STATE v. TAPP (2009)

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

FACTS AND PROCEDURAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

Furthermore, Prodan describes victimology specifically as:

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

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

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

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

ISSUES ON APPEAL

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

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

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

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

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).

ANALYSIS

I. DNA Evidence

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

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

Generally speaking, without the trial court making a final ruling on an issue, the issue is not preserved for appellate review. See State v. Rice, 375 S.C. 302, 323, 652 S.E.2d 409, 419 (Ct.App.2007) (stating that “[u]nless an objection is made at the time the evidence is offered and a final ruling made, the issue is not preserved for appeal”). Similarly, a motion in limine is not a final determination on the matter and does not preserve the issue for appeal. State v. Govan, 372 S.C. 552, 557, 643 S.E.2d 92, 94 (2007); State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001). “The moving party, therefore, must make a contemporaneous objection when the evidence is introduced.” Forrester, 343 S.C. at 637, 541 S.E.2d at 840; see Govan, 372 S.C. at 557, 643 S.E.2d at 94; State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996); see also State v. Laster, 261 S.C. 521, 521, 201 S.E.2d 241, 241 (1973) (pointing out that the South Carolina Supreme Court has repeatedly held that if objections are not interposed to the introduction of evidence during the trial, they cannot be raised for the first time on appeal); but see State v. Mueller, 319 S.C. 266, 268-69, 460 S.E.2d 409, 410-11 (Ct.App.1995) (stating that a contemporaneous objection need not be made if there is no other evidence introduced between the ruling in limine and the introduction of the evidence at trial).

In the case at hand, although Tapp made a pre-trial motion entitled a “motion to suppress DNA evidence,” which he claims was not a motion in limine, this motion was never finally ruled upon by the trial court. Furthermore, Tapp made no contemporaneous objection to the DNA evidence before, during, or after its introduction by the State. Accordingly, the issue of whether it was error to allow the DNA evidence is not properly before this court.⁵ See Rice, 375 S.C. at 323, 652 S.E.2d at 419 (without final ruling or contemporaneous objection the issue is not preserved for review).

II. Expert Testimony

a. Qualification

Tapp first alleges that it was error for the trial court to qualify Prodan as an expert witness. We disagree.⁶

Reversal of a trial court's qualification of an expert witness requires the complaining party to prove both an abuse of discretion and prejudice. See Jenkins v. E.L. Long Motor Lines Inc., 233 S.C. 87, 94, 103 S.E.2d 523, 527 (1958) (stating that the trial court's ruling on the qualification of an expert would not be disturbed in the absence of an abuse of discretion); Ellis v. Davidson, 358 S.C. 509, 595 S.E.2d 817 (Ct.App.2004) (demonstrating that there must be both error on the part of the trial court, as well as prejudice to the complaining party to warrant reversal). “An abuse of discretion occurs when there is no evidence to support the trial judge's factual conclusion or when the ruling is based on an error of law.” Hedgepath v. Am. Tel. & Tel. Co., 348 S.C. 340, 354, 559 S.E.2d 327, 334 (Ct.App.2001); Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 128, 542 S.E.2d 736, 742 (Ct.App.2001). In order to demonstrate prejudice, there must be a “reasonable probability that the jury's verdict was influenced by the challenged evidence or lack thereof.” Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005); State v. White, 372 S.C. 364, 374, 642 S.E.2d 607, 611 (Ct.App.2007).

The qualification of an expert witness and the admissibility of the evidence offered by him/her is a matter within the sound discretion of the trial court. Fields, 363 S.C. at 26, 609 S.E.2d at 509; State v. Myers, 301 S.C. 251, 391 S.E.2d 551 (1990); White, 372 S.C. at 373, 642 S.E.2d at 611; State v. Douglas, 367 S.C. 498, 626 S.E.2d 59 (Ct.App.2006), rev'd on other grounds, 380 S.C. 499, 671 S.E.2d 606 (2009). Generally, “for a court to find a witness competent to testify as an expert, the witness must be better qualified than the fact finder to form an opinion on the particular subject of the testimony.” White, 372 S.C. at 375, 642 S.E.2d at 612; see Ellis, 358 S.C. at 525, 595 S.E.2d at 825; Mizell v. Glover, 351 S.C. 392, 570 S.E.2d 176 (2002).

