State v. Franks ( 2020 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Deshanndon Markelle Franks, Appellant.
Appellate Case No. 2016-002244
Appeal From Laurens County
Frank R. Addy, Jr., Circuit Court Judge
Opinion No. 5758
Heard October 22, 2019 – Filed August 12, 2020
AFFIRMED
Chief Appellate Defender Robert Michael Dudek, for
Appellant.
Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Senior Assistant Attorney General W. Edgar Salter, III,
all of Columbia; and Solicitor David Matthew Stumbo, of
Greenwood, for Respondent.
LOCKEMY, C.J.: On January 31, 2014, Atrayel Williams called 911 after she
discovered the bodies of Nikesha James and Sammie Darryl Leake in the living
room of James's mobile home. James had been shot in the chest, and Leake had
been shot in the head and neck. Police later identified Deshanndon Markelle
Franks as a suspect, and he was indicted for and convicted of the murders of James
and Leake.
Franks appeals his convictions and sentence of forty-five years' imprisonment for
two counts of murder and possession of a weapon during the commission of a
violent crime, arguing the trial court erred by (1) qualifying the State's witness as
an expert and (2) instructing the jury it could infer malice from the use of a deadly
weapon. We conclude the trial court did not abuse its discretion in qualifying the
State's witness as an expert, and any error in the court's jury charge was harmless
beyond a reasonable doubt. For these reasons, we affirm Franks's convictions.
FACTS
At the outset of his jury trial, Franks moved to suppress his Verizon Wireless cell
phone records, which contained cell site location information (CSLI), arguing they
were the product of a warrantless search.1 The trial court denied Franks's motions.
Laquesha Currenton, Leake's cousin and a close friend of James's,2 testified she
last spoke to James around 11:00 p.m. or 12:00 a.m. on January 30. Williams,
another of James's close friends, testified she last spoke to James around 9:00 p.m.
on the 30th and could not reach her when she called around 10:30 a.m. the next
morning. That afternoon, Williams and Currenton drove to James's home in Cross
Hill, where they found the bodies of James and Leake, and Williams called 911.
Lavashtia Pulley testified she saw Franks and a man named Tevin Hill (Tevin) at a
liquor house called "Wash" earlier on the evening of January 30. She recalled she
spoke to Franks around 11:00 p.m. and he seemed "hyped" and "pumped, amped,
whatever." Pulley testified she had "never seen him like that" before. She
explained that while they were talking, Franks pulled out a few things from his
coat, including a gun, which he said was "a Ruger." She described the gun as
"black ashy kind of like." Pulley stated Franks wore a tan "overall suit," "[l]ike a
hunting suit," that night. At trial, she identified a State's exhibit as the overalls she
saw him wearing. Pulley stated she did not speak to Tevin or see him together
1
Franks also moved to suppress a digital photograph obtained from his cell phone,
a pair of brown overalls and an extended magazine found during a search of his
home, and his written statement to law enforcement.
2
Currenton noted that although others sometimes referred to Leake as James's
uncle, they were not actually related.
with Franks. Pulley recalled she received a text message from Franks the next
morning, but he did not mention the deaths of James or Leake.
Tamia Kinard, another friend of James's, testified she, her aunt, and her baby went
to James's house around 8:00 p.m. on January 30, and Leake arrived sometime
thereafter. Kinard explained her aunt left later in the evening, and Franks and
Tevin came over to James's sometime afterwards. She estimated they arrived
around 12:15 a.m. Kinard testified Franks had on a brown overall jumpsuit "like a
hunting suit" that night and some type of red sweater over the jumpsuit. She
recalled that when Franks arrived, he asked James "about something that she put
on Facebook" and "asked her to come back in the bedroom to talk [to] him."
Kinard stated they went into the bedroom and "had a discussion." She estimated
they were in the bedroom for about ten or fifteen minutes and when they came out,
"[t]hey w[ere] laughing and talking normal, like it wasn't a problem."
Around 1:00 a.m., Kinard asked Tevin to drive her home "because [Franks] was
being loud" and her baby was asleep. When asked how Franks behaved that night,
Kinard stated he was "hyper[, l]ike amp, you could say. He was just wild. Like he
was talking loud[, h]e was jumping around like. He just wasn't acting normal."
She stated that when she and Tevin left, Franks, James, and Leake were still
present at James's home.
Kinard explained Tevin's route took them behind her uncle's, Milton Grant's,
mobile home. Grant testified he lived about three houses down from James on
John Grant Street. Grant recalled that that around 1:00 a.m., he was awakened by
headlights shining through his bedroom window. He stated he could not fall back
asleep, and around 3:00 a.m., he heard gunshots that sounded like they came from
very close. Grant testified he jumped up and went to the window and saw
someone come out of James's front door. He saw the person walk down the front
steps, walk back up, turn the porch light off, close the door, and then continue
walking up and down the steps before eventually disappearing. Grant stated the
person "had something brown on."
