State v. Gadsden

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.

Gerald Akeem Gadsden, Appellant.

Appellate Case No. 2016-001286

Appeal From Greenville County
James R. Barber, III, Circuit Court Judge

Unpublished Opinion No. 2019-UP-264
Heard June 6, 2019 – Filed July 17, 2019

AFFIRMED

Appellate Defender David Alexander, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., Assistant Attorney General Jonathan Scott Matthews,
all of Columbia, and William Walter Wilkins, III, of
Greenville, for Respondent.

PER CURIAM: Gerald Akeem Gadsden appeals his convictions for armed robbery,
conspiracy, and two counts of kidnapping, on the ground that the circuit court
improperly prevented him from cross-examining a witness, Damon Riley, about the
status of Riley's probationary sentence. Gadsden also asks us to vacate his sentence
of life without parole (LWOP) for the armed robbery and kidnapping charges and
remand for resentencing on the ground that the circuit court erred in refusing to
consider his motion to strike LWOP as a possible sentence. We affirm.

Gadsden and James D.L. White were tried together for crimes related to the January
20, 2014 robbery of an Olive Garden in Greenville. The State theorized the robbery
was an inside job, and that White—employed as a dish washer at the restaurant—
had propped open the front door after closing time to allow Gadsden to enter and
steal money from the restaurant's safe. Riley, another Olive Garden employee,
testified he left before the robbery occurred and the door was not propped open when
he departed. Minutes after Riley left, the restaurant was robbed. While inside the
Olive Garden, the robber approached the restaurant manager, struck the manager
several times, and demanded money from the safe. Officers responded and found a
dish rag propping open the front door, the restaurant's exterior camera monitor
disabled, and White inside the restaurant with other employees. Gadsden was
eventually identified as the suspected robber, due in part to highly incriminating
communications between Gadsden and White found on White's cell phone, pictures
found on the phone that Gadsden sent to White the day after the robbery that depicted
Gadsden displaying a large amount of cash, as well as witness descriptions of the
robber matching Gadsden's features and clothing.

1. We find the trial court erred in limiting Gadsden's cross-examination of the State's
witness, Riley. See State v. Graham, 314 S.C. 383, 385, 444 S.E.2d 525, 527 (1994)
("Specifically included in a defendant's Sixth Amendment right to confront the
witness is the right to meaningful cross-examination of adverse witnesses."); Rule
608(c), SCRE ("Bias, prejudice or any motive to misrepresent may be shown to
impeach the witness either by examination of the witness or by evidence otherwise
adduced."); see also State v. Brown, 303 S.C. 169, 171, 399 S.E.2d 593, 594 (1991)
("The Confrontation Clause guarantees a defendant the opportunity to cross-examine
a witness concerning bias."); Smalls v. State, 422 S.C. 174, 182–83, 810 S.E.2d 836,
840 (2018) ("Evidence of a witness's bias can be compelling impeachment evidence,
and for that reason 'considerable latitude is allowed' to defense counsel in criminal
cases 'in the cross-examination of an adverse witness for the purpose of testing bias.'"
(quoting Brown, 303 S.C. at 171, 399 S.E.2d at 594)).

Gadsden's co-defendant, White, initially questioned Riley about Riley's prior
burglary charge, and asked Riley whether he had a "recent probation violation."
Riley testified he had not had a recent violation and that he had "fulfilled all [of his]
probation and everything." When Gadsden cross-examined Riley, Riley testified he
was on probation for burglary at the time he was interviewed by investigators about
the Olive Garden robbery. Then, Gadsden attempted to introduce into evidence a
"Consent Order Imposing Additional Conditions of Probation," signed by Riley,
which was dated February 19, 2014, and detailed two probation violations that Riley
had committed. Gadsden argued the Consent Order was appropriate impeachment
evidence and evidence of "character and bias." The trial court sustained the State's
objection to the Consent Order.

"Proof of bias is almost always relevant because the jury, as finder of fact and
weigher of credibility, has historically been entitled to assess all evidence which
might bear on the accuracy and truth of a witness' testimony." State v. Pipkin, 359
S.C. 322, 327, 597 S.E.2d 831, 833 (Ct. App. 2004) (quoting United States v. Abel,
469 U.S. 45, 52 (1984)). "Rule 608(c), SCRE, preserves South Carolina precedent
holding that generally, anything having a legitimate tendency to throw light on the
accuracy, truthfulness, and sincerity of a witness may be shown and considered in
determining the credit to be accorded his testimony." State v. McEachern, 399 S.C.
125, 141, 731 S.E.2d 604, 612 (Ct. App. 2012) (internal quotations omitted). Still,
"trial judges may impose reasonable limits on such cross-examination based on
concerns about . . . harassment, prejudice, confusion of the issues, witness's safety,
or interrogation that is repetitive or only marginally relevant." State v. Jenkins, 322
S.C. 360, 364, 474 S.E.2d 812, 814 (Ct. App. 1996). "However, before a defendant
can be prohibited from attempting to demonstrate bias on the part of a witness, the
record must clearly show that the cross-examination is somehow inappropriate." Id.
at 364, 474 S.E.2d at 814–15. "The limitation of cross-examination is reversible
error if the defendant establishes he was unfairly prejudiced." Brown, 303 S.C. at
171, 399 S.E.2d at 594.

