State v. Tapp, Opinion No. 4529 (S.C. App. 4/9/2009)

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The State, Respondent, v. Jarod Wayne Tapp, Appellant.

Opinion No. 4529.

Court of Appeals of South Carolina.

Heard January 6, 2009

Filed April 9, 2009.

Appeal From Charleston County, Daniel F. Pieper, Circuit Court Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Timothy Clay Kulp, of Charleston, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

THOMAS, J.:

Jarod W. Tapp, Appellant, appeals his convictions for murder, criminal sexual conduct in the first degree and first degree burglary. Tapp challenges the State's introduction of DNA evidence recovered from Victim, as well as the expert testimony of crime scene analyst and victimologist, Mike Prodan. Tapp also claims the State failed to disclose exculpatory evidence, and alleges error on the part of the trial judge in failing to grant directed verdicts on all charges at the close of the State's case.

FACTS AND PROCEDURAL BACKGROUND

Victim was last seen around 10:00 p.m. on the night of Thursday, May 15, 2003.¹ The following day, Friday, May 16, 2003, at the request of Victim's parents, property manager, Mrs. Mumpower, conducted a wellness check. She knocked several times on Victim's door and then opened the door using a key. She testified she made no attempt to open the door without the key and therefore cannot determine whether the door was locked or unlocked when she arrived. As Mrs. Mumpower opened the door, she noticed a great deal of blood on the living room floor; she immediately closed the door and contacted police.

The police arrived at Victim's apartment around 5:30 p.m. on Friday May 16, 2003. First responders initially noticed a large blood stain near the television in the living room, some spatter in different places in the living room, and blood trailing off toward the hallway. Police then discovered Victim's nude body in a hallway bathroom, kneeling on the floor, doubled over the rim of the tub. Victim had noticeable stab wounds about the face and neck, as well as abrasions, akin to carpet burns, on her knees and face.

An examination of the apartment, including the doors and windows, revealed no indication of any forced entry. During the course of processing the scene several latent fingerprints were lifted from various locations throughout the apartment, but none were discovered in the bathroom where Victim was found.

An autopsy confirmed that Victim's death was the result of homicide, occasioned by two perforations to the jugular vein caused by stab wounds to the neck. The autopsy also revealed "battle signs" including a fractured nose, two breaks in the jaw bone, a black eye, and bruises to both ears. Although, no trauma was discovered to the genital region, the coroner conducted a "rape kit" procedure, in which Victim's oral, vaginal and rectal cavities were swabbed for DNA evidence. These swabs did not reveal the presence of sperm cells; however, the vaginal and rectal swabs tested positive for the protein p30, indicating the presence of semen.

DNA analysis was conducted on various items of trace evidence as well as the vaginal and rectal swabs. The swabs did not produce a full DNA profile but did produce a "mixture profile" or a "partial profile" of Victim and another individual.² Because of the mixed nature of the profile, the State's expert DNA analyst, Mr. Ortuno, could only match a minimum number of loci. While these matches did not rule out Tapp, the results demonstrated the statistical probability of a randomly selected and unrelated individual in the general population as being the source of the evidence to be one in twenty-three.

In order to conduct a more thorough DNA analysis, samples were sent to ReliaGene laboratories in New Orleans, Louisiana for Y-STR testing. Y-STR testing has the capability of producing a more accurate DNA profile when there is a mixture of male and female DNA present in the sample. In this test, the State's DNA expert, Larsen, was able to compare the "male extract" from the vaginal swab against the Y-STR profile, which extracts only loci along the Y chromosome, unique to men. The results of this test demonstrate that the "male extract" from the vaginal swab matched Tapp's standard sample on all 10 loci that the Y-STR test examines. The results of this test could not exclude Tapp as the source of the DNA, and at the time of trial, the statistical probability of a randomly selected and unrelated individual being the source of the DNA was; one in 12,000 among Blacks, one in 17,800 among Whites, and one in 1,000 among Hispanics.³

Tapp filed a motion to suppress the DNA because the State did not demonstrate it was planning to offer evidence that the DNA sample could have been deposited in Victim during the time frame between when she was last seen alive and when her body was discovered. The trial court made no specific ruling on the admissibility of the DNA before trial, and the evidence was admitted at trial through the State's expert witnesses Ortuno and Larsen without objection by Tapp.

