State v. Daquan J. Crummey

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Daquan Javor Crummey, Appellant.

Appellate Case No. 2020-000537

Appeal From Charleston County
R. Kirk Griffin, Circuit Court Judge

Opinion No. 6059
Heard April 4, 2023 – Filed May 8, 2024

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia, and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.

MCDONALD, J.: Daquan J. Crummey appeals his convictions for first-degree
burglary, armed robbery, assault and battery, and possession of a weapon during
the commission of a violent crime, arguing the circuit court erred in admitting into
evidence a photographic identification, two Facebook screenshots, and a recorded
jail call. Crummey also challenges the validity of the warrant authorizing the
search of his iPhone. We affirm.
Facts and Procedural History

On July 23, 2017, several people gathered at Alberto Garcia's trailer in North
Charleston to share a meal. Dulce Martinez-Garcia, then sixteen years old, was
watching from a kitchen window for her ride when she saw two young men
walking across the street. She then heard a knock at the door and got up to answer,
believing it to be her ride. Instead, she found the two men at the door. They
forced their way inside the home and "took their weapons out of their pants."

While pointing their weapons at Alberto and his guests, the men demanded money
and ordered everyone to get on their knees and face the wall. Dulce translated
their demands for the group. The taller of the two men struck Alberto near his
right eye with the gun and hit him in the face again after Alberto pulled a wallet
from his shirt pocket. As the guests gathered their cash and cell phones, the
assailants demanded more money and ransacked the home. Dulce testified, "The
taller young man took me by the hair and hit me in the right side of my head." At
some point during the robbery, a neighbor opened the door to the trailer, saw what
was happening, and fled.

Once the men left, Dulce called the police. Law enforcement arrived to find
several people waiting outside the trailer. Deputy Nicholas Vecchione of the
Charleston County Sheriff's Office (CCSO) described the scene as chaotic and
crowded, noting most of the people at the scene did not speak English. Dulce and
another bilingual person helped translate.

EMS transported Dulce and Alberto to a hospital for evaluation and treatment;
CCSO Detective Zulifqar Khan first interviewed Dulce there. Dulce told Detective
Kahn that she recognized the taller assailant because she had seen him standing in
front of the auto shop where her father worked. She recognized the other man
from school, but she did not know either of the men's names. Detective Khan later
met Dulce at her high school to review yearbooks in an effort to identify the
intruders. Although Dulce initially considered someone from the school yearbook
as a possible suspect, she realized that young man merely had similar features but
was not one of the men from the robbery.

A few days later, Dulce was on Facebook when she saw an image of the taller
assailant on her timeline. Dulce did not know how she had connected with this
person on Facebook, but later noted, "It was probably me because I was the one
always adding, honestly, whoever was coming to my page." Dulce began looking
through the photographs associated with the account and saw the shorter assailant,
Denali White, in a photo that was later introduced at trial as State's Exhibit 85. She
then contacted Detective Khan and told him she found the men on Facebook in
photos posted to the account of "Runacheckup Youngn." Detective Kahn
recognized Crummey as the taller man associated with the Runacheckup Youngn
account. Later in the investigation, Detective Khan learned Crummey had been
involved in a traffic stop with White just a few days after the robbery.

Dulce subsequently identified Crummey and White from their respective
photographic lineups, and both had cell phones with them when arrested.
Detective Khan obtained search warrants for the phones, which revealed text
messages between Crummey and White discussing hitting a "lick" on the morning
of the robbery.

Crummey and White were jointly tried in March 2020. Crummey was convicted
of first-degree burglary, two counts of first-degree assault and battery, possession
of a weapon during the commission of a violent crime, and four of the five armed
robbery counts. He was acquitted of a fifth armed robbery charge. 1 The circuit
court sentenced Crummey concurrently to fifteen years on the burglary, fifteen
years for each armed robbery conviction, ten years for each assault and battery, and
five years on the weapon charge.

