*1 478 flooded the condominiumhad knew that Buyer
sanee” because
purchase.
agree.
this
Carolina,
voluntarily
the fact that a person
In South
after the
by
property
a nuisance
purchasing
comes to
him from recovering
is created does not bar
nuisance
therefrom or
of
deprive
sustained
damages
injuries
Base-
City
maintenance. Carter v. Lake
enjoin
its
right
Inc.,
470
See also
Club,
62 S.E.
ball
Greenville,
10,
Reversed. JJ., concur. Toal Finney, Moore,
Chandler, CLARK, STATE, Appellant. Respondent v. Kevin Michael 633) S.E. Buyer knowledge Moreover, we find no evidence in the record that had purchase. deposition, Buyer specifically flooding prior In his denied to his light рrior knowledge flooding. Viewing most favorable the evidence Buyer Buyer, judge holding the condo find that the trial erred in knew we purchased he the condominium. See As minium had flooded at the time Cafe (1991) (in socs., ruling Gemgross, on a mo Ltd. v. summary judgment, the inferences which can be tion for the evidence and light to the non- should be viewed in the most favorable drawn therefrom party). moving *2 Pearce, M. Anne Asst. Appellate Defender, SC Ap- Office of pellate Defense, Columbia, aрpellant. Atty. Medlock, Gen. T. Travis Deputy Atty. Gen. Don- Chief Zelenka, ald J. Deputy Attys. Elliott, Gen. W. Salley Harold Coombs, Jr., and James W. M. Columbia, and Sol. Rion, Jr., Wilson, J. Conway, Ralph all respondent. 22, 1993.
Heard Sept. 13,1994.
Decided June Justice:
Chandler, We granted rehearing reconsider No. Opinion 93-MO- filed June 1993. That opinion is vacated and the fol- in it place. its substituted lowing opinion (Clark), was convicted Clark Kevin Michael Appellant, (PWID) crack cocaine intent to distribute possession concurrent terms of sentenced to He was mаrijuana. PWID $25,000. fined and three years years, fifteen affirm.
FACTS they as approached by police other men were Clark and two at 1:30a.m. of a convenience store in a car front parked sat search, consented to а Clark subjected pat-down After being to one John belonged the vehicle. The vehicle to a search of lent the vehicle Frilando, Quisha, whose Anthony girlfriend, Police discovered 98 knowledge. Frilando’s to Clark without crack coсaine the car. and a matchbox of marijuana bags on subsequently of crack cocaine was quantity A small the marijuana any knowledge Clark denied person. in the automobile. and cocainefound *3 Fri- to cross-examine triаl, permission At Clark moved in him against a murder indictment regarding pending lando Frilando, to hoping circuit; Clark contended the same to biased himself, likely be favorable treatment gain that Frilando was responded toward State. Solicitor а sub- subject but freely voluntarily, not testifying, that there was advised the Court Further, the Solicitor poena. Trial and Frilando. Court between State agreement no the pending questioned ruled that Frilando could be murder charge. his girlfriend, that he was when asleep
Frilando testified Clark, that he had no knowl- loaned the automobile to Quisha, since that he had not driven the vehicle edge a.m. arrest. Clark’s nine hours to the 1:30 prior 4:30 some p.m., burglary his regarding cross-examined Frilando counsel сonvictionand revocation. parole
ISSUE to confront the wit- Sixth Amendment Was Clark’s per- trial court’s refusal to nesses violated against against murder indictment pending mit into inquiry Frilando?
DISCUSSION The Confrontation Clause guarantees a defendant thе opportunity cross-examine a witness concerning Brown, State v. bias. 169, 399 S.E. (1991). Considerable latitude is allowed in the cross-examina- tion of a bias. Id. A defendant demon- potential witness for strates a Confrontation Clause violation wherе he is prohib- ited from in “engaging otherwise appropriate cross-examina- tion designed show a prototypical form of bias . . . from which jurors ... could ... draw inferences relating to the reli- ability of the witness.” v. Van 673, 475 U.S. 1431, 1436, L.Ed. A vio- lation of the confrontation clause is not per se reversible but is subject to a harmless error analysis. Id.
