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holding that even if the trial court erred, the alleged error "was harmless beyond a reasonable doubt"
Summary of this case from State v. AcanforaOpinion
No. 4367.
Heard December 12, 2007.
Decided April 3, 2008.
Appeal from the Circuit Court, York County, Marc H. Westbrook, J.
Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor I. McDuffie Stone, III, of Beaufort, for Respondent.
Editor's Note: The opinion of the Court of Appeals of South Carolina, in State v. Page, published in the advance sheet at this citation, 377 S.C. 578, was withdrawn from the South Carolina bound volume because it was corrected. For corrected opinion, see 378 S.C. 476, 663 S.E.2d 357.
Jaleel V. Page appeals his convictions for conspiracy, attempted armed robbery, and possession of a pistol by a person under the age of 21. Page contends the circuit court erred in allowing the State to introduce evidence that Page's nontestifying co-defendant implicated Page in a statement to police where the statement did not fall into a hearsay objection and Page's counsel did not "open the door" to the admission of the statement. We affirm.
FACTS
On March 16, 2003, Willie Cunningham was shot and killed near his home in York, South Carolina. Katrina Howard (Girlfriend) testified she had driven Page and Lamont McCollum to York, on the same day, to visit McCollum's friend, Lofton Garvin, who lived in the Hall Street Apartments. Upon arriving in York, Page and McCollum exited the vehicle and gathered with approximately eight individuals in a park near the apartments while Girlfriend remained in the vehicle. Girlfriend testified she overhead the group discussing an argument that had occurred between Lofton and "a gentleman." This discussion continued for some time near Girlfriend's vehicle and also near a large tree and playground located near the park and the apartments. Girlfriend testified she left the apartments for fifteen or twenty minutes, during which time she went to a convenience store for a drink.
Howard was McCollum's girlfriend and was pregnant with his child at the time of the incident; McCollum is a co-defendant in this case.
During this discussion, both Page and McCollum showed the group, which also included A.J. Williams, another co-defendant, a gun each was carrying. Williams testified the group consisted, among others, of himself, Page, McCollum, and Terrence McKnight, the fourth and final defendant in this case. The group was smoking marijuana and discussing "making a lick," which Williams testified was slang for "coming up on some extra money, doing something to come up with some extra money some way or somehow."
Rashad Simpson (Nephew), Cunningham's nephew, lived with Cunningham at the time of his murder in a trailer in or around the Hall Street Apartments. On the same afternoon, Nephew testified he walked to a friend's trailer in the same apartment complex. While en route, Nephew was approached by Page and McCollum, neither of whom he knew. Nephew testified Page and McCollum approached and asked Nephew about where they could buy marijuana. Nephew responded in the negative, and continued to walk to his friend's house, despite Page and McCollum's further attempts to get Nephew to stop. Although he testified he had briefly gone home to get something to eat and thus was not present for this encounter, Williams testified Page and McCollum told him they were "going to make a lick on [Nephew] right then and there but [Nephew] kept on walking."
Williams testified he reunited with Page, McCollum and McKnight after eating lunch. Thereafter, the group, led principally by McCollum and Page, concocted a plan to rob Nephew's trailer while he was away. McCollum indicated that if Williams and McKnight served as lookouts, they "would get a cut of whatever [McCollum and Page took] from [Nephew]'s house." Shortly thereafter, the group of four approached Nephew's trailer. McCollum and Page went directly to the porch, and Williams testified he and McKnight stood off to the side of the trailer.
Before McCollum and Page could go inside, Cunningham came to the door of his trailer. The two asked Cunningham where Nephew was, and then McCollum pulled his gun out and told Cunningham to "get down, get down." Williams testified the group had previously discussed what they would do if someone was in Nephew's trailer when they tried to rob it, and McCollum had told the others he would hold the person hostage while they robbed the trailer. Williams confirmed he and McKnight could see the entire encounter from their vantage point. Williams saw Cunningham reach for the gun, but McCollum "pulled back the gun and came back and shot him two times in the chest." All the while, Williams testified Page was standing "right beside [McCollum] with his hands in his pocket [sic]."
