State v. Whitner

• Decision Date: 24 September 2008
• Docket Number: No. 4436.,4436.
• Citation: 380 S.C. 513,670 S.E.2d 655
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Edward WHITNER, Appellant.

670 S.E.2d 655

380 S.C. 513

The STATE, Respondent, v. Edward WHITNER, Appellant.

No. 4436.

Court of Appeals of South Carolina.

Heard June 4, 2008.

Decided September 24, 2008.

Rehearing Denied January 7, 2008.

Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

KONDUROS, J.:

Edward Whitner appeals his convictions for (1) possession with the intent to distribute (PWID) marijuana within close proximity of a school; (2) PWID crack cocaine within close proximity of a school; (3) PWID marijuana; and (4) trafficking crack cocaine. Whitner contends the trial court erred in failing to suppress a statement he made before he was informed of his Miranda¹ rights. Whitner further argues the trial court violated his Sixth Amendment right to confrontation by limiting his cross-examination of a witness. We affirm.

FACTS

On August 2, 2003, the Greenville County Sheriff's Office executed a search warrant for narcotics at 202 Mack Street in Greenville, South Carolina. Upon entering the house, the officers secured all individuals in the residence and advised them of the search warrant. The lead officer, Officer Torrence White, entered the house and found Teresa Smiley standing in the doorway of the back bedroom. He escorted Smiley to the front room of the residence, where the officers already had detained Aaron Garrison and Whitner, who were in the house when the police arrived. The three individuals remained detained together in the front room for over thirty minutes.

After searching the house and finding large quantities of narcotics, Officer White approached Whitner and asked him for his address. Whitner responded "202 Mack Street." Whitner gave the address again on his booking form later that day. A few months later, Whitner gave the same address on his bond form. The bond form contained the statement "the Defendant will notify the Court promptly if he changes his address from the one contained in this order."

Subsequently, both Smiley and Whitner were charged with trafficking and PWID illegal drugs. The day before Whitner's trial, Smiley pled guilty to (1) trafficking in crack cocaine; (2) PWID marijuana; (3) PWID marijuana in the proximity of a school or park; and (4) PWID crack cocaine in the proximity of a school or park. However, she was not sentenced until after Whitner's trial.

At Whitner's trial, Whitner objected to and moved to suppress Officer White's testimony regarding Whitner's providing 202 Mack Street as his address during the search. Whitner argued the State did not meet its burden of establishing Whitner was informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before eliciting the statement. The trial court overruled the objection. Additionally, Officer White testified Smiley informed him while they were executing the search warrant she and Whitner lived at the residence.

Smiley testified for the State, alleging she and Whitner were in a romantic relationship and lived together at 202 Mack Street. She further testified the drugs found in the house belonged to Whitner. During her cross-examination, Whitner questioned Smiley about the possibility of receiving a diminished sentence for testimony favorable to Whitner's conviction. Additionally, Whitner asked, "Do you know how much time you're looking at in prison?" The State objected to the question and the trial court sustained the objection. The jury convicted Whitner of all of the charges. Whitner moved for a new trial notwithstanding the verdict, maintaining cross-examination of Smiley to determine potential bias was proper. The motion was denied. The trial court sentenced Whitner to twenty-five years imprisonment for the trafficking crack cocaine offense and three concurrent terms of ten years imprisonment for the remaining offenses. This appeal followed.

STANDARD OF REVIEW

In criminal cases, appellate courts sit to review errors of law only. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion." State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006). A trial court abuses its discretion when its conclusions are controlled by an error of law or lack evidentiary support. State v. Sweet, 374 S.C. 1, 5, 647 S.E.2d 202, 204-05 (2007).

LAW/ANALYSIS

I. Statement During Execution of Search Warrant

Whitner contends the trial court erred in admitting his statement giving 202 Mack Street as his address during the execution of the search warrant because the State failed to show the statement was voluntary and made in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree.

