State v. Rhodes

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.

Jonathan Donell Rhodes, Appellant.

Appellate Case No. 2015-002605

Appeal From Greenville County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2019-UP-361
Heard March 14, 2018 – Filed November 6, 2019

AFFIRMED

Chief Appellate Defender Robert Michael Dudek,
Appellate Defender Lara Mary Caudy, and Appellate
Defender Victor R. Seeger, all of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General W. Jeffrey Young, Deputy Attorney
General Donald J. Zelenka, Senior Assistant Deputy
Attorney General Melody Jane Brown and Assistant
Attorney General Susannah Rawl Cole, all of Columbia;
and Solicitor William Walter Wilkins, III, of Greenville,
all for Respondent.
PER CURIAM: Jonathan Donell Rhodes appeals his convictions for two counts
of murder, two counts of kidnapping, one count of first-degree burglary, and four
counts of possession of a weapon during the commission of a violent crime, for
which the trial court sentenced him to life imprisonment. On appeal, Rhodes
argues the trial court erred by (1) denying his motion to suppress his cell phone
records law enforcement obtained without a warrant and (2) admitting expert
testimony concerning per call measurement data (PCMD). We affirm.

FACTS/PROCEDURAL HISTORY

Gary and Helen Wells employed Shirley Rogers as their housekeeper. According
to multiple sources, Rogers was implicated as the prime suspect in an identity theft
and bank fraud investigation wherein the Wellses were the victims. At least two
BB&T employees witnessed Rogers confront Helen Wells regarding the
investigation and they feared for Helen's safety. The Wellses ultimately terminated
Rogers's employment during the pendency of the investigation. On the morning of
October 3, 2012, Rogers approached the Wellses' neighbor to express concern that
"a man was down" inside the Wellses' home. The neighbor's son-in-law followed
Rogers into the home and discovered the bodies of Gary and Helen Wells, who had
been brutally murdered.

The ensuing investigation of the murders led the police to Rhodes. An ATM
surveillance camera photographed Rogers exiting a Mini Cooper the day after the
murders. The vehicle was registered to Rhodes's roommate, Richard Eric Cade,
who consented to a search of the vehicle. The search produced DNA samples from
both Gary and Helen Wells.

According to Cade's trial testimony, he befriended Rhodes sometime in 2007 and
served as a type of mentor. Cade assisted Rhodes financially by providing money,
a place to live, regular use of his vehicle, and paying for his cell phone. Cade
testified Rhodes was romantically involved with Rogers. On the night of the
murders, Rhodes borrowed Cade's Mini Cooper, was gone most of the night, and
did not return until approximately 2:00 a.m. or 3:00 a.m. the following morning.
Cade repeatedly called Rhodes and sent text messages trying to contact him, but
Rhodes never responded.

Special Agent Richard Fennern testified at trial that Cade's cell phone records
provided by Sprint corroborated his account of the night because his attempts to
contact Rhodes originated from a cell tower consistent with him being at home all
night; Rhodes received the communications via a cell tower consistent with him
being at the Wellses' residence.

After Rhodes was arrested for his involvement in the murders, he was incarcerated
at the same facility as Curtis McLeod, a jailhouse informant. McLeod testified
Rhodes admitted he was involved in the murders. According to McLeod, Rhodes
confessed he was in a relationship with Rogers, who had stolen money from the
Wellses and had an ongoing "grudge" against them. Rhodes borrowed his
roommate's vehicle and picked up Rogers, went to the Wellses' house, and waited
out of sight while Rogers confronted the Wellses. The encounter between Rogers
and the Wellses "escalated" and a struggle ensued. Rhodes told McLeod he and
Rogers forced their way into the Wellses' home, separated the two victims into
different rooms, killed them, and robbed the house before leaving.

The jury ultimately found Rhodes guilty as indicted and the trial court sentenced
him to life imprisonment. This appeal followed.

ISSUES ON APPEAL

1. Did the trial court err by refusing to suppress Rhodes's cell phone records?

2. Did the trial court err by admitting expert testimony regarding PCMD?

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only." State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "This [c]ourt is bound by
the trial court's factual findings unless they are clearly erroneous." Id. "The
admission or exclusion of evidence is left to the sound discretion of the trial
[court], whose decision will not be reversed on appeal absent an abuse of
discretion." State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001). "An
abuse of discretion occurs when the conclusions of the trial court either lack
evidentiary support or are controlled by an error of law." State v. Pittman, 373
S.C. 527, 577, 647 S.E.2d 144, 170 (2007).

