a club with the victim on the night of the murder. Cooks reported the victim left the club with a man, gave a detailed description of the man, and said she did not see them again. Cooks subsequently met with a forensic artist who drew a composite sketch of the man she saw with the victim. Cooks was also shown a photographic lineup with Petitioner in it; however, she did not identify anyone.

At trial, Cooks testified she was with the victim on the night of the murder. Cooks went to White Sands, a bar, while the victim stayed outside to talk to a man. When Cooks left the bar, she decided to follow the victim and the man because they were leaving together. Cooks testified she thought the victim and the man were arguing over money and drugs. At some point during the walk, the victim and the man began hitting each other with sticks. Cooks testified the victim and the man moved toward a vacant lot when Jones yelled for the people to stop hitting a sign. The man continued hitting the victim and began dragging her. Cooks testified she offered to pay the man, but he did not want her money. The man then told the victim if she did not pay him, he would beat the money out of her. When the victim ran away, the man pursued her, caught her, then began to pull off her clothes, and beat her on the head with a board.

Cooks identified Petitioner in court as the man she saw beat the victim to death. Cooks testified she did not originally report that she had witnessed the murder and she did not initially identify Petitioner in the photographic lineup because she was scared.

Petitioner's defense was alibi and he argued the evidence did not point to him as the murderer. He testified his wife dropped him off at White Sands on the evening of December 10, 1997. He left White Sands between 10 and 10:30 p.m. and went to the Pub, where

Page 265

he talked to Leroy Jones and Darren Burgess. After about an hour, he called his wife to pick him up and approximately thirty minutes later she arrived at the Pub. Jones, Burgess, and Petitioner's wife corroborated Petitioner's testimony regarding when he arrived and departed the Pub. His wife also testified Petitioner was at home for the rest of the night.

Petitioner was arrested by the United States Marshals in New Jersey on February 20, 1998, and extradited to South Carolina. He was subsequently released on bond.

Tamika Lambert testified on February 16, 1999, she was walking down a street in Florence when a man named "Derrick" picked her up in a vehicle. She testified a police officer attempted to pull them over and Derrick sped away eventually wrecking the car. Derrick then ran from the scene, but Lambert was detained by the police. Later that night, Lambert ran into Derrick and he apologized to her. He told her he ran from the police because he did not have a driver's license and "they accused him of killing this girl — Well, this girl named Monique." She further testified he told her "that he was on... a $100,000 bond because they had — This girl — They accused him of killing some girl. And it was all because of some girl named Monica."¹ After the incident, Lambert picked Petitioner out of a photographic lineup as "Derrick."

Defense counsel objected to Lambert's testimony. The trial judge allowed the testimony as evidence of identity under Rule 404(b), SCRE. The trial judge also gave the following limiting instruction: the testimony "related to the issue of identification of [Petitioner.] You can't infer that he was charged with or know about a failure to stop for blue light charge, that he's necessarily guilty of murder. There's no connection."

Lavenia Helton testified to a prior altercation between the victim and Petitioner during 1997. Helton testified the victim was leaving Helton's apartment one day with a bag of crack cocaine. Petitioner demanded the victim give him the bag of crack cocaine. When the victim complied, Petitioner told her she would die.

At trial, Petitioner denied knowing the victim. He also denied ever seeing Lambert, Cooks, and Helton until they testified at trial. Petitioner further denied being involved in the February 16, 1999, failure to stop for a blue light incident.

The jury found Petitioner guilty of murder, and the Court of Appeals affirmed the conviction.

ISSUE

Did the Court of Appeals err in affirming the trial judge's admission of testimony that, while Petitioner was out on bond for the current murder charge, he failed to stop for a blue light and later explained to a passenger in the vehicle that he had fled from the police because he was accused of killing the victim?

STANDARD OF REVIEW

The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). 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. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000).

LAW AND ANALYSIS

A. Evidence of Flight

Petitioner argues the Court of Appeals erred in affirming the admission of Lambert's testimony because the testimony did not relate to flight from the charged crime.² We agree.

Page 266

Flight from prosecution is admissible as guilt. State v. Thompson, 278 S.C. 1, 292 S.E.2d 581 (1982), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406...