State v. Gaskins

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Johnnie Gaskins, Appellant.

Appellate Case No. 2010-151386

Appeal From Richland County
L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2013-UP-304
Heard January 8, 2013 – Filed July 3, 2013

AFFIRMED

Tara Dawn Shurling, of Law Offices of Tara Dawn
Shurling, PA, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, and Assistant
Deputy Attorney General Donald J. Zelenka, all of
Columbia, for Respondent.

PER CURIAM: Appellant, Johnnie Walker Gaskins, was tried for and convicted
of two counts of murder, three counts of assault and battery with intent to kill
(ABWIK), and one count of use of a firearm during the commission of a violent
crime in connection with a shooting spree at 360 Sports Bar & Grill. Gaskins
appeals, asserting (1) the trial court erred in admitting crime scene photographs of
blood splatter and pooling, which were duplicative and admitted for the purpose of
inflaming the passions of the jury, (2) the trial court erred in denying Gaskins'
motion for a mistrial based upon the admission of improper and highly prejudicial
hearsay testimony in the form of a dying declaration and a statement from an
anonymous telephone caller, and (3) Gaskins' right to due process was violated by
the trial court's improper and heated response to defense counsel's objection. We
affirm.

1. Gaskins first argues the trial court erred in admitting cumulative and
gruesome crime scene photographs of blood splatters and blood pooling that were
submitted solely for the purpose of inflaming the passions of the jury and were of
negligible probative value. He contends, while some testimony regarding the
location of victims or the extent of bloodshed may have been relevant in this case,
the extent to which the photographic evidence was presented by the State was both
cumulative and prejudicial to him.

A trial court has considerable latitude in ruling on the admissibility of evidence,
and its ruling will not be disturbed on appeal absent a showing of probable
prejudice. State v. Kelley, 319 S.C. 173, 177, 460 S.E.2d 368, 370 (1995). The
relevance, materiality and admissibility of photographic evidence are matters
within the sound discretion of the trial judge. Id. "A test to determine whether the
trial court abused its discretion is whether the photographic evidence serves to
corroborate the testimony of witnesses offered at trial." State v. Jarrell, 350 S.C.
90, 106, 564 S.E.2d 362, 371 (Ct. App. 2002). It is not an abuse of discretion to
admit photographs which serve to corroborate testimony. State v. Tucker, 324 S.C.
155, 167, 478 S.E.2d 260, 266 (1996). However, "[p]hotographs calculated to
arouse the sympathy or prejudice of the jury should be excluded if they are
irrelevant or not necessary to substantiate material facts or conditions." State v.
Brazell, 325 S.C. 65, 78, 480 S.E.2d 64, 72 (1997). "To constitute unfair
prejudice, the photographs must create a 'tendency to suggest a decision on an
improper basis, commonly, though not necessarily, an emotional one.'" Kelley,
319 S.C. at 178, 460 S.E.2d at 370-71 (quoting State v. Alexander, 303 S.C. 377,
382, 401 S.E.2d 146, 149 (1991)).

Here, the photographic evidence was probative inasmuch as it aided the jury by
showing the actions of one of the victims during the shooting, as was corroborated
by the expert through the photos. Additionally, a review of these photos reveals
nothing more than a generic crime scene of blood, with no bodies present. We are
not convinced that, even if wrongly admitted, there was an undue tendency of the
photographs to suggest a decision on an improper basis. Further, given the
overwhelming evidence of Gaskins' guilt, we do not believe the photographs were
of such a nature as to influence the jury's verdict. See State v. Green, 397 S.C. 268,
287, 724 S.E.2d 664, 673 (2012) ("Prejudice occurs when there is reasonable
probability the wrongly admitted evidence influenced the jury's verdict."); State v.
Byers, 392 S.C. 438, 447-48, 710 S.E.2d 55, 60 (2011) (quoting State v. Reeves,
301 S.C. 191, 193-94, 391 S.E.2d 241, 243 (1990) (alteration in original)) ("A
harmless error analysis is contextual and specific to the circumstances of the case:
'No definite rule of law governs [a finding of harmless error]; rather the materiality
and prejudicial character of the error must be determined from its relationship to
the entire case. Error is harmless when it could not reasonably have affected the
result of the trial.'"); State v. Pagan, 369 S.C. 201, 212, 631 S.E.2d 262, 267
(2006) ("Generally, appellate courts will not set aside convictions due to
insubstantial errors not affecting the result."); State v. Baccus, 367 S.C. 41, 55, 625
S.E.2d 216, 223 (2006) ("When guilt is conclusively proven by competent
evidence, such that no other rational conclusion could be reached, [the appellate
court] will not set aside a conviction for insubstantial errors not affecting the
result.").

2. Gaskins next contends the trial court erred in denying his motion for a
mistrial following the admission of improper hearsay testimony from witness
Porterfield concerning an alleged dying declaration that had not been previously
disclosed to the defense, as well as testimony from Porterfield regarding an alleged
statement made by an anonymous caller on Gaskins' mobile phone. Even if we
were to assume the admission of this testimony by Porterfield was improper, we
find no reversible error in the trial court's denial of Gaskins' motion for a mistrial
based on the alleged improper testimony.

