State v. Tapp
| Decision Date | 27 July 2012 |
| Docket Number | No. 27129.,27129. |
| Citation | 398 S.C. 376,728 S.E.2d 468 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Petitioner, v. Jarod Wayne TAPP, Respondent. |
OPINION TEXT STARTS HERE
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter III, all of Columbia, and Scarlett Anne Wilson, of Charleston, for Petitioner.
Timothy C. Kulp, of Charleston, for Respondent.
We granted the State's request for certiorari to review the court of appeals' decision in State v. Tapp, 387 S.C. 159, 691 S.E.2d 165 (Ct.App.2010), which reversed and remanded Respondent's convictions and sentences for a new trial. The court of appeals found that the record in this case was insufficient for determining whether the circuit judge properly considered the reliability of Special Agent Prodan's testimony prior to introducing that testimony to the jury, as required by State v. White, 382 S.C. 265, 676 S.E.2d 684 (2009). We agree that our decision in White, decided while Respondent's appeal was pending, governs this case, but take this opportunity to clarify White in light of the court of appeals' misreading of White in the opinion below. Our reading of the record convinces us the circuit judge stopped short of determining the reliability of Prodan's testimony prior to admitting it into evidence, and therefore the trial court erred. However, we find that the error in admitting the testimony at issue was harmless. Accordingly, we reverse the court of appeals and reinstate Respondent's convictions.
Jarod Wayne Tapp (Respondent) was convicted of murdering and sexually assaulting his upstairs neighbor, Julie Jett (victim), and of burglarizing her apartment. Respondent received a life sentence for murder and two thirty-year sentences for the first degree criminal sexual conduct and burglary charges.
Victim was a resident of the apartment located above the apartment Respondent shared with his grandmother. Victim was in the process of packing her apartment on the Thursday evening when she was last seen alive. She planned to move in with a friend in Mount Pleasant the following Saturday. Victim and that friend moved several of her belongings to the Mount Pleasant apartment on Thursday evening, and the victim left the friend's apartment shortly after 10:00 p.m. with plans to return to her own apartment.1 When the victim did not show up for work the next morning, her coworkers became concerned. They were unable to reach her, and eventually they contacted her father, who convinced the apartment manager to check the victim's apartment. At approximately 5 p.m. on Friday, May 16, 2003, an apartment employee knocked on the victim's door several times, and after hearing no response, used the office's copy of the key to open the door to the victim's apartment.2 Upon cracking the door open, the employee observed a large amount of blood on the carpet in the living room area. She immediately closed the door and called the police.
The police arrived at approximately 5:30 p.m. and noticed a copious amount of blood on the carpet in the living room area near the television and several areas of blood splatter in the vicinity. Lying on the blood-stained carpet was a broken piece of black plastic that investigators later determined was a broken part of a knife handle. This plastic was an exact match to the knife set the victim owned that was sitting on her kitchen counter.3 Investigators discovered the victim's nude body in the apartment's hall bathroom, her knees on the floor and her body draped face-first over the edge of the tub, with her buttocks in the air. There was no blood on the carpet of the hallway that led to the bathroom where she was found, although there were several swipes of blood on the hallway walls. Investigators lifted several latent prints from the apartment that matched the victim, but were unable to retrieve any prints from the bathroom. An examination of the doors and windows in the apartment showed no indication of forced entry.
