State v. Cabrera-Pena

• Decision Date: 20 May 2002
• Docket Number: No. 3500.,3500.
• Citation: 567 S.E.2d 472,350 S.C. 517
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Reyes CABRERA-PENA, Appellant.

350 S.C. 517

567 S.E.2d 472

The STATE, Respondent, v. Reyes CABRERA-PENA, Appellant.

No. 3500.

Court of Appeals of South Carolina.

Heard April 10, 2002.

Decided May 20, 2002.

Rehearing Denied August 23, 2002.

Assistant Appellate Defender Robert M. Dudek, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General

Jeffrey A. Jacobs, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for respondent.

ANDERSON, J.

Reyes Cabrera-Pena ("Cabrera") was convicted of murder, possession of a firearm during the commission of violent crime, and three counts of pointing and presenting a firearm. On appeal, he argues the trial court erred in excluding a portion of a written statement he made to the police and in prohibiting him from recalling his attorney after choosing to proceed pro se. We affirm.

FACTS/PROCEDURAL BACKGROUND

Alma Mendez was separated from her husband, Cabrera. They had a two-year-old daughter, Melissa. On the evening of June 30, 1999, Alma, Melissa, and friends Raphael Gonzalez, Jr., Vicente Cazeros, Elke Wagner, and Wagner's six-year-old son, Christopher, ate a late dinner at an Applebee's in Spartanburg County. In the middle of their dinner, Cabrera appeared in the restaurant. Cabrera approached Alma's table and spoke to her. The two were soon outside arguing. Alma later came back as Cabrera left. Alma reported to her dinner companions that Cabrera was upset about their separation and wanted her back. Alma reported that she did not want anything more to do with Cabrera.

The party left the restaurant as it began closing around midnight. As she was getting into Gonzalez's extended cab pickup, Alma spotted Cabrera's van in the parking lot of an adjacent business. Cabrera flashed his lights and Alma went over to the van. Within several minutes, she walked back to her group with Cabrera following several strides behind her. Alma motioned to the others that Cabrera had a handgun tucked under his waistband.

Cabrera announced to the group that Alma and Melissa were leaving with him. Alma said she and her daughter were not going anywhere with him. Cabrera called for Melissa, and Melissa got out of the truck and into Cabrera's arms. Gonzalez and Wagner tried to defuse the situation by telling Cabrera that since they had brought Alma and Melissa to the Applebee's, they would take her home. Cabrera instructed Gonzalez and Wagner to stay out of his family's dispute. Alma grabbed Melissa from Cabrera. Cabrera then took the gun from his waistband and pointed it at Alma. Alma put her hand on his wrist and attempted to push the gun down. Cabrera pulled his hand back, pointed the gun at Alma, and fired. Alma, who was still holding Melissa, sustained a gunshot to her right eye and was killed. As Alma fell with Melissa to the ground, Gonzalez, Wagner, and Cazeros raced to aid the two. Cabrera pointed his gun at all three; however, he did not fire the weapon. Instead, he ran back to his van and drove away.

Spartanburg County Sheriffs Department officers arrested Cabrera within hours. He was taken to the Spartanburg County Detention Center, where investigators with the Spartanburg Department of Public Safety began an interrogation. Cabrera is a foreign-born Hispanic; thus, in an abundance of caution, the police brought in Tony Membreno, a public safety officer fluent in Spanish, to interpret for Cabrera.¹ Cabrera was read his Miranda rights in English by Detective Michael Morrow and Spanish by Officer Membreno. As Officer Membreno attempted to ascertain whether Cabrera understood his rights, Cabrera stated: "I'm guilty. I fully accept everything that had happened and I'm responsible for it." Cabrera then signed a waiver form, orally recounted the details of the crime, and later repeated his confession in a written statement. The oral statement was taped.

Cabrera was indicted for Alma's murder, possession of a firearm during the commission of a violent crime, and three counts of pointing and presenting a firearm. He was convicted by a jury and sentenced to life imprisonment.

