State v. Xzariera O. Gray

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Xzariera Okevis Gray, Appellant.

Appellate Case No. 2019-001109

Appeal From Greenwood County
Frank R. Addy, Jr., Circuit Court Judge

Opinion No. 5951
Heard June 9, 2022 – Filed November 23, 2022

AFFIRMED IN PART AND REMANDED

Appellate Defenders Susan Barber Hackett and Sarah
Elizabeth Shipe, both of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, Assistant
Attorney General Michael D. Ross, and Solicitor David
M. Stumbo, all of Columbia, for Respondent.

KONDUROS, J.: Xzariera Okevis Gray appeals his convictions for murder and
possession of a weapon during the commission of a violent crime. Gray asserts the
trial court erred by (1) denying him immunity from prosecution pursuant to the
Protection of Persons and Property Act (the Act), 1 (2) admitting into evidence a
surveillance video of the shooting, and (3) denying his motion for a new trial
without a hearing. We remand for the trial court to make specific findings that
support its determination of whether Gray is, or is not, entitled to immunity under
the Act.

FACTS

During the early morning hours of August 26, 2017, officers from the Greenwood
Police Department heard a gunshot. Believing the gunshot had come from nearby
Gray Street, the officers drove down that street and observed several people
outside of Ricky Grant's residence. A woman one street over flagged the officers
down and directed them to Demetrius "Meatball" Fueller (Victim). Victim was
lying on the ground and unable to communicate with the officers, but they could
see he had been shot in the abdomen because he was not wearing a shirt.
Paramedics arrived and transported Victim to the hospital, where he went into
cardiac arrest. Hospital personnel were unable to resuscitate Victim. An autopsy
revealed a single gunshot wound to Victim's abdomen caused him to bleed to
death.

In May 2018, a Greenwood County grand jury indicted Gray for murder and
possession of a weapon during the commission of a violent crime. Prior to trial,
Gray sought immunity from prosecution pursuant to the Act. At the immunity
hearing, Gray testified that on August 25, 2017, he was visiting with Grant at
Grant's house on Gray Street. Gray recalled that around midnight, he and Grant
got into Grant's car to go to a neighborhood nightclub. According to Gray, Victim
approached Grant's car and knocked on the window. When Victim learned Grant
and Gray were going to the nightclub, he asked to join.

Gray then described an altercation with Victim that had occurred in Grant's yard a
couple of weeks earlier. Gray claimed that Victim's brother chased him around a
car with a gun. After Gray escaped into Grant's house, Victim's brother left.
Shortly after, Victim arrived with the gun. Gray stated that he went back into
Grant's house while others in Grant's yard persuaded Victim to leave.

1
See S.C. Code Ann. §§ 16-11-410 to -450 (2015).
Gray testified that Grant was aware of the prior incident and asked him if he was
comfortable with Victim riding with them to the nightclub. Gray told Grant that it
was his car, and Grant let Victim in; the three went to the nightclub together. Once
there, Grant and Victim entered the nightclub while Gray remained in the parking
lot socializing with friends.

After a few hours, Grant and Gray rode back to Grant's house without Victim, and
they continued visiting into the early morning hours of August 26, 2017. Gray
testified that Victim returned to Grant's house about an hour later and confronted
him about the prior incident. Grant told Victim and Gray to go outside because
they were being loud. Gray stated that he went outside and started to walk home
but returned to Grant's house so that Grant would drive him home. Gray claimed
that Victim followed Gray back into Grant's house, and Grant again told them to go
outside.

Gray recalled that when he and Victim returned to the porch, Victim swung at him;
however, Gray was inconsistent on whether Victim hit him or missed. Gray
testified that he and Victim then began "tussling" in Grant's yard. During the
scuffle, Gray claimed that he saw Victim reach for a gun in his waistband. Gray
testified that he also reached for the gun and briefly struggled with Victim for
control of the weapon.

According to Gray, he gained control of the gun and stumbled backward. Gray
claimed that Victim began to charge at him as he stumbled backwards. Gray
admitted that he shot Victim once, and Victim then ran away. Gray also testified
that he and Victim were the only two people in Grant's yard at the time of the
shooting.

To contradict Gray's testimony, the State presented testimony from Grant and
another witness, Raymond Kennedy. Grant recalled that Victim hid his gun in the
bushes before entering the nightclub, and both Grant and Kennedy testified the
argument between Gray and Victim arose over Victim's missing gun rather than
their prior altercation. Kennedy also testified that Gray's brother was standing next
to Gray when Gray shot Victim.