Standard of Review

"In criminal cases, appellate courts sit to review errors of law only." State v.
Robinson, 426 S.C. 579, 591, 828 S.E.2d 203, 209 (2019). "As to evidentiary
issues, 'we are limited to determining whether the trial judge abused his
discretion.'" State v. Hawes, 423 S.C. 118, 126, 813 S.E.2d 513, 517 (Ct. App.
2018) (quoting State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001)). "An
abuse of discretion occurs when the trial court's ruling is based on an error of law
or, when grounded in factual conclusions, is without evidentiary support." State v.
Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012) (quoting State v. Jennings, 394
S.C. 473, 477–78, 716 S.E.2d 91, 93 (2011)).

Analysis

I. Photographic Lineup

1
Crummey was also indicted on five counts of kidnapping, but the State did not
pursue these charges at trial.
Crummey challenges the circuit court's admission of Dulce's photographic lineup
identification, arguing it was cumulative, suggestive, not probative, and unreliable.
Crummey contends admission of this evidence was improper because Dulce had
already identified him through Facebook as the taller assailant. We disagree.

"When a defendant challenges the admissibility of a witness's identification, trial
courts employ a two-pronged inquiry to determine whether due process requires
suppression." State v. Wyatt, 421 S.C. 306, 310, 806 S.E.2d 708, 710 (2017).
"First, the court must determine whether the identification resulted from
'unnecessarily suggestive' police identification procedures." Id. "If . . . the court
determines the procedures were both suggestive and unnecessary, the court must
then determine 'whether the out-of-court identification was nevertheless so reliable
that no substantial likelihood of misidentification existed.'" Id. (quoting State v.
Liverman, 398 S.C. 130, 138, 727 S.E.2d 422, 426 (2012)). "If the court finds the
police procedures were not suggestive, or that suggestive procedures were
necessary under the circumstances, the inquiry ends there and the court need not
consider the second prong." Id.

Pretrial, the circuit court held a Neil v. Biggers 2 hearing to determine the
admissibility of Dulce's identification of Crummey from the photo array. Dulce
recalled that one of the men was taller than the other, and she thought she
recognized one from her school and the other as someone she had seen in front of
the auto shop where her father worked. Dulce was able to observe both men
during the robbery because she had to translate their demands for the other victims.
She testified that "the tall guy had all black clothes on and . . . had a hat on turned
backwards. And the shorter guy had a grey tee-shirt and black pants." Although
Dulce admitted she was initially unable to identify either of the men when she met
with Detective Khan to review yearbooks, she explained she recognized the taller
man a few days later when an image from his livestream appeared on her Facebook
timeline. Dulce went to the account, "Runacheckup Youngn," and reviewed the
posted photographs. When she came across a photo of the two suspects together,
Dulce took screenshots and "texted Detective Kahn right away."

Dulce went to the CCSO a few days later to review photo arrays and identified
Crummey as the "main one from the robbery." Although Dulce wrote on the
identification form that she recognized Crummey "because I've seen him before at
school and he also used to be in front of my dad's work," she admitted during the

2
409 U.S. 188 (1972).
Biggers hearing that this was a mistake. Dulce confirmed she recognized White
from school and Crummey from the auto shop where her father worked.

Crummey argued Dulce's identification should be excluded because it differed
from a typical photo array identification in that Dulce already "had someone in
mind" due to the Facebook information she found on her own. The circuit court
disagreed, finding the lineup procedure was not unduly suggestive and Dulce—the
victim who had the most contact with the men during the home invasion robbery—
identified Crummey and White with certainty.

