State v. Cabrera-Pena

Decision Date08 November 2004
Docket NumberNo. 25893.,25893.
Citation605 S.E.2d 522,361 S.C. 372
PartiesThe STATE, Respondent, v. Reyes CABRERA-PENA, Petitioner.
CourtSouth Carolina Supreme Court

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

Acting Justice MACAULAY.

The Court granted a writ of certiorari to review the Court of Appeals' opinion in State v. Cabrera-Pena, 350 S.C. 517, 567 S.E.2d 472 (Ct.App.2002). We affirm in result.

FACTS

On June 30, 1999, Reyes Cabrera-Pena (Cabrera-Pena) went to an Applebee's restaurant in Spartanburg where his estranged wife Alma was dining with three of her friends and the couples' two-year-old daughter, Melissa. According to the only direct evidence, the testimony of Alma's friends, Cabrera-Pena and Alma went outside and argued briefly; Cabrera-Pena then left.

After he left the restaurant, Cabrera-Pena purchased a gun for $30.00. He then went back to the restaurant and sat in his van in the parking lot, waiting for Alma to come out. As Alma and her friends left the restaurant around midnight, they spotted Cabrera-Pena's van in the parking lot; Cabrera-Pena flashed his lights and Alma walked toward his van. After speaking to him for several minutes, Alma began walking towards her friends' pickup truck, followed by Cabrera-Pena. She motioned to her friends that he had a gun. Cabrera-Pena told the group that he was taking Melissa and Alma with him. Alma refused to go and Cabrera-Pena pulled the gun and pointed it at her as she held Melissa on her hip. Alma put her hand on his wrist and pushed the gun down. Cabrera-Pena lifted the gun and pointed it at her head. As Alma backed away, still holding her child, Cabrera-Pena shot her in the right eye. Both Alma and Melissa fell to the ground. Cabrera-Pena pointed the weapon at each of Alma's three friends, but then threw the gun over a fence, ran back to his van and drove away. Cabrera-Pena was arrested a short time later.

After his arrest, Cabrera-Pena was taken to an interview where two detectives, Officer Morrow and Officer Taylor, initially questioned him. When it became apparent that Cabrera-Pena was not fluent in English, they called in Officer Tony Membreno, who was fluent in Spanish to assist them in questioning Cabrera-Pena. At trial, Officer Membreno testified that, after reading him his rights, Cabrera-Pena blurted out, "I'm guilty. I fully accept everything that had happened and I'm responsible for it." Membreno then began referring to his notes from the interview. According to Membreno, Cabrera-Pena told him that when he left Applebee's the first time, he dropped his friend Juan at home, purchased some beer and, on his way home, he found a person from whom he purchased a gun for $30.00. After that, Cabrera-Pena said he then went back to Applebee's, parked his van and waited for his wife. Two hours later, his wife came out and, after they talked, they walked back to her friends. He told Membreno that, before he got out of his van, he had put the gun in his pants between his belt and his shirt. Cabrera-Pena told him that when the shot was fired, he got scared and threw the gun away behind a fence and left in the van.

On cross-examination, Cabrera-Pena, who was proceeding pro se, handed Membreno a document and inquired whether Membreno had signed it and given it to him. The document contained Cabrera-Pena's written statement to the police, which included his statement: "I do not know how she took the gun out of my pants pocket. I tried to grab and force her, but the gun went off and fired."

The following colloquy occurred out of the presence of the jury:

The Court: The State has objected to any statement that was made by you that tends to be in your favor. You may remain silent or you may tell the jury about this, but you may not ask this witness about this statement, this part of it.
Cabrera-Pena: Why can't I?
The Court: You either have to testify or remain silent. If you are permitted to ask him to read this part of the statement, then you are testifying through another witness, which is not permitted. Do you understand?
Cabrera-Pena: It's the same thing that I said that I signed. It's the same thing.
The Court: You may testify or remain silent, but you may not ask this witness what you said to defend yourself. (Emphasis supplied).

The jury was charged with the law of murder and voluntary manslaughter, possession of a firearm during the commission of a violent crime, and three counts of pointing and presenting a firearm. During its deliberations, the jury inquired as to whether Cabrera-Pena's statement of his guilt to Membreno was admissible as evidence and inquired as to why it did not have Cabrera-Pena's statement. Thereafter, the jury requested to re-hear the testimony of Officer Membreno and requested to be recharged on the law of manslaughter. After lengthy deliberation and an Allen1 charge, the jury returned verdicts of guilty on all counts. Cabrera-Pena was sentenced to life imprisonment for murder and concurrent terms of five years for each of three pointing a firearm offenses.

