State v. Smith

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.

Gerome Chris Smith, Appellant.

Appellate Case No. 2015-001616

Appeal From Oconee County
R. Scott Sprouse, Circuit Court Judge

Unpublished Opinion No. 2018-UP-014
Heard December 6, 2017 – Filed January 10, 2018

REVERSED AND REMANDED

Appellate Defender Lara Mary Caudy and Appellate
Defender John Harrison Strom, both of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William Frederick Schumacher, IV,
both of Columbia, for Respondent.

PER CURIAM: Gerome Chris Smith appeals from his conviction and sentence
for distribution of crack cocaine, contending the trial court erred in (1) admitting
the written statement of a confidential informant (CI) who asserted his Fifth
Amendment right against self-incrimination and declined to testify, (2) admitting
drug evidence in spite of a chain of custody that was defective because the CI
refused to testify, and (3) admitting into evidence a video of the purported
controlled buy because the State failed to lay a proper foundation for admissibility.
We reverse and remand for a new trial.

The State concedes that admission of the CI's written statement was improper.
However, it argues admission of the statement was harmless error.

We agree with Smith and the State that the trial court erred in admitting the CI's
written statement into evidence as it violated Smith's constitutional right to
confrontation. The CI's written statement was clearly testimonial in nature, and
Smith never had an opportunity to cross-examine the CI on the statement. See
Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (holding the Confrontation
Clause bars "admission of testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination"); id. at 51-52 (finding included within the "core
class of 'testimonial' statements" by the court are "pretrial statements that
declarants would reasonably expect to be used prosecutorially," and "statements
that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial").

We disagree with the State's assertion that admission of the CI's written statement
constitutes harmless error. "In determining whether an error is harmless, the
reviewing court must review the entire record to determine what effect the error
had on the verdict." State v. Douglas, 369 S.C. 424, 432, 632 S.E.2d 845, 849
(2006). "Error is harmless beyond a reasonable doubt where it did not contribute
to the verdict obtained." Id. "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."'" State v. Tapp,
398 S.C. 376, 389, 728 S.E.2d 468, 475 (2012) (quoting State v. Charping, 313
S.C. 147, 157, 437 S.E.2d 88, 94 (1993)). When engaging in a harmless error
analysis, "our jurisprudence requires us not to question whether the State proved its
case beyond a reasonable doubt, but whether beyond a reasonable doubt the trial
error did not contribute to the guilty verdict." Id. at 389-90, 728 S.E.2d at 475.

Here, only the CI, Smith, and a passenger were present during the undercover
operation. The passenger did not testify, the CI refused to testify concerning the
events, and Smith testified the transaction involved only a repayment of money
Smith loaned the CI, and not the delivery of drugs to the CI that night. Thus, no
testimony was presented from any of the individuals present during the event in
question to show Smith sold or delivered any drugs to the CI. Further, even
assuming the video recording of the incident was properly admitted, it is not
conclusive as to whether a drug deal occurred between Smith and the CI. Though
Officer Sutherland maintained the video showed Smith handing drugs to the CI
and Officer McClure described what he perceived to be a hand-to-hand exchange
of money for drugs between the CI and Smith during the playing of the video,
Smith adamantly denied that was what occurred. Rather, as the video played,
Smith described the CI giving him money that was owed to him by the CI, and
then CI's hand going beside his leg and coming back up with a baggie cuffed in his
hand as if the CI was trying to hide or plant something. Smith repeatedly denied
selling drugs to the CI that night. Our own review of the video does not convince
us the admission of the CI's written statement was harmless. While there is
evidence from which a jury could believe Smith is handing drugs to the CI during
the exchange of money, the video is not perfectly clear that this is what, in fact,
occurred. Rather, a jury could determine, from the video and other evidence
presented, that the CI did not obtain the drugs from Smith that night but, instead,
set it up to appear that way. After review of the entire record, we cannot say
beyond a reasonable doubt that the CI's written statement did not contribute to the
verdict obtained.1 Accordingly, we find admission of the CI's written statement
was not harmless and we reverse and remand for a new trial. 2

1
We do not consider, as suggested by the State, a likelihood that Smith would not
testify on retrial based on the State's assertion a recorded phone call admitted in
this trial would be inadmissible in a new trial. Although the trial court determined
Smith would have to testify in order for him to authenticate the phone recording,
we cannot say this was the only reason Smith testified. Further, whether Smith
would choose to testify in a retrial would be dependent upon the circumstances at
that time, which we cannot know.
2
We decline to reach the other evidentiary issues raised by Smith. See State v.
Mekler, 379 S.C. 12, 17, 664 S.E.2d 477, 479 (2008) (affirming this court’s
decision reversing defendant’s conviction and granting a new trial, but finding it
unnecessary to address another issue concerning the admission of evidence decided
by this court, noting whether the issue would arise on retrial and its resolution
would depend upon the evidence and testimony presented, and would be for the
trial judge's consideration); Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not
address remaining issues on appeal when its determination of a prior issue is
dispositive).
REVERSED AND REMANDED.

LOCKEMY, C.J., and HUFF and MCDONALD, JJ., concur.