State v. Charles Jason Carmichael

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.

Charles Jason Carmichael, Appellant.

Appellate Case No. 2022-001717

Appeal From Richland County
Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2025-UP-032
Heard October 9, 2024 – Filed January 29, 2025

AFFIRMED

Yasmeen Ebbini, of Nelson Mullins Riley &
Scarborough, LLP, and Chief Appellate Defender Robert
Michael Dudek, both of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, Assistant
Attorney General William Joseph Maye, and Solicitor
Byron E. Gipson, all of Columbia, for Respondent.
PER CURIAM: Charles Jason Carmichael appeals his convictions for the
murders of Rufus Carmichael, his brother, and Ashli Haigler, Rufus's girlfriend,
and two counts of possession of a weapon during the commission of a violent
crime. On appeal, Carmichael argues (1) the trial court erred by using special
procedures for the testimony of a child witness (the Child)1 because the court did
not assess the Child's state of fear and the Child's testimony as the sole witness to
the murder was inconsistent and introduced impermissible hearsay; (2) the trial
court erred in admitting hearsay testimony that was improperly used to bolster the
declarant's statements; and (3) the solicitor erred by improperly pitting Carmichael
against adverse witnesses on cross-examination. We affirm.

1. We hold the trial court did not err in allowing the Child, who was Haigler and
Rufus's son, to testify outside Carmichael's presence. See State v. Bray, 342 S.C.
23, 27, 535 S.E.2d 636, 639 (2000) ("A trial court's decision to allow videotaped or
closed-circuit testimony is reversible 'only if it is shown that the trial judge abused
his discretion in making such a decision [.] . . .'" (quoting State v. Murrell, 302 S.C.
77, 82, 393 S.E.2d 919, 922 (1990))); State v. Chavis, 412 S.C. 101, 106, 771
S.E.2d 336, 338 (2015) ("An abuse of discretion occurs when the conclusions of
the [trial] court are either controlled by an error of law or are based on unsupported
factual conclusions."); Bray, 342 S.C. at 27, 535 S.E.2d at 639 ("Where there is
evidence to support a trial court's ruling, it will not be overturned for an abuse of
discretion."). We hold the trial court properly considered the testimonies of the
Child's grandmother, Rachel Alston, and his therapist, Hannah Hucks, and his
school counselor's records when deciding to allow him to testify outside
Carmichael's presence. See S.C. Code Ann. § 16-3-1550(E) (2015) ("The circuit or
family court must treat sensitively witnesses who are very young, elderly,
handicapped, or who have special needs by using closed or taped sessions when
appropriate."); see also Murrell, 302 S.C. at 80-81, 393 S.E.2d at 921 ("First, the
trial [court] must make a case-specific determination of the need for videotaped

