State v. Mitchell, 24777.

Citation498 S.E.2d 642,330 S.C. 189
Decision Date06 April 1998
Docket NumberNo. 24777.,24777.
PartiesSTATE of South Carolina, Respondent, v. Mekiel Letrel MITCHELL, Appellant.
CourtUnited States State Supreme Court of South Carolina

Tara Dawn Shurling, Columbia, for appellant.

Charles Molony Condon, Attorney General, John W. McIntosh, Deputy Attorney General, and Donald J. Zelenka, Assistant Deputy Attorney General, Columbia; and David Price Schwacke, Solicitor, Ninth Judicial Circuit, North Charleston, for respondent.

WALLER, Justice:

On appeal is Appellant Mekiel Letrel Mitchell's conviction of murder. We affirm.

FACTS

At approximately 5:30 p.m. on December 16, 1995, Kenneth Raymond Judy ("Victim") was shot in the back of the head while driving in his truck. Appellant became a suspect when his car was found at the crime scene with a box of bullets in the seat. He presented an alibi defense, claiming he was not at the scene when the shooting occurred. He produced witnesses who testified he left the scene with a girlfriend around 5:10 p.m. and was with her until around 10:30 p.m.1

To counteract Appellant's defense, the State produced two eyewitnesses who testified they saw Appellant shooting at Victim's truck as it was driving away from him. Other witnesses testified they saw someone fitting Appellant's description in the vicinity of the crime scene after the shooting occurred. Another witness testified he was with Appellant all day until 5:30 p.m., when Appellant borrowed his truck, claiming he was going out to buy cigarettes. A final State's witness testified Appellant had called him to request the witness provide him with a false alibi. Because the murder weapon was never found, ballistics and other forensic evidence was somewhat inconclusive.

ISSUES

I. Did the trial judge err in refusing to order a recess of the trial?

II. Did the trial judge err in instructing the jury on the law of voluntary manslaughter?

III. Did the trial judge err in refusing to allow Appellant access to the criminal file of a State's witness, and in limiting Appellant's cross-examination of the witness?

IV. Is Appellant entitled to a new trial because the cumulative effect of trial errors deprived him of Due Process?

DISCUSSION
I. Trial Recess

Appellant argues the trial judge committed reversible error in refusing to allow a trial recess to accommodate his counsel's illness. We disagree. As with requests for a trial continuance, requests for a recess during trial are within the trial judge's discretion, and will be reversed on appeal only upon a showing of an abuse of that discretion. State v. Durden, 264 S.C. 86, 212 S.E.2d 587 (1975); State v. Meyers, 262 S.C. 222, 203 S.E.2d 678 (1974).

Appellant's trial counsel filed a pre-trial brief2 stating counsel had "a condition of `cluster-type' migraine headaches which is currently active. This condition is, for the most part, controlled by non-narcotic medication and should not prevent the trial from going forward." He stated the condition might "result in some unusual requests such as requests that lighting [in] the courtroom be reduced or that there be a recess for the purposes of taking medication." (emphasis supplied). No mention was made of counsel's condition until about 4:00 p.m. on the first day of trial. At this time, during a bench conference, the Solicitor, in trying to inquire into how long the judge wanted to work that evening, mentioned that "[counsel] is apparently not feeling too well." When the trial judge indicated he wanted to work until 5:30, counsel stated, "5:30 would be fine. But later I'm—I'm starting to get that headacheproblem that was mentioned in my brief." Trial proceeded and was concluded that day without incident.

The next day, at 9:15 a.m., counsel told the trial judge, "I put in the pre-trial brief the problem I have with migraine headaches. I woke up with a massive one this morning. I'm good to go. I have medication I take called Midrin, which is non-narcotic, I can take four in a day. I'm at three. When those run out, I'm going to have to go to narcotic painkillers." (emphasis supplied). The trial judge stated he was not inclined to "break down during the day ... [f]or any reason." He informed counsel he could let his associate finish trying the case "if something happens." When counsel pointed out his associate had "no knowledge of the case other than where the documents are," the judge stated, "I don't ever stop at three o'clock in the afternoon." Trial proceeded with no other mention of counsel's condition, with one exception. After the judge charged the jury in the late afternoon, counsel objected to part of it. Noting counsel did not object when the Solicitor requested the charge, the judge overruled the objection. Counsel responded, "Well, I've been suffering from a severe migraine headache all day and I didn't think that I was having a problem." (emphasis supplied).

