*1 stated, for the the convictions and sen- Accordingly, reasons Kenneth Easier are Wayne tences of Affirmed. Goolsby, JJ., concur.
Cureton STATE, JENKINS, Respondent Evelyn Appellant.
(474 (2d) 812) Appeals Court of *2 Columbia, Tara Dawn Shurling, appellant. for Condon, Attor- Deputy Molony General Charles Attorney McIntosh, Deputy Attorney Assistant General John W. ney Elliott, General Attorneys and Assistant Salley General W. Callison Tiffin, Buchanan Smith and Caroline Rakale Charleston, Schwacke, David R N. Columbia, and Solicitor respondent. for 8, 1996.
Heard March 13, 1996; 9, 1996. Refiled May Filed June Hearn, Judge: convicted of with intent
Evelyn possession Jenkins was claiming crack Jenkins appeals, distribute cocaine. Mrs. defense counsel’scross-examina- limiting trial erred judge reverse and remand for tion of the State’s witnesses. We new trial. *3 Diner, E arrest resulted from a raid on J &
Mrs. Jenkins’ her hus- Mrs. Jenkins and operated business owned Two rocks of crack band, John, Pineville, in South Carolina. in of pocket of .25 were found the consisting grams cocaine made a motion pretrial Mrs. Jenkins’ Defense counsel apron. at the the fruits of the search warrant executed suppress De- diner, hearing. the trial court held a Jackson v. Denno he the warrant Baggett tective testified obtained Whilden following: an stated in the based affidavit which upon informant been in the busi- Confidential and reliable has a quan- the 72 hours and has past purchased ness within cocaine, the namely narcotic crack from tity drugs, business, John Jenkins. namely of said owner/operator in buy testified he the described Baggett participated bills, three drove affidavit. the informant Baggett gave $20 diner, let the informant out about 500 the informant to the the the informant about Baggett picked up feet from diner. one rock of gave Baggett to 15 minutes later. The informant pres- did not know who was change. Baggett cocaine and $10 day. ent in the diner that Baggett any special defense counsel asked about
When for the helping, prose- treatment the informant was promised the court “the infor- cutor Defense counsel advised objected. here, in He not be but I am may mant is the this case. linchpin The was that try position that informant.” defense’s going The court up” ultimately the informant “set the Jenkinses. ruled the warrant was valid. in limine to refer- day any
The next the State moved bar in The claimed jury. ence to the informant front of the State a material participant the informant was not a or witness Mrs. charged. to the crimes with which Mrs. Jenkins was to mention agreed Jenkins’ counsel the State could choose not informant, entitled to a the but claimed Mrs. Jenkins would be on the inference for to call a material charge negative failing relevance, the it witness. When asked defense counsel stated informant position planted was Mrs. Jenkins’ confidential The apron. argued the cocaine found Mrs. Jenkins’ State was, if they the defense did not know who the informant planted drugs. could not assert informant State Diamond, asserted that under State v. 280 S.C. (1984) Dennison, and State v. 1991) (Ct. only the informant had to be revealed App. misidentification, entrapment,
where relevant to issues of intent knowledge. or
The court ruled that neither side could into an issue inquire ultimately validity which attacked the search warrant. relevant defense counsel the informant was Although argued the infor- drugs, to the issue of the court stated planting to the search warrant. The court only mant’s relevance was could not cross-examine the officers police ruled counsel buy pro- the informant or controlled which led to any about curement of the search warrant. wit
Generally prosecuting to cross-examine dimensions, of constitutional essential to a being ness is *4 Amendment and fair trial as the Sixth guaranteed the clause the Fourteenth Amendment. State v. process due of (2d) (1979); v. 70, 274 261 S.E. 159 see also State McCoy, S.C. (2d) (1994) Graham, 383, 444 525 in (Specifically 314 S.C. S.E. right cluded in a defendant’s Sixth Amendment to confront the cross-examination of ad right meaningful witnesses is Smith, witnesses); v. 315 verse accord State S.C.
