THE STATE OF
In The Court of Appeals
The State, Respondent,
Earnetta Marie King, Appellant.
J. Mark Hayes, II, Circuit Court Judge
Opinion No. 4045
Heard November 8, 2005 – Filed November 21, 2005
REVERSED and REMANDED
Assistant Appellate Defender Robert M. Dudek, of
Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Derrick K. McFarland, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.
ANDERSON, J.: Earnetta Marie King and her boyfriend, Patrick Walker, were jointly tried for the murder of her son, Rodrekus King. King appeals her conviction for murder. We reverse and remand.
Early March 22, 2002, paramedics responded to a call from Patrick Walker. The call concerned the condition of Rodrekus King, Earnetta Marie King’s thirteen-year-old son. When the paramedics arrived, King met them outside and told them her son was not breathing. She escorted them into the house. Once inside, the paramedics found Rodrekus lying on the kitchen floor. He was naked, unresponsive, and pulseless. The paramedics saw
At the time of death, Rodrekus was covered with bruises, small cuts, and “avulsed skin.” An extensive hematoma covered half of Rodrekus’s head. Dr. Michael Ward, a forensic pathologist and the medical examiner for
At trial, King blamed
In support of her assertion that
King’s attorney inquired about his ability to put Thomason on the stand as a defense witness. The following colloquy occurred:
[King’s Attorney]: Well, your Honor, I would just – in regard to Mesha Thomason, obviously, we didn’t know [your position] in regard to the State’s case. But when the time comes that we have to make a decision whether to put up any evidence, at that point I think what Ms. Thomason has to say is relevant to our case. And while she did not appear on my witness list, because frankly I assumed she was being called by the Solicitor’s office, I would like to have her available to call as a witness in my case.
The Court: Any objection from the State?
[The State]: No objection from the State.
The Court: [
Certainly I would object to any testimony about the substance of the alleged letter of confession. Walker’s Counsel]:
The Court: All right. If that happens, the Court will issue its ruling.
The next day, the State rested without Thomason’s testimony. Because Thomason was unavailable, King attempted to admit the handwritten letter in her absence. The judge excluded the letter based on the State’s violation of Rule 5, SCRCrimP, as well as the unavailability of Thomason.
The following day, however, Thomason was available to testify. Before King’s counsel rested, he requested Thomason be allowed to testify to the statements made by
Your Honor, as we discussed off the record, the witness I intended to call that I indicated to the Court yesterday was not available has now become available. That is . . . Mesha Thomason. She is the witness who earlier in the trial the solicitor had sought to offer because she received a letter from Patrick Walker which was essentially a confession and under ordinary circumstances would be admissible as a confession by him. The solicitor’s office was not able to offer it because the court ruled they didn’t comply with the discovery rules. We don’t believe those rules would apply to us since we’re not the State, and it was certainly not in our control. At this time I would, before closing my case, . . . call Mesha Thomason as a witness and introduce that confession through her.
The judge refused to allow Thomason to testify based on his previous ruling that the State failed to turn the letter over to
King was found guilty of murder and sentenced to life imprisonment. She appeals the decision by the trial court to exclude Thomason’s testimony.
STANDARD OF REVIEW
The admission or exclusion of evidence is left to the sound discretion of the trial judge. State v. Gaster, 349 S.C. 545, 564 S.E.2d 87 (2002); State v. Staten, 364 S.C. 7, 610 S.E.2d 823 (Ct. App. 2005). A court’s ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error which results in prejudice to the defendant. State v. Preslar, 364 S.C. 466, 613 S.E.2d 381 (Ct. App. 2005); State v. McLeod, 362 S.C. 73, 606 S.E.2d 215 (Ct. App. 2004). Error without prejudice does not warrant reversal. State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000).
The decision by the trial judge to exclude evidence for failure to comply with disclosure rules will not be reversed absent an abuse of discretion. See State v. Kerr, 330 S.C. 132, 498 S.E.2d 212 (Ct. App. 1998); see also State v. Davis, 309 S.C. 56, 63, 419 S.E.2d 820, 825 (Ct. App. 1992) (“Sanctions for noncompliance with disclosure rules are within the discretion of the trial judge and will not be disturbed absent an abuse of discretion.”). An abuse of discretion occurs when the decision by the trial judge is based on an error of law. State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003).
King argues the trial judge abused his discretion when he refused to allow Thomason, an available witness, to testify.
Initially, we note King did not proffer Thomason’s testimony. Generally, a proffer of testimony is required to preserve the issue of whether that testimony was properly excluded by the trial court. It is well settled that a reviewing court may not consider error alleged in the exclusion of testimony unless the record on appeal shows fairly what the rejected testimony would have been. State v. Roper, 274 S.C. 14, 260 S.E.2d 705 (1979); see also State v. Cabbagestalk, 281 S.C. 35, 314 S.E.2d 10 (1984) (stating that failure to make offer of proof prevents appellate court from determining whether exclusion of testimony is prejudicial and thus precludes appellant from raising the issue on appeal). However, when it is clear from the record that prejudice exists, the issue will be preserved on appeal despite the absence of a proffer.
