State v. Schrader-Falls

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Vivian Lynn Schrader-Falls, Appellant.

Appellate Case No. 2014-001679

Appeal From Horry County
Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2016-UP-378
Heard June 8, 2016 – Filed July 27, 2016

AFFIRMED

Benjamin Rogers Gooding and Beth B. Richardson, both
of Sowell Gray Stepp & Laffitte, LLC, and Chief
Appellate Defender Robert Michael Dudek, all of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka, Senior
Assistant Attorney General W. Edgar Salter, III, all of
Columbia; and Solicitor Jimmy A. Richardson, II, of
Conway, for Respondent.
PER CURIAM: Vivian Schrader-Falls appeals her conviction for murder,
arguing the trial court erred in requiring her—after she confirmed her decision to
testify—to testify prior to an expert witness. We affirm.

Appellant argues the trial court abused its discretion and violated her due process
rights under Brooks v. Tennessee, 406 U.S. 605, 612 (1972), by requiring her to
testify before her expert witness testified. Additionally, Appellant maintains this
error resulted in a structural defect and is, therefore, not subject to a harmless error
analysis. We disagree.

Initially, we find Appellant's due process argument is not preserved. Appellant
objected to the trial court's ruling regarding the order of the witnesses; however,
Appellant failed to make any arguments regarding her due process rights or Brooks
as she does on appeal. See In re Care & Treatment of Corley, 365 S.C. 252, 258,
616 S.E.2d 441, 444 (Ct. App. 2005) ("Constitutional issues, like most others, must
be raised to and ruled on by the trial court to be preserved for appeal. The record
contains no indication that Corley ever raised a due process argument in the circuit
court. This argument is not preserved for review." (citation omitted)); State v.
Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A party need not use the
exact name of a legal doctrine in order to preserve it, but it must be clear that the
argument has been presented on that ground."); id. ("A party may not argue one
ground at trial and an alternate ground on appeal.").

As to the merits of the due process argument, even if it was preserved, we find the
trial court did not violate Appellant's due process rights. See Johnson v. Minor,
594 F.3d 608, 613 (8th Cir. 2010) ("Where the trial court reasonably believed that
the defendant planned to testify and that his testimony was necessary to lay the
foundation for another witness's testimony, a ruling that the defendant must testify
before the other witness does not constitute Brooks error."); Harris v. Barkley, 202
F.3d 169, 173-74 (2d Cir. 2000) (finding a trial court did not violate Brooks in
ruling the defendant had to testify—if he chose to testify at all—prior to a witness
whose appearance was delayed); Loher v. State, 310 P.3d 1047, n.6 (Haw. Ct.
App. 2011) ("A number of courts have similarly held that no Brooks violation
occurs where the defendant made the decision [to testify] before the trial court's
ruling. These courts reason that the trial court's ruling could not have influenced
the defendant's decision to testify. If the defendant has decided to testify no matter
what, the order of witnesses is less crucial. The rationale underlying Brooks—
allowing the defendant to make an informed decision regarding the need for and
value of his testimony—is not applicable in such situations." (citations omitted)).

Furthermore, we find the alleged due process violation did not constitute a
structural defect and is, therefore, subject to a harmless error analysis. See Brooks,
406 U.S. at 613 (suggesting a harmless error analysis applies when the trial court
requires the defendant to testify before other witnesses testified); State v. Kido, 76
P.3d 612, 621 (Haw. Ct. App. 2003) ("[T]he Brooks Court impliedly held that the
error there, so similar to the error here, was subject to harmless error analysis.");
Stoddard v. State, 31 A.3d 603, 613 (Md. 2011) ("Violations of Brooks are subject
to harmless error analysis. The Supreme Court in Brooks suggested that the error
is subject to harmless error analysis by noting that the State 'ma[de] no claim that
this was harmless error,' 406 U.S. at 613, and other courts have applied harmless
error analysis to Brooks violations. See, e.g., [United States v.] Rantz, 862 F.2d
[808, 812-13 (10th Cir. 1988)]. The error before us is trial error, not structural
error, and is subject to harmless error analysis." (first alteration by court) (footnote
omitted)).

Consequently, even assuming the trial court violated Appellant's due process rights
or abused its discretion under South Carolina case law or rules of evidence by
requiring Appellant to testify prior to her expert witness, we find any error was
harmless. Appellant failed to show prejudice resulting from the trial court's ruling
as she failed to show the ruling influenced the jury's verdict. See State v. Tapp,
398 S.C. 376, 389, 728 S.E.2d 468, 475 (2012) ("The key factor for determining
whether a trial error constitutes reversible error is 'whether it appears beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.'" (quoting State v. Charping, 313 S.C. 147, 157, 437 S.E.2d 88, 94
(1993)); State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985)
("Whether an error is harmless depends on the circumstances of the particular case.
No definite rule of law governs this finding; rather, the materiality and prejudicial
character of the error must be determined from its relationship to the entire case.
Error is harmless when it 'could not reasonably have affected the result of the
trial.'" (quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971)); State v.
Hariott, 210 S.C. 290, 298, 42 S.E.2d 385, 388 (1947) ("It is a rule of practically
universal application in appellate procedure that an accused cannot avail himself of
error as a ground for reversal where the error has not been prejudicial to him.
Technical errors or defects, or mere irregularities which do not affect the
substantial rights of the accused are generally disregarded on review by the
appellate court, particularly where guilt appears from the record to be clearly
established.").
AFFIRMED.

HUFF, KONDUROS, and GEATHERS, JJ., concur.