We are not persuaded by Crummey's argument that the lineup was unnecessary,
unreliable, and cumulative because Dulce had already identified him from
Facebook. Cf. Upson v. State, 442 S.C. 359, 366, 897 S.E.2d 564, 568 (Ct. App.
2024), reh'g denied (Mar. 1, 2024) ("[A] witness's independent identification
process in which the state is not involved cannot be said to be unduly suggestive.").
The lineup exhibit was relevant to establish Dulce could identify the taller
assailant, and it allowed her to explain that while she initially considered another
individual from her yearbook as a potential suspect, she eliminated him and was
confident in her recognition of Crummey. Moreover, Crummey's lineup array was
not in any way suggestive—it contained six photos of black males with similar
hairstyles and features. See, e.g., State v. Simmons, 384 S.C. 145, 168, 682 S.E.2d
19, 31 (Ct. App. 2009) (finding photo lineup admissible despite defendant's
contention that his ears were smaller than those of others in the lineup). Nothing in
the lineup itself or the conducting officer's behavior suggested Crummey was the
target of the investigation. Because Dulce's photographic identification of
Crummey was highly probative and not cumulative or unreliable, the circuit court
properly exercised its discretion in admitting it.

II. Admission of Facebook Photographs

Crummey next argues the circuit court erred in admitting into evidence two
Facebook screenshots (State's Exhibits 84 and 85) showing Crummey and White
holding money and smoking. He contends the photos were unduly prejudicial due
to the amount of cash shown and because the jury may have wrongly assumed it
was the cash stolen during the dinner party robbery. Crummey further asserts the
photographs had little probative value in that they were cumulative to other
evidence. We disagree.

"All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, the Constitution of the State of South Carolina,
statutes, these rules, or by other rules promulgated by the Supreme Court of South
Carolina. Evidence which is not relevant is not admissible." Rule 402, 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." Rule 401, SCRE. "Evidence
is relevant and admissible if it tends to establish or make more or less probable the
matter in controversy." State v. Wiles, 383 S.C. 151, 158, 679 S.E.2d 172, 176
(2009). "[A] court analyzing probative value considers the importance of the
evidence and the significance of the issues to which the evidence relates." State v.
Gray, 408 S.C. 601, 610, 759 S.E.2d 160, 165 (Ct. App. 2014).

"Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Rule 403, SCRE. "In criminal
cases, the term 'unfair prejudice' 'speaks to the capacity of some concededly
relevant evidence to lure the factfinder into declaring guilt on a ground different
from proof specific to the offense charged.'" Johnson v. State, 433 S.C. 550, 558–
59, 860 S.E.2d 696, 701 (Ct. App. 2021) (quoting Old Chief v. United States, 519
U.S. 172, 180 (1997)). Stated differently, "[u]nfair prejudice means an undue
tendency to suggest decision on an improper basis." Wiles, 383 S.C. at 158, 679
S.E.2d at 176. "All evidence is meant to be prejudicial; it is only unfair prejudice
which must be avoided." State v. Bratschi, 413 S.C. 97, 115, 775 S.E.2d 39, 49
(Ct. App. 2015) (quoting State v. Gilchrist, 329 S.C. 621, 630, 496 S.E.2d 424, 429
(Ct. App. 1998)).

Crummey contends the photographs had little probative value for identification
purposes because Dulce was going to testify and another Facebook photo was
already in evidence. He noted the jury might assume Crummey was smoking a
marijuana cigarette, as opposed to a Black and Mild cigar, and infer "these are bad
guys, look at them making bad signs and using drugs." In response to Crummey's
assertion that State's Exhibit 85 was prejudicial because it showed him making a
gang sign, the circuit court ordered that his hands be redacted. The circuit court
also cautioned the State not to refer to alleged gang signs or marijuana use.

