State v. Patterson, 4069.

CourtCourt of Appeals of South Carolina
Citation625 S.E.2d 239
Decision Date09 January 2006
Docket NumberNo. 4069.,4069.
PartiesThe STATE, Respondent, v. Frank Robert PATTERSON, Appellant.

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

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter III; and Solicitor Warren Blair Giese, of Columbia, for Respondent.


Frank Robert Patterson appeals his conviction for murder. He argues the trial court erred (1) in admitting a witness's statement to police; (2) by requiring Patterson's presence during the videotaping of a witness's testimony; and (3) by refusing to charge the jury on proximate cause. We affirm.


Patterson was accused of murdering his girlfriend, Sharon Clark, by beating her to death. Clark and her friend, Mary Richardson, walked to Patterson's home where the three of them drank for several hours. Later that night, Clark and Richardson decided to leave despite Patterson's insistence Clark should stay. As Richardson and Clark walked away, Patterson began striking Clark repeatedly with a blunt instrument.

Richardson screamed at Patterson to stop hitting Clark. She ran to a neighbor's house for assistance. When Richardson returned to the scene, she saw Clark lying on the ground motionless. Richardson ran down the street and flagged down a police car in the neighborhood. Richardson led the officer to Clark's location. Patterson, with his clothes bloody, returned to the scene while the officer was there. He admitted he had beaten Clark and was arrested.

Clark was taken to Richland Memorial Hospital where she was placed on a respirator and immediately rushed into the first of her two surgeries. Clark's skull was cracked in multiple places, and she had skull fragments in her brain. She lost a significant amount of blood due to the severity of her head injury. Clark's prognosis was poor; she was taken off life support nine days later. Her feeding tube was removed on March 25, and she died on March 27.

The grand jury indicted Patterson for murder. Due to medical reasons, Richardson's testimony was videotaped. At the hearing, Patterson requested that he be allowed to waive his presence. The trial court refused his request. At trial, the jury found Patterson guilty of murder, and the trial court sentenced Patterson to life without parole.


In criminal cases, the appellate court sits to review errors of law only and is bound by the factual findings of the trial court unless clearly erroneous. State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001); State v. Preslar, 364 S.C. 466, 613 S.E.2d 381 (Ct.App.2005); State v. Wood, 362 S.C. 520, 525, 608 S.E.2d 435, 438 (Ct.App.2004). "The appellate court does not re-evaluate the facts based on its own view of the preponderance of the evidence, but simply determines whether the trial judge's ruling is supported by any evidence." State v. Staten, 364 S.C. 7, 15, 610 S.E.2d 823, 827 (Ct.App.2005) (citing State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct.App.2003)); see also State v. Landis, 362 S.C. 97, 101, 606 S.E.2d 503, 505 (Ct.App.2004) ("In criminal cases, the court of appeals sits to review errors of law only and is bound by the factual findings of the trial court unless clearly erroneous."). This Court should examine the record to determine whether any evidence supports the trial court's ruling. See Wilson, 345 S.C. at 6, 545 S.E.2d at 829.

On review, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); Preslar, 364 S.C. 466, 613 S.E.2d 381. An abuse of discretion occurs when the trial court's ruling is based on an error of law. State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct.App.2003). In order for an error to warrant reversal, the error must result in prejudice to the appellant. See State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); see also State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995) (holding error without prejudice does not warrant reversal).

I. Rule 106, SCRE

Patterson claims the trial court erred in admitting Richardson's entire statement to police on redirect examination. We disagree.

The State and defense counsel agreed to take Richardson's testimony by video before trial. Richardson testified that while she was talking to police on the night of Clark's murder, Patterson returned to the scene, walked up to Clark, pointed to her and said, "You see that right there? I did that." On cross-examination, defense counsel elicited from Richardson that she believed the accuracy of her account of the murder to police was very important. Richardson indicated she carefully read her statement to police before she affixed her signature. Defense counsel then handed Richardson her statement and asked if Patterson's admission was included in the statement. Richardson conceded her statement to police did not include Patterson's admission. On redirect examination, the State argued defense counsel had, by cross-examining Richardson on her statement, opened the door to admit Richardson's entire statement to police. Despite objections from defense counsel that Richardson had merely been asked about an omission in the report, the trial court allowed Richardson to publish the statement in its entirety.

