State v. Sierra

• Decision Date: 04 October 1999
• Docket Number: No. 3052.,3052.
• Citation: 523 S.E.2d 187,337 S.C. 368
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Angel SIERRA, Appellant.

337 S.C. 368

523 S.E.2d 187

The STATE, Respondent, v. Angel SIERRA, Appellant.

No. 3052.

Court of Appeals of South Carolina.

Heard June 9, 1999.

Decided October 4, 1999.

Rehearing Denied November 17, 1999.

Assistant Appellate Defender Robert M. Pachak, of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Caroline Callison Tiffin, all of Columbia; and Solicitor George M. Ducworth, of Anderson, for respondent.

HOWARD, Judge:

Angel Sierra was convicted by a jury of trafficking in marijuana. Sierra appeals his conviction, arguing the trial judge committed reversible error by allowing the assistant solicitor to impeach a defense witness during cross-examination with a prior inconsistent statement allegedly made to the assistant solicitor. We reverse and remand for a new trial.

FACTS/PROCEDURAL BACKGROUND

On April 29, 1997, Sierra and a co-defendant, Jaime Savceda, were stopped by a sheriff's deputy on I-85 for making an improper lane change. During the traffic stop, Sierra consented to a search of the trunk, which led to the discovery of fourteen and one-half pounds of marijuana packaged in plastic bags.

Savceda and Sierra were arrested and indicted for trafficking in marijuana. They received a joint trial beginning January 5, 1998. At the close of the State's case, Savceda pleaded guilty. Sierra then called Savceda as his witness. Savceda testified on direct examination that the marijuana belonged to him, and Sierra knew nothing about it. On cross-examination, the assistant solicitor attempted to impeach Savceda with inconsistent statements he allegedly made to her in a pretrial meeting between counsel, which Savceda attended. This cross-examination culminated in the following exchange:

Q. [assistant solicitor] And when I said the drugs were found in the trunk you said—

Defense Counsel: Objection, your honor. If she wants to submit herself as a witness, that's fine with me, but if she's going to testify as to what she was told, she needs to be sworn.

The Court: No, sir. Overruled. Go ahead.

Q. And you said, "It wasn't mine. It belonged to the other guy."

In response, Savceda denied the statement, and remained steadfast in his testimony that the marijuana belonged to him. The assistant solicitor did not attempt to withdraw in order to testify under oath about the alleged prior inconsistent statement, and no independent evidence was presented to establish it. Notwithstanding this failure of proof, the solicitor argued her version of the prior conversation to the jury in her closing argument. The jury found Sierra guilty as charged. This appeal follows.

LAW/ANALYSIS

Sierra argues the trial court erred by overruling his objection to the assistant solicitor's cross-examination because by posing the question the assistant solicitor essentially testified before the jury as to the content of the prior inconsistent statement without being sworn or subjected to cross-examination.

Preliminarily, we note that Savceda testified only after he had entered his plea of guilty to the charge. Thus, he was no longer a co-defendant. He testified through an interpreter, and maintained that he did not understand English well enough to answer questions without one. He consistently stated that he was responsible for the marijuana, and Sierra had no knowledge of it. Savceda did not deny being present during the pre-trial meeting with the assistant solicitor, but he stated that no interpreter was present and he did not adequately understand the conversation. The assistant solicitor contested Savceda's need for an interpreter throughout cross-examination and in closing argument. Sierra's lack of knowledge of the marijuana was his defense, and the credibility of Savceda's testimony was unquestionably important to the case.

Rule 613(b), SCRE, is the general rule for impeachment by a prior inconsistent statement and requires laying the foundation for the question by advising the witness of the substance of the prior inconsistent statement, the time and place it was given, and the person to whom it was made.¹ Only if the witness denies having made the prior inconsistent statement is extrinsic evidence admissible. With this requirement, the witness is presented with sufficient information to admit the prior statement, deny it, or explain it. See State v. Hampton, 79 S.C. 179, 60 S.E. 669 (1908).

Where the prior inconsistent statement was allegedly made to the cross-examiner, there is a danger of harm inherent in "laying the foundation." By posing the question the cross-examiner necessarily publishes his or her version of the prior inconsistent statement, with the natural result of pitting the cross-examiner's memory and credibility against that of the witness. This procedure also implicates the cross-examiner as a witness because, absent written or recorded statements, the natural source of the extrinsic proof of the prior inconsistent statement contemplated by Rule 613 is the testimony of the person to whom it was made.