Based on this record, Appellant argues he is entitled to a new trial. Initially, this issue is procedurally barred because, while he indicated he might need a recess, counsel never actually requested one. State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (issue not raised to and ruled on by the trial court is not preserved for appeal).3 In a similar vein, and largely because of the procedural problem, Appellant cannot show prejudice from the judge's ruling. State v. Babb, 299 S.C. 451, 385 S.E.2d 827 (1989) (denial of a motion for a continuance will not be disturbed absent an abuse of discretion resulting in prejudice). Appellant points to several alleged trial errors counsel made during the second day of trial, which he argues show counsel must have been impaired by his headache. Even assuming Appellant is correct that these incidents were trial errors (which we specifically decline to address), there is absolutely nothing in the current record to show a causal connection between them and counsel's health. At no time, even in his post-trial motion, did counsel ever state the point at which he became so impaired by his headache that he needed a recess. At no time did he state when (or if) his non-narcotic medication ran out and he was presented with the option of taking narcotic medication, having his assistant try the case, or proceeding himself with no medication. Even when he was trying to excuse his failure to object to a jury charge at the end of that day, counsel never stated he was actually impaired; to the contrary, he stated he did not think he was having a problem. See State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996)

(burden is on appellant to provide a sufficient record for review).

We find no reversible error.

II. Voluntary Manslaughter

Appellant next argues the trial judge committed reversible error in submitting the lesser included offense of voluntary manslaughter to the jury over his objection. We disagree. Any possible error would be harmless because the jury convicted Appellant of the greater offense of murder. State v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980); State v. Anderson, 253 S.C. 168, 169 S.E.2d 706 (1969).

III. Criminal File/Limited Cross Examination

Appellant next argues the trial judge violated Brady v. Maryland4 in failing to require the Solicitor to provide its entire criminal file on Linda Erway, a State's witness in his case; or in the alternative, in refusing to inspect the file in camera to see if it contained any exculpatory material. Appellant further argues the judge's improperly limiting his cross-examination of Erway deprived him of a fair trial. We disagree.

Erway was an eyewitness to the shooting who originally gave police a statement which failed to implicate Appellant. She also failed to pick Appellant out of a police lineup. However, the week before trial, she changed her statement and identified Appellant for the first time as the shooter. Appellant wanted her criminal file to impeach her testimony at trial. It was his theory Erway changed her story because she had pending criminal charges against her, and either had a deal with the Solicitor's office or wanted to please them in the hopes of favorable treatment.5

As an initial matter, we find these issues are procedurally barred. Early on the first day of trial, counsel brought this issue up to the trial judge, stating he knew what the pending charges were but wanted the entire file. The Solicitor stated there was no agreement with Erway regarding her testimony. The trial judge ruled Appellant could ask Erway if she had pending charges, but could not "go into those specific charges." Appellant's counsel's response was, "Right." Because counsel acquiesced in the judge's limitation of his crossexamination, and made no other objections regarding wanting the criminal files, Appellant cannot now complain about this issue. See, e.g., State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991)

(issue not raised to and ruled on by the trial court is not preserved for appeal); Ex parte McMillan, 319 S.C. 331, 461 S.E.2d 43 (1995) (party cannot acquiesce to issue at trial and then complain on appeal).

In any event, we find no prejudice to Appellant on either issue. As a general rule, a trial court's ruling on the proper scope of cross-examination will not be disturbed absent a manifest abuse of discretion. This rule is subject, however, to the Sixth Amendment's guarantee of a defendant's right to a "meaningful" cross-examination.

[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."
...
[However, 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
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