(2d) (1994). 411 A criminal a violation of the defendant states
364 from that he was by showing prohibited
Confrontation Clause de cross-examination in appropriate otherwise engaging the part form of bias on a signed prototypical to show the facts from jury to the witness, thereby expose relating inferences draw jurors appropriately the could which Arsdall, 475 v. the witness. Delaware Van reliability to the of (2d) (1986); 674 1431, 1435-36,89 L.Ed. 673, 680, 106 S.Ct. U.S. Smith; v. State v. Graham. State determinating discretion
The trial court has broad and extent of cross-examination. range the general (2d) Miller, (1972); v. 573, 190 State 258 S.C. S.E. (1980). Smith, This lati v. 164, 268 State S.E. extends to cross-examination credibility in the area of tude bias, or memory, prejudice of a witness’s accuracy the testing (1976).1 Dunlap, Martin v. S.C. interest. in ref cross-examination, may questions a witness be asked On matter, in reference to statements prior erence to irrelevant con or in reference to statements contradictory testimony, of Id. contradictory testimony. relevant matter not cerning a trial from im judge does not prevent Confrontation Clause into the inquiry potential limits on defense counsel’s any posing judges may trial contrary, witness. On prosecution bias of based on limits on such cross-examination reasonable impose harassment, prejudice, about, among things, concerns other that is issues, interrogation or safety, confusion of the witness’s v. Ars relevant. Delaware Van only marginally or repetitive Smith; dall; State v. Graham. However, before a defen State to demonstrate bias on attempting can from prohibited dant be that the witness, clearly the record must show of a Smith; State v. inappropriate. is somehow cross-examination State v Graham. Amendment to con
The violation of Sixth se reversible error. Whether such per is not frontation depends upon is harmless in a case particular an error include the wit importance of factors. The factors host case, the testi whether testimony prosecution’s ness’s cor cumulative, or absence of evidence presence was mony ma- of the witness on contradicting or roborating 3, 1995, 611(b), SCRE, September provides, “A witness Rule effective case, any any in- may relevant issue matter be cross-examined credibility.” cluding
365 permit- otherwise extent of cross-examination terial points, of the course, strength prosecution’s the overall ted, and of Smith; Arsdall; State v. Graham. State v. case. Delaware v. Van Diamond, v. concedes that under State Appellant (1984),the State could not S.C. of the confi identity to reveal the required have been in connec charged was not Appellant dential informant since made this individual. Neverthe buy allegedly by tion with the concern the State’s witnesses less, the to cross-examine defense this Appellant’s critical to the informant was ing trial judge: “[T]he In defense counsel to the case. the words of in this case.” linchpin informant is the that since he had reasoning the trial judge’s understand We warrant, evidence validity of the search already upheld However, the circum- was inadmissible. legality to its relating into Appellant’s sent someone police stances under which her relevant to clearly make a were drug purchase business to of importance were Given drugs planted. claim that the defense, the trial court to Appellant’s this line of questioning of the counsel’s cross-examination erred in defense limiting error was attaching this prejudice witnesses. State’s closing in his the solicitor stated repeatedly exacerbated when who could anyone, that there was no evidence of argument the drugs. have planted not properly pre hold this issue is
The dissent would never review because counsel served for appellate evidence. disputed of the proffer made an in camera disagree. We judge the trial repeatedly requested
Defense counsel concerning the State’s witnesses him to cross-examine permit concerning no question informant.2There was the confidential appeal, contains over carefully the record on which have reviewed We permitted scope defense cross-exam- twenty-six pages on the of discussion quoted opin- Accordingly, portions in this of the state’s witnesses. ination attempts only portion significant number of represent ion small Moreover, judge. the trial bring the trial this issue before defense counsel “protected.” “[A]ll repeatedly the defense counsel that he was judge assured presented required questions for its deci- is that the that this Court has ever and fairly properly raised in the lower court have sion must first been Rowe, upon by passed that Court.” Hubbard (1939). attorney under the circum- perseverance of the defense Given the fairly properly trial, say be- this issue was not of this we cannot stances court, clearly rule it. court failed to on nor that the fore lower to elicit. These col- counsel hoped of evidence defense type continuing dialogue between are representative
loquys defense counsel this issue: judge the trial For not to allowed to go me be DEFENSE COUNSEL: *6 to to these about who this was talk officers person into money that not, fact, they in recovered the whether or they went to this confidential informant when they gave things this and executed the search warrant and back I that couldn’t nature, just that is simply preposterous is This ab- They money. ask them that. didn’t recover go certainly of fact which solutely issues germane —which ask this. I can about ruled already
THE The search warrant has been COURT: already that I made to do have going again. on. We are error, can cor- If I made an some other court ruling. they that going rect now the is to be that. So warrant, to went they went —based on the search And case building they drugs. clearly found testify they that if I let them that the reason went says informant told them there were there was because this there, hearsay in that and it’s reversible error. is drugs Honor, do mean —let you Your DEFENSE COUNSEL: this I understand perfectly. me understand so
[*] [*] [*] [*] * * I to ask the officer [B]ut COUNSEL: want DEFENSE informant, him, he from got he to this what gave what he to him. I can ask any promises not made whether or him that. to do warrant.
