State v. Diontrae Epps

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.

Diontrae Travon Epps, Appellant.

Appellate Case No. 2023-001586

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

Unpublished Opinion No. 2026-UP-177
Submitted February 6, 2026 – Filed April 22, 2026

AFFIRMED

Dayne C. Phillips, of Price Benowitz LLP, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Melody Jane Brown,
both of Columbia, for Respondent.

PER CURIAM: Diontrae Epps appeals his convictions for murder and possession
of a weapon during the commission of a violent crime. On appeal, he argues the
trial court erred by denying his motion to dismiss and granting the State's motion
for a continuance to investigate a possible failure to disclose exculpatory evidence.
He also argues the court erred by admitting a Facebook video into evidence
because it was not disclosed timely, was improperly authenticated, and created
unfair prejudice by presenting his statements on the video out of context. We
affirm.

FACTS/PROCEDURAL HISTORY

Epps was convicted of the murder of Michael "Killa Mike" Rogers during a
shootout at a Sunoco gas station in Sumter on September 8, 2019.

Epps's trial was originally scheduled for August 14, 2023. However, that morning
Epps, via his attorney, alerted the trial court that he had been made aware of the
existence of "potential exculpatory information that may have been garnered from
the federal government" that was not provided to the defense. Additionally, Epps's
attorney asserted that his associates reviewed the solicitor's file in preparation for
trial and discovered a "litany of information" and documents that had never been
turned over to them, including the Facebook video, which they received on the
Friday morning prior to trial. The State requested a continuance so that it could
investigate the discovery issue. Epps asserted that he did not want a continuance
and he was prepared to proceed with trial that day as scheduled. The trial court
granted the State's continuance request, noting "justice require[d] the case be
continued to afford the parties [an] opportunity to investigate these issues and
determine whether any of this information [wa]s valid," and if so, what the
appropriate next steps should be.

The trial resumed on September 25, 2023.1 Epps brought a motion to dismiss for
prosecutorial misconduct based on Brady2 violations. He again raised the issue of
potential discovery violations that precipitated the August 14 continuance—
specifically, a statement given to federal authorities which he asserted "would help
toward [Epps's] defense of self‑defense." Epps also raised concerns about
additional discovery that was turned over during the continuance period and
reasserted that the Facebook video, as well as other evidence, was belatedly
disclosed the Friday prior to the original trial date.

Epps then called a series of witnesses in support of his motion. Cameron Blazer
testified that she previously represented a man named Tyrell Billups who had been

1
The same judge presided over both the August 14 hearing and the trial in
September.
2
Brady v. Maryland, 373 U.S. 83 (1963).
arrested in Sumter for trafficking Fentanyl. She explained that Billups had given
statements to federal investigators regarding the Sunoco shootout in April and May
2022 in an attempt to earn sentencing credit in his federal drug matter. Billups told
federal investigators that he had seen the shooting, that Rogers was involved in a
confrontation with Epps, and Rogers pulled a gun and tried to shoot, but his gun
jammed. Blazer asserted that the federal prosecutor notified the solicitor's office of
Billups's statement. However, Blazer acknowledged that she also informed Epps's
counsel, in the spring of 2022, that her client had given favorable information for
Epps regarding the Sunoco shooting, but he was not particularly interested because
he "had a good defense" and did not think that Epps's case would go to trial.3

The assistant solicitor testified that, after receiving a phone call from the federal
prosecutor, he obtained the Billups statement from local investigators and turned it
over to the defense attorneys on the case he was prosecuting, which involved a
codefendant in the shootout, not Epps. He left the solicitor's office shortly after
that case ended and was not involved in the prosecution of Epps's case.

The trial court found the Billups statement "could be considered exculpatory," and
therefore, Brady applied. However, it found the information was ultimately
provided to the defense and was not material because it was available for use by
the defense in time for trial. The trial court concluded that although the solicitor's
office was "negligent" and "sloppy" during the discovery process, the issues
presented did not rise "to the level of a due process violation" which would require
dismissal and denied the motion.

The trial court then held a hearing regarding the admissibility of the Facebook
video, during which Arkell Eaglin, the victim's fiancée, and Detective Willie
McFadden testified. Epps argued that the video could not be authenticated because
Eaglin was not present when the video was made and did not know anyone in the
video. Epps also asserted that the video violated the rule of completeness because
the State did not have the entire video and no one knew what was on it. The trial
court ruled that the video had been properly authenticated under Rule 901, SCRE,
because "[a] witness with knowledge may authenticate evidence by testifying that a
matter is what it is claimed to be." Further, the trial court noted that the State was
presenting the entirety of the video that it had in its possession and any arguments
regarding the remainder of the video related "to the weight of th[e] evidence, not
its admissibility."

