State v. Plumer ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Ontavious Derenta Plumer, Appellant.
Appellate Case No. 2017-000481
Appeal From Greenwood County
Edward W. Miller, Circuit Court Judge
Opinion No. 5806
Heard February 11, 2020 – Filed March 3, 2021
AFFIRMED IN PART AND VACATED IN PART
E. Charles Grose, Jr., of Grose Law Firm, of Greenwood,
for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia; and Solicitor David Matthew Stumbo, of
Greenwood, Respondent.
LOCKEMY, C.J.: Ontavious Derenta Plumer appeals his convictions for
attempted murder and possession of a weapon during the commission of a violent
crime, arguing the trial court erred by (1) refusing to charge the jury on the law of
self-defense, (2) denying his motion to relieve trial counsel, (3) refusing to qualify
a witness as an expert in gunshot residue analysis, and (4) sentencing him to an
additional five years' imprisonment in addition to his sentence of life without
parole. We affirm in part and vacate in part.
FACTS
On October 11, 2015, Oshamar Wells was shot during the course of a drug
transaction. Wells later identified Plumer in a photographic lineup as the person
who shot him. In July 2016, Plumer was indicted for attempted murder, armed
robbery, and possession of a weapon during the commission of a violent crime. He
proceeded to a jury trial on February 6, 2017.1
At trial, Wells testified that he had arranged to meet two men, who were supposed
to purchase a pound of marijuana from him, around 6:00 p.m. on the evening of
October 11.2 Wells explained someone he knew setup the deal, he had never met
the men before, and he did not know their names. Wells testified he planned to
meet the two men at a convenience store in Greenwood and then have them follow
him to his cousin's residence because the men were unfamiliar with the area. The
men followed Wells in their black Mercedes and parked behind him in the
driveway.3 After they arrived at the home, they smoked marijuana so that the two
men could "try the product" before proceeding with the purchase. Wells explained
that after some time passed, he began to wonder when the men were going to pull
out cash to pay for the marijuana. Plumer pulled out a gun instead. Wells testified
that as soon he saw what Plumer was doing, he turned around and retrieved a
handgun from the cabinet behind him.4 He stated he shot at Plumer in defense of
his life. Wells explained that Plumer then began firing at him and recalled he was
"already getting hit when [he] reached to grab the gun out of the cabinet. And
from the[n on, he] just returned fire." Wells stated that after the shooting began,
the third man got up, took the marijuana, and ran. Wells did not recall seeing the
1
Prior to trial, the State served Plumer with a notice of intent to seek life
imprisonment without the possibility of parole based on his previous conviction for
a most serious offense. See S.C. Code Ann. § 17-25-45(A)(1)(a) (2015) (providing
that "upon a conviction for a most serious offense . . . a person must be sentenced
to a term of imprisonment for life without the possibility of parole if that person
has . . . one or more prior convictions for . . . a most serious offense"); S.C. Code
Ann. § 17-25-45(C)(1) (2015 & Supp. 2020) (stating offenses defined as "most
serious" include attempted murder and attempted armed robbery).
2
Wells testified a pound of marijuana carried a street value of about $3,600.
3
No one else was present at the home when the three men arrived.
4
Wells testified the gun belonged to his mother and he saw her place the holstered
gun there earlier that day.
third man with a gun. Wells testified that as he returned fire at Plumer, Plumer
continued to fire at him while backing out of the door.
Bullets struck Wells in his back, buttocks, and legs. He testified that as soon as the
men were gone, he called his mother and an ambulance. Wells was taken to the
local hospital in Greenwood, where Dr. Ricky Ladd treated him for his gunshot
injuries. Dr. Ladd testified Wells was admitted with potentially life-threatening
injuries. He explained Wells suffered six gunshot wounds consisting of wounds to
the left upper buttock, the lower back region, the left anterior thigh, the right lateral
thigh, and an entrance and exit wound to the left lower leg.