During the investigation, Tapp gave two statements to the police. Initially, he gave a statement admitting he had been in Victim's home on a prior occasion to use the phone and restroom. Some months later, Tapp gave a second statement to the police in which he informed them that he and Victim had engaged in sexual intercourse on multiple occasions, but that he could not recall their last encounter. Tapp sought to introduce the second statement. Although the trial court did not admit the second statement, it left open the opportunity for Tapp to take the stand and testify to his prior sexual relationship with Victim.

Among the State's various expert witnesses, the court qualified agent M. Prodan, over Tapp's objection, as an expert in crime scene analysis and victimology. Prodan, described his expertise as:

Crime scene analysis is a technique where a combination of forensics, behavior, victimology, crime scene assessment, crime scene reconstruction [sic] are put together to make an assessment of a violent crime to determine everything from victim's [sic] risks to becoming a victim of a violent crime, motive of the offender, possible characteristics and traits of the offender, interview and investigational strategies for the...crime

Furthermore, Prodan describes victimology specifically as:

[T]he study of a victim. [It] is to try to determine why this particular victim was selected to be a victim of a violent crime, be it a sexual assault, homicide, a stalking, an abduction, or the like. The question is at what risk was this person of becoming a victim. And if they were a victim of a homicide, at what level was their risk, but also, what problem is solved by this person's death.

Agent Prodan, through a review of crime scene photos, autopsy reports, and other information provided by the police and prosecution, developed an opinion as to Victim's particular risk level. Prodan also gave an opinion as to possible ways in which the altercation between Victim and the perpetrator transpired.

At some time during the investigation, the State discovered that Ryan, Victim's roommate's boyfriend, may have had a key to the apartment in which Victim was murdered. This was testified to by State's witness, Solveig Heintz, and then again, later in the trial, by agent Prodan.⁴ Tapp alleges this information was not disclosed by the State, and when it was testified to for the second time by agent Prodan, Tapp unsuccessfully moved the trial court for a mistrial.

At the close of the State's case, Tapp unsuccessfully moved for directed verdicts on all counts. Tapp put on no evidence in his defense.

ISSUES ON APPEAL

I. Did the State's failure to provide evidence to support that the DNA sample was deposited in Victim sometime between the time she was last seen alive and when her body was discovered render the evidence irrelevant?

II. Did the trial court err in qualifying agent M. Prodan as an expert witness and allowing his testimony?

III. Did the trial court err in denying Tapp's motion for a mistrial?

IV. Did the trial court err in denying Tapp's motion for directed verdict?

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).

ANALYSIS

I. DNA Evidence

The trial judge is given broad discretion in ruling on questions concerning the relevancy of evidence, and his decision will be reversed only if there is a clear abuse of discretion. State v. Aleksey, 343 S.C. 20, 35, 538 S.E.2d 248, 256 (2000).

Tapp argues the trial court erred in failing to exclude the DNA evidence obtained from the swabs because the State failed to present evidence that the DNA obtained from Victim was deposited between the time she was last seen alive and when her body was found. Tapp argues that the State's failure to demonstrate that the DNA was deposited during the time period in which the assault and murder occurred renders the evidence irrelevant. This argument is not preserved for appeal

Generally speaking, without the trial court making a final ruling on an issue, the issue is not preserved for appellate review. See State v. Rice, 375 S.C. 302, 323, 652 S.E.2d 409, 419 (Ct. App. 2007) (stating that "[u]nless an objection is made at the time the evidence is offered and a final ruling made, the issue is not preserved for appeal"). Similarly, a motion in limine is not a final determination on the matter and does not preserve the issue for appeal. State v. Govan, 372 S.C. 552, 557, 643 S.E.2d 92, 94 (2007); State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001). "The moving party, therefore, must make a contemporaneous objection when the evidence is introduced." Forrester, ...