Additionally, the State introduced a surveillance video that showed the shooting.
One of Grant's neighbors, Jeovani Vacquec, testified that he owned and operated
the security system that recorded the video. Vacquec stated that he had eight
cameras around his house that all fed into a hard drive that recorded the images and
displayed them on a monitor. Vacquec recalled that officers viewed the video
from the camera that faced Gray Street and collected the portion that showed the
shooting. Vacquec testified that he knew the cameras functioned properly because
he checked them regularly. Vacquec explained that the time stamp on the video
was incorrect because he did not set the correct date or time when he installed the
security system.

Gray objected to the video's admission because the time stamp on the video did not
match the alleged time of the incident and Vacquec was not contemporaneously
watching his monitor as the shooting occurred. The trial court determined the
incorrect time stamp did not affect the video's admissibility because Vacquec
explained that he did not set the time when he installed the security system. The
trial court also found that Vacquec authenticated the video and admitted it for the
hearing.

At the conclusion of the immunity hearing, Gray argued he was entitled to
immunity because he was in a place he had a right to be and he satisfied the Act's
requirements. While the State conceded Gray was in a place he had a right to be, it
argued that whether Gray satisfied the elements of self-defense was a jury question
due to the conflicting evidence. The State noted the discrepancy between Gray's
testimony that Victim possessed the gun in his waistband and Grant and Kennedy's
testimony that the argument between Gray and Victim arose over Victim's missing
gun. The State also emphasized that the surveillance video contradicted Gray's
testimony because it showed that when Gray shot Victim, a third individual was
standing beside him and Victim was not rushing towards him.

The trial court found that Gray was in a place he had a right to be as Grant's invited
guest; however, the trial court ruled that Gray failed to prove by a preponderance
of the evidence that he was entitled to immunity. The trial court explained that its
ruling was "based upon the varying evidence and the open question of whether
[Gray was] entitled to a self-defense [jury] instruction . . . ." The trial court also
stated that it was "passing upon the credibility of the witnesses who have testified
. . . ."
In response, Gray cited State v. Cervantes-Pavon 2 and asserted that "just because
conflicting evidence as to an immunity issue exists does not automatically require
the court to deny immunity. The court must sit as the fact-finder at [t]his hearing,
weigh the evidence presented, and reach a conclusion under the Act." The trial
court explained that if it "had a hundred percent or very firm belief" in Gray's
version of events, "it would be a different outcome, obviously." The trial court
elaborated, "[T]o the extent that [Gray's] testimony would have been corroborated
by others who were present at the scene, the [c]ourt might be more inclined to say
that the defense has met the burden of proving it by the preponderance of the
evidence." The trial court concluded that it declined Gray's motion "[i]n light of
the conflicting evidence . . . and the open question of whether this is, in fact, a case
of self-defense . . . ."

After the immunity hearing, Gray moved in limine to prohibit the State from
presenting Vacquec's surveillance video to the jury. Gray reiterated his arguments
that the video should not be admitted into evidence because the timestamp was
incorrect and Vacquec was not contemporaneously watching his monitor as the
shooting occurred. Additionally, Gray argued the video was not admissible under
Rule 403, SCRE, because its low quality made it difficult to discern what it
showed.

Regarding authentication, the State conceded that no one could testify as to what
happened on the video; however, the State argued that Vacquec could testify that
his security system recorded the video and the camera faced Gray Street.
Regarding Rule 403, SCRE, the State argued that the surveillance video was
relevant because it showed the shooting. The State maintained that the quality of
the video was a matter of its credibility, which was something for the jury to
weigh. The State also contended that the video would not cause confusion and
asserted it would help the jury better understand the witnesses' testimony.

The trial court again admitted the surveillance video over Gray's objections. The
trial court ruled that the State had sufficiently authenticated the video because
Vacquec stated he owned and operated the security system and explained the
video's incorrect timestamp. The trial court also acknowledged Gray's Rule 403,
SCRE, argument but ruled that the video depicted relevant information.

