State v. Bennett

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT

BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 239(d)(2),
SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Gary W. Bennett,       
Appellant.

Appeal From Horry County

John M. Milling, Circuit Court Judge

Unpublished Opinion No. 2004-UP-439

Heard June 10, 2004 – Filed August 13,
2004

AFFIRMED

Chief Attorney Joseph L. Savitz, III, of Columbia, for
Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelanka
and Senior Assistant Attorney General William E. Salter, III, all of Columbia;
and Solicitor John Gregory Hembree, of Conway, for Respondent.

PER CURIAM:  Gary Wayne Bennett
appeals his convictions for armed robbery and murder in connection with the
death of Eva Marie Martin, arguing the trial court erred in limiting his cross-examination
of the State’s key witness, Andrew Lindsay, on Lindsay’s prior conviction for
second-degree murder.  Bennett argues he should have been able to impeach Lindsay
by revealing the specific nature of Lindsay’s prior murder conviction, rather
than being limited to a general characterization of the conviction as an unspecified
felony.  We agree, but find the error harmless and affirm.

FACTS

Martin was discovered murdered in her home on May
23, 2000.  Earlier that month, Bennett and Lindsay had plotted to rob a Horry
County Taco Bell restaurant managed by Martin.  Martin was an acquaintance and
a coworker of Bennett’s common-law wife.  Although Bennett and Lindsay obtained
a key to the restaurant, they were unable to open its safe because they did
not have the safe’s combination

Approximately two months later, police questioned
Lindsay regarding Martin’s murder. [1]   Lindsay initially provided police at least two statements
denying knowledge of or involvement in Martin’s murder.  He later recanted his
statement, admitted involvement in Martin’s murder, but implicated Bennett as
the murderer.  Lindsay was later charged with Martin’s murder, but entered a
plea bargain with the State.  Pursuant to the agreement, Lindsay pled guilty
to being an accessory after the fact, in exchange for which he would testify
that Bennett killed Martin.          

Bennett was subsequently charged with and tried
for murder and armed robbery in connection with Martin’s death.  The State moved
in imine to limit Bennett’s impeachment of Lindsay by prohibiting testimony
regarding Lindsay’s 1991 second-degree murder conviction from Illinois.  Conversely,
Bennett wanted to impeach Lindsay on cross-examination by revealing the fact
that he had previously been convicted of murder.  It is unchallenged that Lindsay’s
murder conviction falls squarely within the admissibility parameters of Rule
609, SCRE. [2]   Rule 609(a)(1),
SCRE, provides in relevant part that impeachment of a non-defendant witness’s
credibility with evidence of the non-defendant witness’s past criminal convictions
is permissible “if the crime was punishable by death or imprisonment in excess
of one year under the law under which the witness was convicted” and if under
Rule 403, SCRE, the court determines that the evidence’s probative value is
not “substantially outweighed” by the danger of unfair prejudice. Here, the
trial judge indicated his intent to limit Bennett “to making inquiries without
identifying [Lindsay’s 1991 second-degree murder conviction] as a second-degree
murder charge” ostensibly out of concern that testimony regarding the specific
nature of Lindsay’s second-degree murder conviction would prejudice Bennett. 
We are unable to discern from the record the rule of evidence or legal principle
relied upon by the trial judge in countermanding defense counsel’s intended
strategic use of relevant and admissible evidence.  In this regard, Bennett’s
counsel insisted that he, not the court, assess potential prejudice arising
from the use of relevant and admissible evidence.  Bennett’s stated strategy
was to confront and impeach Lindsay with every available weapon, including Lindsay’s
murder conviction.  The trial judge, nevertheless, persisted with the limitation
on Bennett’s desired impeachment of Lindsay.

Bennett later vigorously cross-examined Lindsay
regarding, among other things, the details of his plea bargain, the fact that
he lied to police in two sworn statements before admitting involvement in Martin’s
murder, the fact that police found the Taco Bell’s safe combination on a piece
of paper in Lindsay’s wallet at the time of his arrest, and the fact that he
was currently serving a ten-year prison sentence for seven counts of second-degree
burglary, to which he pled guilty in 2001.  Regarding Lindsay’s 1991 murder
conviction, Bennett asked “You’re a convicted felon, received a sentence of
fifteen years … to a charge that has nothing to do with the burglary charges
you’re serving your time for now, isn’t that right?”  Lindsay replied, “Yes.”

In closing arguments, Bennett focused on the impact
of these issues on Lindsay’s credibility, ultimately building a case implicating
Lindsay as Martin’s murderer.  Among other things, he suggested Lindsay more
likely the perpetrator because while Bennett and his wife were close friends
with Martin, Lindsay was a mere social acquaintance less likely to care about
Martin’s welfare.  He further noted that Lindsay, not Bennett, was found in
possession of the safe’s combination, and that Lindsay’s plea bargain with the
State motivated him to falsely implicate Bennett as the murderer.

