State v. Flynn

• Court: Court of Appeals of South Carolina
• Decided: January 6, 2003
• Docket: 2003-UP-004
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Michael Brian Flynn,        Appellant.

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Appeal From Charleston County
Luke N. Brown, Jr., Circuit Court Judge

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Unpublished Opinion No. 2003-UP-004
Submitted October 22, 2002 – Filed January 6, 2003

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AFFIRMED

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Deputy Chief Appellate Defender Joseph L. Savitz, III, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka; Assistant Attorney General S. Creighton Waters, all of Columbia; and Solicitor Ralph E. Hoisington, of N. Charleston, for respondent.

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PER CURIAM:  Michael Brian Flynn was convicted of murder, assault and battery with intent to kill, first-degree burglary, armed robbery, and criminal conspiracy.  Flynn was sentenced to life imprisonment without the possibility of parole for murder, assault and battery with intent to kill, first-degree burglary, and armed robbery, and five years for conspiracy, all to run concurrently.  Flynn appeals arguing the trial court: (1) violated his due process rights by allowing repeated references to Flynn by the pejorative nickname “Creep” and (2) erred in admitting evidence that Flynn was affiliated with the Crips gang because the prejudicial effect of the evidence far outweighed its probative value.

FACTUAL/PROCEDURAL BACKGROUND

The State presented the following evidence in support of the conviction.  Flynn was a member of the Folks gang, a gang closely associated with the Crips gang.  On May 3, 1999, Flynn and several gang members were at the home of the leader of the local Crips gang, planning the robbery of a house they believed belonged to a drug dealer who was known to keep large sums of money.  Part of the reason for the robbery was to obtain $5,000 needed to bond the Crips gang leader out of jail.

Late in the evening, Flynn and five other people, some of whom were known gang members, drove to the house they believed belonged to the drug dealer.  Flynn and two others exited the cars and placed bandanas over their faces while walking to the house.  According to the testimony, the bandanas were the gang colors.

Two adult males, one adult female, and one child were inside the house.  One of the two people with Flynn removed the bandana from his face and knocked on the door.  After a brief conversation with the person who answered the door, all three assailants burst into the house.  The two male victims were hit by gunfire.  The assailants demanded money and drugs.  One of the male victims offered to walk the assailants through the house to prove that there was no money in the house.  This act allowed the other male victim to escape.  After looking in the rear of the house, the assailants walked the remaining male victim back to the living room where he was shot approximately ten times.  He died of these wounds. 

At a joint trial with codefendant Robert Antonio Sneed, both were convicted of murder, assault and battery with intent to kill, first-degree burglary, armed robbery, and criminal conspiracy.  Flynn appeals.

DISCUSSION

I. Use of nickname

On appeal, Flynn first argues the trial court violated his due process rights by allowing repeated references to his pejorative nickname, “Creep.”

At trial, the “use of a nickname can deprive the defendant of due process if the use of the nickname is so excessive and repetitious as to infect the entire trial with unfairness.” State v. Day, 341 S.C. 410, 423, 535 S.E.2d 431, 438 (2000) (holding the use of the nickname “Outlaw” was used repeatedly by the solicitor for no other reason than to attack the defendant’s character); see Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (holding the defendant is entitled to relief when the trial is “so infected . . . with unfairness as to make the resulting conviction a denial of due process”).  The determination of a due process violation is based on an “examination of the entire proceedings.” Donnelly, 416 U.S. at 643; see State v. White, 246 S.C. 502, 505-06, 144 S.E.2d 481, 482 (1965) (holding the decision as to whether the defendant was prejudiced by language used so as to deny him a fair and impartial trial is based on a review of the whole case).  In deciding whether a defendant’s due process rights were violated, “[e]vidence concerning a defendant’s . . . nickname is not prejudicial when used to prove something at issue in a trial, such as the identification of the defendant.”  Day, 341 S.C. at 422, 535 S.E.2d at 437; see State v. Tubbs, 333 S.C. 316, 321, 509 S.E.2d 815, 818 (1999) (holding the solicitor’s clarification of the person referenced when a witness called a person by a nickname was justified to establish identity).

