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2011-UP-087 - State v. Barbare

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

John A. Barbare, Appellant.


Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-087  
Submitted November 1, 2010 – Filed March 3, 2011


AFFIRMED


Robert M. Pachak, of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames, Office of the Attorney General, of Columbia; Robert Mills of Greenville, for Respondent.

PER CURIAM:  John Barbare appeals his conviction for armed robbery.  On appeal, Barbare argues the trial court erred (1) by allowing an officer to testify to the contents of a surveillance video that was no longer available; and (2) by improperly shifting the burden of proof during its jury instruction.  We affirm.[1]

FACTS

On February 16, 2008, a robbery occurred at the Spinx convenience store in Marietta, South Carolina.  Barbare was subsequently arrested and indicted for armed robbery.

At trial, Barbare made a motion to exclude any testimony related to the contents of the surveillance video on the ground that the State failed to produce the video.  According to Barbare, this failure constituted a violation of Rule 5 of the South Carolina Rules of Criminal Procedure because the surveillance video contained exculpatory evidence.  The State argued the surveillance video did not contain any exculpatory evidence based on the ruling of a circuit court judge.  The State also argued it should be permitted to discuss the contents of the surveillance video if Barbare opened the door to this issue.  The trial court did not review the prior judge's ruling regarding the exculpatory nature of the surveillance video and granted the State's request to discuss the surveillance video contents if Barbare made any references concerning the availability of the surveillance video. 

The State called several witnesses during its case in chief.  Hoyt Rash, the store clerk, testified that Barbare, a regular customer of the store, approached the counter and asked for two packs of cigarettes.  Rash indicated Barbare pointed a gun at him and stole approximately $140 from the store.

Cheryl Shipman, a store customer, testified she heard Barbare tell Rash that he was going to shoot Rash if Rash did not open the cash register.  After hearing this statement, Shipman hid behind an aisle and heard Barbare arguing with another store customer.  Shipman exited the store and called 911. 

Officer Brian Osborne of the Greenville County Sheriff's Office (Sheriff's Office) reported to the store after the robbery and subsequently conducted a photo lineup at the Sheriff's office.  Officer Osborne testified Rash identified Barbare as the perpetrator of the armed robbery.  Officer Osborne stated Barbare was arrested, waived his Miranda rights, and produced a written confession implicating his involvement in the armed robbery.  Officer Matthew Owens testified Barbare was coherent and did not appear to be intoxicated or under the influence of drugs during his confession. 

On cross-examination, Officer Owens answered several questions posed by Barbare regarding the surveillance video.  In response, the State recalled Officer Osborne to the witness stand to discuss the contents of the surveillance video.  Barbare objected and argued Officer Osborne's testimony violated his Sixth Amendment right to confront a witness because the State failed to produce the surveillance video.  The trial court overruled Barbare's objection and allowed Officer Osborne to testify to the contents of the surveillance video.

After the State's presentation of the evidence, Barbare testified in his own defense.  Barbare stated he went to the store to purchase cigarettes and beer.  While in the store, Barbare stated an intoxicated customer bumped into him and a verbal altercation ensued.  After this incident, Barbare testified he became scared and upset and did not purchase any items from the store.  Barbare also claimed he did not rob the store or confess to the robbery.

The jury subsequently convicted Barbare for armed robbery, and the trial court sentenced him to twenty years imprisonment.  This appeal followed. 

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Martucci, 380 S.C. 232, 246, 669 S.E.2d 598, 605-06 (Ct. App. 2008).  This court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  This court does not reevaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence.  State v. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86 (Ct. App. 2007).

LAW/ANALYSIS

A. Violation of the Confrontation Clause

Barbare argues Officer Osborne's testimony regarding the contents of the store's surveillance video violated his Sixth Amendment right to confront a witness.  We disagree.

The Confrontation Clause of the Sixth Amendment, which was extended to the states by the Fourteenth Amendment, guarantees the right of a criminal defendant to confront witnesses against him, and this includes the right to cross-examine witnesses.  State v. Holder, 382 S.C. 278, 283, 676 S.E.2d 690, 693 (2009). 

During cross-examination, Barbare asked Officer Owens several questions about the surveillance videotape. The colloquy between Barbare and Officer Owens provides in pertinent part:

Defense Counsel:  You were aware that the Spinx station had a functioning video surveillance system?
Officer Owens:  From -- yeah.
Defense Counsel:  And that it was working that night?
Officer Owens:  It could have been.  I don't know.
Defense Counsel:  And could have been viewed?
Officer Owens:  Yeah.
Defense Counsel:  People had viewed the video?
Officer Owens:  Did I view the video?
Defense Counsel:  No.  Other officers viewed the video?
Officer Owens:  I – yeah.
Defense Counsel:  No video was ever obtained?
Officer Owens:  Not from me.
Defense Counsel:  It's not in evidence?
Officer Owens:  Okay.
Defense Counsel:  It's not put into evidence in P&E?
Officer Owens:  I didn't put any video in P&E.

After Barbare's cross-examination of Officer Owens, the State recalled Officer Osborne to testify to the contents of the surveillance video.  Once Barbare questioned Officer Owens about the store's surveillance video, Barbare opened the door to this issue.  We conclude the State was permitted to recall Officer Osborne to the witness stand to rebut Barbare's cross-examination of Officer Owens' testimony regarding the store's surveillance video.  Thus, we discern no error from the trial court's decision in allowing Officer Osborne to testify to the contents of the videotape.  See State v. Stroman, 281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984) (stating "where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though [the] latter evidence would be incompetent or irrelevant had it been offered initially").

B.  Jury Instruction

Barbare also argues the trial court's jury instruction violated his right to due process because the trial court improperly shifted the burden of proof.  We disagree.

The law to be charged to the jury must be determined by the evidence presented at trial.  State v. Patterson, 367 S.C. 219, 231, 625 S.E.2d 239, 245 (Ct. App. 2006).  A trial court is required to charge only the current and correct law of this state.  Id.  A jury charge is correct if it contains the correct definition of the law when read as a whole.  Id. at 232, 625 S.E.2d at 245.  Jury instructions must be considered as a whole, and if as a whole they are free from error, any isolated portions which might be misleading do not constitute reversible error.  State v. Smith, 315 S.C. 547, 554, 446 S.E.2d 411, 415 (1994). 

During the jury charge, the trial court stated,

Ladies and gentlemen, I charge you that the State does not have an absolute duty to preserve potentially useful evidence that might exonerate a defendant.  To establish a due process violation, a defendant must demonstrate, first of all, that the State destroyed the evidence in bad faith.  And, secondly, that the evidence possessed an exculpatory value apparent before the evidence was destroyed, and that the [d]efendant cannot obtain other evidence of comparable value by other means. 

Barbare objected to this portion of the jury instruction and argued the charge suggested "a burden-shifting message."  The trial court's statement that the State does not have an absolute duty to preserve potentially useful evidence that might exonerate a defendant is a correct pronouncement of the law.  See State v. Breeze, 379 S.C. 538, 545, 665 S.E.2d 247, 251 (Ct. App. 2008) (stating the State does not have an absolute duty to safeguard potentially useful evidence that might vindicate a defendant and that a defendant must demonstrate (1) that the State destroyed the evidence in bad faith, or (2) that the evidence possessed an exculpatory value apparent before the evidence was destroyed and the defendant cannot obtain other evidence of comparable value by other means to support a due process claim).  Therefore, we conclude the trial court's jury instruction was free from error. 


CONCLUSION

Accordingly, the trial court's decision is

AFFIRMED.

FEW, C.J., SHORT and WILLIAMS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.