The trial judge instructed the jury regarding witness
credibility and impeachment, noting that its consideration of a witness’s criminal
record was limited to its assessment of the witness’s credibility.  Bennett
was subsequently convicted for murder and armed robbery.  Because he had previously
been convicted of first-degree burglary, Bennett was sentenced to concurrent
life terms without parole under the recidivist statute.
[3]   This appeal follows.

STANDARD OF REVIEW

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 amounting to an error of law.  State v. Mitchell, 330 S.C.
189, 196, 498 S.E.2d 642, 645 (1998);  State v. Foster, 354 S.C. 614,
621, 582 S.E.2d 426, 429 (2003).  This rule is subject to the Sixth Amendment’s
guarantee of a defendant’s right to a “meaningful” cross-examination of a witness. 
State v. Mitchell, 330 S.C. at 196, 498 S.E.2d at 645.

DISCUSSION

Bennett argues the trial court improperly
limited his cross-examination of Lindsay regarding Lindsay’s past conviction
for second-degree murder. [4] According to Bennett, he should
have been able to confront and impeach Lindsay with the murder conviction, rather
than the court-imposed restriction on Lindsay’s cross-examination.  We agree,
but find the error harmless.  As noted, Rule 609 permits impeachment of a non-defendant
witness with the witness’s criminal conviction “if the crime was punishable
by … imprisonment in excess of one year.”  This rule comports with the Sixth
Amendment to the United States Constitution’s “Confrontation Clause,” through
which a defendant has the right to cross-examine a witness concerning bias or
partiality.  State v. Mizzell, 349 S.C. 326, 331, 563 S.E.2d 315, 319
(2002).  On cross-examination, any fact may be elicited which tends to show
the witness’s interest, bias, or partiality.  Id.  “Before a trial judge
may limit a criminal defendant’s right to engage in cross-examination to show
bias on the part of the witness, the record must clearly show the cross-examination
is inappropriate.”  Id.  In this case, Lindsay was a “witness” previously
convicted of a crime, second-degree murder, which resulted in a sentence of
fifteen years.  Thus, we find that the trial judge properly concluded that the
evidence of Lindsay’s murder conviction was admissible under Rule 609(a)(1)
of the South Carolina Rules of Evidence.  

Here, the trial judge’s basis for finding the cross-examination
“inappropriate” arose from his concern regarding the potential prejudice to
Bennett, who advocated admitting the evidence.  The court expressed concern
that a jury might determine Bennett had committed the murder because Lindsay,
his friend and co-defendant, had a previous murder conviction.  We find this
rationale not only erroneous, but also an unwarranted intrusion into strategy
determinations vested solely in the accused and his counsel.

“The authority to decide the objectives and means
of litigation is divided between the client and the attorney.”  Alex Sanders
& John S. Nichols, Trial Handbook for South Carolina Lawyers § 1:4,
23 (2d ed. 2002); see Rule 407, SCAR, Rules of Prof. Conduct, 1.2(a)
(a lawyer shall abide by a client’s decisions concerning the objectives of representation
and shall consult with the client as to the means by which they are to be pursued); 
cf. Whitehead v. State, 308 S.C. 119, 122, 417 S.E.2d 529, 531
(1992) (Stating that in the context of post-conviction relief that “[c]ourts
must be wary of second-guessing counsel’s trial tactics; and where counsel articulates
a valid reason for employing certain strategy, such conduct will not be deemed
ineffective assistance of counsel.”).  “Subject to a few exceptions, the client
makes all decisions regarding the objectives of litigation and representation.” 
Sanders & Nichols, Trial Handbook for South Carolina Lawyers, § 1:4
at 23.  However, “[t]he lawyer generally decides the means to be used to achieve
the client’s legitimate objectives, especially legal and tactical questions.” 
Id. at 24.  Where, as here, proposed evidence is relevant and admissible,
and its use is merely a function of defense strategy involving the weighing
of potential benefits and risks of prejudice, the decision of the defendant
and his counsel controls.  The trial judge’s decision here directly contravened
the strategic tactics of Bennett’s counsel and had the effect of limiting Bennett’s
confrontation and impeachment of Lindsay.  We find this an improper limitation
of Bennett’s right to confront a witness, amounting to legal error.

