State v. Rogers

• Decision Date: 04 September 2013
• Docket Number: No. 5172.,Appellate Case No. 2010–176426.,5172.
• Citation: 405 S.C. 554,748 S.E.2d 265
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Timmy ROGERS, Appellant.

405 S.C. 554

748 S.E.2d 265

The STATE, Respondent,

v.Timmy ROGERS, Appellant.

Appellate Case No. 2010–176426.

No. 5172.

Court of Appeals of South Carolina.

Heard June 5, 2013.

Decided Sept. 4, 2013.

Appellate Defender David Alexander, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Alphonso Simon, Jr., all of Columbia; and Solicitor John Gregory Hembree, of North Myrtle Beach, for Respondent.

FEW, C.J.

A jury found Timmy Rogers guilty of murdering his paramour's husband, Fred Engel. Rogers argues the trial court erred when it refused to direct a verdict in his favor. We affirm.

I. Background

In the early morning hours of April 22, 2008, police found Engel's body in the woods near a bank of mailboxes in the subdivision where he lived. A forensic pathologist determined the killer strangled Engel to death. Three months later, a grand jury indicted Rogers for murder.

At trial, the State theorized Rogers killed Engel because Rogers was having an affair with Engel's wife Sherry. Sherry testified for the State, claiming she and Rogers devised a plan to kill Engel that they carried out the evening of April 21. Rogers moved for a directed verdict, which the trial court denied. After the jury convicted Rogers, the court sentenced him to thirty-five years in prison.

II. The Evidence

At trial, the State presented the following evidence to prove Rogers murdered Engel.

A. The Motive to Kill

Sherry testified the affair with Rogers began in May 2007 when she met him while visiting Kentucky. Thereafter, Sherry traveled from her home in Myrtle Beach to Kentucky to visit Rogers every month. She had family and a treating physician in Kentucky, which gave her excuses to visit. Throughout the affair, Sherry claimed Rogers frequently discussed “getting rid” of Engel “because he felt like [Engel] was going to take [her] away from him.” In fact, she testified Rogers even tried to hire one of his family members to kill Engel. The family member, whom Sherry claimed “was a sharp shooter,” ultimately refused Rogers' request. Although Sherry initially protested the plan to kill Engel, she claimed she “became more compliant with th[e] idea of having [Engel] killed” and discussed it with Rogers every day.

B. The Plan to Murder

According to Sherry's testimony, Rogers told her the morning of April 21, 2008, that “This was going to be the day that [Engel] died.” Rogers was in Myrtle Beach that week, staying at a motel located ten miles from the Engels' home. Sherry drove to the motel, where she and Rogers discussed their intention to kill Engel. Knowing she could not change Rogers' mind, Sherry told him, “Well, if you're going to do it you go ahead and do it.”

Rogers' plan was to park his red Chevrolet pickup truck in the parking area of the Engels' subdivision that night and hide in the bushes behind the mailboxes. Sherry was to call Rogers when Engel walked outside to check the mail. Rogers would lay in wait for Engel and shoot him when he approached the mailboxes. He told her he bought a gun from a man staying in the motel, but Sherry never saw the gun.

C. The Murder

Sherry testified Rogers called her that night at 11:00 p.m. to tell her he was positioned at the mailboxes.¹ Sherry claimed she then asked Engel to check the mail, and when he left the house, Sherry called Rogers and told him, “He's leaving.” She testified that when she hung up the phone, she knew she had “fulfilled her part of the agreement.”

Rogers called her back later that night and said, “It's done.” During that conversation, Sherry recalled “he was out of breath and ... I could barely understand a lot of what he was saying. But I could tell he was in the woods cause of the way he was stomping and everything.”

Around midnight, Sherry called Rogers to make sure he was out of the area and safely at his motel before she put the next part of their plan into action. He told her he made it back and, in Sherry's words, was “cleaning himself up from where he killed [Engel].” He had worn coveralls and boots Sherry had purchased for him, and Rogers told her he had to get “the blood off of his hands ... and get[ ] his coveralls and ... boot [off] because he had stepped in the blood.”

After she got off the phone with Rogers, Sherry “sound[ed] the alarm.” She testified she walked to the house of her next-door neighbors, Tom and Karen Rickerson, and told them she could not find Engel. Tom testified he drove around the neighborhood searching for Engel but could find no trace of him. At that point, Sherry told Tom they needed to go to the mailboxes because, as she explained to Tom, Engel took the mailbox key with him when he left. Sherry, however, claimed that she “knew something had happened at the mailbox”; she knew Rogers “was supposed to do it” there. When they arrived, Sherry saw “blood on the front of the [mail]boxes” and Engel's glasses laying on the ground. At that point, Sherry “had no doubt in [her] mind that [Engel] was dead,” and she “knew who did it.”