2
426 S.C. 442, 451, 827 S.E.2d 564, 569 (2019).
The State began its case-in-chief by calling Vacquec as a witness. Vacquec's
testimony was consistent with his immunity hearing testimony, and the
surveillance video was published to the jury. The State also presented Grant and
Kennedy as witnesses again, and their testimony was consistent with their
immunity hearing testimony.

After the State rested, Gray took the stand in his own defense. Gray's testimony
was mostly consistent with his immunity hearing testimony, but Gray stated that
Victim initially got upset when he returned from the nightclub because Gray and
Grant were laughing at him. Gray claimed that Victim then confronted him about
their prior altercation. Gray also testified that Victim's punch missed, Victim was
wearing a shirt or tank top during their scuffle, and Gray closed his eyes when he
fired the gun.

The jury began deliberating at 12:40 p.m. on May 9, 2019. Immediately before the
jury exited the courtroom at 12:18 p.m., the trial court informed them that lunch
would arrive in about an hour. At 5:43 p.m., the jury sent the trial court a note that
contained its third request to watch a portion of the video. The trial court played
that portion of the video and then gave the jury a laptop that could play the entire
video so they could watch it while deliberating. The note also indicated that some
jurors were concerned about their children at home. The trial court allowed the
jurors to call their families but directed them to continue their deliberations
afterward.

At 8:58 p.m., the trial court received another note requesting another phone call
and a smoke break. The note also stated "we are pretty deadlocked at 10:2." The
trial court gave the jury a choice between resuming deliberations that evening or
reconvening the following Monday. 3 The trial court explained that "[t]here is no
set limitation on jury deliberations. However long you deliberate is entirely in
your discretion."

The jury continued deliberating. At 10:50 p.m., the jury returned guilty verdicts
for both murder and possession of a weapon during the commission of a violent
crime. Given the late hour, the trial court delayed Gray's sentencing hearing. On
May 14, 2019, the trial court sentenced Gray to consecutive sentences of thirty-five

3
May 9, 2019, was a Thursday, and May 10, 2019, was a state holiday.
years' imprisonment for murder and five years' imprisonment for possession of a
weapon during the commission of a violent crime.

On May 23, 2019, Gray filed a motion for a new trial, alleging that the jury was
unduly influenced to reach a verdict. Gray noted that the jury deliberated for about
ten-and-a-half hours without dinner and informed the trial court that it was "pretty
deadlocked at 10:2" two hours before it returned the guilty verdicts. Additionally,
Gray presented one juror's Facebook post that stated she "just couldn't leave
without a verdict." Gray requested a hearing on the motion so the trial court could
ask each juror if they felt undue pressure to reach a verdict.

The trial court denied Gray's motion for a new trial without a hearing. The trial
court stated that the jury indicated it was "struggling to reach a verdict" but not
deadlocked. The trial court noted that "a lengthy deliberation, standing alon[e],
does not warrant conducting an inquiry into the nature of the jury deliberations."
Regarding the lack of dinner, the trial court explained that it had ordered the jury a
late lunch, and the jury room contained "crackers, snacks, and drinks" the jurors
could consume. Additionally, the trial court determined that Gray's requested
inquiries were prohibited by Rule 606, SCRE, because they "would cause the
jurors to reveal the subject matter of their deliberations." The trial court found that
the juror's Facebook post did "not cause the [c]ourt sufficient concern to warrant
the drastic step of questioning all twelve . . . jurors." This appeal followed.

STANDARD OF REVIEW

"The conduct of a criminal trial is left largely to the sound discretion of the trial
judge, who will not be reversed in the absence of a prejudicial abuse of discretion."
State v. Reyes, 432 S.C. 394, 401, 853 S.E.2d 334, 337 (2020) (quoting State v.
Bryant, 372 S.C. 305, 312, 642 S.E.2d 582, 586 (2007)). "An abuse of discretion
occurs when a trial court's decision is unsupported by the evidence or controlled by
an error of law." Id. at 401, 853 S.E.2d at 338 (quoting Bryant, 372 S.C. at 312,
642 S.E.2d at 586).