THE COURT: That has with search they has to what found in diner. nothing That do with Your COUNSEL: Honor— DEFENSE already THE I ruled that the search war- COURT: have rant is valid. I to I understand. am tell going
DEFENSE COUNSEL: now— you transaction, Middleton,
THE COURT: whole Mr. he money, the informant the that went they gave where made the and came back— allegedly purchase there and on, going has been ruled and we are not already that. try that. trying I am not COUNSEL:
DEFENSE that out. leaving THE COURT.We’re No, There was a man who sir. DEFENSE COUNSEL: afternoon, and these at 5:00 building went I am to ask these him, going knew about police happened. what policemen to have do, going and I are No, you you
THE If COURT: ruled. already I have because problem have a Well, I don’t want to DEFENSE COUNSEL: Honor, I mean— that, Your but with problem Middleton, you are object, THE You can Mr. COURT: have had a discourse long on the record. We protected into the search it, going get here but we are not about point forward to the going go We’re again. warrant building. the officers went to the where Honor— COUNSEL: Your DEFENSE the record. Your ob- THE You are protected COURT: ruled on the search noted, already but I have jection That of the trial this case. warrant, and that is not *7 a matter of law— excluded the rule a of requiring proffer The reason for to discern court reviewing evidence is to enable the record rule relaxed where That has been prejudice. Myers, demonstrates State clearly prejudice. (1990). clear what very In case it was this to elicit on cross-examina hoped defense counsel re specifically if counsel did not Therefore, even defense
tion. would not jury, of the we presence outside the quest proffer because preserved hold the issue was not inclined to be prejudice. us to discern necessary not enable was proffer at made a sufficient Moreover, find defense counsel we testimony. During the disputed tempt proffer requested: he hearing, v. Denno Jackson time that is a classic Honor, I this might suggest Your of this cross-examination my I like to proffer that would telling that his—he is assume only case officer who —I of what was submit- are made reports me that his yesterday. May here who testified by Badgett ted Officer me in the if would not allow you I him cross-examine obviously as to—he as to the facts the-jury of presence three given was fact that someone of the knowledge has a con- there as made a purchase and allegedly bills $20 day. buy trolled earlier make a him to initially allowed judge the trial Although if he could do so asked counsel thereafter defense proffer, objected then The solicitor jury. of the the presence had been ruled warrant the search relevancy, arguing basis ques- counsel’s limited defense Thereafter, judge the trial on. admissibility and the Denno issue the Jackson v. tions to Prior to the Jenkins. by statements Mrs. alleged certain oral the court as follows: counsel in, queried defense coming jury I may limited so that witness is of this “My cross-examination trial your ruling?” I That is am correct? anything; not ask are ruled, you protected. I “Yes. have judge responded: protected.” times. Youare many I’ve said this evi request proffer counsel’s conclude defense We to preserve was sufficient presence the jury’s dence outside trial recognize review. We further for appellate the issue in their clients’ advocating fine line in often walk a attorneys grace trial judge with rulings and accepting terests with counsel’s frustration In this case defense courtesy. judge the trial his cross-examination placed upon the limits the trial con turn; additionally, judge every at apparent was for the record. him was position protected to assure his tinued where we have circumstances, and particularly these Under hold the we decline to difficulty perceiving prejudice, no not preserved.3 error was stated, convictionis this
For the reasons remanded. Reversed
Connor, J., concurs. opinion. in a
Goolsby, J., separate dissents *8 (dissenting): Judge Goolsby, dissent. respectfully I 3 trial, we do not entitled to a new Having that Mrs. Jenkins is determined City v. Goose See Daniels appeal. remaining argument on address her (Ct. 1993) (where (2d) Creek, on an 494, App. reversal 431 256 314 S.C. S.E result, moot, Appeals and the Court of change the issue is not the
issue would it). address need not
369 reviewing may “It is well settled a court not consider in the alleged testimony error exclusion of unless record [the] the appeal fairly rejected testimony shows what would have (2d) 14, 20, 260 Roper, been.” State S.C S.E. (1979); Cabbagestalk, 35, 314 see also State v. 281 S.C. S.E. (1984) (failure make proof prevents an offer of the appel late from determining court whether the exclusion of testimony prejudicial and thus the from the precludes appellant raising on appeal). issue The court of should not address the appeals of an preserved merits issue not for review. Hendrix v. Eastern Distribution, (1995). Inc.,