The decision to grant or deny a motion for a mistrial is a matter within the sound
discretion of the trial judge, whose decision will not be disturbed on appeal absent
an abuse of discretion amounting to an error of law. State v. Council, 335 S.C. 1,
12, 515 S.E.2d 508, 514 (1999). "The grant of a motion for a mistrial is an
extreme measure which should be taken only where an incident is so grievous that
the prejudicial effect can be removed in no other way." State v. Herring, 387 S.C.
201, 216, 692 S.E.2d 490, 498 (2009). A mistrial should be granted only when
absolutely necessary, and a defendant must show both error and resulting prejudice
to be entitled to a mistrial. State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 628
(2000).
We find the trial court's explicit instruction cured any possible error and that the
prejudicial effect was minimal, such that a mistrial would not have been warranted.
See Herring, 387 S.C. at 216, 692 S.E.2d at 498 (noting a curative instruction to
disregard the testimony is usually deemed to cure any alleged error); State v. Moyd,
321 S.C. 256, 263, 468 S.E.2d 7, 11 (Ct. App. 1996) (holding a trial court should
exhaust other available methods to cure prejudice before aborting a trial, and where
the prejudicial effect is minimal, a mistrial need not be granted in every case where
incompetent evidence is received and later stricken and a curative instruction is
given). Additionally, given the overwhelming evidence of Gaskins' guilt, we
believe the testimony complained of by Gaskins could not reasonably have
affected the result of the trial. Baccus, 367 S.C. at 55, 625 S.E.2d at 223 ("When
guilt is conclusively proven by competent evidence, such that no other rational
conclusion could be reached, [the appellate court] will not set aside a conviction
for insubstantial errors not affecting the result.").

3. Gaskins lastly contends the trial judge erred in yelling at defense counsel
and abruptly halting the proceedings after a series of defense objections, thereby
violating the Appellant's right to due process of law. He contends a trial judge
must be patient, dignified and courteous to lawyers, and must act with absolute
impartiality in the performance of judicial duties. Gaskins argues his failure to
object to the situation at the time should be excused, as the tone and tenor of the
trial judge's comments made it clear any objection would be futile, especially
where the judge's improper remark was an angry response to defense counsel's
continuing objections. Gaskins maintains, though the judge's words were brief, the
delivery of the remarks was harsh enough to have scared one of the jurors, and the
judge himself felt the remarks were prejudicial enough to warrant him entering the
jury room to make comments and then issue a formal instruction to the jurors in the
courtroom on the matter. Gaskins asserts the trial judge's treatment of defense
counsel diminished him in the eyes of the jury, and because the trial judge's
reaction was prejudicially improper, he is entitled to a new trial.

We first note that trial counsel raised no objection and made no argument to the
trial court asserting the trial judge had made remarks directed at trial counsel which
diminished counsel in the eyes of the jury. Thus, the issue may not be properly
preserved for review. See State v. Johnson, 363 S.C. 53, 58-59, 609 S.E.2d 520,
523 (2005) (noting, in order to properly preserve an issue for appellate review,
there must be a contemporaneous objection that is ruled upon by the trial court, and
if a party fails to properly object, he is procedurally barred from raising the issue
on appeal). Gaskins contends, however, that such a failure may be excused
because the tone and tenor of the judge indicated any objection would be futile.
See State v. Pace, 316 S.C. 71, 74, 447 S.E.2d 186, 187 (1994) (holding, where the
tone and tenor of the trial judge's remarks concerning defense counsel's gender and
conduct were such that any objection would have been futile, defense counsel's
failure to raise an objection did not amount to waiver of the issue of the propriety
of the judge's comments concerning defense counsel).

We find no reversible error. A review of the record reveals the remarks made by
the trial court in front of the jury during the exchange of questions and objections
were directed at both the solicitor and defense counsel. While some were clearly
directed at defense counsel, others were directed at both defense counsel and the
solicitor, and yet another was directed at the solicitor alone. Accordingly, we do
not believe the trial judge displayed partiality, bias or prejudice in the performance
of his duties. Further, we do not believe his remarks undermined defense counsel's
ability to effectively represent Gaskins. Thus, we find the remarks made by the
trial judge, though maybe strong, were not directed as a whole at either side.
Further, we find any prejudice from the fairly innocuous remarks was cured by the
trial judge's instruction to the jury. Additionally, even assuming it was not
necessary for trial counsel to raise an objection to the trial judge's comments to
preserve the matter for review, we note that, not only did trial counsel fail to voice
any concern, he apparently jokingly told the trial judge he should simply inform
the jury that "it was theater." Such does not set the stage for the overly harsh
treatment of trial counsel that Gaskins alleges on appeal. See Graves v. State, 309
S.C. 307, 312, 422 S.E.2d 125, 128 (1992) (holding, although the trial judge should
have refrained from cautioning the witness regarding perjury in the presence of the
jury, the trial judge's comments did not amount to prejudice which denied
petitioner an impartial jury or violated his due process rights). See also State v.
Cooper, 334 S.C. 540, 546-47, 514 S.E.2d 584, 587-88 (1999) (finding no
prejudice from the trial judge's comments and rulings that were routine, noting
none of the exchanges involved any improper, personal comment about defense
counsel, nor tended to impugn counsel's credibility or diminish him in the eyes of
the jury, many of the comments were innocuous or merely explanatory of the trial
court's ruling, and some of the comments were made outside the presence of the
jury, and therefore, could not affect the verdict).

For the foregoing reasons, Gaskins' convictions are

AFFIRMED.

HUFF, THOMAS and GEATHERS, JJ., concur.