State v. Johnathan O. Batchelor

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.

Johnathan Olin Batchelor, Appellant.

Appellate Case No. 2022-000160

Appeal From Spartanburg County
R. Keith Kelly, Circuit Court Judge

Unpublished Opinion No. 2024-UP-262
Heard May 7, 2024 – Filed July 17, 2024

AFFIRMED

E. Charles Grose, Jr., of Grose Law Firm, of Greenwood,
for Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Attorney General Mark Reynolds Farthing, and
Assistant Attorney General Andrew Douglas Powell, all
of Columbia; and Solicitor Barry Joe Barnette, of
Spartanburg, all for Respondent.

PER CURIAM: Johnathan Batchelor appeals his conviction for attempted murder
of his wife (Victim) and his sentence of thirty years' imprisonment. We affirm.
1. Appellant argues that the trial court erred in denying his motion to dismiss
when law enforcement destroyed two projectiles without providing him the
opportunity to individually examine the evidence. We disagree. "Pursuant to the
Due Process Clause of the Fourteenth Amendment, criminal prosecutions must
comport with prevailing notions of fundamental fairness." State v. Hutton, 358
S.C. 622, 631, 595 S.E.2d 876, 881 (Ct. App. 2004). "This standard requires
criminal defendants be afforded a meaningful opportunity to present a complete
defense." Id. "The State does not have an absolute duty to preserve potentially
useful evidence that might exonerate a defendant." State v. Cheeseboro, 346 S.C.
526, 538, 552 S.E.2d 300, 307 (2001). "To establish a due process violation, a
defendant must demonstrate (1) that the State destroyed the evidence in bad faith,
or (2) that the evidence possessed an exculpatory value apparent before the
evidence was destroyed and the defendant cannot obtain other evidence of
comparable value by other means." Id. at 538-39, 552 S.E.2d at 307. "The weight
of federal authority . . . has adopted the view that the extraordinary remedy of
dismissal should only be granted when the authorities act intentionally and in bad
faith [to destroy evidence]." State v. Reaves, 414 S.C. 118, 128, 777 S.E.2d 213,
218 (2015). In addition, "[e]xculpatory evidence is evidence which creates a
reasonable doubt about the defendant's guilt." Hutton, 358 S.C. at 632, 595 S.E.2d
at 882. "[W]e consider dismissal of criminal charges a drastic remedy which
should rarely be invoked as a sanction for the State's failure to preserve evidence."
Id. at 633, 595 S.E.2d at 882. Appellant did not demonstrate any evidence of bad
faith. The Spartanburg County Sheriff's Office (SCSO) believed the case was
resolved prior to their destruction of the evidence because the SCSO destroyed the
two bullet fragments after the direct appeal time expired from Appellant's Alford 1
plea. In addition, Appellant could obtain evidence of comparable value. The
defense was provided with a report detailing the specific features of each projectile
and had the opportunity to examine the individual who examined the firearm
evidence. Therefore, we find Appellant did not establish a due process violation.

Appellant also argues that the SCSO had a duty to preserve the projectiles based
upon section 17-28-320 of the South Carolina Code (2014). We disagree. Section
17-28-320(A) requires "[a] custodian of evidence must preserve all physical
evidence and biological material related to the conviction or adjudication of a
person for" certain offenses. Attempted murder is not listed as one of the offenses.
See S.C. Code Ann. § 17-28-320 ("(1) murder (Section 16-3-10); (2) killing by
poison (Section 16-3-30); (3) killing by stabbing or thrusting (Section 1-3-40); (4)
voluntary manslaughter (Section 16-3-50); (5) homicide by child abuse (Section