The same night, Plumer received treatment at Greenville Memorial Hospital for a
gunshot wound to his kneecap. A Greenville County law enforcement officer
interviewed him at the hospital that evening. Plumer told the officer that as he was
walking down the street after leaving a friend's apartment in Greenville, a man he
did not know approached him from behind and started shooting at him. Plumer
stated he ran away when the shooting started. The officer testified that, at the time,
law enforcement had no reason to suspect Plumer had fired a gun that night.
Wenona Wells, Wells's mother, testified the gun in the cabinet, which she
identified at trial, belonged to her. She explained that when she went to the home
the night of the shooting, her young grandson was with her and he found and
picked the gun up off the floor. Ms. Wells testified she took the gun from him and
when they left, she placed it in the trunk of her car. However, she testified she did
not know Wells had used it during the altercation. Ms. Wells stated that about
three days later, she turned the gun over to law enforcement at Wells's request.
Wells acknowledged that when law enforcement first approached him, he was not
forthcoming because he was afraid they would charge him with selling drugs.
Investigator William Kay, of the Greenwood Police Department, testified he took a
statement from Wells the day after the shooting. Investigator Kay stated that in his
first statement to law enforcement, Wells said that "two random guys came in the
front door and tried to rob him" while he was sitting at his kitchen table and "ended
up shooting him." He testified Wells gave a second statement to law enforcement
in which he explained that he met two men to sell them marijuana, that they ended
up trying to rob him, that he reached for a gun to defend himself, and that they
began shooting and he returned fire. Law enforcement showed Wells a
photographic lineup and he selected Plumer from the lineup as the person who shot
him.
Thereafter, law enforcement arrested Plumer, and Plumer gave a statement
admitting he was at the residence at the time of the incident and had also been shot.
In addition, Greenwood officers determined the Mercedes parked behind Wells's
car in the driveway belonged to Plumer's grandfather, who had loaned it to Plumer
on the night of the shooting, and a blood sample retrieved from the sidewalk in
front of the home matched Plumer's DNA profile.
Plumer did not testify at trial, but he called several defense witnesses. Shameka
Hawes testified that on the evening of the shooting, she was sitting in her car when
Plumer ran up to her and asked for a ride to the hospital. She stated she could see
he had been shot. Hawes explained that on the way to the hospital, Plumer asked
her to drop him off at his baby's mother's apartment instead. Hawes stated she did
not know Plumer before this encounter and never saw him again afterwards.
Plumer's cousin, Vanjarvis Martin, testified that on October 11, 2015, he picked
Plumer up from his baby's mother's house and drove him to the hospital. Martin
stated Plumer did not want to go to the Greenwood hospital, so he drove him to
Greenville Memorial Hospital instead.
Deputy Wesley Smith, of the Greenville County Sheriff's Office, testified the
sheriff's office performed a gunshot residue collection kit on and collected some
evidence, including clothing, from Plumer at approximately 11:15 p.m. on October
11, 2015. He recalled that some of the evidence was covered in blood. Deputy
Smith stated that between the time Plumer was admitted to the hospital at 10:55
p.m. and when he was released, there was a period of up to twenty-five minutes
during which no one from law enforcement was with him. Deputy Smith
explained the sheriff's office never completed an examination of the evidence and
ultimately transferred it to Detective McClinton a few months later. The defense
recalled Detective McClinton, who confirmed he received this evidence but it was
never sent to the South Carolina Law Enforcement Division for analysis.
Joseph Best, a private detective hired by the defense, testified he collected the
evidence from the Greenwood Police Department on January 6, 2017, and
transferred it to Dr. Robert Bennett on January 10, 2017. Best testified the
evidence included a gunshot residue kit that was collected from Plumer's hands, a
tennis shoe, jeans, and a tee shirt.
The defense then called Dr. Robert Bennett, who testified he was a forensic
scientist and held a pharmacy degree and a doctorate in drug sciences with a focus
in toxicology. He stated he had "a number of training certifications from the
Department of Justice, [including] a couple in the are[a] of firearms." Dr. Bennett
explained that the firearms training included "looking at a variety of subjects such
as different types of ballistics, which include[d] gunshot residue analysis" and that
he was "familiar" with gunshot residue and had "learned to test gunshot residue."