Whether such an error is harmless in a particular case de pends upon host of factors. . . . The factors include the importance of the witness’ testimony the prosecution’s case, whether the testimony cumulative, pres ence or absence of evidence corroborating or contradict ing the testimony of the witness on material points, the extent of crоss-examination and, otherwise permitted, course, the overall strength of the prosecution’s case. 684, 106 S.Ct. at L.Ed. at 686-687.
"Whenthe foregoing factors are applied to here, the record it is clear any error was beyond reаsonable doubt: 1. Importance Witness’ Testimony: Frilando’s testimony was inconsequential to the State’s case. He testified that he had no knowledge of the drugs found the car. Clark testi- fied that two co-defendant passengers were in the vеhicle *4 him, with and that the car had been loaned to him by Quisha. Clearly, the jury could have concluded that drugs the found in Frilando’s car had been there placed by Quisha either or one the passengers. Frilando’s was testimony irrelevant.
2. Cumulativе Testimony: This factor has no application here inasmuch as Frilando in no way aided the case State’s against Clark.
3. Corroborating Testimony: As testimony Frilando’s the third element of Van Arsdall is inapplicable. relevant, 4. Extent Cross-exаmination: The cross-examination im- permitted Arsdall. Clark was with here accords for bur- conviction credibility on his Frilando’s peach that he admission revocation, and Frilando’s his glary, parole recently. in “some trouble” had been tеstimony that Frilando’s It is clear Case: Strength 5. The case. strength prosecution’s nothing to the added were charged which Clark of the offenses elements the who found arresting officers the through established the sub- who identified the witness through expert and stances. Clark’s cross-exami- in limitation of any error
We hold reasonable doubt. beyond harmless Frilando was nation of Rule pursuant is affirmed remaining issue Ohio, U.S. v. 220(b)(1) Terry authorities: following and the Culbreath, (1968); v. State 1868,20 L.Ed. 1, 88 S.Ct. (2d)255 232, 387S.E. Affirmed. Moore, J., concur.
Harwеll, C.J., and in Finney, JJ., opinion. dissenting separate Toal Toal, Justice, dissenting: that Clark’s The admits majority respectfully
I dissent. but was violated against witness to confront the The ma- doubt. beyond reasonable finds the error harmless testi- the witness’ upon based makes this determination jority in found anything drugs know that he did not mony Clark’s possession. the automobile was in while his automobile factors enumerated then applied majority The 673, 680, 106 S.Ct. 475 U.S. v. Van (1986) of the Van none 1436,89 L.Ed. on Van Arsdall relies majority factors applicable. Arsdall con- defendant’s that a violation of the proposition for the always is witness to cross-examine the frontation clause right into one of squarely the error falls error unless I disagree. in Van Arsdall. enumerated factors any particular error is harmless a constitutional Whether of each case. See and circumstances on facts depends case 124 L.Ed. Louisiana, —, U.S. Sullivan (1993) de novo review court must (appellate
483 record to error). determine effect of The United States Supreme Court in Arsdall, Van 475 673, U.S. 106 1431, S.Ct. (2d) 89 L.Ed. 674 (1986),held that whether the denial of the defendant’s constitutional right to confront the witness was harmless error depends on a “host of factors.” Van at 684, 106 S.Ct. 1438, (2d) at 89 L.Ed. at A686. mechаnical ap plication of the Van Arsdall is, factors in my view, contrary to Van Arsdall and this Court’s prior opinions. Id. 684, 106 — S.Ct. at 1438,89 686; L.Ed. at Arnold v. State, —, 420 (2d) (1992) 834, 839 cert. denied, —, U.S. 113 S.Ct. 1302, 112 (2d) (1993). L.Ed. 691
In Van State, (2d) Arsdall v. (Del. 486 A. 1 1985)rev’d 475 673, 680, U.S. 106 1431, S.Ct. 1436, (2d) 89 L.Ed. 674, 684 (1986),the Delaware Supreme Court held that a violation of the defendant’s Sixth Amendment right to confront the wit- ness awas per se error which required reversal. The United States Supreme Court reversed and remanded the case to the Delaware Supreme Court for a harmless error determination. Delаware v. Van Arsdall, 475 673, U.S. 680, 106 S.Ct. L.Ed. 674, 684 On remand, the Delaware the error harmless. Van State, (2d) (Del. Arsdall v. 1987).1 A. prohibited from questioning prosecu-