1
North Carolina v. Alford, 400 U.S. 25 (1970).
16-3-85(A)(1)); (6) aiding and abetting a homicide by child abuse (Section 16-3-
85(A)(2)); (7) lynching in the first degree (Section 16-3-210); (8) killing in a duel
(Section 16-3-430) . . . ."). "In interpreting a statute, '[w]ords must be given their
plain and ordinary meaning without resort to subtle or forced construction to limit
or expand the statute's operation.'" State v. Gordon, 414 S.C. 94, 98, 777 S.E.2d
376, 378 (2015) (quoting Sloan v. Hardee, 371 S.C. 495, 499, 640 S.E.2d 457, 459
(2007)). "The canon of construction 'expressio unius est exclusio alterius' or
'inclusio unius est exclusio alterius' holds that 'to express or include one thing
implies the exclusion of another, or of the alternative.' The maxim should be used
to accomplish legislative intent, not defeat it." State v. Leopard, 349 S.C. 467,
472-73, 563 S.E.2d 342, 345 (Ct. App. 2002) (quoting S.C. Dep't of Consumer
Affairs v. Rent-A-Center, Inc., 345 S.C. 251, 256, 547 S.E.2d 881, 883-84 (Ct.
App. 2001)). Section 17-28-320 of the South Carolina Code does not include
attempted murder; therefore, the statute does not impose a duty on the custodian in
this case.

2. Appellant argues the trial court erred by failing to exclude jail informant Dustin
Tiller's testimony. He contends the trial court mistakenly found it lacked the
authority to evaluate the credibility of Tiller's testimony. We disagree. "The
conduct of a criminal trial is left largely to the sound discretion of the trial judge,
who will not be reversed in the absence of a prejudicial abuse of discretion." State
v. Reyes, 432 S.C. 394, 401, 853 S.E.2d 334, 337 (2020) (quoting State v. Bryant,
372 S.C. 305, 312, 642 S.E.2d 582, 586 (2007)). "A failure to exercise discretion
amounts to an abuse of that discretion." State v. Hawes, 411 S.C. 188, 191, 767
S.E.2d 707, 708 (2015) (quoting Samples v. Mitchell, 329 S.C. 105, 112, 495
S.E.2d 213, 216 (Ct. App. 1997)). However, in the present case, the trial court did
not have the discretion to evaluate Tiller's credibility and exclude his testimony
based on a lack of credibility. "Under South Carolina law, the competency of a
witness is to be determined by the trial court, whereas the credibility of a witness is
exclusively for the jury to decide." Reyes, 432 S.C. at 401, 853 S.E.2d at 338.
Appellant asserts the trial court overlooked its gatekeeping function, but the cases
he relies upon involve (1) third party guilt;2 (2) expert testimony; 3 and (3) prior
bad acts.4 Tiller was a fact witness whose testimony the State presented to prove
Appellant's guilt; therefore, these cases are not applicable to the present issue. We
hold the trial court did not err in allowing Tiller to testify.
3. Appellant argues the trial court erred by limiting his cross-examination of Tiller
regarding (1) Tiller's conversation with his plea counsel; (2) the solicitor speaking
in Tiller's favor at his federal sentencing hearing; and (3) the twenty-month
reduction in Tiller's federal sentence he received for his cooperation with
Appellant's prosecution. Appellant contends these limitations violated his rights
under the Sixth Amendment of the United States Constitution and Article 1,
Section 14 of the South Carolina Constitution. First, we hold the trial court did not
abuse its discretion by finding Tiller did not waive his attorney-client privilege
with his direct testimony; therefore, the trial court did not abuse its discretion in
limiting Appellant's cross-examination of Tiller regarding his communications
with his plea counsel. See State v. Love, 275 S.C. 55, 59, 271 S.E.2d 110, 112
(1980) ("Whether a communication is privileged is for the trial judge to decide in
the light of a preliminary inquiry into all of the facts and circumstances; and this
determination by the trial judge is conclusive in the absence of an abuse of
discretion."). On direct, although Tiller acknowledged that his plea counsel
reviewed the plea agreement with him before he signed it, that he understood what
it meant, and he explained what he thought the agreement meant, Tiller never said
what his plea counsel actually told him. Next, while the trial court may have erred
in its other limitations of Appellant's cross-examination of Tiller, these errors do
not warrant reversal. See State v. Mizzell, 349 S.C. 326, 333, 563 S.E.2d 315, 318
(2002) ("'A violation of the defendant's Sixth Amendment right to confront the