LAW/ANALYSIS

CELL PHONE RECORDS
Rhodes argues the trial court erred by denying his motion to suppress the cell
phone records law enforcement obtained without a warrant. Rhodes contends law
enforcement acquired the phone records "without properly complying" with the
Stored Communications Act. We disagree.

In Carpenter v. United States, the United States Supreme Court held that citizens
enjoy a legitimate expectation of privacy in their physical location data compiled
and stored by wireless carriers, otherwise known as cell-site location information
(CSLI). 138 S. Ct. 2206 (2018). Therefore, the government's use of CSLI
constitutes a Fourth Amendment search, which requires a search warrant supported
by probable cause. See id. at 2221. However, we do not believe the Court's
decision in Carpenter requires exclusion of the CSLI from evidence in the present
case.

Here, investigators acquired Rhodes's phone records by requesting Sprint to
voluntarily disclose them pursuant to 18 U.S.C. § 2702(c)(4), a provision of the
Stored Communications Act (the Act), which allows a service provider to reveal a
customer's records to law enforcement under certain circumstances. Section
2702(a)(3) of the Act mandates: "[A] provider of remote computing service or
electronic communication service to the public shall not knowingly divulge a
record or other information pertaining to a subscriber to or customer of such
service . . . to any governmental entity." 18 U.S.C. § 2702(a)(3). Section
2702(c)(4) outlines the following exception:

A provider described in subsection (a) may divulge a
record or other information pertaining to a subscriber to or
customer of such service . . . to a governmental entity, if
the provider, in good faith, believes that an emergency
involving danger of death or serious physical injury to any
person requires disclosure without delay of information
relating to the emergency.

18 U.S.C. § 2702(c)(4) (emphasis added). In the present case, on the request form,
the investigator described the "exigency" as an ongoing investigation into a double
homicide with an active suspect. Regardless of Carpenter's legal effect on this
particular statute, the underlying circumstances of the instant matter constitute
precisely the type of situation the Supreme Court expressly excepted from the
warrant requirement for collection of CSLI: "While police must get a warrant when
collecting CSLI to assist in the mine-run criminal investigation, the rule we set
forth does not limit their ability to respond to an ongoing emergency." Carpenter,
138 S. Ct. at 2223.

Further, "when investigators 'act with an objectively "reasonable good-faith belief"
that their conduct is lawful,' the exclusionary rule will not apply." United States v.
Chavez, 894 F.3d 593, 608 (4th Cir. 2018), cert. denied, 139 S. Ct. 278 (2018)
(quoting Davis v. United States, 564 U.S. 229, 238 (2011)). In Chavez, the Fourth
Circuit Court of Appeals considered the effect of the Carpenter opinion on a
previously-issued court order authorizing the government's acquisition of the
defendant's cell phone records pursuant to section 2703 of the Act. Id. The Fourth
Circuit held, "Objectively reasonable good faith includes 'searches conducted in
reasonable reliance on subsequently invalidated statutes'" and, thus, the good-faith
exception to the exclusionary rule applied to the investigator's actions. Id. (quoting
Davis, 564 U.S. at 239). See U.S. v. Carpenter, 926 F.3d 313, 318 (6th Cir. 2019)
(Carpenter II) ("The Government's acquisition of Carpenter's CSLI violated the
Fourth Amendment. The district court nevertheless properly denied suppression
because the FBI agents relied in good faith on [the Act] when they obtained the
data.").

As in Chavez, Rhodes "cannot[] deny that investigators in this case reasonably
relied on court orders and [the Act] in obtaining the cell site records"1 as they
sought Sprint's voluntary disclosure of the CSLI in October 2012, years before the
Supreme Court issued its opinion in Carpenter. Also, we find law enforcement's
request for voluntary disclosure of Rhodes's cell phone records was appropriate
given the violent nature of the murders. See U.S. v. Takai, 943 F. Supp. 2d 1315,
1323 (D. Utah 2013) (emphasizing "the violent shooting of [a store] clerk in the
face at point blank range" to support the finding of an exigent circumstance
supporting voluntary disclosure). Therefore, the circuit court properly admitted the
CSLI placing Rhodes's phone within the general vicinity of the murders.