Significantly, Richardson's testimony on redirect examination was not played for the jury. At trial, the defense stated:

Ms. Pringle: Your Honor, I'll go ahead and put on the record with respect to the next witness who is a Mary Richardson, we have stipulated with the Solicitor's Office previously that Ms. Richardson's testimony may be admitted by videotape, previously taped testimony 2002. Your Honor, we of course obviously have no problem with the admission of the videotape in lieu of her testimony even though it is our understanding that she may be available to testify; with one caveat, Your Honor, that we have agreed to cut the tape off at the end of cross-examination. Mr. Cathcart indicates that he is going to just walk right up there and turn it off as soon as the end of cross.

Mr. Cathcart: I believe the area she is talking about is the redirect by the State.

(Emphasis added.) The record indicates that the videotape was played for the jury. No objection was made at the conclusion of the taped testimony.

Initially, we note the issue of whether Richardson's statement to police was properly admitted into evidence is not properly before this Court. Pursuant to the parties' stipulation, the jury never heard Richardson publish her statement. Although counsel timely objected to publication of the statement at the time Richardson's testimony was being taped, at trial, the videotape was played without objection by the defense. Objecting to admission of a statement during pretrial video testimony does not preserve an issue for review. Cf. State v. Fletcher, 363 S.C. 221, 250, 609 S.E.2d 572, 587 (Ct.App.2005) (citing State v. Forrester, 343 S.C. 637, 647, 541 S.E.2d 837, 840 (2001); State v. King, 349 S.C. 142, 561 S.E.2d 640 (Ct.App.2002)). To preserve an issue for appellate review, a contemporaneous objection must be made when the evidence is offered. See State v. Mitchell, 330 S.C. 189, 193 n. 3, 498 S.E.2d 642, 644 n. 3 (1998) (citing State v. Simpson, 325 S.C. 37, 42, 479 S.E.2d 57, 60 (1996) ("Unless an objection is made at the time the evidence is offered and a final ruling made, the issue is not preserved for review.")); State v. Johnson, 324 S.C. 38, 41, 476 S.E.2d 681, 682 (1996) ("[A]ppellant made no contemporaneous objection at trial and did not raise this issue at any point during trial. Consequently, this issue is not preserved for review."); State v. Schumpert, 312 S.C. 502, 507, 435 S.E.2d 859, 862 (1993).

Adverting to the merits, we find the trial court properly ruled Richardson's statement to police was admissible. 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.

Rule 106 was promulgated by Order of the Supreme Court and became effective September 3, 1995. See Editor's Note, Rule 106, SCRE. The Rule restates the common law rule of completeness with one significant change. Prior to the enactment of Rule 106, when part of a document, writing, or conversation was introduced into evidence, the opposing party could introduce the remainder of the communication. See Dukes v. Smoak, 181 S.C. 182, 186 S.E. 780 (1936). However, whereas under common law the opposing party was required to wait until cross-examination to complete the communication, under Rule 106, the party can now require introduction of the remainder of the statement contemporaneous with the original proffer. See Rule 106, SCRE.

As the South Carolina Supreme Court explained in State v. Taylor, "The text of Rule 106, SCRE, is substantially similar to Rule 106 of the Federal Rules of Evidence. Rule 106, Fed.R.Evid., is based on the rule of completeness and seeks to avoid the unfairness inherent in the misleading impression created by taking matters out of context." 333 S.C. 159, 170, 508 S.E.2d 870, 876 (1998) (internal quotation marks omitted) (quoting Rainey v. Beech Aircraft Corp., 784 F.2d 1523, 1529 (11th Cir.1986)). The rule applies to oral communications as well as written statements. State v. Cabrera-Pena, 361 S.C. 372, 379, 605 S.E.2d 522, 526 (2004); State v. Jackson, 265 S.C. 278, 284, 217 S.E.2d 794, 797 (1975).

In Cabrera-Pena, the State elected to use a witness to elicit portions of the defendant...

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