Tevin testified that in January 2014, he lived at his grandmother's house on John
Grant Street in Cross Hill. He stated that on the night of January 30, he met up
with Franks around 8:00 p.m., and they went to "a liquor house" called "the Wash"
or "Washes," where they stayed for about three hours. He remembered seeing
Pulley there, and he assumed she and Franks talked because he saw them walk
outside together. Tevin testified Franks was wearing brown overalls that night and
identified a State's exhibit as the same overalls he saw Franks wearing. He stated
that around midnight he and Franks left and went to James's, which was "where
everybody used to hangout." Tevin recalled that when they arrived, Franks was
acting "kind of like loud. Kind of amp like." Tevin testified James, Leake, Kinard,
and Kinard's baby were at James's when they arrived. He recalled Franks and
James "went to the back of the house" to talk that night but he could not hear their
discussion.
Tevin stated he drove Kinard home a short while later and Franks, James, and
Leake all stayed behind. Tevin recalled he drove past Grant's home with his bright
headlights on, which shined on Grant's home. He stated he arrived home around
2:00 or 3:00 a.m. after dropping Kinard off and sometime after that, Franks called
and told him to come outside. Tevin explained he went outside and saw Franks
walking up the road, away from James's house. Tevin stated Franks was "shaky"
and "not normal" and said "stuff went bad." He testified Franks then asked him for
a ride, stating he "had some females up the road like in Greenville" but once they
neared Fountain Inn, Franks told Tevin to drive him to Rodrigus Scurry's house.
Tevin testified they stayed at Scurry's until about 8:00 a.m. and then went back to
Cross Hill. He recalled that during the car ride back, Franks said "we got to get the
guns out the house or something," but Tevin did not know what he was talking
about. Tevin stated he went home after dropping Franks off at his grandmother's
home and a short time later, he heard police arrive at James's house. He received a
call from his cousin, Deputy Rakeisha Hill, who asked him to come to the scene
and bring Franks. He explained Franks "act[ed] like he didn't want to go" and then
told Tevin what to tell the police. Tevin testified Franks told him to say Franks got
in the car after he dropped Kinard off and then they drove to Greenville. Tevin
explained he wrote this in his first statement to police, but it was a lie. He denied
seeing Franks with a gun that night but stated he had seen him with a gun before
that looked like the gun in the photo on Franks's phone. Tevin acknowledged he
was also charged with murder and the State agreed to drop the murder charges if he
cooperated in the disposition of Franks's case.
Scurry testified Franks called him around 3:00 a.m. on January 31 and said he was
on his way home from Greenville but could not make it home because he had been
drinking. He stated Franks called again around 4:00 a.m. when he and Tevin
arrived. Scurry testified he showed them where to sleep and went back to bed. He
stated Franks contacted him the next day and asked if he had talked to the police.
Officer Bryant Cheek testified he responded to the scene on January 31. He noted
he encountered Tevin, who was nearby, on his way to the scene. Officer Cheek
explained he recognized Tevin from coaching basketball and spoke to him briefly
before proceeding to the scene. Upon arriving at the scene, Officer Cheek
interviewed bystanders who had gathered there. He stated Franks was asked to
come to the scene after law enforcement learned he was at James's home the night
of the shooting. Officer Cheek questioned Franks and took his statement. The trial
court admitted the statement into evidence over Franks's objection. Franks stated
he was at James's the night before with Kinard, Tevin, James, and Leake. Franks
stated that after Tevin left to take Kinard home, he stayed and talked to James and
Leake until he called Tevin. According to Franks, Tevin then picked him up "at
the top of the driveway" and they drove to Greenville. Franks stated he "[c]alled a
girl he was going to see" but when she did not answer, he called Scurry and spent
the night at Scurry's in Fountain Inn.
Franks and Tevin turned over their phones to law enforcement, who obtained
search warrants to extract the data from the phones. A digital photo of a handgun
was retrieved from Franks's phone. Law enforcement also obtained Franks's cell
phone records from Verizon Wireless and searched his grandmother's home, where
they found a pair of brown overalls, a backpack, and an elongated magazine for a
firearm. The trial court admitted this evidence over Franks's renewed objections.
A crime scene investigator with the South Carolina Law Enforcement Division
(SLED) testified she observed indications that a struggle had occurred in the home,
including a rug that was folded over on itself, coffee mugs and picture frames on
floor, and couch cushions that were off the couch. Officers swabbed several
surfaces for DNA and collected projectiles, fragments of projectiles, a drug pipe,
and cartridge casings from the scene. Two of these cartridge casings were
admitted into evidence, but no firearms were found. SLED analysts tested the
DNA evidence collected at the scene but were unable to identify any DNA profiles
other than those matching the victims' DNA. Franks's overalls were tested for
gunshot residue, but none was found.