1
The Child testified in the courtroom while Carmichael was in an adjacent room
observing the testimony through a video monitor. Carmichael had counsel in the
room with him and additional counsel in the courtroom where the Child testified.
This appears to be the same procedure used in State v. Carter, 433 S.C. 352, 857
S.E.2d 910 (Ct. App. 2021). The particulars of this procedure were not at issue in
Carter, are not at issue here, and we express no opinion on them. As in Carter,
Carmichael's only argument on this subject revolves around whether the evidence
in this case was sufficient to warrant special procedures during the Child's
testimony.
testimony. In making this determination, the trial court should consider the
testimony of an expert witness, parents or other relatives, other concerned and
relevant parties, and the child."); Bray, 342 S.C. at 31, 535 S.E.2d at 641 (declining
"to impose upon trial courts a categorical prerequisite of a personal interview with
the child prior to employing alternative procedures" and stating "the cases
addressing the matter have consistently held that expert testimony, standing alone,
is sufficient to support a finding of necessity"). Hucks and Alston testified that the
Child suffered from flashbacks, nightmares, and other symptoms of PTSD after his
parents' deaths. Both also testified they were concerned the Child would not be
able to testify about what occurred the night of his parents' deaths in front of
Carmichael and that testifying in front of Carmichael could set back the Child's
recovery. We hold the trial court was not required to interview the Child before
allowing him to testify outside Carmichael's presence. The trial court previously
heard the testimony of Alston and Hucks regarding the Child's fear of testifying in
front of Carmichael and the harm testifying in front of Carmichael would cause the
Child. After hearing the testimony and reviewing the Child's school counselor's
records, the trial court stated, "Based on what I've heard and reviewed all the
records and the testimony, I find that the child will be traumatized by having to
face the defendant." Therefore, we hold the trial court's decision to allow the Child
to testify outside Carmichael's presence did not violate Carmichael's right to
confrontation because the trial court made a proper, case-specific determination
based on the testimony and records presented.
2. We hold the trial court did not abuse its discretion in admitting the statement the
Child made to Officer Davis under the excited utterance exception to the rule
against hearsay. See State v. LaCoste, 347 S.C. 153, 160, 553 S.E.2d 464, 468 (Ct.
App. 2001) ("Rulings on the admissibility of evidence are within the trial court's
sound discretion and will not be disturbed on appeal absent an abuse of that
discretion resulting in prejudice to the complaining party."); Chavis, 412 S.C. at
106, 771 S.E.2d at 338 ("An abuse of discretion occurs when the conclusions of
the [trial] court are either controlled by an error of law or are based on unsupported
factual conclusions."); Rule 803(2), SCRE (allowing an exception to the hearsay
rule for "[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition").
Officer Davis testified that the Child, who was five years old at the time of the
incident, told her, "My Mommy is dead" and "Uncle Jason shot my mommy" when
she arrived at the scene of the shooting and found the Child in the truck with
Haigler's body. Officer Davis testified that the Child was "frantic" when he made
the statement. We hold the Child's statement was admissible as an excited
utterance because it related to the startling event of his mother's death, the
statement was made while the Child was still under the stress of excitement, and
the stress of excitement was caused by his mother's death. See State v.
Stahlnecker, 386 S.C. 609, 623, 690 S.E.2d 565, 573 (2010) ("Three elements must
be met for a statement to be an excited utterance: (1) the statement must relate to a
startling event or condition; (2) the statement must have been made while the
declarant was under the stress of excitement; and (3) the stress of excitement must
be caused by the startling event or condition."); State v. Sims, 348 S.C. 16, 20, 558
S.E.2d 518, 521 (2002) ("In determining whether a statement falls within the
excited utterance exception, a court must consider the totality of the
circumstances."); Stahlnecker, 386 S.C. at 623, 690 S.E.2d at 573 ("The passage of
time between the startling event and the statement is one factor to consider, but it is
not the dispositive factor."); id. ("Other factors useful in determining whether a
statement qualifies as an excited utterance include the declarant's demeanor, the
declarant's age, and the severity of the startling event." (quoting Sims, 348 S.C. at
22, 558 S.E.2d at 521)). We hold the Child's statement was admissible as an
excited utterance even though he was hiding in the backseat of the truck and did
not actually see the shooting because he was still physically present during the
shooting and his statement was based on his firsthand knowledge of the shooting.
This case differs from State v. Hill, which Carmichael cites to support his argument
that the Child's statement was not an excited utterance because he did not see the
shooting, because in Hill there was no evidence the witness was physically present
at the time of the incident. See 331 S.C. 94, 99-100, 501 S.E.2d 122, 125 (1998)
(holding the statement of an unidentified declarant was not admissible as an
excited utterance because there was no evidence the declarant witnessed the
shooting and it was "unknown whether the declarant was under the stress of
excitement caused by the event"). Accordingly, we hold the trial court did not err
in admitting the Child's statement under the excited utterance exception to the
hearsay rule.

Further we reject Carmichael's argument that the Child's statement was
inadmissible hearsay within hearsay because the Child based his statement on
Haigler's statement "Jason, where is my baby's daddy?" We hold the Child's
statement was admissible even if it was hearsay within hearsay because Haigler's
statement was also admissible under the excited utterance exception to the hearsay
rule. See Stahlnecker, 386 S.C. at 623, 690 S.E.2d at 573 (listing the three
elements that must be met to admit a statement as an excited utterance). Haigler's
statement was an excited utterance because it related to the startling event of
Rufus's disappearance, it was made while Haigler was under the stress of
excitement while searching for Rufus, and Haigler's stress was caused by Rufus's
disappearance. Therefore, we hold the trial court did not err in admitting the
Child's statement at the crime scene, even if it was based on Haigler's statement.