Meanwhile, Girlfriend testified when she returned from the convenience store, she saw McCollum, Page and "the boys that was with [McCollum]," who she could not identify, already at the porch of Nephew's trailer. An argument ensued, and Girlfriend, who at the time was driving past Nephew's trailer, testified she saw the group "on the porch arguing and tussling or whatever and I saw [Page] pull out a gun and shoot [Cunningham]." Thereafter, both Girlfriend and Williams testified the group scattered in two different directions with McCollum and Page in the direction of Girlfriend's vehicle, while Williams and McKnight ran to Williams' trailer. Girlfriend drove the pair back to York before they went their separate ways. Nephew, who was still at his friend's house, received a phone call that Cunningham had been shot.
None of the four participants came immediately forward to the police. Instead, Williams was first caught on tape some nine months later describing Cunningham's death to a fellow inmate who was wearing a wire, while both were incarcerated on other charges. Williams thereafter gave a full statement to Detective Sara Robbins (Detective). Although Williams initially did not implicate McKnight, through several subsequent statements, Williams implicated himself, McKnight, McCollum and Page in Cunningham's murder.
At the time of his arrest, McKnight gave police an oral statement that was later memorialized in writing, as well as a second written statement implicating McKnight and the other co-defendants. Page made a pre-trial motion to suppress the statements implicating Page if McKnight chose not to testify, but the motion was denied. In the ensuing trial, a redacted version of McKnight's statement, replacing any mention of Page with "another guy" or the "other guy," was admitted into evidence over Page's objection. McKnight was present at the trial, but chose not to testify. McKnight's statements confirm that both McCollum and Page had guns on the day in question, and were interested in robbing Nephew's trailer. McKnight's statement indicated he did not see who shot Cunningham, but Williams told McKnight it was McCollum after the two had run away.
Detective testified at trial that leads were initially hard to come by in the case; however, Williams' statements to a fellow inmate, and later directly to the police "collaborated [sic] other leads that [the police] hadn't been able to connect." On cross-examination, Page questioned Detective extensively about her investigation and the steps leading to the charges and ultimate arrests of Page, McCollum, and McKnight. Page's cross-examination of Detective attempted to show how the State had very little evidence to link Page to the murder and attempted armed robbery. After Page finished, the State made a motion to admit McKnight's full and complete statement on the basis Page had opened the door to allow the unredacted evidence, because Page had questioned Detective's investigation. The circuit court agreed, and admitted McKnight's unredacted statement.
Williams, as referenced above, was already in custody, and gave Detective several statements which led to the other defendant's arrests.
Thereafter, the jury found Page guilty of conspiracy, attempted armed robbery, and possession of a pistol by a person under the age of 21. Page was found not guilty of murder. This appeal followed.
STANDARD OF REVIEW
The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). 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. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000). In criminal cases, the appellate court sits to review errors of law only. State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct.App. 2003). We are bound by the trial court's factual findings unless they are clearly erroneous. Id. at 388, 577 S.E.2d at 500-01.
LAW/ANALYSIS
Page asserts the circuit court erred in allowing the State to introduce evidence that Page's nontestifying co-defendant implicated Page in a statement to police where the statement did not fall into a hearsay objection and Page's counsel did not "open the door" to the admission of the statement. We find no reversible error and affirm.
"The constitutional right to confront and cross examine witnesses is essential to a fair trial in that it promotes reliability in criminal trials and insures that convictions will not result from testimony of individuals who cannot be challenged at trial." State v. Martin, 292 S.C. 437, 439, 357 S.E.2d 21, 22 (1987). The introduction of a nontestifying co-defendant's statement which implicates a defendant violates a defendant's right to confrontation because no opportunity to cross-examine the co-defendant is presented. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Because the right to confrontation is so fundamental, limiting instructions are not an adequate substitute. Id.; See also State v. Dennis, 337 S.C. 275, 523 S.E.2d 173 (1999) (recognizing that in Bruton, the Supreme Court held that a defendant's rights under the Confrontation Clause of the Sixth Amendment are violated by the admission of a nontestifying co-defendant's confession that inculpates a defendant, even if a cautionary instruction is given).