The forensic pathologist who conducted the victims' autopsies explained James
suffered a gunshot to the chest, angled downward sharply, and Leake suffered
gunshots to the head and neck, both angled upwards. He determined homicide to
be the manner of death as to both victims because the wounds could not have been
self-inflicted. The forensic pathologist recovered a projectile from James's back
and discovered a deformed projectile loose in Leake's clothing as well as some
fragments in the body bag.
Ira Parnell, formerly of SLED, testified as an expert in firearm and tool mark
identification. Parnell examined the projectiles recovered from James's body and
Leake's clothing, as well as two fired projectiles collected from the scene. He
opined all four fired bullets were fired by the same firearm and were 9 millimeter
Ruger caliber bullets. Parnell testified Ruger was one of about eighty possible
manufacturers that might have made a weapon that could have fired those bullets.
He identified the magazine recovered from Franks's backpack as an "extended high
capacity magazine which appeared to be consistent with a 9 millimeter caliber" and
opined it would "very possibly" be compatible with a Ruger 9 millimeter. Parnell
also concluded the handgun in the digital photo retrieved from Franks's phone
appeared to be a 9 millimeter Ruger.
Sergeant Dan Kelley, of the Greenville County Sheriff's Office, testified he had
twenty-seven years of law enforcement experience. He explained he reviewed
phone records as part of his job. Sergeant Kelley testified that when his office
received phone records, the data was in "huge voluminous amount[s]" and took
"weeks [or] months to sort through." He stated his office began using a software
called GeoTime to "help speed things up." Sergeant Kelley testified GeoTime
worked in conjunction with another program called a "call records tool" to sort the
data into an easy-to-see format. He stated he had worked with cell phone
technology and records for about fifteen years, with GeoTime for three to four
years, and had used GeoTime in about fifty cases. Additionally, he stated he
watched several of GeoTime's seminars. The State offered Sergeant Kelley as "an
expert witness in the use of GeoTime software and call records translation tools."
During voir dire, Franks questioned Sergeant Kelley about the GeoTime software.
He testified it was a PC-based software but was uncertain if it was "certified" by
Microsoft; however, he noted he most commonly received cell phone records in
Excel format. In describing how GeoTime functioned, Sergeant Kelley explained,
"It's a basic function that when you bring the data in[,] it sorts it so that you can see
it." He stated GeoTime was "widely used" in the law enforcement field and was
"rapidly [becoming] the industry standard." In questioning Sergeant Kelley,
Franks stated, "I will assume you're very good at the use of GeoTime. But . . . are
you able to testify as to the algorithms, the functioning, how it works as far as the
reliability of the software?" Sergeant Kelley stated he could testify regarding the
use of the software and the data it translated but not the algorithms it used. When
questioned whether he had done any testing to "manually calculate and verify
GeoTime data," he explained the data in phone records included latitude and
longitude coordinates and he had used the wireless provider's mapping system,
"Esri's" mapping system,3 and Google "to see where the points would line up with
the data . . . and the points were accurate." Sergeant Kelley explained he
performed this "cross-checking" on "just about every case," and in this case, he
used Google to verify the points were the same. He stated GeoTime consolidated
the information received from the phone company to show only the necessary data,
which it placed into a visual format. Sergeant Kelley explained the records
normally included the latitude and longitude of each call, the caller number, the
calling party's number, text numbers, and phone numbers. He testified the data he
relied on was billing data that contained location data as to "where the handset
[wa]s at the time the call was made." Sergeant Kelley stated this "real time
transmission" data was also referred to as "ping" data and it refers to the signal that
goes out from a handset at the time a phone call is initiated, "hits the tower," and is
received back to the handset. He stated this "ping" showed the phone company's
"best estimate" of where the handset was at the time it communicated with the
tower. Although he averred that the billing data was "very accurate," he
acknowledged the precise accuracy of the towers and data was "for an expert from
Verizon to testify to."
Franks objected, arguing the data contained in the Verizon records was unreliable.
He stated, "[M]y argument is not so much with GeoTime. It is with the data [that
is fed] into GeoTime." Franks argued that if no expert from Verizon testified as to
the accuracy of the data, there was no way to determine its reliability.
The trial court noted the records were already in evidence and explained that its
gatekeeping function in a Rule 702, SCRE, reliability analysis was to determine
whether the methodology, in this case, GeoTime, was a reliable and trusted method
of obtaining relevant data or information. However, the court found Franks's
objection concerned "the data provided from the phone company," which was
"completely separate" and the court noted Franks only objected to the admission of
the underlying data on search warrant grounds and not reliability grounds. The
trial court noted Franks did not contest the underlying reliability of GeoTime, and
it then allowed Sergeant Kelley to testify as an expert in the use of GeoTime and
other call record translation tools.
Sergeant Kelley testified that when he received Franks's call records data from
Verizon, he placed the data into the call records translation tool along with the "cell
3
Sergeant Kelley stated Esri was "the recognized industry leader." Esri is a
company that builds geographic information system (GIS) mapping and analytics
software.
tower file," which showed all of the cell towers that "were in play" when the phone
was used and thus provided "geolocation" information for the cellphone. He
explained that the information was merged in the call records translation tool, the
phone call data was matched with the cell tower data, and entered into GeoTime.