"If a defendant makes a custodial statement, then the trial court must not only make an inquiry into the voluntariness of the statement, but also conduct an inquiry to ensure the police complied with the mandates of Miranda and its progeny." State v. Ledford, 351 S.C. 83, 88, 567 S.E.2d 904, 906-07 (Ct.App.2002). "In order to secure the admission of a defendant's statement, the State must affirmatively show the statement was voluntary and taken in compliance with Miranda." State v. Middleton, 288 S.C. 21, 25, 339 S.E.2d 692, 694 (1986).

Custodial interrogation entails questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Interrogation can be either express questioning or its functional equivalent and includes words or actions on the part of police (other than those normally attendant to arrest and custody) the police should know are reasonably likely to elicit an incriminating response. State v. Kennedy, 333 S.C. 426, 431, 510 S.E.2d 714, 716 (1998). Whether a suspect was in "custody is determined by an objective analysis of `whether a reasonable man in the suspect's position would have understood himself to be in custody.'" Ledford, 351 S.C. at 88, 567 S.E.2d at 907 (quoting State v. Easler, 327 S.C. 121, 128, 489 S.E.2d 617, 621 (1997)). "To determine whether a suspect is in custody, the trial court must examine the totality of the circumstances, which include factors such as the place, purpose, and length of interrogation, as well as whether the suspect was free to leave the place of questioning." State v. Evans, 354 S.C. 579, 583, 582 S.E.2d 407, 410 (2003).

However, a ruling to admit or exclude evidence must affect a substantial right to constitute error. Rule 103(a), SCRE; State v. Johnson, 363 S.C. 53, 60, 609 S.E.2d 520, 524 (2005). No definite rule of law governs finding an error harmless; "rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case." State v. Reeves, 301 S.C. 191, 193-94, 391 S.E.2d 241, 243 (1990). Generally, an appellate court will not set aside a conviction because of an insubstantial error not affecting the result. State v. Sherard, 303 S.C. 172, 176, 399 S.E.2d 595, 597 (1991). In State v. Gillian, this court found the trial court's error harmless because the testimony was "largely cumulative" to testimony from other witnesses and even omitting the testimony at issue, "abundant evidence upon which one could find Gillian guilty of murder" remained. 360 S.C. 433, 456-57, 602 S.E.2d 62, 74-75 (Ct.App.2004), aff'd as modified on other grounds, 373 S.C. 601, 646 S.E.2d 872 (2007).

The trial court's admission of the statement is not reversible error because the statement is merely cumulative, as (1) Whitner gave the address again on both his booking and bond forms; (2) Smiley testified he lived there; and (3) Officer White testified Smiley had informed him during the execution of the search warrant Whitner lived there. See State v. Price, 368 S.C. 494, 499-500, 629 S.E.2d 363, 366 (2006); see also State v. Haselden, 353 S.C. 190, 197, 577 S.E.2d 445, 448-49 (2003) (holding the admission of improper evidence is harmless when the evidence is merely cumulative to other evidence); State v. Schumpert, 312 S.C. 502, 507, 435 S.E.2d 859, 862 (1993) (finding any error in the admission of testimony that is merely cumulative is harmless); State v. McFarlane, 279 S.C. 327, 330, 306 S.E.2d 611, 613 (1983) ("It is well settled that the admission of improper evidence is harmless where it is merely cumulative to other evidence."); State v. Evans, 378 S.C. 296, 299, 662 S.E.2d 489, 491 (Ct.App.2008) (holding the admission of testimony that was merely cumulative, insubstantial, and not affecting the result of the trial was harmless). Accordingly, the trial court did not commit reversible error in failing to suppress the statement.

II. Cross-Examination of Smiley

Next, Whitner alleges the trial court violated his Sixth Amendment right to confrontation by prohibiting him from questioning Smiley concerning her potential sentence. We disagree.

The scope of cross-examination is left to the trial court's discretion. Sherard, 303 S.C. at 174, 399 S.E.2d at 596. Under the Confrontation Clause, a defendant has the right to cross-examine a witness and elicit any fact showing interest, bias, or partiality of that witness. State v. Mizzell, 349 S.C. 326, 331, 563 S.E.2d 315, 317 (2002). "Considerable latitude is allowed in the cross-examination of an adverse witness for the purpose of testing bias." State v. Brown, 303 S.C. 169, 171, 399 S.E.2d 593, 594 (1991). The record must clearly...