LAW/ANALYSIS

I. Immunity under the Protection of Persons and Property Act
Gray asserts the trial court erred by failing to sit as the fact-finder at his immunity
hearing. We agree.4

"A claim of immunity under the Act requires a pretrial determination using a
preponderance of the evidence standard, which [appellate] court[s] review[] under
an abuse of discretion standard of review." State v. Jones, 416 S.C. 283, 290, 786
S.E.2d 132, 136 (2016) (quoting State v. Curry, 406 S.C. 364, 370, 752 S.E.2d
263, 266 (2013)). "[T]he relevant inquiry is . . . whether the accused has proved an
entitlement to immunity under the Act by a preponderance of the evidence." State
v. Andrews, 427 S.C. 178, 181, 830 S.E.2d 12, 13 (2019). "[J]ust because
conflicting evidence as to an immunity issue exists does not automatically require
the [trial] court to deny immunity; the [trial] court must sit as the fact-finder at this
hearing, weigh the evidence presented, and reach a conclusion under the Act."
Cervantes-Pavon, 426 S.C. at 451, 827 S.E.2d at 569. "[T]he [trial] court, in
announcing its ruling, should at least make specific findings on the elements on the
record." State v. Glenn, 429 S.C. 108, 123, 838 S.E.2d 491, 499 (2019).

Here, the trial court impermissibly abdicated its role as the fact-finder at Gray's
immunity hearing. The trial court was required to make specific findings
supporting its decision that this court could review on appeal. While the trial court
ruled that Gray did not prove by a preponderance of the evidence that he was
entitled to immunity, the record contains no specific findings that support that
determination. Compare Andrews, 427 S.C. at 182, 830 S.E.2d at 14 ("[W]hile the
[trial] court may not have set forth every detail of its analysis in the record, the
record [wa]s nevertheless adequate for a reviewing court to determine that the
[trial] court applied the correct burden of proof and made findings that supported
its denial of immunity consistent with a correct application of [our supreme court's]
precedent."), with State v. McCarty, Opinion No. 28116 (S.C. Sup. Ct. filed Sep.
21, 2022) (Howard Adv. Sh. No. 34 at 38-39) (finding the court of appeals erred in
upholding the trial court's denial of immunity because the trial court did not make
specific findings that appellate courts could review).5

4
Because we remand, we do not address Gray's other contentions as to the
immunity issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C.
598, 613, 518 S.E.2d 591, 598 (1999) (noting appellate courts need not address
remaining issues when disposition of an issue is dispositive).
5
In fairness to the learned trial judge, Gray's immunity hearing occurred before
Andrews and McCarty were published.
The trial court's reasoning for denying Gray immunity reveals that it deferred to the
jury rather than sit as the fact-finder at the immunity hearing. The trial court stated
it was "passing upon the credibility of the witnesses who have testified" and twice
explained that it denied Gray immunity due to the conflicting evidence and the
"open question" of whether Gray was entitled to a self-defense jury instruction.
The trial court concluded that "such matters are best left to the finders of fact,
namely the trial jury." Consequently, the trial court failed to sit as the fact-finder at
Gray's immunity hearing. Accordingly, we remand for the trial court to make
specific findings that support its determination of whether Gray is, or is not,
entitled to immunity under the Act.

II. Surveillance Video

Gray asserts the trial court erred by admitting into evidence surveillance video of
the shooting. We address his two arguments in turn.

A. Authentication

Gray contends that the State failed to properly authenticate the video. We disagree.

"[E]vidence must be authenticated or identified in order to be admissible." State v.
Brown, 424 S.C. 479, 488, 818 S.E.2d 735, 740 (2018). A witness with knowledge
may authenticate evidence by testifying that "a matter is what it is claimed to be."
Rule 901(b)(1), SCRE. "The authentication standard is not high, and a party need
not rule out any possibility the evidence is not authentic." State v. Green, 427 S.C.
223, 230, 830 S.E.2d 711, 714 (Ct. App. 2019) (citation omitted), aff'd as modified,
432 S.C. 97, 851 S.E.2d 440 (2020). "The trial judge acts as the authentication
gatekeeper, and a party may open the gate by laying a foundation from which a
reasonable juror could find the evidence is what the party claims." Id.

The State authenticated the surveillance video with Vacquec's personal knowledge.
Vacquec testified that he owned and operated the security system that recorded the
video. Vacquec also testified that the camera that recorded the video faced Gray
Street. Vacquec explained that the time stamp on the video was incorrect because
he did not set the correct date or time when he set up the security system. It is
irrelevant that Vacquec was not contemporaneously watching his monitor or at the
scene of the shooting; his personal knowledge sufficiently authenticated the video.
Accordingly, we affirm as to this issue.