2
State v. Cope, 405 S.C. 317, 341, 748 S.E.2d 194, 206 (2013) ("[E]vidence of
third-party guilt that only tends to raise a conjectural inference that the third party,
rather than the defendant, committed the crime should be excluded."), overruled on
other grounds by State v. Wallace, 440 S.C. 537, 892 S.E.2d 310 (2023).
3
Watson v. Ford Motor Co., 389 S.C. 434, 446, 699 S.E.2d 169, 175 (2010)
(stating that in considering the admissibility of expert testimony, "the trial court
must evaluate the substance of the testimony and determine whether it is reliable").
4
State v. Tutton, 354 S.C. 319, 325, 580 S.E.2d 186, 189 (Ct. App. 2003) ("To be
admissible, a prior bad act must first be established by clear and convincing
evidence.").
witness is not per se reversible error' if the 'error was harmless beyond a reasonable
doubt.'" (quoting State v. Graham, 314 S.C. 383, 386, 444 S.E.2d 525, 527
(1994))); State v. Whitner, 380 S.C. 513, 518, 670 S.E.2d 655, 658 (Ct. App. 2008)
("No definite rule of law governs finding an error harmless; 'rather, the materiality
and prejudicial character of the error must be determined from its relationship to
the entire case.'" (quoting State v. Reeves, 301 S.C. 191, 193-94, 391 S.E.2d 241,
243 (1990)); id. ("Generally, an appellate court will not set aside a conviction
because of an insubstantial error not affecting the result."). Appellant thoroughly
cross-examined Tiller about the charges Tiller faced, his agreement to provide
information about crimes, the benefits he had received from providing information,
and his anticipation that his testimony at Appellant's trial would result in the
solicitor speaking on his behalf and a further reduction of his sentence. Therefore,
Appellant was able to accomplish his primary objective by demonstrating Tiller's
possible bias. See Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 31-32, 609
S.E.2d 506, 512 (2005) ("When evidence is erroneously excluded by the trial court,
the appellate court usually engages in the following analysis to determine whether
prejudice has occurred. First, the court considers, inter alia, whether the error may
be deemed harmless because equivalent or cumulative evidence or testimony was
offered; the aggrieved party still managed to accomplish his primary objective,
such as eliciting testimony about an issue or effectively cross-examining a witness
. . . ." (footnotes omitted)), overruled on other grounds by State v. Wallace, 440
S.C. 537, 892 S.E.2d 310 (2023).
4. Appellant argues the trial court erred in allowing excessive security in the
courtroom without conducting a hearing to determine whether these unusual and
enhanced security measures were necessary under this case's specific
circumstances and Appellant's specific characteristics. We disagree. First,
Appellant did not object to the deputy shadowing him until after he finished his
testimony and he never requested a hearing; instead he asserted it was too late for a
hearing and requested a mistrial. Thus, he is barred from raising this issue on
appeal because he failed to raise it at his first opportunity to do so at trial. See State
v. Aldret, 333 S.C. 307, 312, 509 S.E.2d 811, 813 (1999) (holding our courts "have
routinely held that a party must object at the first opportunity to preserve an issue
for review"); id. ("A contemporaneous objection is required to preserve an issue
for appellate review."). Next, we hold the trial court did not abuse its discretion in
denying the motion for a mistrial and finding the security measures taken were
warranted and the number of law enforcement officers in the courtroom was not
excessive. See City of Columbia v. Wilson, 324 S.C. 459, 464, 478 S.E.2d 88, 90
(Ct. App. 1996) ("The grant or denial of a motion for mistrial lies within the sound
discretion of the trial judge and will not be disturbed on appeal absent an abuse of
discretion."); id. ("A mistrial should not be granted except in cases of manifest
necessity and ought to be granted with the greatest caution for only very plain and
obvious reasons."); id. ("The burden is on the movant to demonstrate error and
resulting prejudice in order to justify a mistrial."); State v. Shelton, 270 S.C. 577,
580, 243 S.E.2d 455, 457 (1978) ("A trial [court] has the inherent power to
preserve order in [its] court and to see that justice is not obstructed by any person
or persons."); id. ("[It] has the authority to take such measures as appear
reasonably necessary to secure orderly proceedings and to preserve the security of
those participating in the trial or lawfully attending the proceedings."); State v.
Tucker, 320 S.C. 206, 209, 464 S.E.2d 105, 107 (1995) ("The trial [court] is the
best equipped to decide the extent to which security measures should be adopted to
prevent disruption of the trial, harm to those in the courtroom, escape of the
accused, and prevention of other crimes."); Shelton, 270 S.C. at 581, 243 S.E.2d at
457 ("What security measures are warranted to preserve the security of the trial
must be determined by the [trial court] under the facts and circumstances in each
case, and the exercise of this power is subject to review only to determine the
reasonable necessity for the security taken."); State v. Gore, 257 S.C. 330, 333-34,
185 S.E.2d 826, 828 (1971) (explaining "more security than appears to be
reasonably necessary should not be allowed" and finding that the trial court did not
abuse its discretion when approximately thirty-six officers were in the courtroom
or on the premises), abrogated on other grounds by State v. Alexander, 303 S.C.
377, 401 S.E.2d 146 (1991).