He stated GeoTime then plotted the exact points from the data onto a map in date
and time order and created a visualization showing where the handset was "in
relation to space and time." These visualizations were admitted into evidence
without objection. Sergeant Kelley testified these showed three calls made at
different times, all in different locations, and nothing in that information indicated
the handset was ever in Greenville during that time. He stated that on January 31,
2014, the information placed the handset on John Grant Street in Cross Hill at
2:53:52 a.m., again in the Cross Hill area at 3:06 a.m., and in Fountain Inn at
4:04:43 a.m. On cross-examination, Sergeant Kelley acknowledged he could not
state the accuracy of the pinpoint down to the foot, and it was only Verizon's best
estimate of where the handset was at the time.
The State rested, and Franks renewed all prior motions and objections, which the
trial court denied. The State then delivered its closing argument, and before Franks
made his closing argument, the trial court held an off-the-record sidebar discussion
with counsel. Thereafter, the trial court informed the parties it intended to add the
"inference of malice language from the use of a deadly weapon" to its jury
instruction concerning malice. The trial court reasoned that under its reading of
Belcher,4 the instruction "would be appropriate in this case" because no evidence
was presented that tended to reduce the homicide from murder to voluntary or
involuntary homicide. The court noted, "I do understand [Franks's] objection to
that that he made at sidebar. Despite that objection, the [c]ourt has included that
language." Franks then proceeded with his closing argument, and the trial court
charged the jury. The court's instruction included the following:
[T]he [d]efendant is charged with two counts of murder.
The State must prove beyond a reasonable doubt that the
[d]efendant killed another person with malice
aforethought. If facts are proven beyond a reasonable
doubt sufficient to raise an inference of malice and to
your satisfaction, this inference would simply be an
evidentiary fact to be considered by you along with the
4
State v. Belcher, 385 S.C. 597, 612, 685 S.E.2d 802, 810 (2009), overruled in
part by State v. Burdette, 427 S.C. 490, 504-05, 832 S.E.2d 575, 583 (2019).
other evidence in this case and you may give it the
weight you think it should receive.
I instruct you . . . that malice is defined as hatred, ill-will
or hostility toward another person. It[ i]s the intentional
doing of a wrongful act without just cause or excuse, and
with an intent to inflict injury, or under circumstances the
law will infer an evil intent. Malice aforethought does
not require that malice exists for any particular time
before the act is committed, but malice must exist in the
mind of the [d]efendant just before and at the time the act
is committed. Therefore, there must be a combination of
the previous evil intent and the act.
I instruct you that malice aforethought may be express or
inferred. These terms expressed and inferred do not
mean different kinds of malice, but merely the manner by
which malice may be shown to exist. That[ i]s either by
direct evidence or by inference from the facts and
circumstances—circumstances which are proven.
Expressed malice is shown when a person speaks words
which express hatred or ill-will to another person, or
when the person prepare [sic] beforehand to do the act
that was later accomplished. For example, laying in
w[ai]t for a person or any other acts in preparation going
to show that the deed was within the [d]efendant's mind
with the expressed malice.
Malice may also be inferred from conduct showing a
total disregard for human life. Inferred malice may also
arise when the deed is done with a deadly
weapon. . . . The following are examples of
instruments . . . which may be deadly weapons[:] . . . [a]
pistol, shotgun, [or] rifle.
Thereafter, Franks again noted his "objection to the malice." The trial court
adhered to its earlier ruling. After about seven hours of deliberation over the
course of two days, the jury found Franks guilty of both murders and the weapons
charge. The trial court sentenced him to concurrent terms of forty-five years'
imprisonment for each of the murder charges and five years' imprisonment on the
weapons charge. This appeal followed.
ISSUES ON APPEAL
1. Did the trial court abuse its discretion by qualifying Sergeant Kelley as an
expert pursuant to Rule 702, SCRE, to testify regarding location data associated
with Franks's cell phone?
2. Did the trial court err by instructing the jury "inferred malice may arise when
the deed is done with a deadly weapon"?
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.
LAW/ANALYSIS
I. Expert Witness
Franks argues the trial court abused its discretion by allowing Sergeant Kelley to
testify as an expert witness because it failed to determine he was qualified in the
particular area or that the testimony was reliable. Franks contends that pursuant to
State v. White,5 Watson v. Ford Motor Co.,6 and State v. Council,7 the CSLI
evidence and opinion testimony was inadmissible through Sergeant Kelley because
the underlying evidence was unreliable. He asserts the testimony prejudiced him
5
382 S.C. 265, 274, 676 S.E.2d 684, 689 (2009) (holding trial courts have a
gatekeeping role pursuant to Rule 702, SCRE, and the court must assess the
threshold foundational requirements of qualifications and reliability before
admitting expert testimony).