D. Finding the Body

A police officer from the Horry County police department testified they found Engel's body in the woods approximately thirty feet from the mailboxes early the next morning. He also stated a shoestring was found around his neck, and it appeared Engel had been dragged face-down by his left arm into the woods. A pathologist with a local hospital in Myrtle Beach told the jury it would take significant strength to make the marks on Engel's neck that were left by the shoestring. He further testified Engel had a “fresh” head laceration that could have been inflicted by “[a]nything blunt that you either fall against or get hit with,” and a defensive wound on his finger from pulling against the shoestring.

The police submitted twenty pieces of evidence for DNA swabs, but none contained Rogers' DNA. The police also made casts of footwear impressions found at the scene, but they yielded no useful information.

E. Placing Rogers at the Scene

The State introduced the testimony of an employee who worked at the motel where Rogers stayed. She testified Rogers reserved a room from April 8 until May 5, 2008, which Sherry paid for in cash. She also confirmed that Rogers was a guest at the motel on the night of April 21, 2008. However, she testified Rogers checked out on April 30 and did not stay the full twenty-eight days he had reserved. The employee also testified Rogers drove a red Chevrolet S–10 pickup truck.

Kimberly Maluda, a resident of the subdivision where the Engels lived, testified that she passed a red Chevrolet S–10 pickup truck in the neighborhood on her way home from work the evening of April 21, 2008. She saw the same truck “back in” to a parking spot across from the mailboxes with the headlights off. However, she did not see the truck's license plate or driver. Maluda stated the truck was gone the next morning.

Michael Graham—an expert in tracking cell phone calls and text messages—testified about calls and text messages made from and received by Rogers' and Sherry's cell phones.²According to Graham's testimony, there were at least fourteen phone calls and text messages sent between Sherry and Rogers on April 21, 2008. However, only two phone calls were made between Rogers and Sherry the next day, and the phone calls remained scarce thereafter.

Relying on Rogers' cell phone records, Graham testified to phone calls made between Rogers' and Sherry's cell phones the night Engel died and to Rogers' general location at the time of these calls based on which cell towers his phone accessed to make or receive those calls:

(1) Sherry called Rogers at 9:06 p.m., and Rogers' cell phone accessed a tower within the vicinity of Rogers' motel;

(2) Sherry and Rogers exchanged a series of phone calls and text messages between 9:41 and 9:44 p.m., and Rogers sent and received them by accessing three different towers that covered the subdivision where the Engels lived;

(3) Sherry placed a twenty-six-second phone call to Rogers at 10:35 p.m., and Rogers' cell phone accessed the tower covering the subdivision where the Engels lived;

(4) Sherry placed an eleven-second phone call to Rogers at 11:05 p.m., and Rogers' cell phone accessed the tower covering the subdivision where the Engels lived;

(5) Rogers placed a three-minute phone call to Sherry at 11:42 p.m., accessing the tower covering Rogers' motel; and

(6) Sherry placed a seven-and-a-half-minute phone call to Rogers at 12:03 a.m., and Rogers' cell phone accessed the tower covering his motel.

The State argued this evidence corresponded with Sherry's testimony regarding phone calls made between her and Rogers the night Engel died and put Rogers at the scene of the crime around the time Maluda claimed she saw a red truck in the neighborhood. Also, the State theorized that Rogers' cell phone accessed three different towers for the calls made between 9:41 p.m. and 9:44 p.m. because he was driving to the Engels' home at that time. However, Graham and another witness indicated the phone records showed only that the cell phones were used in the general area of the cell towers routing the calls; the information did not conclusively prove who was using the cell phones or pinpoint exactly where the phones were used.

F. The Aftermath

Sherry testified to conversations she had with Rogers after Engel's death. She claimed she and Rogers spoke only twice the week after Engel's murder. One of those times, Rogers called and told her he had Engel's watch and keys and asked what he should do with them. Additionally, Rogers told her he had washed the steering wheel of his truck with bleach to remove Engel's blood from it, and he had painted his red truck gray.

Sherry testified that before the funeral, Sherry viewed Engel's body and noticed Engel's head was “all mashed in ... where he [had] been hit with something,” and he had “a lot of...