EXPERT TESTIMONY

Rhodes argues the trial court erred by admitting Special Agent Fennern's expert
testimony regarding per call measurement data (PCMD) because the underlying
science was unreliable.

"If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an

1
Chavez, 894 F.3d at 608.
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise." Rule 702, SCRE. "[T]he trial courts of
this state have a gatekeeping role with respect to all evidence sought to be admitted
under Rule 702, whether the evidence is scientific or nonscientific." State v. White,
382 S.C. 265, 274, 676 S.E.2d 684, 689 (2009).

When admitting scientific evidence under Rule 702,
SCRE, the trial [court] must find the evidence will assist
the trier of fact, the expert witness is qualified, and the
underlying science is reliable. The trial [court] should
apply the Jones factors to determine reliability.[2] Further,
if the evidence is admissible under Rule 702, SCRE, the
trial [court] should determine if its probative value is
outweighed by its prejudicial effect. Once the evidence is
admitted under these standards, the jury may give it such
weight as it deems appropriate.

State v. Council, 335 S.C. 1, 20-21, 515 S.E.2d 508, 518 (1999).

In considering the admissibility of scientific evidence
under the Jones standard, the [c]ourt looks at several
factors, including: (1) the publications and peer review of
the technique; (2) prior application of the method to the
type of evidence involved in the case; (3) the quality
control procedures used to ensure reliability; and (4) the
consistency of the method with recognized scientific laws
and procedures.

Id. at 19, 515 S.E.2d at 517.

While we agree with Appellant that the State presented insufficient evidence of the
reliability of the science underlying PCMD,3 we are convinced the error was
harmless beyond a reasonable doubt in light of the more general CSLI placing
Rhodes's phone within the general vicinity of the murders and the additional
evidence of Rhodes's guilt. See State v. Simmons, 423 S.C. 552, 566, 816 S.E.2d

2
State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979).
3
Specifically, the State fell short of establishing adequate publication and peer
review of the technique and consistency of this technique with recognized
scientific laws and procedures.
566, 573 (2018) ("A harmless error analysis is contextual and specific to the
circumstances of the case." (quoting State v. Byers, 392 S.C. 438, 447, 447-8, 710
S.E.2d 55, 60 (2011))); id. ("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." (alteration in original) (quoting
Byers, 392 S.C. at 447-8, 710 S.E.2d at 60)); id. ("If a review of the entire record
does not establish that the error was harmless beyond a reasonable doubt, then the
conviction shall be reversed."); State v. Adams, 354 S.C. 361, 381, 580 S.E.2d 785,
795 (Ct. App. 2003) ("[A]n insubstantial error not affecting the result of the trial is
harmless where 'guilt has been conclusively proven by competent evidence such
that no other rational conclusion can be reached.'" (quoting State v. Bailey, 298
S.C. 1, 5, 377 S.E.2d 581, 584 (1989)), cert. denied, (2004).

In particular, police were conducting an ongoing fraud investigation against Rogers
when they discovered from her phone records that she had repeated contact with a
phone number registered to Cade around the time of the murders. Investigators
learned that Rhodes had been using Cade's phone. Additionally, Cade testified that
on the night of the murders, Rhodes was gone all night with Cade's car, did not
answer or return Cade's calls or text messages, and later told Cade at least three
different stories concerning his whereabouts on that night. Cade also confirmed
that there was a romantic relationship between Rhodes and Rogers.

Moreover, investigators discovered blood from both victims in Cade's vehicle, and
on the morning after the murders, a TD Bank ATM surveillance camera captured
Rogers exiting the vehicle. Finally, Curtis McLeod, who met Rhodes in April
2015 while they were both incarcerated in the same facility, testified that Rhodes
confessed to his involvement in the murders. McLeod stated that he was not
promised any benefits for testifying and had no knowledge of the crimes except
what Rhodes had told him. Notably, McLeod recalled information unlikely to be
known without Rhodes's confession. McLeod noted that (1) Rhodes and Rogers
used a .32 caliber handgun, which is the caliber of a bullet discovered at the scene;
(2) only the "female victim" was shot, which was corroborated by the pathologist;
(3) the victims were separated into different rooms, which is how they were
discovered; and (4) Rhodes's roommate, "Richard or something," needed his car
back so he could go to work the next morning, which was confirmed by Cade's
testimony.

CONCLUSION
Based on the foregoing, Rhodes's convictions are

AFFIRMED.

HUFF, GEATHERS, and MCDONALD, J.J., concur.