Flynn is known by the nickname “Creep.”  At trial, three of the seven witnesses who personally knew Flynn referred to him throughout their testimony by his nickname. [1]

Flynn was indicted as “Michael Brian Flynn AKA Creep.”  At the beginning of trial, the trial judge identified Flynn by his nickname on two occasions during voir dire.  The judge, the solicitor, and the co-defendant’s counsel referred to Flynn as Creep on sixteen occasions in approximately 950 pages of testimony.  In addition, during cross examination of one of the State’s witnesses, Flynn’s attorney asked, “What about all of these statements you said were made in front of you so that you could tell them today about Creep said this, Creep said that, Creep did this, Creep did that.” 

The solicitor referred to Flynn as Creep in seven of his questions.  In three of those questions, the solicitor was clarifying the person to whom the witness was referring, as in the following testimony:

          SOLICITOR: Okay. Anybody else there?

          Witness: Um, Creep was, Mickey.

          SOLICITOR: When you say Creep, who are you referring to?

          Witness: Michael Flynn.

In the four instances where the solicitor was not seeking to clarify Flynn’s identity when using his nickname, the solicitor did not attempt to exploit any negative connotation associated with it and did not ask any questions as to why Flynn was referred to as Creep. [2] See Day, 341 S.C. at 422-23, 535 S.E.2d at 438-39 (holding it was reversible error for the solicitor to repeatedly refer to the defendant by his nickname, “Outlaw,” during her closing argument to paint a picture of the defendant as someone who was proud of breaking the law).

In addition, the solicitor did not use Flynn’s nickname in either opening statement or closing argument. See State v. Hawkins, 292 S.C. 418, 420-22, 357 S.E.2d 10, 12-13 (1987) (holding the trial was infected with unfairness when the solicitor used the nickname “Mad Dog” to refer to the defendant on countless occasions during voir dire, trial, closing, and sentencing).

The introduction of  Flynn’s acknowledged nickname as “Creep” was proper for identification purposes.  Most of the attorneys’ references to the nickname clarified witnesses’ testimony, and none were obviously used to emphasize the name in an attempt to disparage Flynn.  Looking at the entire transcript, we conclude the use of the nickname did not infect the proceeding with unfairness so as to deprive Flynn of a fair trial. See Tubbs, 333 S.C. at 321-22, 509 S.E.2d at 818 (holding solicitor’s reference to the defendant’s nickname did not infect the entire trial with unfairness as it was used only seven times and in one of the instances it was used to establish identity).

II. Evidence of gang affiliation

Flynn next argues the trial court erred in allowing the introduction of evidence that Flynn was affiliated with the Crips gang because the prejudicial effect of the evidence far outweighed its probative value. [3]

Evidence of other crimes or bad acts

is admissible . . . when it tends to establish motive, identity, a common scheme or plan, the absence of mistake or accident, or intent.  In addition, 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.  Finally, even if the evidence meets the above criteria, the trial judge must exclude it if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant.

State v. Beck, 342 S.C. 129, 135-36, 536 S.E.2d 679, 682-83 (2000) (internal citations omitted); Rule 404(b), SCRE; Rule 403, SCRE; State v. Ford, 334 S.C. 444, 453, 513 S.E.2d 385, 389 (Ct. App. 1999) (“Unfair prejudice does not mean the damage to a defendant's case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.”). A trial court’s decision regarding the comparative probative value versus prejudicial effect of evidence should be reversed only in exceptional circumstances.  State v. Hamilton, 344 S.C. 344, 357, 543 S.E.2d 586, 593 (Ct. App. 2001); see State v. Alexander, 303 S.C. 377, 380 , 401 S.E.2d 146, 148 (1991) (holding evidentiary rulings by the trial court will not be reversed on appeal absent an abuse of that discretion).

