State v. Jenkins

• Decision Date: 08 March 1996
• Docket Number: No. 2511,2511
• Citation: 322 S.C. 360,474 S.E.2d 812
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Evelyn JENKINS, Appellant. . Heard

Page 812

474 S.E.2d 812

The STATE, Respondent, v. Evelyn JENKINS, Appellant.

No. 2511.

Court of Appeals of South Carolina.

Heard March 8, 1996.

Filed May 13, 1996.

Refiled July 9, 1996.

Certiorari Granted March 5, 1997.

Tara Dawn Shurling, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorneys General Rakale Buchanan Smith and Caroline Callison Tiffin, Columbia, and Solicitor David P. Schwacke, of N. Charleston, for respondent.

Appellant has petitioned the Court of Appeals for a rehearing. We deny the Petition for Rehearing, withdraw the original opinion and substitute the following opinion therefor.

HEARN, Judge:

Evelyn Jenkins was convicted of possession with intent to distribute crack cocaine. Mrs. Jenkins appeals, claiming the trial judge erred in limiting defense counsel's cross-examination of the State's witnesses. We reverse and remand for a new trial.

Mrs. Jenkins' arrest resulted from a raid on J & E Diner, a business owned and operated by Mrs. Jenkins and her husband, John, in Pineville, South Carolina. Two rocks of crack cocaine consisting of .25 grams were found in the pocket of Mrs. Jenkins' apron. Defense counsel made a pretrial motion to suppress the fruits of the search warrant executed at the diner, and the trial court held a Jackson v. Denno hearing. Detective Whilden Baggett testified he obtained the warrant based upon an affidavit which stated in part the following:

Confidential and reliable informant has been in the business within the past 72 hours and has purchased a quantity of narcotic drugs, namely crack cocaine, from the owner/operator of said business, namely John Jenkins.

Baggett testified he participated in the buy described in the affidavit. Baggett gave the informant three $20 bills, drove the informant to the diner, and let the informant out about 500 feet from the diner. Baggett picked up the informant about 10 to 15 minutes later. The informant gave Baggett one rock of cocaine and $10 change. Baggett did not know who was present in the diner that day.

When defense counsel asked Baggett about any special treatment the informant was promised for helping, the prosecutor objected. Defense counsel advised the court "the informant is the linchpin in this case. He may not be here, but I am going to try that informant." The defense's position was that the informant "set up" the Jenkinses. The court ultimately ruled the warrant was valid.

The next day the State moved in limine to bar any reference to the informant in front of the jury. The State claimed the informant was not a participant in or a material witness to the crimes with which Mrs. Jenkins was charged. Mrs. Jenkins' counsel agreed the State could choose not to mention the informant, but claimed Mrs. Jenkins would be entitled to a charge on the negative inference for failing to call a material witness. When asked the relevance, defense counsel stated it was Mrs. Jenkins' position the confidential informant planted the cocaine found in Mrs. Jenkins' apron. The State argued that if the defense did not know who the informant was, they could not assert the informant planted the drugs. The State asserted that under State v. Diamond, 280 S.C. 296, 312 S.E.2d 550 (1984) and State v. Dennison, 305 S.C. 161, 406 S.E.2d 383 (Ct.App.1991) the informant had to be revealed only where relevant to the issues of entrapment, misidentification, intent or knowledge.

The court ruled that neither side could inquire into an issue which ultimately attacked the validity of the search warrant. Although defense counsel argued the informant was relevant to the issue of planting the drugs, the court stated the informant's only relevance was to the search warrant. The court ruled that counsel could not cross-examine the police officers about the informant or any controlled buy which led to procurement of the search warrant.

Generally, the right to cross-examine a prosecuting witness is of constitutional dimensions, being essential to a fair trial as guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment. State v. McCoy, 274 S.C. 70, 261 S.E.2d 159 (1979); see also State v. Graham, 314 S.C. 383, 444 S.E.2d 525 (1994) (specifically included in a defendant's Sixth Amendment right to confront witnesses is the right to meaningful cross-examination of adverse witnesses); accord State v. Smith, 315 S.C. 547, 446 S.E.2d 411 (1994). A criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which the jurors could appropriately draw inferences relating to the reliability of the witness. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986); State v. Smith; State v. Graham.

The trial court has broad discretion in determining the general range and extent of cross-examination. State v. Miller, 258 S.C. 573, 190 S.E.2d 23 (1972); State v. Smith, 275 S.C. 164, 268 S.E.2d 276 (1980). This latitude in the area of credibility extends to cross-examination testing the accuracy of a witness's memory, bias, prejudice, or interest. Martin v. Dunlap, 266 S.C. 230, 222 S.E.2d 8 (1976). ¹ On cross-examination, a witness may be asked questions in reference to irrelevant matter, in reference to prior statements contradictory of testimony, or in reference to statements concerning relevant matter not contradictory of testimony. Id. The Confrontation Clause does not prevent a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges may impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, witness's safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall; State v. Smith; State v. Graham. 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. State v. Smith; State v. Graham.

The violation of the Sixth Amendment right to confrontation is not per se reversible error. Whether such an error is harmless in a particular case depends upon a host of factors. The factors include the importance of the witness's 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. Delaware v. Van Arsdall; State v. Smith; State v. Graham.

Appellant concedes that under State v. Diamond, 280 S.C. 296, 312 S.E.2d 550 (1984), the State could not have been required to reveal the identity of the confidential informant since Appellant was not charged in connection with the buy allegedly made by this individual. Nevertheless, the right to cross-examine the State's witnesses concerning the informant was critical to Appellant's defense in this case. In the words of defense counsel to the trial judge: "[T]he informant is the linchpin in this case."

We understand the trial judge's reasoning that since he had already upheld the validity of the search warrant, evidence relating to its legality was inadmissible. However, the circumstances under which police sent someone into Appellant's business to make a drug purchase were clearly relevant to her claim that the drugs were planted. Given the importance of this line of questioning to Appellant's defense, the trial court erred in limiting defense counsel's cross-examination of the State's witnesses. The prejudice attaching to this error was exacerbated when the solicitor repeatedly stated in his closing argument that there was no evidence of anyone who could have planted the drugs.

The dissent would hold this issue is not properly preserved for appellate review because counsel never made an in camera proffer of the disputed evidence. We disagree.

Defense counsel repeatedly requested the trial judge to permit him to cross-examine the State's witnesses concerning the confidential informant. ² There was no question concerning the type of evidence defense counsel hoped to elicit. These colloquys are representative of the continuing dialogue between the trial judge and defense counsel on this issue:

DEFENSE COUNSEL: For me not to be allowed to go into who this person was to talk to these officers about whether or not, in fact, they recovered the money that they gave to this confidential informant when they went back and executed the search warrant and things of this nature, that is just simply preposterous that I couldn't ask them that. They didn't recover the money. This is absolutely germane issues of fact which go--which certainly I can ask about this.

THE COURT: The search warrant has already been ruled on. We are not going to do that again. I have already made the ruling. If I made an error, some other court can correct that. So now the testimony is going to be that they went--based on the search warrant, they went to the building and they found the drugs. And the case clearly says that if I let them testify that the reason they went there was because this informant told them there were drugs in there, that is hearsay and it's reversible error.

DEFENSE COUNSEL: Your Honor, do you mean--let me understand this so I understand perfectly.

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DEFENSE COUNSEL: [B]ut I want to ask the officer what he gave to this informant, what he got from him, whether or not he made any promises to him. I can ask him that.

THE COURT: That has to do with...