State v. Stephens

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.

Christopher M. Stephens, Appellant.

Appellate Case No. 2009-116988

Appeal From Horry County
Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2013-UP-062
Heard October 3, 2012 – Filed January 30, 2013

AFFIRMED

Robert Michael Dudek of Columbia, for Appellant.

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

PER CURIAM: Christopher Stephens was indicted on two counts of accessory
before the fact of murder and one count of accessory before the fact of armed
robbery. He was tried together with Jimmy Lee Sessions, who was indicted on one
count of first-degree burglary, one count of armed robbery, and two counts of
murder. All counts arose from the same incident and involved the same victims.
Both defendants were found guilty as charged. Stephens appeals, arguing the trial
judge erred in admitting testimony that one of the victims accused him of owing
her money for drugs and in allowing a SLED employee to testify about
victimology and related matters. We affirm.

1. Over Stephens's objection, the trial judge allowed James Pearl to testify that
shortly before the victims were murdered, he heard one of them accuse Stephens of
owing her money for drugs. Stephens argues the testimony was (1) hearsay and (2)
highly prejudicial because it suggested a motive for Stephens's involvement in her
murder. We find no error.

The victim's statements were made in Stephens's presence, and he never attempted
to refute them; therefore, they were admissible as adoptive admissions. See State
v. Nolan, 318 S.C. 253, 257, 456 S.E.2d 926, 928 (Ct. App. 1995) ("The adoptive
admissions rule allows admission into evidence of a defendant's failure to deny
statements made in his presence which tend to incriminate him, which a reasonable
person would have denied under the circumstances, as by his silence, or his making
an evasive, equivocal, unresponsive, or affirmative reply."). Moreover, because
the deceased victim was an unavailable declarant and her accusation against
Stephens included a declaration on her part that she sold illegal drugs to him, the
statement was admissible under Rule 804(b)(3), SCRE, as a statement against her
interest. Finally, Stephens himself acknowledged that he owed the victim money;
therefore, her accusation would be "merely cumulative," and any error in admitting
it would be harmless. State v. Schumpert, 312 S.C. 502, 507, 435 S.E.2d 859, 862
(1993).

2. Stephens further argues the trial judge should not have allowed SLED Agent
Michael Prodan to testify as an expert about victimology, method of operation,
motive, and related subject matter, arguing admission of this testimony violated
Rule 702, SCRE, State v. White, 382 S.C. 265, 676 S.E.2d 684 (2009), and this
court's opinion in State v. Tapp, 387 S.C. 159, 691 S.E.2d 165 (Ct. App. 2010),
rev'd 398 S.C. 376, 728 S.E.2d 468 (2012). We find no reversible error.

In State v. White, the South Carolina Supreme Court held:

[T]he trial courts of this state have a gatekeeping role
with respect to all evidence sought to be admitted under
Rule 702 [of the South Carolina Rules of Evidence],
whether the evidence is scientific or nonscientific. In the
discharge of its gatekeeping role, a trial court must assess
the threshold foundational requirements of qualifications
and reliability and further find that the proposed evidence
will assist the trier of fact. The familiar evidentiary
mantra that a challenge to evidence goes to "weight, not
admissibility" may be invoked only after the trial court
has vetted the matters of qualifications and reliability and
admitted the evidence.

White, 382 S.C. at 274, 676 S.E.2d at 689. The White decision was issued several
months after the trial in the present case took place.

At trial, Stephens objected to Prodan's testimony, arguing (1) he was not informed
that the State intended to call Prodan and (2) Prodan's testimony was not relevant.
On appeal, Stephens argues only that the testimony was speculative, irrelevant, and
therefore admissible. Although Stephens did not specifically request the trial judge
to exercise a gatekeeping role in determining whether Prodan's testimony was
admissible, we hold his objection on the ground of relevance was sufficiently
specific to address this argument on appeal. See Rule 401, SCRE ("'Relevant
evidence' means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence."); State v. Tapp, 398 S.C. 376,
385-86, 728 S.E.2d 468, 473 (2012) ("While our preservation rules require that
objections to the admissibility of evidence be specific, they most certainly do not
require clairvoyance.") (citation omitted). Moreover, we hold that even though the
law at the time of Stephens's trial allowed the reliability of nonscientific expert
testimony to be determined by the jury, the trial judge erred in admitting Prodan's
testimony without making his own determination as to whether it was reliable. See
id. at 389, 728 S.E.2d at 475 (acknowledging the trial judge erred in admitting
certain expert testimony after making an initial determination of the witness's
expertise but without vetting the testimony for its reliability).

Nevertheless, we hold that "beyond a reasonable doubt the trial error did not
contribute to the guilty verdict[s]" against Stephens. Id. at 390, 728 S.E.2d at 475.
Here, Prodan's testimony concerned only the victims and the crime scene. He
never identified Stephens, the co-defendant, or anyone else as a perpetrator and
testified that at his insistence, he was not given any information about any suspects
developed in the case. As was the case in Tapp, the jury made numerous factual
determinations in arriving at its verdict, including (1) whether Pearl testified
truthfully about the victim's accusations against Stephens and the defendants'
attempt to enlist his help in committing the crimes, (2) the credibility of witnesses
who allegedly heard Stephens's co-defendant admit to committing a crime, (3)
whether shoe prints found at the crime scene matched the shoes taken from the
property bag of Stephens's co-defendant, and (4) the credibility of testimony that
certain individuals knew about the deaths of the victims before the police found
their bodies.

AFFIRMED.

HUFF, THOMAS, and GEATHERS, JJ., concur.