The State v. Garris

• Decision Date: 22 September 2011
• Docket Number: No. 4859.,4859.
• Citation: 714 S.E.2d 888,394 S.C. 336
• Parties: The STATE, Respondent,v.Brian GARRIS, Appellant.
• Court: South Carolina Court of Appeals

394 S.C. 336

714 S.E.2d 888

The STATE, Respondent,

v.Brian GARRIS, Appellant.

No. 4859.

Court of Appeals of South Carolina.

Submitted May 1, 2011.Decided Aug. 10, 2011.Rehearing Denied Sept. 22, 2011.

Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Solicitor Ernest A. Finney, III, of Sumter, for Respondent.SHORT, J.

Brian Garris appeals his convictions of armed robbery, assault and battery with intent to kill (ABWIK), and possession of a firearm during the commission of a violent crime. Garris argues the trial court erred in denying: (1) his motion to dismiss the case or declare a mistrial pursuant to Rule 5, SCRCrimP, or Brady v. Maryland¹; (2) his motion to suppress a gun found in the jail after his arrest on an unrelated charge; (3) his request to call an expert to rebut the State's expert's opinion testimony when the opinion was not contained in the expert's report; and (4) his Batson v. Kentucky² motion and motion to set aside the jury because the State's peremptory challenges were racially motivated and eliminated all African–American males from the jury. We affirm.³

FACTS

At approximately 10 p.m. on April 15, 2006, Martha Santiago picked up her teenage daughter from a restaurant where her daughter was employed. Immediately after her daughter entered the passenger side of Santiago's van, a man opened Santiago's door, pointed a gun at her, and demanded money. He shot her in the eye when she told him she had no money. Santiago tried to shut the van door, but the man opened the door and shot her in the arm. Santiago's daughter gave the man the forty dollars she had earned from working that evening, and he fled. Santiago was taken to a hospital, and doctors removed a bullet from her arm. Deputy Rick Elms, the lead investigator in the case, took photographs of Santiago's injuries while she was in the hospital. Santiago also provided officers with a description of the assailant for a composite sketch. Approximately one hour after Santiago's shooting, officers spotted Garris and his brother, Quentin Garris, near their residence “about three blocks” from the restaurant.

Almost two weeks later, police arrested Garris on an unrelated offense. ⁴ Upon his arrival at the jail, officers conducted a pat down search of Garris and placed him in a vacant holding cell. A short time later, a fellow inmate working at the jail found a small caliber revolver while emptying Garris' food tray. The bullet retrieved from Santiago's arm matched the gun found on Garris' food tray. Additionally, an officer obtained samples from Garris' hands at the time of his arrest, and a gunshot residue analysis revealed gunshot residue on both his hands.

A grand jury indicted Garris for armed robbery, ABWIK, and possession of a firearm during the commission of a violent crime. Prior to trial, Garris moved to suppress the gun found at the jail, arguing the jury's knowledge about the unrelated charge would be prejudicial and improperly considered against him. The court denied Garris' motion, finding the probative value of the gun was not substantially outweighed by any prejudicial impact. At trial, when the gun was admitted into evidence, Garris' counsel said: “I object, but go ahead.”

During trial, Elms testified he spoke to Santiago's daughter after the incident, and he obtained her statement of the events and a description of the assailant. Because officers saw Garris in the area immediately after the incident, Elms testified he prepared a photographic lineup that included Garris' picture. Santiago's daughter identified Garris in the lineup as a customer she had served in the restaurant that evening. Elms testified that when he showed the same photographic lineup to the daughter nearly a month later, she positively identified Garris as the person who robbed her and shot her mother, but Santiago was never able to identify anyone.

While Elms was on the stand, the State moved to admit the photographs he took of Santiago in the hospital. Garris objected, arguing the photographs were not relevant, and the prejudicial effect outweighed any probative value. The court overruled Garris' objections and admitted the photographs into evidence.

Elms testified on cross-examination about partial handprints that police recovered from Santiago's van. He testified the results showed the prints from the van did not match Garris' prints, and he admitted the evidence had come out for the first time in trial that day. On redirect, when asked if there was “anything you can tell this jury” about the fingerprint analysis, he explained, “I was told the [assailant] never actually touched the van. We just processed the van to be on the safe side, and that's to preserve evidence in case he did touch it as he ran away from the scene.” He said the likelihood of finding fingerprints are “slim to none” in these types of cases. However, Elms added the daughter told him at the scene that the assailant touched the van.

