State v. Pagan

• Decision Date: 12 January 2004
• Docket Number: No. 3724.,3724.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Charles PAGAN, Appellant.

357 S.C. 132

591 S.E.2d 646

The STATE, Respondent, v. Charles PAGAN, Appellant.

No. 3724.

Court of Appeals of South Carolina.

Heard December 9, 2003.

Decided January 12, 2004.

Deputy Chief Attorney, Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka and Assistant Attorney General, S. Creighton Waters, all of Columbia; and Solicitor Edgar L. Clements, III, of Florence, for Respondent.

ANDERSON, J.:

Charles Pagan was convicted of murder and sentenced to life imprisonment. Pagan appeals, arguing the trial judge erred in allowing testimony from an individual about an incident that occurred more than one year after the victim's murder. We affirm.

FACTS/PROCEDURAL BACKGROUND

At approximately 8:00 a.m. on December 11, 1997, the victim's body was discovered in a vacant lot in Florence, South Carolina. DNA testing revealed there was semen on the victim's pants and in her vagina. Dr. Edward Proctor, the forensic pathologist who performed the autopsy, concluded the victim died as a result of "massive blunt force injury to the head," likely caused by multiple blows from a heavy object, such as a board.

Steven¹ Blathers, an acquaintance of the victim, lived across the street from the vacant lot where the body was found. After DNA testing, it was determined that the semen found on the victim belonged to Blathers. Blathers admitted to having sex with the victim in exchange for providing her with crack cocaine. However, Blathers was not viewed as a suspect because his mother attested he was home at the approximate time the victim was attacked. Additionally, Jessie Jones, a neighbor of Blathers who lived in front of the vacant lot, saw the victim fighting with a man that night and testified Blathers did not match the description of that individual. The following colloquy occurred during direct examination of Jones:

Q. How tall is Mr. Steve Blathers?

A. About five foot if he that. He was short.

Q. You didn't see Steve Blathers out there by that school bus at the fight, didn't you?

A. Not that I can say for sure, no.

Q. Well, that fellow you described is six feet light-skinned wasn't Steve Blathers?

A. No.

Q. And you didn't see Steve Blathers around there, didn't you?

A. No, I didn't. Because I couldn't recognize none of them.

Jones stated that, around 2:00 a.m. the morning of the murder, he observed a group of people hitting a sign with a stick outside of his house. Thereafter, Jones noticed a "tall man" and a "lady [who] was kind of short" arguing and "hitting each other with sticks." Another neighbor, Patrice Washington, said that, at approximately 2:10 a.m., she witnessed a "shadow run pas[t] [her] window," followed by "two more shadows." Washington declared "[t]he first shadow was screaming." Sometime after 2:00 a.m., Blathers looked out the door of his house and saw a six-foot tall "shadow run across the street" with "something in [his] hand."

Monique Ellerbee Cooks² called Crime Stoppers the night the victim's body was discovered. Cooks informed Crime Stoppers that she was with the victim at a club on the night of the murder. Cooks claimed the victim left the club with a man and that Cooks did not see the victim again. Cooks gave a detailed description of the man. When police visited Cooks, she reiterated that she had been with the victim the night she was killed but did not tell the police that she had witnessed the murder. Cooks failed to point out anyone in three photographic lineups, one of which included Pagan.

Cooks later assisted police in drawing a composite sketch of the man she saw with the victim the night of the murder. Police interviewed Pagan after an individual identified him from the composite sketch. Police then re-interviewed Cooks, who identified Pagan in a photographic lineup as the person she saw with the victim the night of the murder. Cooks indicated that she had recognized Pagan the first time she viewed the lineup but that "she was scared to point him out" at that time.

Approximately one month later, Cooks professed that she witnessed the murder. On the night the victim was killed, Cooks followed the victim, who was walking with a man that Cooks had never seen before. Cooks heard the victim arguing with the man about money and drugs. Speaking in an angry tone, the man asked the victim for the twenty dollars she owed him. While standing in the area where Jessie Jones stated he had seen people hitting a sign, Cooks watched the man and victim "hitting each other with sticks." The man told the victim, "Bitch, you gone give me my money." When the victim ran, the man chased the victim and beat her in the face and head with a board. Cooks screamed. The man told Cooks that he was going to "get [her] next." Cooks identified Pagan as the victim's attacker.

Police issued an arrest warrant for Pagan on January 15, 1998. Pagan fled to New Jersey but was apprehended on February 20, 1998.