A party seeking to qualify a witness as an expert bears the burden of showing that the witness possesses the necessary learning, skill, or practical experience to enable the witness to give opinion testimony. State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689 (1996); State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993); White, 372 S.C. at 375, 642 S.E.2d at 612; see Honea v. Prior, 295 S.C. 526, 369 S.E.2d 846 (Ct.App.1988) (there is no exact requirement concerning knowledge, education or skill necessary). Defects in the quality and quantity of the expert's education or experience do not automatically disqualify him/her as an expert; rather it goes to the weight to be afforded to the expert's testimony. White, 372 S.C. at 375, 642 S.E.2d at 612; see Brown v. Carolina Emergency Physicians, P.A., 348 S.C. 569, 580, 560 S.E.2d 624, 629 (Ct.App.2001) (holding “[a]ny defect in the education or experience of an expert affects the weight and not the admissibility of the expert's testimony”).

In this case, the record provides sufficient evidence, in the form of Prodan's education and experience, to support the decision of the trial court to qualify Prodan as an expert witness. See Hedgepath, 348 S.C. at 353, 559 S.E.2d at 334 (stating an abuse of discretion occurs when there is no evidence to support trial judge's conclusion). We defer to the trial court's discretion that Prodan was “better qualified than the finder of fact to form an opinion on the particular subject of [his] testimony.” White, 372 S.C. at 375, 642 S.E.2d at 612. We note that trial courts in this state have, on prior occasions, qualified experts in the field of crime scene analysis. See, e.g. State v. Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006). Observing that “victimology” is merely a factor, or subset of crime scene analysis as defined by agent Prodan, it is unnecessary, and we therefore decline to rule whether it would be proper for a trial court to qualify an expert in the field of “victimology.” Accordingly, based on our standard of review and the trial court's discretion in qualifying a witness as an expert, we find no error in Prodan's qualification.

b. Admissibility of Expert Testimony

Tapp argues that it was error to admit Prodan's testimony because it was irrelevant and unduly prejudicial. We agree.⁷

At the close of voir dire Tapp objected to the introduction of all Prodan's testimony as irrelevant and unduly prejudicial, arguing it was “pure speculation ․ highly prejudicial ․ [and that it] would serve to confuse the jury ․ [and] inject issues into the case for which there [was] no foundation.”⁸ Tapp avers, and we agree, it was error to allow the testimony over these objections.

Relevant evidence, is evidence “having any tendency to make[ ] the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Rule 401 SCRE; State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991). However, not all relevant evidence is admissible. See Rule 403 SCRE (stating that “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”).

Expert behavioral testimony is relevant to the extent it makes the existence of a fact more or less probable; however, such testimony still remains subject to SCRE 403, and should be excluded if its prejudicial effect substantially outweighs its probative value. State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993) (finding that expert testimony and behavioral evidence make it more or less probable that the offense occurred); see State v. Morgan, 326 S.C. 503, 509, 485 S.E.2d 112, 115 (Ct.App.1997) (interpreting Schumpert as holding expert behavioral testimony is relevant but still subject to challenge because the probative value is outweighed by its prejudicial effect).

In order to reverse the trial court's admission of evidence we must find (1) an abuse of discretion on the part of the trial judge; and (2) likely prejudice. State v. Wise, 359 S.C. 14, 21, 596 S.E.2d 475, 478 (2004).

Accordingly, our first inquiry is whether the trial court abused its discretion in allowing Prodan's testimony. An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law. State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006); State v. Funderburk, 367 S.C. 236, 239, 625 S.E.2d 248, 249-50 (Ct.App.2006).

A review of the record reveals numerous instances in which Prodan offered testimony which was wholly irrelevant and/or extremely prejudicial, including:

Q: [D]id you access whether or not this was a killing related to the drug trade in any way?

A: I did. And it was not.

However, despite noting that this was not a drug related homicide, the State continued to elicit roughly thirty-four lines of testimony regarding various types of drug related homicides.