Redaction has come into play as a tool to allow admission of a co-defendant's confession against the confessor in a joint trial. State v. Holmes, 342 S.C. 113, 119, 536 S.E.2d 671, 674 (2000). The point of redaction is to permit the confession to be used against the nontestifying confessor, while avoiding implicating his co-defendant. Id. The Confrontation Clause is not violated when a defendant's name is redacted but other evidence links the statements application to the defendant, if a proper limiting instruction is given. See Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (holding "the Confrontation Clause is not violated by the admission of a nontestifying co-defendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.").
Here, Page made a pretrial motion to exclude two statements made by his nontestifying co-defendant, McKnight. The court denied the motion and asked the State to prepare a redacted version of each statement in accordance with Bruton and its progeny above. Ultimately, one of McKnight's redacted statements was read into the record during Detective's testimony. After Page's cross-examination of Detective, the State moved to admit McKnight's unredacted statement on the basis that Page had opened the door to this testimony due to his questions on Detective's investigative techniques and the sufficiency of evidence linked to Page.
It is firmly established that otherwise inadmissible evidence may be properly admitted when opposing counsel opens the door to that evidence. State v. Young, 364 S.C. 476, 485, 613 S.E.2d 386, 391 (Ct.App. 2005) cert. granted, Jan. 2007; See also State v. Curtis, 356 S.C. 622, 632, 591 S.E.2d 600, 605 (2004) ("Given that [defendants] maintained that PPS did not allow pornographic materials or links on the website, it is patent that they opened the door to this line of inquiry."); State v. White, 361 S.C. 407, 415, 605 S.E.2d 540, 544 (2004) (ruling expert could testify that she believed the victim in this case because defendant opened the door by cross-examining expert about other cases in which she did not believe victim); State v. Dunlap, 353 S.C. 539, 541, 579 S.E.2d 318, 319 (2003) (holding defense counsel's opening statement "opened the door to the introduction of evidence rebutting the contention that [defendant] was merely an addict"); State v. Taylor, 333 S.C. 159, 175, 508 S.E.2d 870, 878 (1998) ("[B]ecause appellant opened the door about his relationship with his wife, the solicitor was entitled to cross-examine him regarding the relationship, even if the responses brought out appellant's prior criminal domestic violence conviction."). Furthermore, an appellant cannot complain of prejudice resulting from admission of evidence to which he or she opened the door. State v. Foster, 354 S.C. 614, 623, 582 S.E.2d 426, 431 (2003).
In the present case, the court found Page attempted to elicit replies from Detective indicating the only evidence she had gathered linking Page to the crime were the contradictory statements and testimony of Williams and Howard, while, in reality, she had also used co-defendant McKnight's statements. This, the court determined, reflected on Detective's credibility as a witness and on the quality of the investigation she undertook that led to Page's arrest. As a result, the court found Page had opened the door during his cross-examination to the extent that Detective's testimony warranted bolstering. Detective was then allowed to testify the "other guy" identified in McKnight's statement was Page, and the court gave a limiting instruction to the jury that it should not consider the evidence against Page, rather only as to the credibility of Detective and her investigation.
Whether a person opens the door to the admission of otherwise inadmissible evidence during the course of a trial is addressed to the sound discretion of the trial judge. State v. Adcock, 194 S.C. 234, 234, 9 S.E.2d 730, 732 (1940). See also Corbett v. Fleetwood Homes of North Carolina, 213 F.3d 630 (Table), 2000 WL 530325 (C.A.4 (S.C.)) (2000). While we recognize the discretionary authority of the trial judge in this area, we believe he erred in finding that Page's counsel's zealous representation of his client required the admission of this inadmissible evidence in order to rehabilitate Detective's investigative techniques. Nevertheless, we find any error resulting from the admission of the unredacted statement was harmless.