6
389 S.C. 434, 446-47 699 S.E.2d 169, 175 (2010) ("[O]nly after the trial court has
found that expert testimony is necessary . . . , the expert is qualified in the
particular area, and the testimony is reliable, may the trial court admit the evidence
and permit the jury to assign it such weight as it deems appropriate.").
7
335 S.C. 1, 19, 515 S.E.2d 508, 517 (1999) (setting forth four factors the trial
court should consider in admitting scientific evidence under Rule 702, SCRE).
because it allowed the State to argue the records corroborated Tevin's "otherwise
questionable testimony." We disagree.
"The qualification of an expert witness and the admissibility of the expert's
testimony are matters within the trial court's sound discretion." State v. Chavis,
412 S.C. 101, 106, 771 S.E.2d 336, 338 (2015). We will not reverse the trial
court's decision to admit expert testimony "absent a prejudicial abuse of
discretion." White, 382 S.C. at 269, 676 S.E.2d at 686. "An abuse of discretion
occurs when the conclusions of the circuit court are either controlled by an error of
law or are based on unsupported factual conclusions." Chavis, 412 S.C. at 106,
771 S.E.2d at 338. "Prejudice occurs when there is reasonable probability the
wrongly admitted evidence influenced the jury's verdict." State v. Byers, 392 S.C.
438, 444, 710 S.E.2d 55, 58 (2011).
"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
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise." Rule 702, SCRE. As part of its
gatekeeping duties pursuant to Rule 702, "the trial court must find that the
proffered expert has indeed acquired the requisite knowledge and skill to qualify as
an expert in the particular subject matter." Watson, 389 S.C. at 446, 699 S.E.2d at
175. The trial court must then "evaluate the substance of the testimony and
determine whether it is reliable." Id. "Reliability is a central feature of Rule 702
admissibility . . . ." White, 382 S.C. at 270, 676 S.E.2d at 686.
[Our supreme court has] listed several factors that the
trial court should consider when determining whether
scientific expert evidence is reliable:
(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.
Watson, 389 S.C. at 449-50, 699 S.E.2d at 177 (footnote omitted) (quoting
Council, 335 S.C. at 17, 515 S.E.2d at 517); see also id. at 450 n.3, 699 S.E.2d at
177 n.3 (noting "[t]he test for reliability [of] expert testimony does not lend itself
to a one-size-fits-all approach" but reasoning that when an expert's testimony was
based on "scientific principles and theories," the Council factors were "applicable
and relevant to the reliability determination").
Courts are often presented with challenges on both
fronts[: ]qualifications and reliability. The party offering
[an] expert must establish that his witness has the
necessary qualifications in terms of "knowledge, skill,
experience, training or education." Rule 702, SCRE.
With respect to qualifications, a witness may satisfy the
Rule 702 threshold yet the opponent may still challenge
the amount or quality of the qualifications. It is in this
latter context that the trial court properly concludes that
"defects in the amount and quality of education
or experience go to the weight to be accorded the expert's
testimony and not its admissibility." State v. Myers, 301
S.C. 251, 256, 391 S.E.2d 551, 554 (1990). Turning to
the reliability factor, a trial court may ultimately take the
same approach, but only after making a threshold
determination for purposes of admissibility.
White, 382 S.C. at 273-74, 676 S.E.2d at 688 (emphases added).
"To be competent to testify as an expert, 'a witness must have acquired by reason
of study or experience or both such knowledge and skill in a profession or science
that he is better qualified than the jury to form an opinion on the particular subject
of his testimony.'" Gooding, 326 S.C. at 252-53, 487 S.E.2d at 598 (quoting
O'Tuel v. Villani, 318 S.C. 24, 28, 455 S.E.2d 698, 701 (Ct. App. 1995), overruled
on other grounds by I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526
S.E.2d 716 (2000)); see also Fields, 376 S.C. at 555, 658 S.E.2d at 85 ("A person
may be qualified as an expert based upon 'knowledge, skill, experience, training, or
education.'" (quoting Rule 702, SCRE)). "The test for qualification of an expert is
a relative one that is dependent on the particular witness's reference to the subject."
Maybank, 416 S.C. at 567, 787 S.E.2d at 511 (quoting Wilson v. Rivers, 357 S.C.
447, 452, 593 S.E.2d 603, 605 (2004)).
We conclude the trial court did not abuse its discretion in finding Sergeant Kelley
was qualified to testify as an expert in the use of GeoTime and other call records
translation tools. First, the evidence shows he was qualified to testify about the
applicable subject matter: GeoTime and call records translations. Sergeant Kelley
testified he had fifteen years' experience working with call records and cell phone
technology, observed several seminars about GeoTime, and used GeoTime in
approximately fifty cases over the course of three or four years. This testimony
supports the trial court's conclusion that Sergeant Kelley had the relevant
experience, training, and skill to testify concerning GeoTime and other call records
translation tools. See Fields, 376 S.C. at 555, 658 S.E.2d at 85 ("A person may be
qualified as an expert based upon 'knowledge, skill, experience, training, or
education.'" (quoting Rule 702, SCRE)).
