State v. Fletcher

664 S.E.2d 480

379 S.C. 17

The STATE, Respondent, v. Henry FLETCHER, Petitioner.

No. 26527.

Supreme Court of South Carolina.

Heard February 20, 2008.

Decided August 4, 2008.

Rehearing Denied August 22, 2008.

Susan Barber Hackett, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Attorney General Norman Mark Rapoport, and Solicitor Warren Blair Giese, of Columbia, for Respondent.

Justice WALLER:

We granted a writ of certiorari to review the Court of Appeals' opinion in State v. Fletcher, 363 S.C. 221, 609 S.E.2d 572 (2005). We reverse.

FACTS

Petitioner, Henry Fletcher, was indicted for homicide by child abuse relating to the death of nine-month-old Jaquan Perry. Jaquan was the son of Fletcher's live-in girlfriend, Ikeisha Perry. On the afternoon of September 21, 2000, Perry and Fletcher transported Jaquan to Palmetto Richland Memorial Hospital at approximately 1:15 p.m. According to Perry and Fletcher, the child had been fine that morning, so they took him on errands and to his brother's dental appointment. As they were leaving the dentist office, Fletcher noticed the soft spot on Jaquan's head was not moving so Perry checked and could not find a heart beat. Neither Fletcher nor Perry had noticed anything wrong with him prior to this time. However, both Fletcher and Perry told police Jaquan had fallen off a mattress onto a hardwood floor that morning. Although he seemed sleepy, they thought he was otherwise okay.

Dr. Robert Hubbird, the Pediatric ICU physician who first saw Jaquan at the hospital, testified that when he first saw him, Jaquan was in full cardiopulmonary arrest, his heart was not beating, and he was not breathing. Jaquan was resuscitated several times but was ultimately pronounced dead at 4:20 p.m. Dr. Hubbird testified Jaquan's abdomen was severely distended and protuberant, and that both his liver and bowel were injured. The bowel was injured so severely that it was leaking out into the abdomen and perineal cavity. According to Dr. Hubbird, both the liver and bowel were dying; the fact that he could not hear any bowel sounds meant they had been like that for days. Dr. Hubbird testified that Jaquan's injuries were not consistent with the reports given by Perry and Fletcher, and that the injuries would have taken an extreme amount of force directly to the abdomen. Dr Hubbird opined that the injuries would not have happened from falling a few feet from a bed onto a hardwood floor. Dr. Hubbird also testified that Jaquan had multiple rib fractures and there were numerous bruises on his body, ranging in date from 1-10 days old. The cause of Jaquan's death was child abuse from massive intra-abdominal injuries, massive injuries to kill the bowel, and widespread infection which killed the liver.

Dr. Timothy P. Close, a radiologist, also testified to the injuries to Jaquan's liver, bowels, kidneys, spleen, and that there were fractured ribs. Close testified there were numerous rib fractures, and that they were not all suffered at the same time, which was evident from the bruising, swelling, and different shading of the bones as they attempted to heal themselves. Close felt the newest fractures were anywhere from several hours to 2-3 days old, whereas some of the older ones were more likely 10-14 days old. Dr. Close likened the injuries suffered by Jaquan to injuries suffered in an auto accident where a person has been ejected at 60-70 miles per hour.

At trial, over the objection of defense counsel, the state called Carlos Jenkins, a friend and co-worker of Fletcher, as a witness to two events he had seen in the month prior to Jaquan's death. The attorneys for both Perry and Fletcher objected, contending there was not clear and convincing evidence as to who committed those acts, nor were those acts causally related to Jaquan's death. The trial court ruled that the "the course and conduct within a reasonable time before [Jaquan] died" was admissible. The Court also ruled it was a res gestae type situation. Accordingly, Jenkins was permitted to testify.

Jenkins testified he had known Fletcher for 4-5 years and had known Perry for only a couple of months. Over counsels' renewed objections, Jenkins testified that approximately two weeks prior to Jaquan's death, he had gone to Fletcher's house (where Perry and her two children were also living) and heard the baby crying. Fletcher told him the baby was upstairs, so he walked upstairs and found Jaquan sitting in a walker in the attic, "pouring down sweat like he had just dipped him in a bathtub." Jenkins testified he took Jaquan outside on the porch and cooled him off. Both Fletcher and Perry were home at the time.