ISSUES

I. Did the trial judge err by refusing to admit self-serving portions of Cabrera's written statement into evidence during Cabrera's cross examination of a police officer about oral statements he made to the officer during custodial interrogation?

II. Did the trial judge err by refusing to permit Cabrera's attorney to resume his representation of Cabrera following Cabrera's decision to terminate counsel?

LAW/ANALYSIS

I. Admissibility of Cabrera's Self-Serving Written Statement

Cabrera argues the circuit judge erred in preventing him from introducing a self-serving portion of his written statement while cross examining Officer Membreno about oral statements he made to the officer during custodial interrogation. We disagree.

After being read his Miranda rights by Detective Morrow in English and by Officer Membreno in Spanish, Cabrera indicated that he understood. Cabrera gave an oral statement to Officer Membreno concerning the events surrounding the shooting and confessed to killing Alma. His statement was recorded on audiocassette and Cabrera reduced his statement to writing. In the written statement, Cabrera indicated Alma took the gun from him and the gun "went off' when he grabbed it back from her.

During the Jackson v. Denno hearing, the solicitor moved to have the oral statement given to Officer Membreno introduced under Rule 801(d)(2), SCRE as an admission of a partyopponent. Arguing that Cabrera's self-serving written statements were hearsay, the solicitor moved to exclude the self-serving portions of the statement from introduction through the testimony of Officer Membreno. The solicitor did not want to introduce the tape recording of the statement or the written statement. Noting that the written statement contained some self-serving statements, the court ruled that if any of the document was introduced, then the entire document, including the self-serving statements, must be introduced pursuant to the completeness theory. The solicitor informed the court that she did not plan to introduce the written statement, but she would introduce the oral statements made to the police officer through the officer's testimony. During direct examination, Officer Membreno recounted Cabrera's oral statement in which Cabrera described the details of the evening of the shooting. On cross examination, Cabrera, proceeding pro se, attempted to ask Officer Membreno about the written statement and wanted him to read it. The court asked the parties to approach the bench. The following discussion occurred out of the hearing of the jury:

Solicitor: And he wants [Officer Membreno] to read parts of it?

Before the officer reads, you know, I think that he is going to have to offer this into evidence. Certainly at that point I would renew my objection to introduction of this officer of any statements. Basically I think—

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: 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: It's the same thing that I said that I signed. It's the same thing.

The Court: You may testify or you may remain silent, but you may not ask this witness what you said to defend yourself.

The judge then excused the jury and read the portion of the written statement Cabrera wished to discuss into the record: "I don't 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 court found the statement was self-serving and not a proper question to ask on cross examination.

The trial continued. During deliberations, the jury requested and received the manslaughter and murder instructions. Three hours later, the jury indicated it had reached a verdict on the firearms offense, but not on the murder or manslaughter offense. The judge gave the jury an Allen charge. An hour later, the jury again requested an instruction on the distinction between murder and manslaughter, and the judge charged the jury on both offenses. Nearly two hours later, the jury returned a verdict of guilty of murder.

Cabrera argues that excluding the portion of his written statement about the gun going off during a struggle with Alma was unfair.

A. Rule 106, SCRE Analysis

Rule 106, SCRE, provides:

When a writing, or recorded statement, or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

(emphasis added).

"In interpreting the language of a court rule, we apply the same rules of construction used in interpreting statutes. Therefore, the words of [the rule] must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the rule." State v. Brown, 344 S.C. 302, 306, 543 S.E.2d 568, 570 (Ct.App.2001) (quoting Green v. Lewis Truck Lines, Inc., 314 S.C. 303, 304, 443 S.E.2d 906, 907 (1994)).

In construing the parameters of Rule 106, SCRE, our Supreme Court has looked to Rule 106 of the Federal Rules of Evidence. The common-law doctrine of completeness has been partially codified in Rule 106 of the Federal Rules of Evidence. United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir.1996) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72, 109 S.Ct. 439, 450-51, 102 L.Ed.2d 445 (1988)). The rule applies...