We find the circuit court did not abuse its discretion in admitting the Facebook
photos. State's Exhibit 84 shows Crummey and White posing for the camera;
White is holding a stack of money up to his ear like a phone, and additional cash is
fanned out for display. The lower part of the photo has been redacted. State's
Exhibit 85 shows White raising his hands to the camera and Crummey crouching
down smoking something. Both photos were posted by Runacheckup Youngn.
The photos have probative value as the posts Dulce saw on Facebook when she
first recognized Crummey as the taller assailant. They further serve to corroborate
her testimony regarding how she came to identify the two men. See State v.
Collins, 409 S.C. 524, 534, 763 S.E.2d 22, 27–28 (2014) ("If the offered
photograph serves to corroborate testimony, it is not an abuse of discretion to
admit it." (quoting State v. Nance, 320 S.C. 501, 508, 466 S.E.2d 349, 353
(1996))). Finally, the photographs link the two men and establish Crummey and
White knew each other. Although these photos may be slightly prejudicial, they
are not unfairly so—the presence of money does not suggest Crummey and White
committed crimes to obtain it. Notably, the victims here allege a few thousand
dollars in cash was stolen during the dinner party robbery, but the challenged
photographs do not a depict a substantial amount of money.

III. Admission of Jail Call

Crummey also sought to exclude a clip from a recorded jail call in which he
identifies himself as Runacheckup. He argues this snippet was cumulative because
the State had already admitted other evidence linking him to the Facebook account
and unduly prejudicial because it was a jail call. We disagree.

The State sought to admit the jail call to corroborate testimony from Detective
Khan and Dulce. As previously noted, Dulce identified Crummey in the photos
Runacheckup posted, but she could not say with certainty that Crummey was the
holder of the account. Crummey responded that his mentioning "Runacheckup" on
the call did not establish the account belonged to him. The State replied that any
prejudicial effect of the call was minimal because it was made on the day of
Crummey's arrest, and the jury already knew he had been arrested.

The circuit court found the portion of the call in which Crummey identifies himself
as Runacheckup was admissible so long as the State laid a proper foundation.
And, since the jury already knew the date of his arrest, it would not be unfairly
prejudicial for jurors to hear that Crummey made a call from jail the same day.

We find the circuit court properly admitted the short clip of the jail call into
evidence. The call in which Crummey identifies himself as Runacheckup is quite
probative because it supports the State's theory that Crummey was the
Runacheckup Youngn whose Facebook livestream led to Dulce's identification of
both suspects. By contrast, its prejudicial effect is slight because the jury had
already heard Detective Khan's testimony that Crummey was arrested the same day
the recorded jail call was made.

IV. Motion to Suppress and Issuance of Search Warrants

Crummey moved to suppress the evidence extracted from his iPhone, arguing the
communications were obtained pursuant to a flawed search warrant. Crummey
asserts Detective Kahn's affidavit did not set forth the probable cause required to
support a proper warrant and Kahn's subsequent pretrial testimony was insufficient
to establish he provided the magistrate with sworn testimony sufficient to rescue
the deficient affidavit. We disagree.

"The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. Evidence seized in violation of the Fourth Amendment
must be excluded from trial." State v. Dill, 423 S.C. 534, 542, 816 S.E.2d 557, 562
(2018) (quoting State v. Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459
(2002)). "A search or seizure is reasonable under the Fourth Amendment when it
is authorized by a warrant that is supported by probable cause." Id. "A warrant is
supported by probable cause if, given the totality of the circumstances set forth in
the affidavit, there is a fair probability that contraband or evidence of a crime will
be found in a particular place." State v. Kinloch, 410 S.C. 612, 617, 767 S.E.2d
153, 155 (2014). "Our task is to decide whether the magistrate had a substantial
basis for concluding probable cause existed. The term 'probable cause' does not
import absolute certainty. Rather, in determining whether a search warrant should
be issued, magistrates are concerned with probabilities and not certainties." State
v. Dupree, 354 S.C. 676, 683, 583 S.E.2d 437, 441 (Ct. App. 2003).