Dr. Bennett explained that he worked with a lab that performed gunshot residue
analysis as one of their "basic core service provisions." He admitted he had never
personally performed a gunshot residue test and was instead interpreting the results
of the test the lab performed. The State objected to Dr. Bennett's qualification, and
the court refused to qualify him as an expert witness. Plumer did not attempt to
proffer Dr. Bennett's testimony.
At the close of the defense's case, Plumer renewed his motion for a directed
verdict, which the trial court denied. Plumer requested a jury charge on the law of
self-defense, which the trial court denied, finding there was "insufficient evidence
from which a reasonable inference could be drawn" that Plumer acted in
self-defense.
The jury acquitted Plumer of armed robbery but found him guilty of attempted
murder and possession of a weapon during the commission of a violent crime.
Plumer moved for a new trial, arguing the jury returned an inconsistent verdict.
The trial court denied the motion and sentenced Plumer to life imprisonment
without parole for attempted murder and five years' imprisonment for the weapon
offense. This appeal followed.
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. Self-Defense Instruction
Plumer argues the trial court erred by refusing to instruct the jury on the law of
self-defense. He contends the following facts would have supported an inference
that Wells was the first person to introduce a firearm and was therefore responsible
for bringing on the difficulty: (1) Wells admitted he was prepared to use his gun
during the drug transaction and placed himself in a position that would allow him
to stand up and reach his gun; (2) according to Investigator Kay, Wells stated he
reached for his gun before Plumer fired any shots; (3) according to Dr. Ladd, Wells
would have fallen down when the bullet struck his femoral neck, meaning he stood
up and retrieved his handgun before Plumer fired that shot; (4) Wells and Ms.
Wells conspired to hide the gun and cover up his culpability; (5) Plumer retreated
from the violence; and (6) the jury acquitted Plumer of armed robbery, which
removed the motive to commit murder. We disagree.
"A self-defense charge is not required unless it is supported by the evidence."
State v. Light, 378 S.C. 641, 649, 664 S.E.2d 465, 469 (2008). "If there is any
evidence in the record from which it could reasonably be inferred that the
defendant acted in self-defense, the defendant is entitled to instructions on the
defense, and the trial judge's refusal to do so is reversible error." State v. Slater,
373 S.C. 66, 70, 644 S.E.2d 50, 52 (2007).
To establish self-defense in South Carolina, four
elements must be present: (1) the defendant must be
without fault in bringing on the difficulty; (2) the
defendant must have been in actual imminent danger of
losing his life or sustaining serious bodily injury, or he
must have actually believed he was in imminent danger
of losing his life or sustaining serious bodily injury; (3) if
his defense is based upon his belief of imminent danger,
defendant must show that a reasonably prudent person of
ordinary firmness and courage would have entertained
the belief that he was actually in imminent danger and
that the circumstances were such as would warrant a
person of ordinary prudence, firmness, and courage to
strike the fatal blow in order to save himself from serious
bodily harm or the loss of his life; and (4) the defendant
had no other probable means of avoiding the danger.
Id. at 69-70, 644 S.E.2d at 52; see also State v. Muller, 282 S.C. 10, 10, 316 S.E.2d
409, 409 (1984) (holding when the defendant testified he shot the victim after the
victim "took out a gun and began shooting at him," the trial court erred by refusing
to charge the law of self-defense because the defendant's testimony "constituted
sufficient evidence from which the jury could infer that [he] acted in
self-defense"); State v. Smith, 406 S.C. 547, 555, 752 S.E.2d 795, 798 (Ct. App.
2013) (stating that "going to a drug deal while armed with a deadly weapon is
evidence of fault in bringing on the difficulty"); State v. Jackson, 227 S.C. 271,
278, 87 S.E.2d 681, 684 (1955) (stating "one cannot through his own fault bring on
a difficulty and then claim the right of self-defense").