Jenkins also testified that sometime in the two or three weeks prior to the attic incident, he came to the house and found Jaquan handcuffed by his feet to the bed on which Fletcher and Perry slept, so he unlocked the cuffs. Both Perry and Fletcher were home at the time. When Jenkins asked them if they were crazy, they just giggled.

Perry did not testify at trial. She did, however, give several statements to police, which were admitted in redacted form at trial. In her statements, Perry also indicated Jaquan had fallen from the bed the morning of September 21st. She comforted him, and then sat him on the sofa beside Fletcher. She and Fletcher brought Jaquan with them to run errands and, as they left the dentist's office, she realized his heart was not beating and drove to the emergency room while Fletcher attempted CPR. Perry denied ever beating Jaquan, but admitted Jaquan had been handcuffed to the bottom of the bed in her room.

Fletcher gave several statements to police and testified at trial. In his statements to police, he indicated similarly to Perry that Jaquan had rolled off a mattress in the morning, but was unharmed so they took him along on errands. He noticed Jaquan's soft spot on his head wasn't moving when they left the dentist's office and discovered he didn't appear to be breathing. They drove to the hospital while Fletcher attempted CPR, striking him in the chest a few times.

Fletcher denied ever beating Jaquan, but testified that Perry had done so a few times. He testified he had not seen Perry handcuff Jaquan to the bed, but saw him that way after he got out of the shower. He also testified that the "attic" where Perry would sometimes bring the children and hang clothes to dry was not actually an attic, but an unfinished room off of a bedroom on the second level of the house. According to Fletcher, there was an air duct right outside the "attic," one step outside from the stairs. He testified he had never put Jaquan in the attic.

Fletcher testified that he was not at the house on Sycamore Avenue from the Sunday until the Wednesday evening before Jaquan's death, arriving at 11:00 p.m. that Wednesday. (Jaquan died on Thursday). According to Fletcher, on the day of Jaquan's death, after he fell out of bed, Jaquan kept trying to go to sleep, so he was tapping/hitting Jaquan on the bottom of his feet to keep him awake.

The jury convicted Fletcher of homicide by child abuse. On appeal, the Court of Appeals affirmed, holding, inter alia, the prior bad acts testified to by Jenkins were properly admitted pursuant to Rule 404(b), SCRE, and State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). It held the prior bad acts had been proved by clear and convincing evidence, and that the acts were admissible to demonstrate a) a common scheme or plan of child abuse or neglect, b) intent or the absence of mistake or accident, c) as part of the res gestae of crime of homicide by child abuse and d) that, in any event, any error in admission of Jenkins' testimony was harmless beyond a reasonable doubt given the overwhelming evidence of guilt in this case.

ISSUES

Did the Court of Appeals err in holding Jenkins' testimony concerning the events he witnessed in the weeks prior to Jaquan's death were admissible under Rule 404(b) SCRE and that admission of this evidence was, in any event, harmless error?

DISCUSSION

Under Rule 404(b), SCRE, evidence of other crimes, wrongs, or acts is generally not admissible to prove the defendant's guilt for the crime charged. Such evidence is, however, admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent. State v. Pagan, 369 S.C. 201, 631 S.E.2d 262 (2006); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). To be admissible, the bad act must logically relate to the crime with which the defendant has been charged. If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing. Id.; State v. Beck, 342 S.C. 129, 135-36, 536 S.E.2d 679, 682-83 (2000). Even if prior bad act evidence is clear and convincing and falls within an exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Rules 403 and 404(b), SCRE (although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice); State v. Gillian, 373 S.C. 601, 646 S.E.2d 872 (2007); State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001). The determination of the prejudicial effect of the evidence must be based on the entire record and the result will generally turn on the facts of each case. State v. Bell, 302 S.C. 18, 393 S.E.2d 364, cert. denied, 498 U.S. 881, 111 S.Ct. 227, 112 L.Ed.2d 182 (1990).

The Court of Appeals stated, without discussion, "The evidence demonstrates by clear and convincing proof the occurrence of the prior bad acts." This was error.¹ The present record does not contain clear and convincing evidence that Fletcher was the person who put Jaquan in the attic, nor does it indicate he was the person who handcuffed her to the bed.

Clear and convincing evidence is that degree of proof which will produce...