State v. Curry

Decision Date09 October 2006
Docket NumberNo. 4159.,4159.
Citation636 S.E.2d 649
PartiesThe STATE, Respondent, v. Thaddeus CURRY, Appellant.
CourtSouth Carolina Court of Appeals

Assistant Appellate Defender Robert M. Dudek, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Jeffery A. Jacobs, Office of the Attorney General, of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.

HEARN, C.J.

Thaddeus Curry appeals his convictions for murder and possession of a firearm during the commission of a violent crime in connection with the death of Heath Hamilton. On appeal, Curry argues (1) the trial court erred in limiting the scope of his cross-examination of two co-defendants on sentencing exposure they faced for murder and other charges related to Hamilton's death, and (2) the trial court erred in charging the jury on "the hand of one is the hand of all" theory. We affirm.

FACTS

Shortly after midnight on March 18, 2003, Hamilton and Ronald Coursey drove to an apartment complex in Augusta, Georgia, to purchase marijuana. In the apartment complex's parking lot, they encountered Anthony Savage and Curry and asked if they had any marijuana to sell. Curry and Savage said they had no marijuana, but agreed to procure some and sell a quarter pound's worth to Hamilton and Coursey for $220.

Hamilton and Coursey drove to an ATM and withdrew money to pay for the drugs. Meanwhile, Curry, Savage, and Jeremy Simuel drove around Augusta looking for marijuana to sell to Hamilton and Coursey. They were unsuccessful. When they all returned to the apartment complex, Hamilton and Coursey followed Curry, Savage, and Simuel to Simuel's apartment. Hamilton and Coursey waited outside the apartment while the others went inside and closed the door. They were soon informed the transaction would occur later.

Hamilton and Coursey left the apartment complex and went to Hamilton's home in Beech Island in Aiken County, where they smoked marijuana and waited until Curry and Savage called. The parties spoke by phone and agreed to meet at a gas station in Beech Island. Although Curry, Savage, and Simuel failed to procure marijuana to sell Hamilton and Coursey, they apparently intended to meet under the guise of a drug sale in order to rob Hamilton and Coursey.

Hamilton and Coursey met Curry and Savage in a dark area behind the gas station. Curry and Savage exited their car, where Simuel remained seated. They approached the car in which Hamilton and Coursey waited. Savage told Hamilton they did not have any marijuana, but demanded to see the money. Within minutes, Hamilton was shot and killed while still seated in his vehicle with Coursey. Curry and Savage fled in the waiting car driven by Simuel.

Curry, Savage, and Simuel were charged in connection with the robbery and Hamilton's murder. At Curry's trial, Coursey, Savage, and Simuel implicated Curry in Hamilton's murder. Coursey testified he had not met Curry, Savage, or Simuel before the night of the murder. He stated they first met around midnight in the dark parking lot of the apartment complex, a short time later at the apartment complex, and finally in the dark parking lot of the gas station where Hamilton was killed. He testified he called 911 after the shooting but was unable to provide many details about the perpetrators, telling the 911 dispatcher, "I don't know, it's dark[,] man, I just don't know." However, at trial Coursey testified Curry had the gun in his hand and that Savage never had possession of the gun. Moreover, he unequivocally identified Curry as the shooter.

Savage testified Curry carried a gun with him on the night of the murder and claimed he saw Curry fire the gun three or four times at the murder scene. Savage further testified that after the shooting, Curry and he fled in a car driven by Simuel. According to Savage, Curry exclaimed, "I think I dome capped him," implying he shot Hamilton in the head. Savage testified Curry later told him he had disposed of the murder weapon. Simuel largely corroborated Savage's testimony but did not provide an eyewitness account of Curry firing the gun.

Curry sought to question the motives and biases of Simuel and Savage by cross-examining them on the possible sentences they faced in connection with Hamilton's murder. When Curry questioned Simuel about the possible sentences he faced, the trial court sustained the State's objection and instructed the jury to disregard the testimony.

Prior to Savage's testimony, Curry asked the trial court in limine to allow impeachment of Savage on bias and motive by questioning him about the possible sentences he faced for charges related to Hamilton's death. The trial court denied his request. In reaching its decision, the trial court considered Curry's request in light of State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002), and stated:

Under [the circumstances in Mizzell], sir, part of the problem I think in that case was that, as I read it, the witness was given an offer to plead to one particular charge versus the potential sentence, the maximum sentence on the other charges that the defendant would have faced had she been convicted or tried on the original charges, and we don't have that here. There's no deal between the State at all.

Curry later sought clarification, asking, "So the Court is ruling that he says he has no deal, then I am prohibited from asking about these penalties that he's facing, is that correct?" The trial court responded affirmatively. The trial court elaborated, "We're not going to bring him out here to elicit whether or not he knows what his potential sentences are. As I understand it there's no negotiations or deals between the State and this particular witness."

The jury convicted Curry on both charges. He received concurrent prison sentences of five years for the firearms charge and life in prison for the murder charge. This appeal followed.

LAW/ANALYSIS
I. Scope of Cross-examination

Curry argues the trial court committed reversible error in denying his request to cross-examine Simuel and Savage concerning possible sentences he faced in connection with Hamilton's death.1 We disagree.

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). 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). 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). 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 this case, Curry relied on State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002), in support of his argument that he should be allowed to cross-examine his co-defendants as to any possible sentences they faced in connection with Hamilton's death. In Mizzell, our Supreme Court found error in the trial court's decision to exclude evidence of possible sentences faced by Mizzell's co-defendant where the parties faced the same charges and the co-defendant had not yet pled guilty or reached a plea agreement with the State. The court found:

The fact the witness has yet to reach a plea bargain or been found guilty should not prevent the admission of such evidence. The lack of a negotiated plea, if anything, creates a situation where the witness is more likely to engage in biased testimony in order to obtain a future recommendation for leniency.

Id. at 333, 563 S.E.2d at 318.

Similar to the scenario in Mizzell, Curry's co-defendants faced the same charges as Curry and had not pled guilty or reached a plea agreement. The trial court refused to allow Curry to cross-examine his co-defendants on the possible sentences they faced because Savage and Simuel had not pled guilty or reached a plea agreement with the State. We find this ruling contradicts the settled law established in Mizzell. Accordingly, we find the trial court erred in barring the cross-examination of Simuel and Savage on the possible sentences they faced.

However, the refusal to allow Curry to cross-examine his co-defendants on any possible sentences they faced in connection with Hamilton's death was harmless. At trial, the testimony given by the co-defendants was not the only evidence of Curry's involvement in the shooting of Hamilton. Ronald Coursey, the other victim of the robbery, unequivocally identified Curry as the shooter. He testified:

Coursey: And then the next I knew, he came up, Mr. Curry, over there had the gun.

Q: You saw Mr. Curry with the gun?

A: Yes, sir, he had the gun the whole time.

Q: What did he do with the gun?

A: ... he started shooting.

...

Q: Could you describe the gun?

A: ... it was either automatic or semi-automatic. It went off real fast.

Q: And how was [Curry] holding it?

A: In one hand.

Q: Okay. And so what did he say when he pulled the gun out?

A: I don't think he said...

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