In Slater, our supreme court found there was no evidence to show the defendant
was "without fault in bringing on the difficulty" and he was therefore not entitled
to a self-defense instruction. 373 S.C. at 71, 644 S.E.2d at 53. There, the court
concluded the defendant's actions of carrying a "cocked weapon, in open view, into
an already violent attack in which he had no prior involvement . . . . proximately
caused the exchange of gunfire, and ultimately the death of the victim." Id.We conclude the trial court did not err by refusing to charge the law of self-defense
because the record contains no evidence that Plumer was without fault for bringing
on the difficulty. See Light, 378 S.C. at 649, 664 S.E.2d at 469 ("A self-defense
charge is not required unless it is supported by the evidence."); State v. Goodson,
312 S.C. 278, 280, 440 S.E.2d 370, 372 (1994) ("The law to be charged to the jury
is determined by the evidence presented at trial."); Light, 378 S.C. at 649, 664
S.E.2d at 469 (providing self-defense requires the defendant to "be without fault in
bringing on the difficulty"). Of the three individuals present when the shooting
occurred, only Wells testified at trial. Although it is undisputed Wells fired a gun
during the encounter, he consistently testified Plumer was the first to draw and fire
a gun. The record contains no evidence to contradict Wells's testimony that he
stored a holstered handgun in a cabinet prior to the meeting and did not retrieve it
until after Plumer pulled out a gun. Further, the record contains no evidence Wells
was visibly armed or that Plumer knew Wells had a gun nearby when Plumer
pulled out his own gun. Wells stated he shot at Plumer because Plumer was
shooting at him and that if Plumer had not pulled out his gun first, he would not
have retrieved the gun from the cabinet. Even though Wells's treating physician
agreed the gunshot injury to his hip would likely have caused him to fall
immediately, he testified it was impossible to determine which of Wells's gunshot
injuries occurred first or otherwise discern the timing of those injuries. In addition,
Wells testified that bullets were already striking him when he turned to retrieve the
gun from the cabinet. As to Investigator Kay's testimony, he testified only that
Wells initially told law enforcement that two random men came into his home,
tried to rob him, and ended up shooting him. This testimony does nothing to
suggest Wells, rather than Plumer, was at fault for bringing on the difficulty. As to
Plumer's contention that Wells and Ms. Wells conspired to hide the gun, Wells
admitted he initially withheld the truth from law enforcement because he was
afraid he would get in trouble for dealing marijuana, and he admitted to shooting a
gun that night. Further, Ms. Wells explained she took possession of the gun the
night of the shooting because it belonged to her; she was concerned for the safety
of her young grandson, who had just picked the gun up off of the floor; she did not
know it was involved in the shooting; and she was most concerned with Wells's
condition at the time. In addition, Ms. Wells testified she turned the gun over to
law enforcement within days of the incident. Regardless, the suggestion that Wells
conspired to hide the gun made it no more or less likely that Wells was the first to
present a gun or that Plumer was without fault in bringing on the difficulty.
Next, as to Plumer's contention he retreated from the violence, the evidence shows
he only did so after firing his gun multiple times. Moreover, such facts pertain to
whether he had a means of avoiding the danger rather than whether he was at fault
for bringing on the difficulty. Finally, we find Plumer's argument regarding his
acquittal for the charge of armed robbery is without merit. The lack of motive to
commit murder is not an element of self-defense, nor does it negate Wells's
testimony that Plumer drew a gun without any prior act of provocation or
aggression on Wells's part.
Based on the foregoing, we find the only evidence presented at trial suggested that
Plumer was at fault for bringing on the difficulty. Therefore, the record contained
no evidence from which a jury could have inferred Plumer acted in self-defense,
and we find the trial court did not err by refusing to give a self-defense instruction.5
II. Motion to Relieve Trial Counsel
Plumer argues the trial court should have treated his insistence to relieve his trial
counsel as a motion to represent himself and the court denied him his Sixth
Amendment right to represent himself by permitting counsel to continue
representing him. We disagree.
"A South Carolina criminal defendant has the constitutional right to represent
himself under both the federal and state constitutions." State v. Barnes, 407 S.C.