5. Appellant argues the trial court erred in admitting cumulative photographs and
text messages related to Appellant's extramarital affair. He asserts the danger of
unfair prejudice substantially outweighed the probative value of the evidence. We
disagree. "It is well settled that evidence should be excluded when its probative
value is outweighed by its prejudicial effect." State v. Kelley, 319 S.C. 173, 177,
460 S.E.2d 368, 370 (1995). "A trial [court] has considerable latitude in ruling on
the admissibility of evidence and [its] rulings will not be disturbed absent a
showing of probable prejudice." Id. "The determination of the relevancy and
materiality of a photograph is left to the sound discretion of the trial [court]." Id.
The photographs and messages were admitted to help the jury see Appellant's
potential motive for the attempted murder. The messages all related to events that
happened in the days following Victim's admission into the hospital. Therefore,
the trial court did not err in admitting the photographs and text messages as their
probative value outweighed the risk of prejudice.
6. Appellant argues the trial court erred in admitting photographs that included the
confederate flag. He asserts the danger of unfair prejudice substantially
outweighed the probative value of the photographs. We disagree. The
photographs were admitted to help the jury visualize the scene of law
enforcement's search and the objects they took into evidence. The State did
nothing to emphasize the flag images. We hold the trial court did not err in
admitting the photographs as their probative value outweighed the risk of prejudice
from the confederate flag objects in the background of the photographs. See
Kelley, 319 S.C. at 177, 460 S.E.2d at 370 ("It is well settled that evidence should
be excluded when its probative value is outweighed by its prejudicial effect."); id.
("A trial [court] has considerable latitude in ruling on the admissibility of evidence
and [its] rulings will not be disturbed absent a showing of probable prejudice."); id.
("The determination of the relevancy and materiality of a photograph is left to the
sound discretion of the trial [court].").

7. Appellant argues the trial court erred in failing to ask two of his voir dire
requests. We disagree. We hold the trial court did not abuse its discretion in
finding its voir dire sufficiently ensured Appellant had a fair and impartial jury; the
omission of these two voir dire questions did not render the trial fundamentally
unfair. State v. Wise, 359 S.C. 14, 23, 596 S.E.2d 475, 479 (2004) ("The scope of
voir dire and the manner in which it is conducted are generally left to the sound
discretion of the trial court."); State v. Stanko, 376 S.C. 571, 576, 658 S.E.2d 94,
96 (2008) ("To constitute reversible error, a limitation on questioning must render
the trial fundamentally unfair."); State v. Coaxum, 410 S.C. 320, 327, 764 S.E.2d
242, 245 (2014) ("To protect both parties' right to an impartial jury, the trial court
must conduct voir dire of the prospective jurors to determin[e] whether the jurors
are aware of any bias or prejudice against a party, as well as to 'elicit such facts as
will enable [the parties] intelligently to exercise their right of peremptory
challenge.'" (second alteration in original) (quoting State v. Woods, 345 S.C. 583,
587, 550 S.E.2d 282, 284 (2001))).