However, an improper
limitation of the defendant’s right to confront a witness is not per se
reversible if the error was “harmless beyond a reasonable doubt.”  State
v. Mizzell, 349 S.C. at 333, 563 S.E.2d at 318.  An error is harmless beyond
a reasonable doubt where, in view of the entire record, the error did not contribute
to the verdict beyond a reasonable doubt.  See Id., 349 at 334,
563 S.E.2d at 319.  While we recognize the importance of Lindsay’s testimony
to the State’s case, we are persuaded that the error is harmless in light of
the overwhelming level of impeachment otherwise permitted during Bennett’s cross-examination
of Lindsay, including the details of his plea bargain, the fact that he was
in prison for multiple counts of burglary, and the fact that he had lied to
police in multiple statements before admitting his involvement in the crime. 
We further note that some impeachment value was derived from the reference to
the Lindsay’s murder conviction as a “felony” for which he received a “fifteen
year sentence.”  Moreover, Bennett was allowed to argue, without objection,
the issue of Lindsay’s third-party guilt during his closing argument.  In light
of the totality of these circumstances, we find the error harmless beyond a
reasonable doubt.  This conclusion is consistent with decisions in other jurisdictions. 
Where a trial court errs in limiting a defendant’s ability on cross-examination
to confront and impeach a witness, such error is generally harmless when the
cross-examiner is allowed to otherwise pursue a thorough and meaningful cross-examination. 
See Artis v. U.S., 505 A.2d 52 (D.C.App. 1986) (In a prosecution
for burglary and larceny it was error to curtail appropriate line of cross-examination
of prosecution witness concerning juvenile charges pending against him, but
such error was harmless where cross-examination otherwise highlighted witness’s
motives to curry favor with the government to escape prosecution for burglaries
and other offenses and to avoid possible revocation of his probation);  Morris
v. State, 166 Ga.App. 137, 303 S.E.2d 492 (1983) (Error occurred in burglary
prosecution where defendant was precluded from cross-examining accomplice who
testified for prosecution regarding existence of any pending charges and promises
of immunity, but error was harmless where defendant was able to question defendant
regarding his motives through another line of questioning);  State v. Long,
372 N.E.2d 804 (Ohio, 1978) (Where examination of record in homicide prosecution
disclosed that defense counsel aggressively cross-examined eyewitness to homicide
and that such examination, among other things, elicited witness's admission
that at time of trial he was incarcerated and had been convicted of receiving
stolen property, even if trial court erred in not allowing cross-examination
of such witness as to whether he had pending motion for shock probation, no
material prejudice was demonstrated by record and any error was harmless beyond
reasonable doubt); see generally, R.P. Davis, Annotation, Preventing
or Limiting Cross-Examination Of Prosecution’s Witness As To His Motive For
Testifying, 62 A.L.R.2d 610 (1958 & 2004 Supp.).  Accordingly, Bennett’s
convictions are

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE,
JJ., concur.

[1]        In the interim, Lindsay and his wife moved from South Carolina.

[2]        We are not confronted
with that portion of Rule 609, SCRE, dealing with use of a prior conviction
against an accused.  Rule 609, SCRE, and related case law provide for considerations
unique to the accused.  See Green v. State, 338 S.C. 428, 433-34,
527 S.E2d. 98, 101 (2000) (Declining to hold past convictions of the accused
inadmissible in all cases, but instead finding that a trial court should weigh
the probative value of the prior convictions against their prejudicial effect
to the accused and determine, in its discretion, whether to admit the evidence. 
In doing so, the factors a trial court should consider are (1) the impeachment
value of the prior crime; (2) the point in time of the conviction and the
witness’ subsequent history; (3) the similarity between the past crime and
the charged crime; and (5) the centrality of the credibility issue.).  The
Green factors are not implicated by the testimony of a witness who
is not the accused, such as Lindsay.

[3]        South Carolina’s recidivist
statute, S.C. Code Ann. §17-25-45 (Supp. 2000), mandates, among other things,
an automatic life without parole sentence when a person has been convicted
of more than one “most serious” offense.  Such “most serious” offenses, as
defined by the statute, include first-degree burglary, murder, and armed robbery. 
Here, the State notified Bennett and his counsel that because Bennett had
a prior first-degree burglary conviction, he would be subject to a sentence
of life in prison without parole if convicted on either the murder or armed
robbery charge.

[4]        Bennett objected to the
court’s limitation of his cross-examination of Lindsay in the in limine
hearing, but he did not renew his objection when Lindsay testified.  Generally,
an in limine ruling does not preserve an issue for review because a
motion in limine is not a final determination.  State v. Forrester,
343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001).  An issue ruled upon in an
in limine hearing is therefore not preserved for appellate review unless
the moving party makes a contemporaneous objection when the evidence is introduced,
except where the judge’s ruling is, in effect, a final ruling.  Id. 
Here, due to the circumstances surrounding the trial judge’s ruling in the
present case, the State conceded at oral argument that the issue is preserved
for review.  We accept the State’s stipulation and address the issue on its
merits.