State v. Tucker, Appellate Case No. 2015-002339

• Citation: 815 S.E.2d 467
• Decision Date: 18 April 2018
• Docket Number: Appellate Case No. 2015-002339,Opinion No. 5552
• Court: Court of Appeals of South Carolina
• Parties: The STATE, Respondent, v. Walter TUCKER, Appellant.

423 S.C. 403
815 S.E.2d 467

The STATE, Respondent,
v.
Walter TUCKER, Appellant.

Appellate Case No. 2015-002339
Opinion No. 5552

Court of Appeals of South Carolina.

Heard February 5, 2018
Filed April 18, 2018
Rehearing Denied July 9, 2018

Robert Eccles Ferguson, Jr., of Ferguson & Ferguson, LLC, of Beaufort, and Derek M. Wright, of Atlanta, Georgia, for Appellant.

Attorney General Alan Wilson, Deputy Attorney General Donald J. Zelenka, and Senior Assistant Attorney General W. Edgar Salter, III, all of Columbia, and Solicitor Isaac McDuffie Stone, III, of Bluffton, for Respondent.

HILL, J.:

Convicted by a jury of the murder of Quantez Greer and the attempted armed robbery of Jessica Power, Walter Tucker appeals, claiming the trial judge erred by (1) denying his motion for directed verdict; (2) admitting prior bad act evidence against him in violation of Rules 403 and 404, SCRE ; and (3) denying his motion for a new trial and refusing to hold a full evidentiary hearing on his claim of juror misconduct. We affirm.

I.

Jessica Power knew Walter Tucker from their shared interest in marijuana. When Power's friend Quantez Greer wanted to buy some, she steered him to Tucker. On September 6, 2012, Power and Greer drove to meet Tucker in Beaufort at a trailer owned by Antonio Brewer to close the deal. After Power hid $2,500.00 of Greer's cash in her purse, she and Greer walked to the front door of the trailer. Tucker let Power in, but quickly shut the door and locked it, leaving Greer outside. Once inside, Power noticed another person, later identified as Travis Polite, reclining on a couch. Tucker pointed a handgun at Power and demanded she hand over the money. When she refused, someone pushed her to the floor. Tucker fumbled with Power's purse but could not find any money in it, so he threw it back to her and again demanded she produce the money. Power testified she retrieved the money and gave it to Tucker. At this point, the drug deal went from bad to worse. Polite asked Tucker for his gun, which Tucker passed to him as Polite bounded out the front door. Power testified she then heard a gunshot outside, and Tucker, who had drawn another gun, ran out the front. Power next heard multiple gunshots coming from the yard, and she retreated further into the trailer's interior. A third man, presumably Antonio Brewer, burst from a bedroom and fled out the back door. Power then scampered out the back as well, seeking refuge under her ex-boyfriend's nearby trailer. Power testified Tucker called her on her cell phone while she was hiding and told her if she said anything about the events "he would hurt my family and kill me."

Responding to 911 calls reporting the gunshots, police arrived on scene to find Greer lying on the ground dead from what was later determined to be a gunshot wound to the chest. After further investigating the scene and interviewing witnesses, including Power and Brewer, police obtained an arrest warrant for Tucker, who was later apprehended hiding under a sink at his brother's home in Asheville, North Carolina.

Keamber Bigelow met Tucker in Savannah in the fall of 2014 while he was awaiting trial. She testified Tucker told her he did not have anything to do with Greer's murder, but "he wasn't sure. He said he was running and that he was shooting and his adrenaline was high." Tucker told Bigelow that Power would not testify because he had threatened her, and that he needed someone named Cedrick a.k.a. Savage to kill Polite. According to Bigelow, Cedrick drove a black Camry with a pistol hidden under the gearshift. Bigelow had, in turn, given this information to law enforcement, and an investigator located a Cedrick A. McDuffy in custody in Hampton County. His booking record showed he had "Savage" tattooed on his chest. A search of Cedrick's impounded black Camry revealed a pistol hidden in the gearshift. An incident report from a recent traffic stop of Cedrick listed Tucker and Bigelow among his passengers in the Camry.

The State tried Polite in January 2015, and a jury convicted him of Greer's murder. The

815 S.E.2d 470

State claimed Polite fired the fatal shot, but prosecuted Tucker for murder under a theory of accomplice liability, kidnapping, and armed robbery. Brewer, who had testified in Polite's trial, was shot and killed a few weeks before Tucker's April 2015 trial.

The jury convicted Tucker of murder and attempted armed robbery, but acquitted him of kidnapping. After his conviction, Tucker moved for a new trial, asserting a juror (Juror A) had not disclosed her friendship with Brewer and Quornisha Jones, a listed but uncalled State's witness. After hearing arguments from counsel and reviewing affidavits, the trial judge denied Tucker's motion for new trial and his request for further hearing on the jury misconduct issue.

II.

Tucker first claims the trial judge should have directed a verdict in his favor. We must view the evidence in the light most favorable to the State, and we see plenty to support the elements of murder and attempted armed robbery. See State v. Bennett , 415 S.C. 232, 235, 781 S.E.2d 352, 353 (2016). Power's recounting of Tucker seizing her purse at gunpoint was sufficient proof of his specific intent to commit armed robbery. Her testimony of hearing gunshots after Tucker ran outside brandishing a pistol, together with Bigelow's testimony and evidence of Greer's cause of death, were enough to carry the murder charge to the jury on the theory of accomplice liability, as they showed he was an active participant not a mere bystander. See State v. Harry , 420 S.C. 290, 300, 803 S.E.2d 272, 277 (2017). Cellphone tower records, DNA evidence from a drink bottle found at Brewer's trailer, and a neighbor's testimony about seeing a dark mid-sized sedan (similar to one Tucker had previously been seen driving) leaving the area corroborated Tucker's presence at the scene when the murder was committed. Because this was sufficient evidence for a reasonable jury to find Tucker guilty beyond a reasonable doubt, we affirm the denial of Tucker's directed verdict motion. See Bennett , 415 S.C. at 236–37, 781 S.E.2d at 354.

III.

We next take up Tucker's contention that the trial judge erred in allowing Bigelow to testify about Tucker's plan to engage Cedrick to kill Polite and his threatening of Power.

Tucker claims this was improper character evidence forbidden by Rule 404(b), SCRE, and not reliable enough to meet the clear and convincing standard the rule sets. We must affirm a trial judge's ruling on the admission of prior bad act evidence if any evidence supports it. State v. Perry , 420 S.C. 643, 655, 803 S.E.2d 899, 905 (Ct. App. 2017). Evidence of witness intimidation may be admitted to show "consciousness of guilt" without running afoul of Rule 404(b)'s prohibition against propensity evidence. State v. Edwards , 383 S.C. 66, 72, 678 S.E.2d 405, 408 (2009). Proof that Tucker made the threats satisfies Rule 404(b)'s reliability test. See id . at 72–73, 678 S.E.2d at 408. Still, Tucker believes Bigelow's reliability evaporated during cross-examination, or at least eroded to a level below clear and convincing. How the jury weighs intimidation evidence is irrelevant to its threshold admissibility. Equally immaterial is whether Polite knew about the threat. The relevance of a defendant's threatening of a witness rests on proof it was said, not that it was heard, for the probative force springs...