In South Carolina, search warrants shall issue "only upon affidavit sworn to before
the magistrate . . . establishing the grounds for the warrant." S.C. Code Ann.
§ 17-13-140 (2014). "Sworn oral testimony is permissible to supplement search
warrant affidavits which are facially insufficient to establish probable cause." Dill,
423 S.C. at 542, 816 S.E.2d at 562. "As to the validity of a search warrant, we
have noted that '[a] magistrate's determination of probable cause to search is
entitled to substantial deference . . . on review." State v. Jones, 435 S.C. 138, 143,
866 S.E.2d 558, 561 (2021) (quoting State v. Crane, 296 S.C. 336, 339, 372 S.E.2d
587, 588 (1988)). 3

3
Prior to oral argument, Crummey submitted a supplemental citation, State v.
Frasier, in which our supreme court clarified that the standard for "appellate
In his affidavit submitted with the search warrant application for Crummey's
iPhone 6, Detective Khan recounted:

That on July 23, 2017, Charleston County Sheriff's
Office units responded to . . . North Charleston, in
reference to a home invasion and assault. Upon arrival
responding units discovered that suspects had forced their
way into the residence at gunpoint, held the occupant/
victims at gunpoint and then robbed them of their money.
The victims also advised that during the home invasion
two victims were assaulted by the suspects. During the
investigation Daquan Crummey and Denali White were
developed as the suspects for this home invasion.
Daquan was arrested for his outstanding warrants. After
Daquan was arrested he stated that the above listed cell
phone was his property. It is the affiant's belief that a
forensic examination of Daquan's cell phone may aid in
furthering this investigation and may reveal
communications between the two co-defendants. Any
and all evidence recovered as a result of this search will
be compared to other evidence already obtained in the
investigation.

Although Detective Khan obtained search warrants in August 2017 for Crummey
and White's cell phones, law enforcement was unable to search the locked iPhone
because the necessary data extraction software did not yet exist. Thus, Detective
Khan obtained a new search warrant for Crummey's iPhone on May 14, 2019, once

review of a motion to suppress based on the Fourth Amendment involves a two-
step analysis. This dual inquiry means we review a trial court's factual findings for
any evidentiary support, but the ultimate legal conclusion—in [that] case whether
reasonable suspicion exist[ed]—is a question of law subject to de novo review."
437 S.C. 625, 633–34, 879 S.E.2d 762, 766 (2022). Crummey urges us to filter the
substantial deference accorded a magistrate's finding of probable cause through the
Frasier lens. We find it unnecessary to consider Frasier's impact here because the
question before us involves the circuit court's factual finding that Detective Kahn
supplemented his warrant affidavit with sworn testimony informing the issuing
magistrate that Dulce identified Crummey from the photo array as one of the
perpetrators of the home invasion. As the State correctly noted, such a factual
finding remains subject to an "any evidence" standard of review.
such extractions could be performed. The May 2019 warrant affidavit is identical
to that provided to the magistrate in 2017. 4

The State proffered Detective Khan's testimony in opposition to Crummey's
motion to suppress. Detective Khan recalled that he drafted warrant requests for a
Samsung phone seized from White and an iPhone seized from Crummey upon
their arrests. He explained that in addition to preparing an affidavit to support a
warrant request, the warrant process requires locating an available magistrate and
providing the magistrate with sworn testimony. Detective Khan testified that law
enforcement sought information from the cell phones in an effort to find any
accomplices who had not yet been identified and obtain other data pertinent to the
investigation. Although no accomplices were identified, the extractions revealed
Crummey and White had texted about a "big lick" on the morning of the robbery.

Judge Ellen Steinberg issued the search warrants. Detective Kahn testified that
Judge Steinberg swore him in; he then explained the warrant requests, including
how law enforcement developed White and Crummey as suspects. He discussed
Dulce's identification and noted that even before Dulce recognized Crummey on
Facebook, he considered him a possible suspect based on her physical description
of the taller assailant. Detective Khan knew from previous encounters that
Crummey hung out by "the Waylyn," an area off Dorchester Road in North
Charleston. He also told Judge Steinberg that White and Crummey had been the
subjects of a traffic stop, which further established the men knew each other at the
time of the robbery. Detective Khan testified he provided Judge Steinberg with the
same information in 2019 that he provided to support the 2017 warrant application.
He admitted he did not remember the specific questions Judge Steinberg asked him
when he requested the warrants.