Next, although we conclude the trial court erred in admitting the text messages
between Rufus and Carmichael as evidence of Rufus's state of mind, we hold the
error was harmless. We hold the trial court's admission of these text messages did
not prejudice Carmichael because they do not include any threat on Carmichael's
part to harm Rufus and do not provide any evidence of guilt. See LaCoste, 347
S.C. at 160, 553 S.E.2d at 468 ("Rulings on the admissibility of evidence are
within the trial court's sound discretion and will not be disturbed on appeal absent
an abuse of that discretion resulting in prejudice to the complaining party.").
Additionally, given the extent of the evidence against Carmichael presented at trial,
we hold the admission of the text messages was harmless because it did not affect
the result of the trial. See Chavis, 412 S.C. at 109, 771 S.E.2d at 340 ("An
appellate court generally will decline to set aside a conviction due to insubstantial
errors not affecting the result."); id. at 109-10, 771 S.E.2d at 340 ("Whether an
error is harmless depends on the circumstances of the particular case. No definite
rule of law governs this finding; rather, the materiality and prejudicial character of
the error must be determined from its relationship to the entire case." (citation
omitted)); State v. Langley, 334 S.C. 643, 647-48, 515 S.E.2d 98, 100 (1999)
("Even if the evidence was not relevant and thus wrongly admitted by the trial
judge, its admission may constitute harmless error if the irrelevant evidence did not
affect the outcome of the trial."). The State presented evidence that Carmichael
had Rufus's blood and DNA on his pants and under his fingernails at the time of
his arrest. The State's ballistics expert testified that the shell casings found in
Carmichael's pocket at the time of his arrest, at the scene of Haigler's murder, and
in Rufus's body were all fired by the pistol found on the front seat of the U-Haul
Carmichael was driving when police arrested him. The State also presented
evidence that Carmichael rented and paid for the U-Haul and did not call 911 after
he discovered blood in the U-Haul. The State presented video of the U-Haul near
Rufus's house, near the scene when Haigler was shot, and near the location where
they found Rufus's body. The State also showed that Carmichael's cell phone
records could be coordinated with the movements of the U-Haul the night of
Haigler's and Rufus's deaths. Additionally, Carmichael was arrested driving the U-
Haul away from his home and while in possession of Rufus's driver's license.
Considering this evidence, we hold any error in admitting the text messages was
harmless because it did not affect the outcome of the trial.

3. We hold Carmichael's argument that the solicitor erred by improperly pitting
him against adverse witnesses on cross-examination is not preserved for appellate
review because Carmichael did not object to the State's questioning during the trial.
See State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d 520, 523 (2005) ("To preserve an
issue for review there must be a contemporaneous objection that is ruled upon by
the trial court."); id. at 58-59, 609 S.E.2d at 523 ("If a party fails to properly object,
the party is procedurally barred from raising the issue on appeal."). Further, we
hold Carmichael's argument that his failure to make a contemporaneous objection
should be overlooked due to the State's inflammatory and prejudicial argument was
not preserved for appellate review because, based on the record, he did not raise
the issue to the trial court in a post-trial motion. See Toyota of Florence, Inc. v.
Lynch, 314 S.C. 257, 263, 442 S.E.2d 611, 615 (1994) ("[E]ven in the absence of a
contemporaneous objection, a new trial motion should be granted in flagrant cases
where a vicious, inflammatory argument results in clear prejudice."); Dial v.
Niggel Assocs., Inc., 333 S.C. 253, 256-57, 509 S.E.2d 269, 271 (1998) ("Toyota
sets forth a narrow exception to the general rule that a party must make a
contemporaneous objection to improper argument or the objection is waived."); id.
at 257, 509 S.E.2d at 271 ("Under Toyota, the issue of inflammatory argument
must be raised to the trial judge by way of post-trial motion to preserve the issue
for appeal.").
AFFIRMED.

THOMAS, HEWITT, and VINSON, JJ., concur.