Second, we find the trial court did not abuse its discretion in finding the substance
of his testimony reliable over Franks's objection to the reliability of the underlying
data. Here, Franks's argument at trial and on appeal concerns the reliability not of
GeoTime, but of the underlying data. However, he did not object to the data on
this basis during the suppression hearing or at the time the Verizon call records
were introduced into evidence. Rather, his only objection to the records was based
on his argument they were unlawfully obtained without a warrant, a ruling he does
not challenge on appeal. Because the underlying data—the Verizon records—had
already been admitted into evidence when the State offered Sergeant Kelley as an
expert, Franks waived his challenge to the reliability of the data by failing to object
at the time the State introduced the data. See State v. Simpson, 325 S.C. 37, 42,
479 S.E.2d 57, 60 (1996) ("Unless an objection is made at the time the evidence is
offered and a final ruling made, the issue is not preserved for review."); State v.
Prioleau, 345 S.C. 404, 411, 548 S.E.2d 213, 216 (2001) ("[T]o preserve for
review an alleged error in admitting evidence an objection should be sufficiently
specific to bring into focus the precise nature of the alleged error so it can be
reasonably understood by the trial judge."); id. ("Furthermore, a party may not
argue one ground at trial and an alternate ground on appeal."). Therefore, we find
Franks's objection to the reliability of the underlying data is unpreserved.
Even assuming the issue is preserved, the trial court did not abuse its discretion by
finding the substance of the testimony was reliable. Sergeant Kelley explained the
records normally included the latitude and longitude of each call, the caller
number, the calling party's number, text numbers, and phone numbers. Although
he could not testify to the precise accuracy of the location data down to the foot, he
testified it was Verizon's best estimate of where the handset was at the time.
Sergeant Kelley testified about his use of the GeoTime software to sort the
information contained within the Verizon records, which included CSLI, and then
display that information in a map format. We find the foregoing supports the trial
court's finding the substance of the testimony was sufficiently reliable.
Further, as to any objection to the reliability of CSLI methodology, we find no
error in the trial court's decision to admit the testimony. In reaching this
conclusion, we emphasize this court recently "join[ed] the many other jurisdictions
that have deemed CSLI reliable enough to pass the Rule 702 gate." State v.
Warner, 430 S.C. 76, 89, 842 S.E.2d 361, 367 (Ct. App. 2020), petition for cert.
filed, No. 2020-000930 (S.C. Sup. Ct. July 20, 2020). Here, Sergeant Kelley
described the general science of geolocation based on CSLI. He explained that at
the time a phone call is initiated, the cellular signal from the handset "hits the
tower" is received back to the handset and then demonstrates the wireless
provider's best estimate as to where the handset was at the time it communicated
with the tower. Based on the foregoing, we find the trial court did not err by
finding Sergeant Kelley's testimony concerning CSLI evidence and methodology
was reliable. We therefore find the trial court did not abuse its discretion by
admitting Sergeant Kelley's expert testimony.8
II. Jury Instruction
Franks argues the trial court erred by instructing the jury it could infer malice from
the use of a deadly weapon because evidence was presented that would reduce,
mitigate, excuse, or justify the homicide. He asserts the instruction could not have
been harmless because the State presented no evidence of motive, the evidence as
to the identity of the shooter was purely circumstantial, and the jury deliberated for
two days before reaching a verdict. In addition, he contends the record contained
evidence that a third party was the shooter. We agree but find the error was
harmless.
The State first argues Franks failed to preserve this issue for appellate review. It
next argues that pursuant to Belcher,9 the instruction was not erroneous because no
8
We need not reach the issue of prejudice because we have found no error.
Nevertheless, we question whether Sergeant Kelley's testimony prejudiced Franks
because it showed where he was not as opposed to where he was. In other words,
it was not used to place him at the crime scene but to show he never travelled to
Greenville after he left James's residence. Further, it was cumulative to Tevin's
testimony that he drove Franks to Fountain Inn and not to Greenville. See State v.
Johnson, 298 S.C. 496, 499, 381 S.E.2d 732, 733 (1989) ("The admission of
improper evidence is harmless whe[n] it is merely cumulative to other evidence.").
9
385 S.C. at 612, 685 S.E.2d at 810 (holding "whe[n] evidence is presented that
would reduce, mitigate, excuse or justify a homicide . . . caused by the use of a
deadly weapon, juries shall not be charged that malice may be inferred from the
evidence was presented that would "'reduce, mitigate, excuse, or justify a homicide'
committed by use of a deadly weapon."