To constitute error, a ruling to admit or exclude evidence must affect a substantial right. Rule 103(a), SCRE; State v. Johnson, 363 S.C. 53, 60, 609 S.E.2d 520, 524 (2005). However, error is harmless where it could not reasonably have affected the trial's outcome. State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985). No definite rule of law governs the finding that an error was harmless; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case. State v. Reeves, 301 S.C. 191, 193-94, 391 S.E.2d 241, 243 (1990). In considering whether error is harmless, a case's particular facts must be considered along with various factors including:
. . . the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
State v. Clark, 315 S.C. 478, 482, 445 S.E.2d 633, 635 (1994) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). Thus, an insubstantial error not affecting the result of the trial is harmless where "guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached." State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989). Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result. State v. Sherard, 303 S.C. 172, 176, 399 S.E.2d 595, 597 (1991). A violation of a defendant's Sixth Amendment right to confront a witness is not per se reversible error if the error is harmless beyond a reasonable doubt. State v. Graham, 314 S.C. 383, 385, 444 S.E.2d 525, 527 (1994). In fact, the United States Supreme Court has expressly found that the denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case. See Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Van Arsdall, 475 U.S. at 682, 106 S.Ct. 1431.
Our court also found harmless error in State v. Gillian, where the testimony was "largely cumulative" to testimony from other witnesses and other evidence suggested Gillian was guilty. State v. Gillian, 360 S.C. 433, 457-58, 602 S.E.2d 62, 74-75 (Ct.App. 2004), aff'd as modified on other grounds, 373 S.C. 601, 646 S.E.2d 872 (2007). In Gillian, we stated that "[n]o definite rule of law governs the finding that an error was harmless; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case." Id., at 454-55, 602 S.E.2d at 73.
Applying the Van Arsdall factors to the case at hand, we note that the sections of McKnight's statement mentioning Page was either cumulative or corroborated by other witnesses. McKnight's statement references Page specifically on four occasions. The first two occasions, McKnight indicates McCollum and Page had "little pocket guns;" McCollum with an "automatic .25 silver with a black handle," and Page "had a small revolver, a .32 or something." As described above, co-defendant Williams had already testified to the guns McCollum and Page were carrying that day. Williams testified McCollum was carrying "a little small .25" and that "it was an automatic." Meanwhile Page carried "a little .32, old rusty looking .32 . . . Revolver." Furthermore, York Police Department detective John Naylis testified four gun shell casings were found at the scene, and in his opinion, each of the casings came from the same gun, and were associated with a .25 automatic pistol. Naylis found significant that a .25 automatic weapon typically eject its casings, while a revolver typically requires manual unloading of spent gun shell casings.
The third occasion McKnight's statement mentions Page, it places Page at the apartments, and again says "[McCollum] and Page kept playing with their guns, pulling them out and pointing at us playing." Williams' testimony already indicated both McCollum and Page had guns. In addition, the testimony or statements of four people placed Page at the scene. These included: Nephew, Girlfriend, Williams, and Mary Burress, whose statement placing McCollum and Page on her porch at the Hall Street Apartments the day of Cunningham's murder was read into evidence by Detective during her testimony. Finally, McKnight's statement placed Page on Nephew's porch during the commission of the murder. As indicated above, the testimony of both Williams and Girlfriend had already placed Page on the porch, therefore McKnight's statement was merely cumulative to the evidence already on the record.
Moreover, prior to the admission of the unredacted statement, Detective was asked to respond to a question on cross-examination from Page as to whether she corroborated the details of Williams' statements to police. (emphasis added). Detective testified that "[the police] did talk to other people and were unable to corroborate [Williams's statements] until we corroborated it through Terrance McKnight's statement." This testimony was not objected to at the time. A contemporaneous objection is required to preserve issues for direct appellate review. Webb v. CSX Transp., Inc., 364 S.C. 639, 657, 615 S.E.2d 440, 450 (2005). As the Supreme Court has stressed on several occasions, the Constitution entitles a criminal defendant to a fair trial, not a perfect one. See United States v. Hasting, 461 U.S. 499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); Bruton, 391 U.S. at 135, 88 S.Ct. 1620.
CONCLUSION
As a result of the foregoing, we hold that any error allowing the introduction of Page's nontestifying co-defendant's statement implicating Page to the police, where the court determined Page had opened the door to the admission of the evidence, was harmless beyond a reasonable doubt. The decision of the circuit court is accordingly
AFFIRMED.
KITTREDGE, J., and THOMAS, J., concur.