In February 1999, more than one year after the murder, Pagan was arrested while out on bond. The arrest was based upon a statement given by Tamika Lambert. Lambert stated she was the passenger in a vehicle being driven by someone named "Derrick" when a police car with its blue light on attempted to pull them over. According to Lambert, "Derrick" drove off at a high speed, crashed the car, and ran away. When Lambert saw "Derrick" several hours later, "Derrick" apologized to her and explained why he ran from the police. Lambert declared:

He start[ed] out telling me that he couldn't stop because he didn't have no [driver's] license. Then he told me that he was on—I'm trying to see which one he told me first. He was on a $100,000 bond because they had—[t]his girl— [t]hey accused him of killing some girl. And it was all because of some girl named Monica.

Lambert identified Pagan as the man who (1) told her his name was "Derrick"; (2) ran from the police; (3) wrecked the car; and (4) later explained to her why he had run from the police. The car that Pagan wrecked after the chase was registered to Pagan's wife. Pagan denied both knowing Lambert and wrecking his wife's car.

Before Lambert testified at trial, defense counsel objected to her testimony, claiming the evidence was unduly prejudicial and too remote in time to be considered in conjunction with the murder charge. The trial court overruled the objection, finding Lambert's testimony was admissible under Rule 404(b), SCRE, as Monique Ellerbee Cooks said she'd been threatened and Lambert's testimony referred to Pagan's comment that a girl named "Monica" was the cause of his problems. Defense counsel unsuccessfully renewed this objection after Lambert testified. In charging the jury, the trial judge instructed that Lambert's testimony was admissible only as to identification.

The jury found Pagan guilty of murder. He was sentenced to life imprisonment.

LAW/ANALYSIS

Pagan contends the trial judge erred in admitting Tamika Lambert's testimony. Specifically, Pagan claims Lambert's testimony that Pagan ran from police while out on bond for this murder charge was only slightly relevant, yet highly prejudicial. We disagree.

I. Evidence of Flight

"Flight from prosecution is admissible as evidence of guilt." State v. Al-Amin, 353 S.C. 405, 413, 578 S.E.2d 32, 36-37 (Ct.App.2003); see also State v. Ballenger, 322 S.C. 196, 200, 470 S.E.2d 851, 854 (1996)

(stating flight is "at least some evidence" of defendant's guilt); State v. Freely, 105 S.C. 243, 89 S.E. 643 (1916) (declaring the flight of one charged with crime has always been held to be some evidence tending to prove guilt). Evidence of flight has been held to constitute evidence of defendant's guilty knowledge and intent. See State v. Beckham, 334 S.C. 302, 513 S.E.2d 606 (1999); Town of Hartsville v. Munger, 93 S.C. 527, 77 S.E. 219 (1913); State v. Brownlee, 318 S.C. 34, 455 S.E.2d 704 (Ct.App.1995); see also 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 S.E.2d 315 (1991) (finding evidence of flight admissible to show guilty knowledge, intent, and that defendant sought to avoid apprehension); State v. Grant, 275 S.C. 404, 407, 272 S.E.2d 169, 171 (1980) ("[A]ttempts to run away have always been regarded as some evidence of guilty knowledge and intent.") (internal quotation marks omitted); State v. Davis, 354 S.C. 348, 580 S.E.2d 778 (Ct.App.2003) (noting that circumstances of defendant's flight from police after they attempted traffic stop allowed reasonable inference of guilty conduct). Flight, when unexplained, is admissible as indicating consciousness of guilt, for it is not to be supposed that one who is innocent and conscious of that fact would flee. See State v. Williams, 350 S.C. 172, 564 S.E.2d 688 (Ct.App.2002) (citing 29 Am.Jur.2d Evidence § 532 (1994)).

The critical factor to the admissibility of evidence of flight is whether the totality of the evidence creates an inference that the defendant had knowledge that he was being sought by the authorities. Beckham, 334 S.C. at 315, 513 S.E.2d at 612. It is sufficient that circumstances justify an inference that the accused's actions were motivated as a result of his belief that police officers were aware of his wrongdoing and were seeking him for that purpose. Id. (citing Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974)). Flight or evasion of arrest is a circumstance to go to the jury. See Beckham, 334 S.C. at 315,

513 S.E.2d at 612; State v. Turnage, 107 S.C. 478, 93 S.E. 182 (1917); see also State v. Byers, 277 S.C. 176, 284 S.E.2d 360 (1981) (recognizing that evidence of flight is proper and that it is oftentimes appropriate for counsel to argue to the jury the inferences growing out of flight); Grant, 275 S.C. at 408,

272 S.E.2d at 171 (stating that while a jury charge on flight as evidence of guilt is improper, admission...