Recently, in Burdette, our supreme court extended Belcher and held, "Regardless
of the evidence presented at trial, trial courts shall not instruct a jury that the
element of malice may be inferred when the deed is done with a deadly weapon."
427 S.C. at 504-05, 832 S.E.2d at 583 (emphasis added). The court explained,
When the trial court tells the jury it may use evidence of
the use of a deadly weapon to establish the existence of
malice, a critical element of the charge of murder, the
trial court has directly commented upon facts in
evidence, elevated those facts, and emphasized them to
the jury.
Id. at 502, 832 S.E.2d at 582. Thus, the court concluded an "instruction that malice
may be inferred from the use of a deadly weapon is an improper court-sponsored
emphasis of a fact in evidence—that the deed was done with a deadly weapon—
and it should no longer be permitted." Id. at 503, 832 S.E.2d at 582. The court
stated this ruling was to be effective in those cases pending on direct review "so
long as the issue is preserved." Id. at 505, 832 S.E.2d at 583.
To preserve an issue for appellate review, "[t]he issue must have been (1) raised to
and ruled upon by the trial court, (2) raised by the appellant, (3) raised in a timely
manner, and (4) raised to the trial court with sufficient specificity." S.C. Dep't of
Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907
(2007) (quoting Jean Hoefer Toal et al., Appellate Practice in South Carolina 57
(2d ed. 2002)). "An objection made during an off-the-record conference which is
not made part of the record does not preserve the question for review." York v.
Conway Ford, Inc., 325 S.C. 170, 173, 480 S.E.2d 726, 728 (1997). "Generally,
this [c]ourt will not consider issues not raised to or ruled upon by the trial [court]."
State v. Williams, 303 S.C. 410, 411, 401 S.E.2d 168, 169 (1991). Exact phrasing
of the relevant legal doctrine is not necessary to preserve an issue when "it is clear
from the argument presented in the record that the motion was made on this
ground." State v. Russell, 345 S.C. 128, 132, 546 S.E.2d 202, 204 (Ct. App. 2001).
use of a deadly weapon" and clarifying "[t]he permissive inference charge
concerning the use of a deadly weapon remains a correct statement of the law
whe[n] the only issue presented to the jury is whether the defendant has committed
murder"), overruled in part by Burdette, 427 S.C. at 504-05, 832 S.E.2d at 583.
The Burdette opinion was not filed until after the parties here filed their briefs. In
advance of oral argument, this court requested the parties file memoranda
addressing its impact on this appeal. Franks argued that pursuant to the holding in
Burdette, the instruction was erroneous regardless of whether there was any
evidence to reduce, mitigate, excuse, or justify the homicide. The State reiterated
its preservation argument and argued any error was harmless. We find Franks
preserved the issue for appellate review. Franks objected during an off-the-record
sidebar after which the trial court acknowledged his objection but stated it would
include the inference of malice language in its charge. The trial court referenced
Belcher and reasoned the inference of malice instruction was appropriate "because
there[ wa]s no evidence tending to reduce the homicide to a voluntary or an
involuntary homicide." After the trial court charged the jury, Franks renewed his
objection "to the malice," which the court again overruled, referencing its earlier
ruling. The State acknowledged Franks objected to the inferred malice instruction
"for the reasons . . . [he gave] at the unrecorded sidebar." We find Franks timely
objected and the trial court ruled on the objection. Although Franks did not place
his specific grounds for objection on the record, we can infer from the trial court's
ruling that Franks argued that pursuant to Belcher an inferred malice charge was
improper when evidence is presented that would tend to reduce, mitigate, justify,
or excuse the homicide. This is the same argument Franks raised on appeal.
Further, we acknowledge the record does not show Franks argued that the charge
would be inappropriate regardless of the evidence. However, because we find
Franks objected to the instruction based on Belcher, and Burdette subsequently
extended Belcher, we find it was sufficient that Franks objected to the malice
instruction and the court ruled on the objection. See Johnson v. Roberts, 422 S.C.
406, 412, 812 S.E.2d 207, 210 (Ct. App. 2018) ("It cannot be said that [the
a]ppellant's arguments are clearly preserved. But in light of the foregoing, it also
cannot be said that Johnson's arguments are clearly unpreserved. In these
situations, 'whe[n] the question of issue preservation is subject to multiple
interpretations, any doubt should be resolved in favor of preservation.'" (quoting
Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 333, 730 S.E.2d,
282, 287 (2012) (Toal, C.J., concurring in part and dissenting in part))), aff'd, 427
S.C. 258, 830 S.E.2d 910 (2019). We therefore reach the merits of Franks's
argument.
Pursuant to Burdette, we find the trial court erred by instructing the jury that it
could infer malice from the use of a deadly weapon. See Burdette, 427 S.C. at
504-05, 832 S.E.2d at 583. Nevertheless, under the circumstances of this case, we
find the error was harmless beyond a reasonable doubt.