Jenkins claims the trial prohibited proffering court her from testimony the that she to elicit the confiden hoped concerning record, however, tial informant. The not her support does In response only claim. to Jenkins’s the tes request proffer stated, the “If timony, you it, trial court want to . . . proffer I’m not to—” at which the going point interrupted Jenkins and, trial court instead of the making proffer, requested to in present jury.1 unexpectedly, Not front of Jenkins never objected. Although State chose to return to of her it rul subject proffer, certainly any was not due to the trial court her to make ing by denying one. reference to majority’s colloquies several between de- fense counsel and the trial court the trial only show court had noted Jenkins’s Her objection. objection notwithstanding, that, reversal, law in this state is clear in order to a obtain exchange proceeded The entire as follows: honor, might suggest Your I DEFENSE COUNSEL: this is proffer my classic time that I would like to cross-examination of this case only telling reports officer who not assume that his —he is me that his —I Baggett are made of what was submitted Officer who testified yesterday. May you here I him if cross-examine would not allow me presence jury obviously as to the facts as to —he has knowl- edge given allegedly of the fact that $20 someone was three bills and purchase buy day. made a there as a controlled earlier in the It’s not hav- warrant, ing anything to do with the search Your Honor. you it, proffer going THE If I’m COURT: want to ... to— jury! I do it may DEFENSE But COUNSEL: front of THE COURT: No. No. Honor, object. purpose Your I What is the of it? The PROSECUTOR: has ruled on. There is no other relevance. There’s no search warrant been other relevance to it. added.) (Emphasis *9 she to proffered testimony hoped have the must
Jenkins still the trial court’s by ruling. to was prejudiced elicit she prove (2d) that, 705. It at 14, apparent is Roper, realized he needed to make at defense counsel point, least one the requested the for and preserve appeal a to issue proffer It note that came sub- request to so. this worthy do is the cites for the majority purpose all of the passages to sequent a believed either for request that defense counsel showing futile. necessary request not or such a would be was proffer of the rule re- conceding purpose The majority, while court to discern reviewing is to enable proffer a quiring the record here ruling, from the adverse holds prejudice very because “it was “clearly prejudice demonstrated[d]” to elicit on cross- testimony hoped what defense counsel clear mine.) majority’s (Emphasis explanation examination.” an rulé, requires its of the which misapplication demonstrates questions. mere testimony, Roper, to not appellant proffer disal- showing 705. Without Jenkins’s S.C. S.E. both testimony have elicited was questions lowed would she case, and material to her Jenkins cannot show favorable ruling. Explaining the trial an- by was court’s prejudiced not sufficient. questions her would elicit is hoped swers she a Moreover, proffer even had Jenkins made elicited, have I would hold trial court her would questions excluding testimony. Our not abuse its discretion did 98, 104-05, 16 Gregory, court held State S.C. supreme (1941): 532, 534-35 [Ejvidence to the commission offered accused as by [the] must to such person of the crime another be limited by to such guilt, are inconsistent with his own facts as as or to presumption facts as raise a reasonable inference (no) innocence; can have other ef- his own evidence which another, suspicion upon fect than to cast a bare or raise the crime a inference as to the commissionof conjectural another, acts, . . . Remote discon- by admissible. itself, the crime cannot be separately nected outside orderly judi- An for such unbiased proved purpose. cial to the or innocence of defendant on inquiry guilt as permit- trial does not that such defendant be contemplate in- indulge conjectural ted of defense by way might have committed person ferences that some other trial, he fanciful analogy offense for which is on or to the say jury someone other than he is more probably guilty.
Here, the evidence that sought Jenkins to introduce would *10 have with her guilt. been inconsistent own Even had she pursue been allowed line of questioning proposed, best she could for hoped have would have been to establish that the informant have may plant drugs. had motive to I would therefore hold the trial court properly excluded the Southerland, (2d) State v. 316 testimony. S.C. S.E. Cf. (1994), overruled on other v. grounds by State Chapman, (1995) (in 302, trial, 317 S.C. a murder trial court excluded evidence that other than properly people victim). the defendant had a motive to murder the I Finally, because this was a close eviden- recognize very issue, I tiary even were that the inferences opinion sought hazy Jenkins to establish rose above the line separat- ing reasonable inferences from mere I would not conjecture, trial hold the court’s decision to exclude the testimony an amounted to abuse of discretion. See Gregory, (the rejection admission and tes- proffered timony largely within sound discretion of the trial court and its exercise of such will not be disturbed on absent appeal discretion). an abuse of that
I would affirm.
RICHARDSON, PLOWDEN, HOWSER, Respondent GRIER and Larry PYLE, Appellant. A. (2d) 232)
(472 S.E. Supreme Court