3
We note that Epps's counsel interjected a response to this testimony from Blazer,
stating, "Correct."
STANDARD OF REVIEW

In criminal cases, this court sits to review errors of law only and is bound by the
trial court's factual findings unless they are clearly erroneous. State v. Edwards,
384 S.C. 504, 508, 682 S.E.2d 820, 822 (2009). Thus, on review, this court is
limited to determining whether the trial court abused its discretion. Id. "An abuse
of discretion occurs when the [trial] court's decision is unsupported by the evidence
or controlled by an error of law." State v. Pope, 410 S.C. 214, 221, 763 S.E.2d
814, 818 (Ct. App. 2014). "This [c]ourt does not re-evaluate the facts based on its
own view of the preponderance of the evidence but simply determines whether the
trial court's ruling is supported by any evidence." Edwards, 384 S.C. at 508, 682
S.E.2d at 822.
I. CONTINUANCE
We hold the trial court did not abuse its discretion in granting the State a
continuance to investigate the allegedly incomplete disclosure of Brady and Rule
5, SCRCrimP, material. See State v. Hill, 409 S.C. 50, 59, 760 S.E.2d 802, 807
(2014) ("In South Carolina '[t]he grant or denial of a continuance is within the
sound discretion of the trial [court] and is reviewable on appeal only when an
abuse of discretion appears from the record.'" (quoting Plyler v. Burns, 373 S.C.
637, 650, 647 S.E.2d 188, 195 (2007))); State v. Colden, 372 S.C. 428, 436, 641
S.E.2d 912, 917 (Ct. App. 2007) ("Even without any evidentiary support, '[i]n
order for an error to warrant reversal, the error must result in prejudice to the
appellant.'" (quoting State v. Preslar, 364 S.C. 466, 473, 613 S.E.2d 381, 385 (Ct.
App. 2005)); see also Brady, 373 U.S. at 87 ("The suppression by the [State] of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or punishment.").

The focus of the continuance was to allow the State to investigate Epps's claim that
it had received exculpatory information from the federal government in the form of
the Billups statement but had failed to turn it over to Epps. It was not clear at the
time of the continuance what had happened as the allegations arose in the hours
prior to trial, and the import of the Brady jurisprudence is to ensure, first and
foremost, that the defendant receives a fair trial, as the trial court noted when
granting the motion. See State v. Kennerly, 331 S.C. 442, 452, 503 S.E.2d 214,
219‑20 (Ct. App. 1998), aff'd, 337 S.C. 617, 524 S.E.2d 837 (1999) ("The Brady
disclosure rule is grounded in the defendant's fundamental right to a fair trial
mandated by the Due Process Clause of the Fifth and Fourteenth Amendments.").
Further, the trial was ultimately held approximately one month later, and the trial
court determined that no Brady violation had occurred. Therefore, the trial court
was well within its discretion in granting the continuance. See State v. Galimore,
396 S.C. 471, 477‑78, 721 S.E.2d 475, 478 (Ct. App. 2012) (affirming the trial
court's grant of the State's motion for a continuance was within its discretion
because the trial court explained its reasoning, the appellant raised the issue that
led to the State's motion and the trial was held only three weeks later); Hill, 409
S.C. at 59, 760 S.E.2d at 807 ("In South Carolina '[t]he grant or denial of a
continuance is within the sound discretion of the trial [court] and is reviewable on
appeal only when an abuse of discretion appears from the record.'" (quoting Plyler,
373 S.C. at 650, 647 S.E.2d at 195)); see also Rule 5(d)(2), SCRCrimP (explaining
that if a party violates the disclosure procedures outlined in the rule, "the court
may . . . grant a continuance").

II. MOTION TO DISMISS

We hold the trial court did not err by denying Epps's motion to dismiss because
Epps failed to establish that a Brady violation had occurred. See State v. Moses,
390 S.C. 502, 515, 702 S.E.2d 395, 402 (Ct. App. 2010) ("In South Carolina, an
individual asserting a Brady violation must demonstrate that the evidence: (1) was
favorable to the accused; (2) was in the possession of or known by the prosecution;
(3) was suppressed by the State; and (4) was material to the accused's guilt or
innocence or was impeaching."); State v. Gathers, 295 S.C. 476, 481, 369 S.E.2d
140, 143 (1988), aff'd, 490 U.S. 805 (1989) ("The State's failure to disclose
information warrants a reversal as a Brady violation only if the omission deprived
the defendant of a fair trial."); Kennerly, 331 S.C. at 453‑54, 503 S.E.2d at 220
(explaining that if "a Rule 5 violation is shown, reversal is required only where the
defendant suffered prejudice from the violation").