On appeal, Cabrera-Pena asserted the trial court erred in prohibiting him from questioning Officer Membreno about his statement made to the officer that his wife had somehow gotten the gun out of his pants pocket and it had gone off. He contended the "rule of completeness" and fundamental fairness demanded he be allowed to put his statement into context. The Court of Appeals disagreed. State v. Cabrera-Pena, 350 S.C. 517, 567 S.E.2d 472 (Ct.App.2002).

ISSUE

Did the Court of Appeals err in ruling Cabrera-Pena was not entitled to cross-examine Officer Membreno concerning the self-serving portions of the statements he made to the officer?

DISCUSSION

A. Self-Serving Statement

The trial court ruled Cabrera-Pena's self-serving statement made to Officer Membreno was not a proper subject for cross-examination. The Court of Appeals agreed, finding Cabrera-Pena's statements to Membreno were not admissible under either Rule 106, SCRE, or under this Court's opinions in State v. Jackson, 265 S.C. 278, 217 S.E.2d 794 (1975) or State v. Terry, 339 S.C. 352, 529 S.E.2d 274, cert. denied, 531 U.S. 882, 121 S.Ct. 197, 148 L.Ed.2d 137 (2000).

Initially, we note that, at oral argument before this Court, counsel for Cabrera-Pena indicated that this Court's opinion in State v. Terry is being read as requiring exclusion of the exculpatory portions of a defendant's statement under any and all circumstances. Such a reading misconstrues the holding in Terry.

Terry involves the issue of whether a statement against penal interest may be admitted by a non-testifying defendant pursuant to Rule 804(b)(3), SCRE. There, we held that Terry, who had elected not to testify, could not thereafter admit the self-serving statement he made to the police. The rationale for this holding, however, was that a defendant may not claim "unavailability" as a witness by virtue of exercising his fifth amendment privilege against self-incrimination. Terry stands only for the proposition that such an exculpatory statement may not be admitted by a non-testifying defendant pursuant to Rule 804(b)(3). However, this does not mean that the exculpatory statement of a non-testifying defendant is inadmissible under any and all circumstances. Indeed, we find the statement in the present case was admissible pursuant to State v. Jackson, 265 S.C. 278, 284, 217 S.E.2d 794, 797 (1975).

In State v. Jackson, it was held:

When part of a conversation is put into evidence, an adverse party is entitled to prove the remainder of the conversation, so long as it is relevant, particularly when it explains or gives new meaning to the part initially recited. "All statements made in a conversation, in relation to the same subject or matter, are to be supposed to have been intended to explain or qualify each other, and therefore the plainest principles of justice requires that if one of the statements is to be used against the party, all of the other statements tending to explain it or to qualify this use should be shown and considered in connection with it."

265 S.C. at 284, 217 S.E.2d at 797 (emphasis supplied; internal citations omitted).

Here, Cabrera-Pena was interviewed during a one-hour period at 4:00 a.m. During this interview, he made oral statements to Officer Membreno and gave a written statement. At trial, the state elected, notwithstanding an abundance of eyewitness testimony, to call Officer Membreno to the stand and question him concerning the statements made to him by Cabrera-Pena. The trial court then prohibited Cabrera-Pena from cross-examining Membreno as to the remaining self-serving statements made to Membreno. This was error.

Officer Membreno testified as to his conversation with Cabrera-Pena, referring to his notes from the interview. Membreno testified that Cabrera-Pena blurted out that he was guilty and went on to give him the details of the evening. Thereafter, when Cabrera-Pena attempted to cross-examine Membreno concerning the contents of his report of their conversation, he was prohibited from doing so.2 Under Jackson, once the state elected to utilize Officer Membreno's testimony to elicit incriminating statements made by Cabrera-Pena, justice required that his remaining statements tending to explain or qualify those statements should have been considered in connection therewith. Accordingly, we find Cabrera-Pena's cross-examination of Membreno was improperly limited.

We find the state's assertion of a distinction between the written and oral conversations in this case to be one without a difference. As noted previously, Officer Membreno testified on direct examination from his notes concerning the substance of his...

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