Prodan then testified extensively as to how perpetrators may pick a victim and why, ultimately concluding that there was likely a level of familiarity between Victim and the perpetrator, but could not specify what that level of familiarity that was.

Q: [W]hat was your opinion as to whether she would have been at some level familiar ․ with her killer?

A: There would have been some type of knowledge ․ could be personal, in other words, they know each other from an intimate level all of the way down to a business level. Or it could be knowledge ․ where the offender has knowledge of Victim and her routine ․ but she has little or no personal knowledge of ․ her. It might be something as simple as she recognized him from somewhere in the apartment complex. (emphasis added).

In light of the fact that Tapp was known to reside in the apartment below Victim, and that Prodan could not opine as to a particular level of familiarity, this statement is overly prejudicial to Tapp. Furthermore, despite recognizing the possibility the door was “just left unlocked and someone [may have] happened to walk in,” Prodan averred that because there was no blood or sign of physical struggle at the door, Victim knew or at least did not feel immediately threatened by the perpetrator. Prodan seemed to conclude where Victim was when she first saw the perpetrator, how she felt when she saw him, and what she thought when she saw him.

Additionally, with little to support its relevance to this case, the State elicited roughly twenty-seven lines of testimony from Prodan regarding torture, and more specifically sexual sadism. During this testimony, Prodan described in graphic detail the behavior of sexual sadists, as well as the characteristic traits of attacks by sexual sadists, including “infliction of injuries on sexual parts of the body, the genitals, the breasts, the buttocks, [and] on occasion the thighs.”

Furthermore, with no foundation or relevance to this case, the State elicited testimony regarding how a “killer or rapist's drug use [would] affect the crime scene.” As well Prodan delved into what the perpetrator's conscious or subconscious thoughts may have been when the he “posed” Victim's body in the bathroom.

Finally Prodan offered substantial testimony as to the various ways in which a sexual assault may occur, be it a “blitz,” a “surprise” or a “con.” Although offering no opinion as to what method the perpetrator employed in this case, he elaborated quite extensively on each method. Additionally, when prompted by the Solicitor, Prodan drew up a hypothetical scenario in which the perpetrator came to the door saying that his car broke down and asks to come in to use the telephone; or a situation in which the perpetrator would say “I see that you are moving ․ in order to initiate conversation.” Both of these purely speculative scenarios mirror too precisely facts or circumstances that the State sought to prove existed in the present case.

Initially, we note much of Prodan's elaborations, hypotheticals, and summations are irrelevant to the case at hand. Further, we find the probative value of Prodan's testimony to be quite low. Unlike other experts who form an opinion based on an objective method or procedure, the relevant portions of Prodan's testimony seem to be nothing more than subjective summaries of inferences. The threat of prejudice and confusion of the issues in this case outweighs the probative nature of Prodan's testimony particularly with excessive reference and discussion of wholly unrelated issues including, but not limited to: drug related homicides, torture, sexual sadism, and estimations as to the perpetrator's conscious and subconscious thinking. Moreover, the development of hypothetical scenarios nearly identical to this case with no basis to suggest that such indeed occurred, or was even more likely than not to have occurred, are highly prejudicial and serve no probative purpose. Accordingly, the trial court abused its discretion in allowing this testimony.

We next turn to whether the trial court's abuse of discretion in allowing this testimony prejudiced Tapp. In order to demonstrate prejudice, there must be a “reasonable probability that the jury's verdict was influenced by the challenged evidence or lack thereof.” White, 372 S.C. at 374, 642 S.E.2d at 611; Fields, 363 S.C. at 26, 609 S.E.2d at 509.

Here we find Prodan's testimony was of the type that had a reasonable probability to influence the jury's verdict. Considering the irrelevant and prejudicial nature of much of this testimony, as well as factoring in that it was introduced as expert testimony, and referenced in closing argument, it is reasonably probable that the jury's verdict was influenced by this testimony. Tapp was accordingly prejudiced by the introduction of this evidence.

CONCLUSION

Therefore, the ruling of the trial court is AFFIRMED IN PART, REVERSED IN PART, and REMANDED for a new trial consistent with this ruling.⁹

THOMAS, J.

HUFF and LOCKEMY, JJ., concur.