27, 35, 753 S.E.2d 545, 550 (2014). Thus, "[a]n accused may waive the right to
counsel and proceed pro se." State v. Winkler, 388 S.C. 574, 586, 698 S.E.2d 596,
602 (2010); see also Faretta v. California, 422 U.S. 806 (1975) (holding a criminal
defendant has the right to waive his right to counsel and proceed pro se when he
chooses to do so voluntarily and intelligently). "The request to proceed pro se
must be clearly asserted by the defendant prior to trial." Winkler, 388 S.C. at 586,
5
We note Plumer asserts the trial court inappropriately involved itself in plea
negotiations. Because Plumer raised no exception on this basis at trial, this
argument is unpreserved for our review. See State v. Dunbar, 356 S.C. 138, 142,
587 S.E.2d 691, 693-94 (2003) ("Issues not raised and ruled upon in the trial court
will not be considered on appeal.").
698 S.E.2d at 602 (quoting State v. Fuller, 337 S.C. 236, 241, 523 S.E.2d 168, 170
(1999)); see also Barnes, 407 S.C. at 35, 753 S.E.2d at 550 ("So long as the
defendant makes his request prior to trial, the only proper inquiry is that mandated
by Faretta.").
Here, Plumer informed the court on the morning of the third day of trial that he
wished to relieve his trial counsel and presented a written motion to relieve counsel
or, in the alternative, for a competency evaluation. After the court confirmed
Plumer had no competency issues, Plumer stated he wished to relieve counsel and
find another lawyer. He alleged his trial counsel failed to relay a plea offer of
seven years' imprisonment and he was unaware he faced a mandatory sentence of
life without parole. Plumer's counsel denied this, and the trial court refused to
suspend the trial to allow Plumer to hire new counsel.
We find Plumer did not clearly assert his right to self-representation. Plumer's
written motion was styled as a "motion declining or terminating representation,"
and he told the trial court he wanted another lawyer. We acknowledge Plumer
argued he had "a constitutional right to relieve [his] lawyer when [he] want[ed] to
relieve him"; however, he never stated he wished to represent himself for the
remainder of the trial. Rather, he repeatedly stated he wanted to hire a different
lawyer. Because we conclude Plumer failed to clearly assert his right to proceed
without counsel, Faretta warnings were not required, and the trial court did not
deprive Plumer of his right to self-representation.
III. Expert Witness
Plumer argues the trial court erred by refusing to allow Dr. Bennett to testify as an
expert in gunshot residue. He contends the record established Dr. Bennett had the
necessary education, training, and experience to testify as an expert and the
exclusion of this expert testimony denied Plumer his constitutional right to a
complete defense. We find Plumer failed to preserve this issue for appellate
review.
"The trial court's decision to admit expert testimony will not be reversed on appeal
absent an abuse of discretion." State v. Price, 368 S.C. 494, 498, 629 S.E.2d 363,
365 (2006). "An abuse of discretion occurs when the trial court's ruling is based on
an error of law or a factual conclusion that is without evidentiary support." Id."For an error to warrant reversal, however, the error must result in prejudice to the
appellant." State v. Santiago, 370 S.C. 153, 162, 634 S.E.2d 23, 28 (Ct. App.
2006).
We find this issue is unpreserved for appellate review because Plumer made no
request or attempt to proffer Dr. Bennett's testimony at trial. See id. at 163, 634
S.E.2d at 29 ("[A] proffer of testimony is required to preserve the issue of whether
testimony was properly excluded by the trial judge, and an appellate court will not
consider error alleged in the exclusion of testimony unless the record on appeal
shows fairly what the excluded testimony would have been."); see also State v.
King, 367 S.C. 131, 137, 623 S.E.2d 865, 868 (Ct. App. 2005) ("The reason for the
rule requiring a proffer of excluded evidence is to enable the reviewing court to
discern prejudice.").
IV. Sentencing
Plumer argues the trial court erred by sentencing him to an additional five years'
imprisonment for the weapons charge pursuant to section 16-23-490. We agree.
If a person is in possession of a firearm or visibly
displays what appears to be a firearm . . . during the
commission of a violent crime and is convicted of
committing or attempting to commit a violent crime as
defined in Section 16-1-60, he must be imprisoned five
years, in addition to the punishment provided for the
principal crime. This five-year sentence does not apply
in cases where the death penalty or a life sentence
without parole is imposed for the violent crime.
