State v. Hurell

818 S.E.2d 21, 424 S.C. 341
CourtCourt of Appeals of South Carolina
DecidedAugust 1, 2018
DocketAppellate Case No. 2016-000275; Opinion No. 5584
StatusPublished
Cited by3 cases

This text of 818 S.E.2d 21 (State v. Hurell) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hurell, 818 S.E.2d 21, 424 S.C. 341 (S.C. Ct. App. 2018).

Opinion

SHORT, J.:

**346Tashon Earl Hurell appeals his convictions of attempted murder, armed robbery, and kidnapping, arguing the trial court erred by 1) refusing to direct verdicts, 2) admitting irrelevant testimony regarding his brother, 3) admitting irrelevant evidence regarding shoes, 4) admitting evidence of his laughter when shown a photograph, and 5) refusing to declare a mistrial. We affirm.

BACKGROUND FACTS

Mary Pecorora (the victim) testified she was working the night shift at the Kangaroo convenience store in Summerville on April 23, 2014. While in the bathroom to get supplies, she heard the store buzzer, indicating someone had entered the store. As she approached the front door, someone came around a corner, yelled at her, and hit her in the head with a bat. The perpetrator wore a mask, told her, "You gonna get it[,] *itch," and threatened to cut her throat. The victim testified the perpetrator grabbed her by the neck, dragged her to the cash register, and forced her to open it. He grabbed the money, jumped over the counter, and left. The victim described the perpetrator as approximately 5' 10? or 5' 11?, "kind of slender," and African American. She testified he was wearing a ski mask, a bandana, a hooded jacket, gloves, and red shoes. The victim called 911, and officers responded. The victim's injuries required facial and sinus surgeries.

Bernard Nelson of the Summerville Police Department testified he responded to the 911 call. Nelson took numerous photographs of the scene, including photos of a footprint on the counter. Nelson also viewed the store's video surveillance tape. Based on the victim's description and the videotape, Nelson passed a description to other police units of a "black male subject wearing a light hoodie with ... multi-colored graphic designs on the front. Bright lime green hoodie, black pants, red shoes, black gloves, dark colored bandanna over his face." Nelson also testified the suspect was of medium build, had a husky voice, and was carrying a baseball bat.

Hobie Williams, then of the Summerville Police Department, testified he was a K-9 handler on the night of the robbery. He *24arrived at the scene and deployed his dog near the rear of the store to track the freshest human odor to be **347found. The canine tracked to apartments near the store. There is a footpath between the locations, and it takes between thirty and ninety seconds to walk the path. Williams and another officer walked around the first building of the apartment complex and spoke to a male, who was outside on his upper level balcony. The male reported seeing a black male running from around the building carrying a baseball bat and wearing a dark tee shirt, baseball cap, and dark shorts. He also reported the man jumped the balcony beneath his, drove away in a white Mustang, returned, jumped the balcony again, and left a second time in the Mustang. The witness had never before seen the car at the apartment complex.

Williams testified he saw a dollar bill laying on the ground in the balcony area1 of the lower unit. Although the ground was wet, the bill was dry and appeared to have blood on it. Williams testified he went into the building and made contact with the occupant of the unit in question. Hurell's sister, Tashima Jones, answered the door. Jones permitted Williams to retrieve the dollar bill from her balcony. Hurell's brother, Traquan, was also in the apartment. Williams identified the dollar bill during the trial.

Lucas Hartman testified he was the man interviewed by Williams. Hartman testified he was on his balcony at approximately 1:30 a.m. when he saw a man wearing black shorts and carrying a baseball bat and backpack approaching from behind the building across from Hartman's building. The men nodded at each other. Hartman next witnessed the man jump over the balcony beneath his balcony. Hartman heard the door open and close before the man came back out, drove away in a white Mustang, returned, and did the "same exact thing." According to Hartman, he assumed the man entered the apartment for a few minutes on each return. Hartman testified that although he was unequivocal about the make of the vehicle in his initial statement, he was not an expert on vehicles and the vehicle may not have been a Mustang. During cross-examination, he admitted he first learned the vehicle could have been a Pontiac Grand Am from Officer Williams.

**348On re-direct examination, Hartman insisted he was never positive the vehicle was a Ford Mustang.

Michael Weaver, a detective with the Summerville Police Department, testified he was the on-call detective on April 23, 2014. Later that day, Weaver obtained a search warrant for Jones's apartment. Because no one was home when he attempted to search, Weaver obtained a key to the apartment from the apartment manager. His search resulted in a bat, a bandanna, and two pairs of red shoes, all of which were found to be irrelevant and returned to Jones. After his search and visit to the manager's office to return the key, Weaver noticed a white Pontiac Grand Am in front of the apartment. Because one of the reports had listed a white vehicle rather than a white Mustang, Weaver went back to the apartment because he believed the two vehicle makes were similar. Hurell and his mother, Jana Hurell, were there. The white vehicle was a Pontiac owned by Mrs. Hurell.

Hurell objected to any testimony of his interactions with Weaver, arguing he attempted to end the conversation with law enforcement because Hurell told Weaver, "I'm not giving you anything." During a proffer of the evidence, Weaver's report indicated Hurell walked away from him, then came back and laughed when shown a photograph of the lime green sweatshirt, saying, "[W]hy would someone wear something like this?" The trial court admitted the evidence, and Weaver testified Hurell laughed when shown the photo of the suspect wearing the sweatshirt during the robbery. Weaver claimed Hurell then asked why anyone would wear a sweatshirt like that during something like this.

Travis Holdorf testified he knew Hurell at the time of the robbery and knew Hurell's cell phone number at the time as * * *-2320. Marilyn Dilly, of Sprint as a reseller for TracFone,2 testified as a records custodian of *25Hurell's cell phone records for the period April 22-24, 2014. George Floyd of Verizon Wireless also testified as a records custodian, and the records for Hurell's cell phone were introduced. Floyd testified there were cell towers at 10870 Dorchester Road and at 132 Trailing Alley, both in Summerville. According to Floyd, towers in **349rural areas such as the Summerville towers are between three and five miles apart.

Detective Weaver testified he obtained Traquan's phone records. At the time of the robbery, Traquan was on the phone from 12:21 a.m. until 2:11 a.m. He then hung up for a few moments and got back on the phone at 2:12 a.m. As to Hurell's phone, there was no activity during the time the robbery was commenced between 12:55 a.m. and 1:10 a.m. His phone was used beginning at 1:10 a.m. and pinged off the cell tower on Dorchester Road near the store.

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818 S.E.2d 21, 424 S.C. 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hurell-scctapp-2018.