8. Appellant argues the trial court erred in failing to order the disclosure of
Victim's counseling records, which he would have used to confront and
cross-examine her. We disagree. See State v. Blackwell, 420 S.C. 127, 153-54,
801 S.E.2d 713, 727 (2017) (adopting a "procedure that effectuates the legislative
mandates of section 44-22-100 of the South Carolina Code [2018] and the
constitutional protections of the Confrontation Clause."); § 44-22-100(A)(2)
(providing mental health records must be kept confidential and not disclosed unless
"a court directs that disclosure is necessary for the conduct of proceedings before
the court and that failure to make the disclosure is contrary to public interest");
Blackwell, 420 S.C. at 154-55, 801 S.E.2d at 727 (stating that if the witness does
not consent to the disclosure of privileged records, "the [trial court] alone should
review the contents of the records to determine whether 'disclosure is necessary for
the conduct of proceedings before the court and that failure to make the disclosure
is contrary to public interest.'" (quoting. § 44-22-100(A)(2)); id. ("In making this
determination, the [trial court] should assess the importance of the witness to the
prosecution's case and whether the records contain exculpatory evidence,
including, but not limited to, evidence relevant to the witness's credibility.").
Having reviewed the sealed records, we find the trial court accurately summarized
Victim's therapy records and the records do not contain any exculpatory evidence
or any evidence relevant to Victim's credibility.

9. Appellant argues the trial court erred in sentencing him to the maximum
sentence for attempted murder, thirty years, when the State had previously agreed
to a sentence of eighteen years, which the court accepted when he entered his
Alford plea.5 He asserts this sentence following his trial punished him for
exercising his rights to seek post-conviction relief (PCR) and a jury trial. We
disagree. The trial court "is allowed broad discretion in sentencing within statutory
limits." Garrett v. State, 320 S.C. 353, 356, 465 S.E.2d 349, 350 (1995). "Absent
partiality, prejudice, oppression, or corrupt motive, [the appellate court] lacks
jurisdiction to disturb a sentence that is within the limit prescribed by statute."
State v. Barton, 325 S.C. 522, 531, 481 S.E.2d 439, 444 (Ct. App. 1997). "A
sentencing [court] may NOT improperly consider a defendant's decision to proceed
with a jury trial." State v. Follin, 352 S.C. 235, 257, 573 S.E.2d 812, 824 (Ct. App.
2002). Similarly, a trial court may not penalize a defendant for choosing to
exercise his right to appeal or obtain PCR. Patrick v. State, 349 S.C. 203, 209-10,
562 S.E.2d 609, 612 (2002). A presumption of prosecutorial retaliation arises
when the defendant shows there was a reasonable likelihood that retaliation was a
motive behind bringing additional charges. Id. at 209, 562 S.E.2d at 612. "Where
no such 'reasonable likelihood' exists, the defendant has the burden to prove actual
retaliation." Id. Furthermore, "punishment of the offender is recognized as a
proper motivation for a sentencing trial [court] or a prosecutor." State v. Blakely,
402 S.C. 650, 658, 742 S.E.2d 29, 33 (Ct. App. 2013) (quoting State v. Fletcher,
322 S.C. 256, 260, 471 S.E.2d 702, 704 (Ct. App. 1996). Here, the State did not
bring any additional charges against Appellant and Appellant's sentence falls
within the statutorily-prescribed sentencing limits. In denying the motion to

5
Appellant's sentence from his Alford plea was thirty years' imprisonment,
suspended upon the service of eighteen years' imprisonment, and five years'
probation.
reconsider the sentence, the trial court explained the sentence it imposed was not in
retaliation for Appellant going to trial and that it had "fashioned the appropriate
sentence and imposed a legal sentence on this Defendant who was convicted by a
jury of his peers." We hold the trial court did not abuse its discretion in sentencing
Appellant to thirty years' imprisonment and denying his motion to reconsider the
sentence.

AFFIRMED.

THOMAS, MCDONALD, and VERDIN, JJ., concur.