S.C. Code Ann. § 16-23-490(A) (2015) (emphasis added); see also S.C. Code Ann.
§ 16-1-60 (2015 & Supp. 2020) (defining attempted murder as a violent crime).
"[T]his Court has consistently held that a challenge to sentencing must be raised at
trial, or the issue will not be preserved for appellate review." State v. Johnston,
333 S.C. 459, 462, 510 S.E.2d 423, 425 (1999), disapproved of by State v. Vick,
384 S.C. 189, 682 S.E.2d 275 (Ct. App. 2009). In Johnston, our supreme court
vacated an illegal sentence notwithstanding preservation rules. See id. at 463-64,
510 S.E.2d at 425. There, the court found there were exceptional circumstances in
that the State conceded "the trial court committed error by imposing an excessive
sentence," and there was a "real threat" that the defendant would "remain
incarcerated beyond the legal sentence due to the additional time it w[ould] take to
pursue [post-conviction relief]." Id.In Vick, this court acknowledged the holding in Johnston, but addressed the
sentencing issue even though there was no "threat" that the appellant would
"remain incarcerated beyond the legal sentence." Vick, 384 S.C. at 202-03, 682
S.E.2d at 281-82. The court reasoned, "[O]ur courts have, in the past, 'summarily
vacated' sentences for kidnapping whe[n] such sentences were precluded by
[statute] because the defendant received a concurrent sentence under the murder
statute." Id. at 202, 682 S.E.2d at 282. The court also noted that "our courts have
at times considered an issue in the interest of judicial economy." Id. In Vick, we
held:
[B]ecause the State concede[d] the kidnapping sentence
was erroneously imposed, and in light of the fact our
courts recognize there may be exceptional circumstances
allowing the appellate court to consider an improper
sentence even though no challenge was made to the
sentence at trial and have further summarily vacated in
matters such as the one at hand, in the interest of judicial
economy we vacate the clearly erroneous kidnapping
sentence.
Id. at 203, 682 S.E.2d at 282.
In Bonner, we vacated a defendant's sentence notwithstanding preservation rules
when both parties fully briefed the issue, and we stated, "[T]his case presents an
exceptional circumstance because the State concedes in its brief that the trial court
committed error by imposing an improper sentence." See State v. Bonner, 400 S.C.
561, 567, 735 S.E.2d 525, 528 (Ct. App. 2012).
Plumer was convicted of attempted murder, a violent crime under section 16-1-60.
The trial court sentenced him to life without parole for attempted murder and an
additional five years' imprisonment for possession of a weapon during the
commission of a violent crime. See § 16-23-490(A) (providing the five-year
sentence required for possessing a firearm during the commission of a violent
crime does not apply when the trial court imposes a sentence of life imprisonment
without parole for the violent offense). Although the State argues the issue is
unpreserved because Plumer failed to object at trial, it concedes the trial court
erred by imposing the five-year sentence and acknowledges that under certain
circumstances, our appellate courts have decided such issues on the merits
notwithstanding preservation rules. The State argues, however, that the
appropriate procedure for raising the issue is in post-conviction relief. Although
there is no "real threat" Plumer will remain incarcerated beyond the length of his
legal sentence, because the State concedes error, we believe it is appropriate under
these circumstances and as a matter of criminal equity to vacate the sentence
pursuant to our holdings in Bonner and Vick. See Bonner, 400 S.C. at 567, 735
S.E.2d at 528 (opining a "case present[ed] an exceptional circumstance because the
State concede[d] in its brief that the trial court committed error by imposing an
improper sentence"). We therefore vacate the five-year sentence Plumer received
for the weapons charge.
CONCLUSION
For the foregoing reasons, we affirm Plumer's convictions but vacate the trial
court's imposition of the five-year sentence for the weapons charge.
AFFIRMED IN PART AND VACATED IN PART.
GEATHERS and HEWITT, JJ., concur.