On cross examination, Crummey refreshed Detective Khan's recollection with a
witness statement in which a neighbor noted she saw two men with closely shaved
hair in the area around the time of the robbery. Detective Khan admitted he did not
tell Judge Steinberg about the neighbor's statement because "that was just
somebody we spoke to. That's just part of the initial investigation."

Crummey argued Detective Khan's testimony was insufficient to demonstrate the
requisite probable cause because he could not remember the specifics of his

4
At the State's request, Detective Khan requested additional search warrants for
Crummey's phone and location data in June 2019 and March 2020. Crummey has
not challenged the 2020 warrant.
testimony to Judge Steinberg. Crummey further asserted Detective Khan did not
disclose all relevant facts to Judge Steinberg because he left out those unfavorable
to his investigation, such as the neighbor's statement that the two men she saw had
shaved heads while Crummey had dreads.

The State responded that the witness who gave the "close cropped" description
admitted she would not be able to identify the men in a lineup. The State further
noted that because the witness felt uncomfortable around the men and "did not
want them looking at her," she "side-eyed them, and kind of kept going."
Although the State acknowledged it would be preferable to have more detail in a
search warrant affidavit and application, it noted warrant requests may be—and
often are—supplemented with oral testimony. The State emphasized this was not a
situation in which law enforcement lied or put false information in a warrant
affidavit, but one in which the written request was supplemented orally to the
magistrate on more than one occasion. Ultimately, the circuit court found
Detective Khan's testimony sufficient to establish probable case because Detective
Kahn informed the issuing magistrate—through sworn oral testimony—that Dulce
had identified Crummey and White in their photographic lineups.

We find the circuit court did not err in upholding the validity of the search
warrants. Even though Detective Khan could not specifically recall the questions
Judge Steinberg asked him, he testified that he told her he developed Crummey
and White as suspects because Dulce had initially recognized them on Facebook
and later identified them in six-pack photo arrays. He specifically noted the
magistrate placed him under oath. This is important in that it distinguishes the
circumstances here from those in State v. Dunbar, in which this court found defects
in a warrant application could not be cured by an officer's oral statements because
there was no evidence the officer had been placed under oath while discussing the
warrant request with the magistrate by telephone. 361 S.C. 240, 248, 603 S.E.2d
615, 620 (Ct. App. 2004).

Finally, as in State v. Brown, we find Crummey has failed to demonstrate a
Franks 5 violation with respect to the warrant affidavit's omission of the neighbor's
description of the two men with closely shaved hair. 437 S.C. 550, 573, 878
S.E.2d 364, 376–77 (Ct. App. 2022), cert denied (May 24, 2023) (finding circuit
court properly denied motion to suppress because the evidence did not establish

5
Franks v. Delaware, 438 U.S. 154, 171–72, (1978) (finding that in certain
circumstances, a defendant has a right to challenge the veracity of a warrant
affidavit and providing a two-part test for such a challenge).
detective knowingly, intentionally, or with reckless disregard for the truth made
false statements in warrant affidavit by failing to separately detail the eyewitnesses'
varying descriptions of the perpetrator). The neighbor looked at the men only
briefly because she was afraid and did not want them to see her. And, she stated
she "absolutely could not" identify the men from a lineup. More significantly,
even if Detective Kahn's affidavit had included the neighbor's description, his
affidavit and sworn supplemental testimony "would still provide the probable
cause necessary for issuance of the warrant." Id. at 573, 878 S.E.2d at 377; see
also State v. Missouri, 337 S.C. 548, 554, 524 S.E.2d 394, 397 (1999) ("There will
be no Franks violation if the affidavit, including the omitted data, still contains
sufficient information to establish probable cause.").

Conclusion

Based on the foregoing, Crummey's convictions and sentence are

AFFIRMED.

THOMAS and HEWITT, JJ., concur.