Victim had approximately 20 stab wounds about the face and neck and died from blood loss and blunt force trauma to the head.4 She had deep carpet-burn type injuries on the knees and face. A rape kit examination revealed the presence of a protein indicating semen in the victim's vaginal vault and in her rectum. The sperm within the semen that could produce a DNA profile was either of very low quantity or quality. A DNA profile for the semen could not be recovered from the rectal swab, although the DNA expert who conducted the testing found the swab did show that a male protein was present in the rectum. Only a partial DNA profile could be developed from the vaginal swab. After sending the vaginal swab to another laboratory for more sensitive testing, the statistical probability of a randomly selected and unrelated individual not being excluded as the source was one in 17,800 white males. Respondent could not be excluded as the source.5
The investigation into Respondent's connection to the victim's murder began after he was identified as a neighbor whom the victim and her roommate found “creepy.” The day after the victim's body was discovered, on Saturday, her current roommate called the lead investigator on the case and informed her of an interaction she and the victim had with Respondent that gave her pause.6 After hearing this, on that same day, the investigator attempted to contact Respondent at his grandmother's apartment, but was informed he was now living with his mother on the Isle of Palms. The investigator was able to make contact with Respondent's mother and arranged for him to come to the station for questioning.7
During this initial interview, Respondent recounted the following facts. On the Thursday evening when the victim was last seen alive, Respondent's grandmother picked him up from a grocery store and they returned to their apartment between 8:30 and 9:00 p.m. Shortly after returning to the apartment, Respondent went to the apartment complex pool and, not finding anyone there, walked to a nearby convenience store to buy a thirty-two ounce bottle of malt liquor.8 Respondent stated he returned to the pool, made several phone calls, and encountered two females who undressed and swam with two other males. He told the investigator that he consumed two 32 ounce malt liquor beverages that evening and did cocaine while at the pool. Respondent stated he stayed at the pool until around midnight when he called his grandmother to open the door for him. Respondent stated that he had only been to the victim's apartment on two occasions—once when prior residents lived there, and once a few months before the murder to use a phone and the bathroom.9 Respondent gavefingerprint exemplars and DNA samples after making his written statement.
Cell phone records indicate phone calls being made from Respondent's phone every couple of minutes throughout the evening, but with no phone activity between 10:36 p.m. and 12:11 p.m., when a call was placed to his grandmother. A neighbor testified that while sitting on her porch that Thursday evening, she heard a loud thud coming from the vicinity of the victim's apartment between the hours of 9:30 and 11:00 p.m. that evening, and the light to the victim's apartment was on. The neighbor approached police at the crime scene the next day to inform police of what she heard.
Two witnesses who shared a prison cell with Respondent testified that Respondent claimed he and victim had prior sexual relations. The State presented several witnesses to refute this testimony, including the victim's roommate and her coworker. These witnesses testified that the victim found Respondent “creepy.” The coworker recounted a conversation where she asked the victim why she was moving rather than re-signing the lease to her apartment. The coworker testified that the victim stated she would not mind moving to a different apartment within the complex, but that the guy who lived below her “creeped her out,” and that “[h]e would say things to her and he bothered her.” In that conversation, the coworker testified the victim elaborated on her feelings about Respondent, stating, “[H]e looks like he smells bad.”
The prison cellmates of Respondent additionally alleged that Respondent confessed to the murder. The first cellmate stated Respondent told him that he and the victim had a sexual relationship and that Respondent used his key to enter her apartment after a man Respondent was doing cocaine with stated he also had sex with the victim. The witness testified that Respondent stated he “went in to confront the girl about it and he said before he knew it, he had stabbed her over and over and over and over again.” After making the above statement, the witness testified Respondent dropped to the floor and begged the other prisoners to keep quiet because his “daddy done spent a lot of money on a lawyer.” The second cellmate witness recounted a similar conversation. 10
At trial, the State proffered Special Agent Prodan pretrial for a determination of whether he could be qualified as an expert in crime scene analysis and victimology, and whether his testimony would be admissible. Agent Prodan testified at this in camera hearing to his education, training, and experiences. Prodan explained his area of expertise:
Crime scene analysis is a technique where a combination of forensics, behavior, victimology, crime scene assessment, crime scene reconstruction are put together to make an assessment of a violent crime to determine everything from victims' risks to becoming a victim of a violent crime, motive of the offender, possible characteristics and traits of the offender, interview and investigational strategies for ... crime.
Over Respondent's objection, the circuit judge found Prodan was qualified as an expert. The circuit judge...
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