B. Rule 403

Gray also contends that the surveillance video's limited probative value was
substantially outweighed by the danger of confusing and misleading the jury. We
disagree.

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 . . . ." Rule 403, SCRE. "'Probative value' is the measure of
the importance of that tendency to the outcome of a case. It is the weight that a
piece of relevant evidence will carry in helping the trier of fact decide the issues."
State v. Gray, 408 S.C. 601, 610, 759 S.E.2d 160, 165 (Ct. App. 2014). "[T]he
more essential the evidence, the greater its probative value." Id. (alteration in
original) (quoting United States v. Stout, 509 F.3d 796, 804 (6th Cir. 2007)).
"Thus, a court analyzing probative value considers the importance of the evidence
and the significance of the issues to which the evidence relates." Id. "[T]he
burden [is] on the opponent of the evidence to establish [its] inadmissibility." State
v. King, 424 S.C. 188, 200 n.6, 818 S.E.2d 204, 210 n.6 (2018).

The surveillance video's probative value was not substantially outweighed by the
danger of confusing or misleading the jury. The surveillance video was highly
probative because it provided an alternative perspective of the shooting that was
objective and neutral. Moreover, the surveillance video clearly contradicted some
of Gray's testimony. Despite the dark image, the video clearly shows more than
two people in and around Grant's yard at the time of the shooting. Therefore, the
surveillance video was highly probative.

Additionally, the danger that the surveillance video would have confused the jury
was limited. While the quality of the surveillance video made it difficult to discern
what happened, the jury was able to replay the video, or portions of it, as many
times as it wanted to. Therefore, allowing the jury to view the surveillance video
was unlikely to cause confusion, and its probative value outweighed any danger
that it would. Accordingly, we affirm as to this issue.

III. Motion for a New Trial
Gray asserts the trial court erred by denying his motion for a new trial without a
hearing. Gray contends he should have been allowed to ask all twelve jurors
whether the length of their deliberations, lack of dinner, or their understanding of
whether a verdict had to be rendered had an impact on their verdict. We disagree.

A posttrial motion "may, in the discretion of the court, be determined on briefs
filed by the parties without oral argument." Rule 29(a), SCRCrimP. "Generally,
juror testimony is not allowed regarding the deliberations of the jury or internal
influences." State v. Pittman, 373 S.C. 527, 553, 647 S.E.2d 144, 157 (2007).
However, "a juror may testify . . . whether extraneous prejudicial information was
improperly brought to the jury's attention or whether any outside influence was
improperly brought to bear upon any juror." Rule 606(b), SCRE.

Additionally, "where [an] allegation of improper internal influence potentially
affects fundamental fairness, the court may accept juror testimony to ensure due
process." Pittman, 373 S.C. at 553, 647 S.E.2d at 157. Our supreme court has
recognized only two allegations that implicate fundamental fairness: (1) allegations
that the jury's verdict was the result of racial or gender intimidation, Winkler v.
State, 418 S.C. 643, 667-68, 795 S.E.2d 686, 699 (2016) (Hearn, J., concurring),
and (2) allegations that the jury participated in premature deliberations, State v.
Aldret, 333 S.C. 307, 509 S.E.2d 811 (1999). Allegations that jurors
misunderstood the law are insufficient to implicate fundamental fairness. See
Pittman, 373 S.C. at 555, 647 S.E.2d at 158 (2007) ("[A] jury's misapprehension of
the law is not enough to impeach a verdict.").

The trial court did not abuse its discretion in denying Gray's motion for a new trial
without a hearing. The trial court aptly recognized that Gray's requested inquiries
are prohibited by Rule 606(b), SCRE. The juror's Facebook post did not indicate
that any extraneous prejudicial information or outside influence had an impact on
the jury's deliberations; it also did not indicate that Gray's verdict was reached as a
result of racial or gender intimidation or that the jury began deliberating
prematurely. Therefore, Gray's requested inquiries would have involved juror
testimony about internal influences unrelated to fundamental fairness.
Accordingly, we affirm as to this issue.

CONCLUSION
The trial court did not abuse its discretion in admitting the surveillance video into
evidence and denying Gray's motion for a new trial without a hearing. However,
the trial court failed to sit as the fact-finder at Gray's immunity hearing.
Accordingly, Gray's case is

AFFIRMED IN PART AND REMANDED.

WILLIAMS, C.J. and VINSON, J., concur.