Although the Billups statement was arguably exculpatory, we find it was not
material because, even without the continuance, Epps discovered it in time to use
at trial. Moses, 390 S.C. at 515, 702 S.E.2d at 402 (explaining that one element of
a Brady claim is that the contested evidence "was material to the accused's guilt or
innocence or was impeaching"); Kennerly, 331 S.C. at 453, 503 S.E.2d at 220
("[I]nformation is not deemed 'material' if the defense discovers the information in
time to adequately use it at trial."); id. ("The definition of 'material' for purposes of
Rule 5 is the same as the definition used in the Brady context."). The testimony
from Billups's attorney and Epps's own attorney showed that counsel had been
alerted to the existence of the statement over a year prior to the original trial date
and was uninterested in it because he "already had a defense." See United States v.
Smith Grading & Paving, Inc., 760 F.2d 527, 532 n.6 (4th Cir. 1985) ("[T]he fact
that disclosure came from a source other than the prosecutor is of no consequence.
When determining the constitutional validity of a belated Brady disclosure, the
relevant inquiry is solely whether the defendant was able to effectively use the
exculpatory information."). Further, Epps did not use the statement at trial. See,
e.g., State v. Geer, 391 S.C. 179, 192‑93, 705 S.E.2d 441, 448 (Ct. App. 2010)
(holding Geer failed to establish a Brady violation "such that there is a reasonable
probability the result of her trial would have been different had she received the
evidence earlier" because "[t]he audiotape was not played during trial nor did Geer
attempt to use its contents to establish a defense").

Thus, we hold that any discovery violation in relation to this evidence did not
warrant dismissal of the charge nor does it entitle Epps to a reversal now. See, e.g.,
Fradella v. Town of Mount Pleasant, 325 S.C. 469, 480, 482 S.E.2d 53, 58 (Ct.
App. 1997) (reversing the trial court and holding that any discovery violations
regarding the prosecutor's failure to turn over photographs and a complete booking
report "were not material so as to warrant the sanction of dismissing the charge");
Gathers, 295 S.C. at 481, 369 S.E.2d at 143 ("The State's failure to disclose
information warrants a reversal as a Brady violation only if the omission deprived
the defendant of a fair trial.").4 5

III. ADMISSION OF FACEBOOK VIDEO

We hold the trial court did not err in admitting the Facebook video into evidence.
State v. Brown, 424 S.C. 479, 487, 818 S.E.2d 735, 739‑40 (2018) ("The admission

4
To the extent Epps relies on the late disclosure of the Facebook video to support
this argument, the video was not exculpatory, so the State's failure to disclose it did
not amount to a Brady violation and Epps was not entitled to dismissal of his
charges on this basis. See Moses, 390 S.C. at 515, 702 S.E.2d at 402 (explaining
that one element of a Brady violation is that the contested evidence "was favorable
to the accused"); id. at 517, 702 S.E.2d at 403 ("Evidence considered favorable to
the defendant includes both exculpatory and impeachment evidence . . . .").
Further, while Rule 5 requires the State to turn over "documents and tangible
objects" that are "intended for use by the prosecution," the record is clear that Epps
had a copy of the video before the initial trial date and then had an additional
period of approximately four weeks to investigate it.
5
We find no merit to Epps's argument regarding the administrative order. See
General Sessions Docket Management Order, S.C. Sup. Ct. dated May 24, 2023,
(Howard Adv. Sh. No. 20) (stating the order is "not intended to create an
independent basis for a claim of prosecutorial misconduct if there is a shortcoming
in the production of discovery").
or exclusion of evidence is a matter addressed to the sound discretion of the trial
court and its ruling will not be disturbed in the absence of a manifest abuse of
discretion accompanied by probable prejudice." (quoting State v. Douglas, 369
S.C. 424, 429, 632 S.E.2d 845, 847‑48 (2006)); id. at 487, 818 S.E.2d at 740 ("An
abuse of discretion occurs when the conclusions of the trial court either lack
evidentiary support or are controlled by an error of law." (quoting Douglas, 369
S.C. at 429‑30, 632 S.E.2d at 848)).