"[E]rroneous jury instructions[] are subject to harmless error analysis." Burdette,
427 S.C. at 496, 832 S.E.2d at 578 (quoting Belcher, 385 S.C. at 611, 685 S.E.2d at
809); see also State v. Brooks, 428 S.C. 618, 627, 837 S.E.2d 236, 241 (Ct. App.
2019) ("Most trial errors, even those [that] violate a defendant's constitutional
rights, are subject to harmless-error analysis." (alteration in original) (quoting State
v. Rivera, 402 S.C. 225, 246, 741 S.E.2d 694, 705 (2013))). "When considering
whether an error with respect to a jury instruction was harmless, we must
'determine beyond a reasonable doubt that the error complained of did not
contribute to the verdict.'" State v. Middleton, 407 S.C. 312, 317, 755 S.E.2d 432,
435 (2014) (quoting State v. Kerr, 330 S.C. 132, 144-45, 498 S.E.2d 212, 218 (Ct.
App. 1998)). Further, to determine whether an error in giving the instruction was
harmless, we must consider the jury charge as a whole. Burdette, 427 S.C. at 498,
832 S.E.2d at 580. "We must review the facts the jury heard and weigh those facts
against the erroneous jury charge to determine what effect, if any, it had on the
verdict." Kerr, 330 S.C. at 145, 498 S.E.2d at 218. "[O]ur inquiry is not what the
verdict would have been had the jury been given the correct charge, but whether
the erroneous charge contributed to the verdict rendered." Id. "[W]hether or not
the error was harmless is a fact-intensive inquiry." Middleton, 407 S.C. at 317,
755 S.E.2d at 435.
Considering the trial court's instruction as a whole and the facts the jury heard, we
find the erroneous instruction did not contribute to be verdict rendered. See Kerr,
330 S.C. at 144-45, 498 S.E.2d at 218 ("[T]o find the error harmless, we must
determine beyond a reasonable doubt that the error complained of did not
contribute to the verdict."). Here, the record contains no evidence the erroneous
instruction confused or misled the jury. Aside from the instruction challenged on
appeal, the trial court charged the jury that malice was the "intentional doing of a
wrongful act without just cause or excuse[] and with an intent to inflict an injury"
and that malice could be inferred from conduct showing a total disregard for
human life. The trial court did not charge any lesser-included offenses and the
record contains no evidence that would tend to reduce, mitigate, excuse, or justify
the homicide. Therefore, notwithstanding this was a circumstantial evidence case,
no conflicting evidence concerning the shooter's intent was presented.
Furthermore, the jury submitted three questions to the trial court during
deliberations and none of these concerned malice. Although we are mindful that
the instruction is now improper regardless of the evidence presented at trial, as
Franks points out, his defense focused on discrediting the State's theory that he was
the shooter and suggesting a third, unknown person may have committed the act.
However, the trial court did not allow Franks to present evidence of third-party
guilt at trial, and Franks did not appeal that ruling. We acknowledge malice is an
element of murder, meaning the State has the burden of proving that element
beyond a reasonable doubt. Nevertheless, because the pivotal question before the
jury in this case was whether Franks was the shooter and no evidence was
presented tending to reduce, mitigate, excuse, or justify the homicide, the
instruction was not misleading or confusing. Accordingly, we find, beyond a
reasonable doubt, the erroneous instruction did not contribute to the verdict and
does not require reversal.
Further, notwithstanding no evidence of an actual motive was presented and the
evidence against Franks was circumstantial, there was overwhelming evidence of
malice apart from the mere use of a deadly weapon. The victims were shot while
they were inside of their home, the crime scene investigator testified the
appearance of the room where they were found suggested a struggle had taken
place, and there was no evidence either victim had been armed. Several witnesses
testified concerning Franks's state of mind on the night of the shootings. Pulley,
Tevin, and Kinard all testified he was "loud" and "hyped" or "amped." Kinard
recalled Franks confronting James earlier that night about something James had
posted on social media, although according to Kinard, the tension appeared to have
resolved a short time later. According to Tevin and Kinard, Franks was the only
person who stayed behind with James and Leake, and Tevin testified that when
Franks found him later that night, Franks said "stuff went bad." Tevin stated
Franks then asked him to drive him to Greenville, but while they were on the way,
Franks asked him to go to Scurry's house in Fountain Inn instead. He recalled that
during the car ride back the next morning, Franks said, "[w]e got to get the guns
out the house." Tevin explained Franks told him to lie to police by telling them
that after he dropped Kinard off, he picked up Franks and they drove to Greenville.
Based on the foregoing, we find the evidence of malice was overwhelming such
that the erroneous inference of malice instruction was harmless beyond a
reasonable doubt.
CONCLUSION
Based on the foregoing, we conclude the trial court did not abuse its discretion by
admitting Sergeant Kelley's expert testimony and the erroneous jury instruction
was harmless beyond a reasonable doubt. Therefore, Franks's convictions are
AFFIRMED.
KONDUROS and HILL, JJ., concur.