tion’s witness about a pending indictment public drunken- ness which was dismissed in exchange witness’ testi- mony. The prosecution’s witness testifiеd that he saw Van Arsdall shortly before the murder sitting on a bed apartment where the murder occurred. The Delaware Supreme Court recognized that the witness’ “testimony, standing alone, appears to have established nothing re- gard tо the fact of Van Arsdall’s presence at the scene of the crime which could have had an effect on the jury’s verdict.” at 11. Van Arsdall admitted he was present when the vic- tim was killed. Id. at If, 5-6. however, the prosecution’s wit- ness was not telling truth, then the converse of the wit- ness’ testimony may true, been in which case, the 1 Onremand from the Supreme Court, United States the Delaware Supreme holding Court based its on Delaware state law. The standard for Delaware, State, harmlеss error dard. See however, review is the same as the federal stan (Del. 1987) 3, 10 Van Arsdall v. 524A. (citing Chapman California, 18, 87 (1967)). 386U.S. L.Ed. have found may jury that the held Supreme Court plausible.2 more of events version Arsdall’s *6 to Van Ars- similar remarkably at bar is case thе Logically, indictment was under witness the State’s Here dall. Clark from judge prohibited The trial for murder. circuit same of the bias possible the jury attention to the
bringing The au- indictment. murder the pending of result as a witness the State’s to belonged were found drugs the where tomobile the anything he not know that did testified who witness the of knowledge no he had that also testified Clark drugs. co- Clark’s in Van As in the automobile. drugs found by jury. the acquitted were defendants of part the bias on the possible to show able Clark been Had wit- the State’s have believed may the witness, jury the witness the State’s not believe did jury If the testimony. ness’ jury con- that the dictates logic the of nothing knew Arsdall, 524 See drugs. about the the knew witness clude have may circumstances, jury the such Under 11. A. co-defendants. did Clark’s Clark, they as acquitted harmless, the error to error be a constitutional In order for Arnold doubt. beyond reasonable must been phrase The S.E. —, 420 State, v. error, the means doubt” a reasonable beyond “harmless thе verdict. to not contribute doubt, did a reasonable beyond court must determination, reviewing the this making In the error what effect to record determine entire the review evidence only presented Id. The e.g. See on the verdict. hаd controlled the to distribute intent of Clark’s prosecution the the where the automobile of possession Clark’s substance was in- Clark’s infer required jury found. were drugs drugs the weight the from drugs the to distribute tent reasonable beyond hold I cannot automobile. the guilt possession have inferred jury the would doubt the owner thought jury distribute if the intent I Thus, cannot drugs. have owned may automobile not con- error did doubt a reasonable beyond conclude verdict. tribute Van Ar while killed the victim his co-defendant Arsdall testified 2 Van acquitted co-defendant Van Arsdall’s victim. attempted to aid the sdall 1987). (Del. State, A. separate trial.
in a I would reverse and remand for a trial. new J., concurs. Finney, SHIPPY, Carolina,
Michael Respondent. Petitioner v. STATE of Sоuth (2d) 636) III, Savitz, L. Joseph Deputy Attorney, SC Chief petitioner. Office of Appellate Defense, Columbia, *7 Medlock, T. Travis Atty. Gen., Hudson, James Patrick Gen., Deputy Atty. Delbert H. Singleton, Jr. E. Chief Howart, Gen., Jeanne Attys. Columbia, Asst. respondent. for 10, 1994. Submitted June June 13, 1994.
Decided
Per Curiam: granted petition writ of certiorari to review postconviction relief court’s denial of petitioner’s application for postconviction consideration, relief. After careful we hereby dismiss the petition certiorari as improvidently granted. STATE, JOHNSON, Respondent Appellant. v. Michael E. (2d) 637)