Epps did not present any evidence to establish that he was unable to investigate the
video or call a witness to refute the video as a result of the late disclosure.
Furthermore, Epps himself created the Facebook video and admitted to detectives
that he was making comments on Facebook years prior to trial, so we do not
believe Epps was prejudiced by the timing of the disclosure. See Rule 5(d)(2)
(explaining that if a party fails to comply with its obligations under the rule, "the
court may order such party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing evidence not disclosed"
(emphasis added)); State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221 (Ct. App.
1998) ("Sanctions for noncompliance with disclosure rules are within the
discretion of the trial [court] and will not be disturbed absent an abuse of
discretion.").

Additionally, the video was properly authenticated pursuant to Rule 901, SCRE.
See Rule 901(b), SCRE (listing "[b]y way of illustration only, and not by way of
limitation, . . . examples of authentication or identification conforming to the
requirements of th[e] rule"); Brown, 424 S.C. at 488, 818 S.E.2d at 740 (explaining
that all "evidence must be authenticated or identified in order to be admissible");
State v. Green, 427 S.C. 223, 230, 830 S.E.2d 711, 714 (Ct. App. 2019), aff'd as
modified, 432 S.C. 97, 851 S.E.2d 440 (2020) ("The authentication standard is not
high, and a party need not rule out any possibility the evidence is not authentic."
(internal citation omitted)); id. ("The trial [court] acts as the authentication
gatekeeper, and a party may open the gate by laying a foundation from which a
reasonable juror could find the evidence is what the party claims."); id. ("Once the
trial court determines the prima facie showing has been met, the evidence is
admitted, and the jury decides whether to accept the evidence as genuine and, if so,
what weight it carries."). Pursuant to Rule 901, Eaglin could sufficiently
authenticate the Facebook video via testimony. See Rule 901(b)(1), SCRE (listing
"testimony of [a] witness with knowledge" as a method of authentication). She
testified she received the video from someone on Facebook and watched it as it
was originally broadcast live. See Green, 427 S.C. at 231, 830 S.E.2d at 715
(finding authentication "may be accomplished by testimony from a person who
sent or received the writing."); see also, e.g., State v. Hall, 437 S.C. 107, 120, 876
S.E.2d 328, 335 (Ct. App. 2022) (holding "the trial court erred by failing to admit
the Snapchat video messages . . . into evidence" because the testifying witness
"received the messages" and "therefore, she could have authenticated the messages
with personal knowledge under Rule 901(b)(1)"). Eaglin's testimony was also
sufficient to authenticate the video pursuant to Rule 901(b)(4), which provides for
authentication by "[a]ppearance, contents, [and] substance . . . taken in conjunction
with circumstances." Eaglin testified to the circumstances which she believed led
to the creation of the video and identified Epps as the main "speaker" in it. See
Green, 427 S.C. at 232, 830 S.E.2d at 715 ("Most writings meet the authenticity
test through Rule 901(b)(4) . . . .").

Finally, the trial court did not violate Rule 106, SCRE—the "rule of
completeness"—by allowing the video to be admitted even though it was only a
portion of a much longer recording. See Rule 106, SCRE ("When a writing, or
recorded statement, or part thereof is introduced by a party, an adverse party may
require the introduction at that time of any other part or any other writing or
recorded statement which ought in fairness be considered contemporaneously with
it."); State v. Patterson, 367 S.C. 219, 226‑27, 625 S.E.2d 239, 243 (Ct. App.
2006) (explaining that, prior to the Rule's enactment, "the opposing party was
required to wait until cross-examination to complete the communication, [but]
under Rule 106, the party can now require introduction of the remainder of the
statement contemporaneous with the original proffer"). Epps does not cite any
authority showing that Rule 106 has ever been applied in this way— i.e., to limit or
preclude admissibility of a portion of a recording or statement when the entirety is
missing or otherwise unavailable. Rather, this court considered a similar question
in State v. Oglesby and explicitly determined this was not the purpose of the rule.
384 S.C. 289, 294, 681 S.E.2d 620, 622‑23 (Ct. App. 2009) (rejecting the assertion
that "any time a portion of a recording is inaudible due to any interference, the
entire recording should be excluded" because it did "not believe th[at] was the
purpose of Rule 106"). In our estimation, Oglesby is analogous to the present case;
whether the entire recording is unavailable because of a technical issue or because,
as here, only a portion of the recording was saved, we find Rule 106 does not
prevent the introduction of the available portion. See id.

AFFIRMED.6

THOMAS, MCDONALD, and TURNER, JJ., concur.

6
We decide this case without oral argument pursuant to Rule 215, SCACR.