Our courts have consistently held that the scope and extent of cross-examination is a matter within the sound discretion of the trial judge. State v. Sherard, 303 S.C. 172, 399 S.E.2d 595 (1991); State v. Colf, 332 S.C. 313, 504 S.E.2d 360 (Ct.App.1998). This court will not disturb the trial judge's decision unless appellant shows both prejudice and an abuse of discretion. Id. (showing of prejudice required); State v. Sprouse, 325 S.C. 275, 478 S.E.2d 871 (Ct.App.1996) (showing of manifest abuse of discretion required); State v. Hale, 284 S.C. 348, 326 S.E.2d 418 (Ct.App.1985) (A case may be reversed on the ground that the trial judge permitted leading questions only if there has been a clear abuse of discretion resulting in prejudice to the objecting party.).

Historically, it has been the rule in South Carolina that:

[t]he cross-examination of a witness to test his credibility is largely within the discretion of the trial judge....`Considerable latitude is allowed in the cross-examination of a witness (always within the control and direction of the presiding judge) to test the accuracy of his memory, his bias, prejudice, interest, or credibility. In doing so the witness may be asked questions in reference to irrelevant matter, or in reference to prior statements contradictory of his testimony, or in reference to statements as to relevant matter not contradictory of his testimony.'

McMillan v. Ridges, 229 S.C. 76, 80-81, 91 S.E.2d 883, 885 (1956) (citation omitted).

Though it is proper to elicit testimony by leading questions on cross-examination, it is generally recognized as improper for the cross-examiner to testify by making statements of fact. See State v. Pee Dee News Co., 286 S.C. 562, 336 S.E.2d 8 (1985) (prosecutorial misconduct denied defendant a fair trial where prosecutor exceeded permissible latitude in cross-examination by repeatedly employing hypothetical question without factual basis in record either at time of asking or at close of evidence); State v. Reed, 259 S.C. 392, 192 S.E.2d 207 (1972); State v. Outen, 237 S.C. 514, 526, 118 S.E.2d 175, 182 (1961) ("Such cross-examination is subject to the discretionary control of the trial [j]udge who should restrain its abuse. The cross-examiner must be fair and act in good faith. The matters inquired about should not be merely chimerical, or drawn from the vivid imagination of opposing counsel, but the inquiry should be directed only to those matters concerning which the cross-examiner has information warranting a reasonable belief on his part that the fact is as is implied by the question." (citation omitted)). See also Self v. Dye, 257 Ark. 360, 516 S.W.2d 397, 400 (1974) ("[C]rossexaminer may be restricted in posing argumentative questions or addressing a question to a witness that erroneously assumes that a material fact has been proved or that the witness has testified to such facts on direct examination. The right to ask leading questions does not license the examiner to testify, in effect, by making statements of fact."); People v. Johnson, 121 Cal.App.3d 94, 175 Cal.Rptr. 8 (1981); People v. Mangine, 73 A.D.2d 816, 424 N.Y.S.2d 75, 75 (1979) ("The prosecutor improperly made himself an unsworn witness when he endeavored to impeach defendant's alibi witness by asking him on cross-examination about prior inconsistent statements that the witness made to the prosecutor in a telephone conversation."); State v. DePriest, 697 S.W.2d 597, 600 (Tenn.Crim.App.1985) ("Leading questions are permissible in cross-examination but the examiner is not allowed to testify or introduce evidence.").

In this regard, our supreme court recognized long ago that prejudice may result from the question, irrespective of the answer. In Entzminger v. Seigler, the court noted "[t]he probable and, no doubt, logical result of improper questioning is to give the jury the impression that the facts assumed actually exist, and that the reason why the opposite party objects to the questions is that he is trying to keep such facts from the jury." 186 S.C. 194, 195 S.E. 244, 246 (1938). See also State v. Pee Dee News Co., 286 S.C. 562, 336 S.E.2d 8 (1985).

Rule 613 allows a question to be posed which asserts an inconsistent prior statement even though there is no basis for it in the record at the time of the asking, and the rule provides for extrinsic proof of the inconsistent statement in the event the witness denies it. The rule does not explicitly require extrinsic proof of the prior inconsistent statement in the event of denial by the witness. However, there are cases from other jurisdictions concluding that the failure to introduce extrinsic evidence of the alleged prior inconsistent statement after it has been published in cross-examination to the jury and denied by the witness can be reversible...