State v. Gadsden, Appellate Case No. 2016-001286

• Decision Date: 17 July 2019
• Docket Number: Unpublished Opinion No. 2019-UP-264,Appellate Case No. 2016-001286
• Parties: The State, Respondent, v. Gerald Akeem Gadsden, Appellant.
• Court: South Carolina Court of Appeals

The State, Respondent, v. Gerald Akeem Gadsden, Appellant.

Appellate Case No. 2016-001286

Unpublished Opinion No. 2019-UP-264

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard June 6, 2019

July 17, 2019

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.

Appeal From Greenville County

James R. Barber, III, Circuit Court Judge

AFFIRMED

Appellate Defender David Alexander, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General William M. Blitch, Jr., Assistant Attorney General Jonathan Scott Matthews, all of Columbia, and William Walter Wilkins, III, of Greenville, for Respondent.

PER CURIAM: Gerald Akeem Gadsden appeals his convictions for armed robbery, conspiracy, and two counts of kidnapping, on the ground that the circuit court improperly prevented him from cross-examining a witness, Damon Riley, about the status of Riley's probationary sentence. Gadsden also asks us to vacate his sentence of life without parole (LWOP) for the armed robbery and kidnapping charges and remand for resentencing on the ground that the circuit court erred in refusing to consider his motion to strike LWOP as a possible sentence. We affirm.

Gadsden and James D.L. White were tried together for crimes related to the January 20, 2014 robbery of an Olive Garden in Greenville. The State theorized the robbery was an inside job, and that White—employed as a dish washer at the restaurant—had propped open the front door after closing time to allow Gadsden to enter and steal money from the restaurant's safe. Riley, another Olive Garden employee, testified he left before the robbery occurred and the door was not propped open when he departed. Minutes after Riley left, the restaurant was robbed. While inside the Olive Garden, the robber approached the restaurant manager, struck the manager several times, and demanded money from the safe. Officers responded and found a dish rag propping open the front door, the restaurant's exterior camera monitor disabled, and White inside the restaurant with other employees. Gadsden was eventually identified as the suspected robber, due in part to highly incriminating communications between Gadsden and White found on White's cell phone, pictures found on the phone that Gadsden sent to White the day after the robbery that depicted Gadsden displaying a large amount of cash, as well as witness descriptions of the robber matching Gadsden's features and clothing.

1. We find the trial court erred in limiting Gadsden's cross-examination of the State's witness, Riley. See State v. Graham, 314 S.C. 383, 385, 444 S.E.2d 525, 527 (1994) ("Specifically included in a defendant's Sixth Amendment right to confront the witness is the right to meaningful cross-examination of adverse witnesses."); Rule 608(c), SCRE ("Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced."); see also State v. Brown, 303 S.C. 169, 171, 399 S.E.2d 593, 594 (1991) ("The Confrontation Clause guarantees a defendant the opportunity to cross-examine a witness concerning bias."); Smalls v. State, 422 S.C. 174, 182-83, 810 S.E.2d 836, 840 (2018) ("Evidence of a witness's bias can be compelling impeachment evidence, and for that reason 'considerable latitude is allowed' to defense counsel in criminal cases 'in the cross-examination of an adverse witness for the purpose of testing bias.'" (quoting Brown, 303 S.C. at 171, 399 S.E.2d at 594)).

Gadsden's co-defendant, White, initially questioned Riley about Riley's prior burglary charge, and asked Riley whether he had a "recent probation violation." Riley testified he had not had a recent violation and that he had "fulfilled all [of his]probation and everything." When Gadsden cross-examined Riley, Riley testified he was on probation for burglary at the time he was interviewed by investigators about the Olive Garden robbery. Then, Gadsden attempted to introduce into evidence a "Consent Order Imposing Additional Conditions of Probation," signed by Riley, which was dated February 19, 2014, and detailed two probation violations that Riley had committed. Gadsden argued the Consent Order was appropriate impeachment evidence and evidence of "character and bias." The trial court sustained the State's objection to the Consent Order.

"Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." State v. Pipkin, 359 S.C. 322, 327, 597 S.E.2d 831, 833 (Ct. App. 2004) (quoting United States v. Abel, 469 U.S. 45, 52 (1984)). "Rule 608(c), SCRE, preserves South Carolina precedent holding that generally, anything having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of a witness may be shown and considered in determining the credit to be accorded his testimony." State v. McEachern, 399 S.C. 125, 141, 731 S.E.2d 604, 612 (Ct. App. 2012) (internal quotations omitted). Still, "trial judges may impose reasonable limits on such cross-examination based on concerns about . . . harassment, prejudice, confusion of the issues, witness's safety, or interrogation that is repetitive or only marginally relevant." State v. Jenkins, 322 S.C. 360, 364, 474 S.E.2d 812, 814 (Ct. App. 1996). "However, before a defendant can be prohibited from attempting to demonstrate bias on the part of a witness, the record must clearly show that the cross-examination is somehow inappropriate." Id. at 364, 474 S.E.2d at 814-15. "The limitation of cross-examination is reversible error if the defendant establishes he was unfairly prejudiced." Brown, 303 S.C. at 171, 399 S.E.2d at 594.

The circuit court erred in preventing Gadsden from introducing Riley's consent order under Rule 608(c), SCRE and eliciting further testimony from Riley concerning his probation. See Rule 608(c), SCRE ("Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced."). Because Riley was on probation and had violated it around the time that he was providing the investigators information regarding the Olive Garden robbery, we believe the Consent Order should have been admitted and further cross-examination allowed because Riley's suspended sentence furnished a motive for him to curry favor with the investigators and otherwise reduce his exposure to imprisonment. However, we do not believe Gadsden suffered unfair prejudice from the trial court's limitation of his cross-examination of Riley, and hold the error was harmless beyond a reasonable doubt. See State v. Whitner, 380 S.C.513, 520, 670 S.E.2d 655, 659 (Ct. App. 2008) ("'[A] violation of the defendant's Sixth Amendment right to confront the witness is not per se reversible error,' and we must determine if the 'error was harmless beyond a reasonable doubt.'" (quoting Graham, 314 S.C. at 386, 444 S.E.2d at 527)). "Error is harmless when it could not reasonably have affected the trial's outcome." Id. Whether error is harmless depends on the facts of each case and a variety of factors, including: "(1) the importance of the witness's testimony in the State's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the State's case." Id.

While Riley was undoubtedly an important witness in the State's case—as he was the last person to leave the building before the robbery, and only his testimony could establish that the rag was not in the door until after Riley left—significant portions of his testimony were corroborated by Sergeant Weiner, who testified about: (1) the surveillance video that showed Riley leaving the restaurant at 11:18 p.m., indicating the Olive Garden outside camera monitor was not disabled until after Riley left, but before the robbery occurred; and (2) his interview with White, and White's inconsistent statements about the source of the cash he told Riley he made at a rap concert that weekend. Moreover, Riley testified at several points during trial that he had a prior burglary conviction and had been on probation for that charge. The State's case against Gadsden was strong and included the data and photographs found on two cell phones, the timing of the robbery, and the victims' descriptions of the robber. Riley's testimony did little to incriminate Gadsden directly. Accordingly, we find any error in the trial court's limitation of Gadsden's cross-examination of Riley was harmless beyond a reasonable doubt.

2. We find the trial court did not err in its consideration of Gadsden's motion to strike LWOP as a possible sentence. See Ex parte Littlefield, 343 S.C. 212, 218, 540 S.E.2d 81, 84 (2000) ("The South Carolina Constitution and case law place the unfettered discretion to prosecute solely in the prosecutor's hands."); id. at 218-19, 540 S.E.2d at 84 ("Prosecutors may pursue a case to trial, or they may plea bargain it down to a lesser offense or they may simply decide not to prosecute the offense in its entirety." (quoting State v. Thrift, 312 S.C. 282, 291-92, 540 S.E.2d 341, 346 (1994))); id. at 219, 540 S.E.2d at 84 ("Although prosecutorial discretion is broad, it is not unlimited. The judiciary is empowered to infringe on the exercise of prosecutorial discretion when it is necessary to review and interpret the results of the prosecutor's actions when those actions violate certain constitutional mandates."); State v. Smith, 276 S.C. 494, 498, 280 S.E.2d 200, 202 (1981) ("It is an equal abuse of discretion to refuse to exercise discretionary authority when it is warranted as itis to exercise...