As to the first prong, the evidence of Flynn’s gang affiliation demonstrated motive.  Flynn was a member of the Folks gang, a gang closely associated with the Crips gang according to the testimony.  When Flynn and others began planning the robbery they were at the house of the leader of the local Crips gang, plotting a way to obtain enough money to bond the gang leader out of jail.  The plan to raise money for the leader of the gang demonstrated the motive for the robbery and thus was a proper reason to allow information about Flynn’s gang affiliation into evidence. See State v. Beck, 342 S.C. 129, 135-36, 536 S.E.2d 679, 682-83 (2000); Rule 404(b), SCRE; Rule 403, SCRE; State v. Ford, 334 S.C. 444, 453, 513 S.E.2d 385, 389 (Ct. App. 1999).

In addition, the evidence corroborated the testimony of the victims who said that two assailants wore bandanas as masks during the attack.  Flynn’s confederates testified that Flynn wore a bandana the night of the robbery and that he often wore the bandana that signified his gang colors.  Thus, Flynn’s possession of an item worn in the robbery was relevant to show identity. [4]

Flynn does not argue on appeal that the reference to his gang affiliation was not logically related to the crime committed and was not proven by clear and convincing evidence.  Moreover, even if this second prong had been argued, Flynn’s gang affiliation logically relates to the armed robbery as it is relevant to the motive for the robbery.  Furthermore, because at least four witnesses testified that Flynn was in some way affiliated with a gang during the planning and commission of the crimes, there was evidence to support the trial judge’s conclusion that clear and convincing evidence was presented on this point. [5] See State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001).  

Finally, the trial court concluded there was no danger of unfair prejudice to Flynn from this evidence.  Therefore, the trial court did not abuse its discretion in admitting evidence as to Flynn’s affiliation with the Crips gang. See State v. Braxton, 343 S.C. 629, 634, 541 S.E.2d 833, 835-36 (2001) (holding probative value substantially outweighed possibility of prejudice when the identity of the user of the murder weapon was crucial); Ford, 334 S.C. at 452, 513 S.E.2d at 389 (holding evidence of a prior crime against victim was “highly probative” when defendants disputed State’s allegations of motive and intent). 

CONCLUSION

For the foregoing reasons, the trial court’s decision is

AFFIRMED. ^[6]

CONNOR, STILWELL, and HOWARD, JJ., concur.

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[1] Two of these witnesses used nicknames to refer to numerous associates throughout their testimony.  As to Flynn’s nickname, one of the male witnesses referred to Flynn as Creep on approximately seven occasions.  One of the female witnesses made the vast majority of references to Flynn as Creep, calling him by his nickname on approximately forty-five occasions.

[2] The four questions asked by the solicitor are as follows: “Do you know what Mr. Flynn’s nickname is?”; “Okay, how do you know Creep and Joby had guns?”; “So you were aware when Creep was on the telephone call, I mean telephone?”; and “Creep said what?”.  The first question was asked on redirect after the codefendant’s counsel had used the nickname in a question without identifying to whom the nickname referred.  The other three questions immediately followed the use of the nickname by the witness.

[3] In Flynn’s brief, counsel stated, “Finally, reference to a defendant’s involvement with a gang may violate the First Amendment. See Dawson v. Delaware, 503 U.S. 159 (1992).”  This issue is not properly presented for appeal. See Rule 208(b)(1)(D), SCACR (stating the brief of the appellant must contain a discussion of the issue with citations of authority).

[4] Evidence of gang affiliation was also properly used by the prosecution to explain a prior inconsistent statement by one of its witnesses.  The testimony of the witness explained why the witness lied in his first statement to police, falsely implicating someone that he later admitted was not involved in the robbery.  The witness explained that he had falsely implicated the individual as retribution because the individual had sent a blue Bible wrapped in a red bandana to the gang leader’s home.  The witness explained that this was considered by the gang to be an act of “total disrespect.” 

[5] Only one of the witnesses mentioned Crips as the name of the gang.

^[6] Because oral argument would not aid the Court in resolving any issue on appeal, we decide this case without oral argument pursuant to Rule 215 and 220(b)(2), SCACR.