The record reflects Thomason was going to testify to the statements
Rule 601(a) of the South Carolina Rules of Evidence provides: “Every person is competent to be a witness except as otherwise provided by statute or these rules.” Rule 601(a), SCRE. Generally, “[a]ll witnesses are presumed competent to testify.” Sellers v. State, 362 S.C. 182, 190, 607 S.E.2d 82, 86 (2005). Courts presume a witness to be competent because bias or other defects in a witness’s testimony—revealed primarily through cross-examination—affect a witness’s credibility and may be weighed by the finder of fact. State v. Needs, 333 S.C. 134, 508 S.E.2d 857 (1998).
In the instant case, Thomason was available and “presumed competent to testify.” See Sellers, 362 S.C. at 190, 607 S.E.2d at 86. Concomitantly, unless a statute or other rule of evidence prevented her from testifying, Thomason should have been allowed to take the stand.
The trial judge determined Thomason could not testify because (1) the State violated Rule 5, SCRCrimP; and (2) her testimony was inadmissible under State v. Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999).
I. Rule 5, SCRCrimP
“The requirements of Rule 5 . . . are judicially created discovery mechanisms for use in criminal proceedings.” State v. Kennerly, 331 S.C. 442, 503 S.E.2d 214 (Ct. App. 1998), aff’d, 337 S.C. 617, 524 S.E.2d 837 (1999). Under Rule 5, the State should disclose to the defendant “any relevant written or recorded statements made by the defendant . . . within the possession, custody or control of the prosecution . . . .” Rule 5(a)(1)(A), SCRCrimP. If the trial judge determines the State has violated Rule 5, the judge has the discretion to fashion a proper remedy. See State v. Salisbury, 330 S.C. 250, 498 S.E.2d 655 (Ct. App. 1998), aff’d as modified, 343 S.C. 520, 541 S.E.2d 247 (2001). The judge may “prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.” Rule 5(d)(2), SCRCrimP.
The trial judge determined that pursuant to Rule 5 the State should have disclosed to
A trial judge presiding over a joint trial is charged with the difficult task of maintaining the delicate balance between the interests of the State and the interests of each co-defendant. However, each defendant is entitled to call witnesses whose testimony may exculpate or exonerate them. Therefore, the decision to exclude King’s witness because the State violated Rule 5 was an improper and unjust remedy under the circumstances.
On appeal, the State contends the trial court properly sanctioned it for violating Rule 5. The State noted: “[I]t would have been unjust to allow the State to benefit from the violation, regardless of who introduced the letter into evidence.” The State’s argument that Thomason should not be allowed to take the stand because the State would benefit from its own Rule 5 violation is unpersuasive. King claims Thomason’s testimony would benefit her defense.
Thomason should have been allowed to testify for King even though the State failed to disclose the letter to
The trial judge refused to allow Thomason to testify because of the South Carolina Supreme Court’s decision in State v. Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999). Fuller was convicted of murder and conspiracy, and sentenced to life imprisonment without parole for murder and five years, consecutive, for conspiracy. The State presented a statement from a co-conspirator, Holmes, to a third-party,
The hearsay statements recounted by
McKinney essentially amounted to statements by a deceased third-party that inculpated [Fuller] and subjected the declarant to criminal liability. Thus, the issue before this Court is whether a non-self-inculpatory statement, which is collateral to a self-inculpatory statement, may nonetheless come in under Rule 804(b)(3), SCRE, as a statement made by an unavailable declarant against his penal interest. We conclude that such statements are inadmissible.
Fuller is distinguishable from the case sub judice. First, unlike the declarant in Fuller, the declarant in this case,
Bruton v. United States, 391 U.S. 123 (1968), is not implicated. A Bruton violation occurs when two defendants, A and B, are tried jointly, and defendant A makes a confession that inculpates defendant B. If defendant A does not testify, then A’s statement against B is inadmissible because B will be unable to exercise his right under the Confrontation Clause to cross-examine A. Here,
The trial judge committed an error of law by refusing to allow Thomason to testify based on Rule 804(b)(3), SCRE, and State v. Fuller.
We conclude the trial judge abused his discretion when he refused to allow Thomason to testify. Neither Rule 5, SCRCrimP, nor State v. Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999), prevented Thomason from testifying for King. Pellucidly, the error committed by the circuit judge is coupled with prejudice as a matter of law. Accordingly, the decision of the trial court is
REVERSED and REMANDED.
GOOLSBY and SHORT, JJ., concur.