In his investigation, Elms also spoke to Garris' friends. Elms testified that Andrew McBride and Freddie White told him Garris had a small handgun the evening before the robbery. White also testified he saw Garris with a gun the night of the incident. White told Elms he saw Garris around 10:30 or 11:00 p.m. the night of the incident, and Garris was out of breath and sounded like he had been running. Additionally, White told Elms that Garris had two twenty-dollar bills in his possession the day after the incident.

At the conclusion of the State's case, Garris made a motion to dismiss the case or declare a mistrial pursuant to Rule 5, SCRCrimP, and Brady v. Maryland⁵, arguing evidence was presented at trial that was not presented in discovery, and he was not aware of the evidence until “in the midst of the court proceeding.” Specifically, Garris argued the State did not provide him with the photographs Elms took of Santiago in the hospital, inform him Santiago was shown a photographic lineup that contained Garris' picture, or give him the fingerprint analysis results of the prints from Santiago's van. Garris also renewed his motion for a mistrial at the close of his case, which the court denied.

The jury found Garris guilty as charged, and the court sentenced Garris to consecutive terms of twenty years' imprisonment for armed robbery and ABWIK, and five years' concurrent imprisonment for possession of a firearm during the commission of a violent crime. This appeal followed.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only and is bound by the trial court's factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 5–6, 545 S.E.2d 827, 829 (2001). Thus, on review, the appellate court is limited to determining whether the trial judge abused his discretion. Id. An abuse of discretion occurs when the court's decision is unsupported by the evidence or controlled by an error of law. State v. Garrett, 350 S.C. 613, 619, 567 S.E.2d 523, 526 (Ct.App.2002).

LAW/ANALYSIS

I. Motion to Dismiss or Declare a Mistrial

Garris argues the trial court erred in denying his motion to dismiss the case or declare a mistrial pursuant to Rule 5, SCRCrimP, or Brady v. Maryland⁶ because the State did not provide him with the results of the fingerprint analysis, photos of Santiago's injuries, or the photographic lineup shown to Santiago. We disagree.

The decision to grant or deny a mistrial is within the sound discretion of the trial court. State v. White, 371 S.C. 439, 443, 639 S.E.2d 160, 162 (Ct.App.2006). The trial court should only grant a mistrial in cases of manifest necessity and with the greatest caution. Id. at 444, 639 S.E.2d at 162. It is within the trial court's discretion, however, to determine whether such necessity exists under all the circumstances of each case. Id. The trial court should first exhaust other methods to cure possible prejudice before declaring a mistrial. Id. The defendant must show error and resulting prejudice to receive a mistrial. State v. Council, 335 S.C. 1, 13, 515 S.E.2d 508, 514 (1999).

On appeal, this court will not overturn the court's decision absent an abuse of discretion that amounts to an error of law. White, 371 S.C. at 443, 639 S.E.2d at 162. South Carolina courts favor the trial court's exercise of wide discretion in determining the merits of such a motion in each individual case. Id. at 443–44, 639 S.E.2d at 162. Thus, this court will intervene and grant a new trial only in cases when an abuse of discretion results in prejudice to the defendant. Id. “The granting of a motion for a mistrial is an extreme measure which should be taken only where an incident is so grievous that prejudicial effect can be removed in no other way.” State v. Kelsey, 331 S.C. 50, 70, 502 S.E.2d 63, 73 (1998).

At trial, Garris made a motion to dismiss the case or declare a mistrial based on a violation of Rule 5, SCRCrimP, or Brady v. Maryland⁷ regarding the fingerprint analysis because he was not aware of the analysis or the results until he questioned Elms during cross-examination. Garris also asserted the State had not given him the pictures of Santiago's injuries or a copy of the photographic lineup, and he was not even informed Santiago had been shown a photographic lineup until the day of trial.⁸ Garris asserted his first attorney, who was a public defender, made a Rule 5/ Brady motion, and the fact that he subsequently hired private counsel did not negate the motion. The solicitor responded that she gave Garris' new counsel everything that she had given to his first attorney, but she conceded Garris did not receive a copy of the pictures of Santiago's injuries. At that time, the court held Garris' motion for mistrial in abeyance, and when Garris...