The circuit court erred in preventing Gadsden from introducing Riley's consent order
under Rule 608(c), SCRE and eliciting further testimony from Riley concerning his
probation. See Rule 608(c), SCRE ("Bias, prejudice or any motive to misrepresent
may be shown to impeach the witness either by examination of the witness or by
evidence otherwise adduced."). Because Riley was on probation and had violated it
around the time that he was providing the investigators information regarding the
Olive Garden robbery, we believe the Consent Order should have been admitted and
further cross-examination allowed because Riley's suspended sentence furnished a
motive for him to curry favor with the investigators and otherwise reduce his
exposure to imprisonment. However, we do not believe Gadsden suffered unfair
prejudice from the trial court's limitation of his cross-examination of Riley, and hold
the error was harmless beyond a reasonable doubt. See State v. Whitner, 380 S.C.
513, 520, 670 S.E.2d 655, 659 (Ct. App. 2008) ("'[A] violation of the defendant's
Sixth Amendment right to confront the witness is not per se reversible error,' and we
must determine if the 'error was harmless beyond a reasonable doubt.'" (quoting
Graham, 314 S.C. at 386, 444 S.E.2d at 527)). "Error is harmless when it could not
reasonably have affected the trial's outcome." Id. Whether error is harmless depends
on the facts of each case and a variety of factors, including: "(1) the importance of
the witness's testimony in the State's case; (2) whether the testimony was cumulative;
(3) the presence or absence of evidence corroborating or contradicting the testimony
of the witness on material points; (4) the extent of cross-examination otherwise
permitted; and (5) the overall strength of the State's case." Id.

While Riley was undoubtedly an important witness in the State's case—as he was
the last person to leave the building before the robbery, and only his testimony could
establish that the rag was not in the door until after Riley left—significant portions
of his testimony were corroborated by Sergeant Weiner, who testified about: (1) the
surveillance video that showed Riley leaving the restaurant at 11:18 p.m., indicating
the Olive Garden outside camera monitor was not disabled until after Riley left, but
before the robbery occurred; and (2) his interview with White, and White's
inconsistent statements about the source of the cash he told Riley he made at a rap
concert that weekend. Moreover, Riley testified at several points during trial that he
had a prior burglary conviction and had been on probation for that charge. The
State's case against Gadsden was strong and included the data and photographs found
on two cell phones, the timing of the robbery, and the victims' descriptions of the
robber. Riley's testimony did little to incriminate Gadsden directly. Accordingly,
we find any error in the trial court's limitation of Gadsden's cross-examination of
Riley was harmless beyond a reasonable doubt.

2. We find the trial court did not err in its consideration of Gadsden's motion to strike
LWOP as a possible sentence. See Ex parte Littlefield, 343 S.C. 212, 218, 540
S.E.2d 81, 84 (2000) ("The South Carolina Constitution and case law place the
unfettered discretion to prosecute solely in the prosecutor's hands."); id. at 218–19,
540 S.E.2d at 84 ("Prosecutors may pursue a case to trial, or they may plea bargain
it down to a lesser offense or they may simply decide not to prosecute the offense in
its entirety." (quoting State v. Thrift, 312 S.C. 282, 291–92, 540 S.E.2d 341, 346
(1994))); id. at 219, 540 S.E.2d at 84 ("Although prosecutorial discretion is broad, it
is not unlimited. The judiciary is empowered to infringe on the exercise of
prosecutorial discretion when it is necessary to review and interpret the results of the
prosecutor's actions when those actions violate certain constitutional mandates.");
State v. Smith, 276 S.C. 494, 498, 280 S.E.2d 200, 202 (1981) ("It is an equal abuse
of discretion to refuse to exercise discretionary authority when it is warranted as it
is to exercise the discretion improperly."); see also Missouri v. Frye, 566 U.S. 134,
148 (2012) ("[A] defendant has no right to be offered a plea . . . nor a federal right
that the judge accept it.") (citations omitted).

Gadsden asserts he raised two "substantial constitutional issues" at a pre-trial hearing
regarding the State's intention to seek LWOP as a sentence at trial, and the circuit
court failed "to make factual and legal findings" regarding his arguments. At the
pre-trial hearing, the trial court heard arguments from the State and Gadsden
regarding the State's notice to seek LWOP as a sentence. Gadsden argued LWOP
was the result of vindictive prosecution and amounted to cruel and unusual
punishment. The State explained the timeline of its discovery of Gadsden's
eligibility for LWOP due to a prior ABWIK conviction. Gadsden and the State both
explained the sequence of events that led to trial being postponed for a third time
due to Gadsden being hospitalized for mental health issues, which in turn had the
effect of giving the State enough time to notice Gadsden (as required by statute) of
its intention to seek LWOP as a sentence. Then, the trial court denied Gadsden's
motion that the State be prevented from seeking LWOP.

"[U]pon a conviction for a most serious offense as defined by this section, a person
must be sentenced to a term of imprisonment for life without the possibility of parole
if that person has . . . (1) one or more prior convictions for: (a) a most serious offense;
. . . ." S.C. Code Ann. § 17-25-45(A)(1)(a) (2014). Assault and battery with intent
to kill is considered a "most serious offense" under the statute. See S.C. Code Ann.
§ 17-25-45(C)(1) (Supp. 2018). "The decision to invoke sentencing under this
section is in the discretion of the solicitor." S.C. Code Ann. § 17-25-45(G) (2014).
"Where the solicitor is required to seek or determines to seek sentencing of a
defendant under this section, written notice must be given by the solicitor to the
defendant and defendant's counsel not less than ten days before trial." S.C. Code
Ann. § 17-25-45(H) (2014).

As a threshold matter, we must determine whether the trial court's denial of
Gadsden's pre-trial motion to strike LWOP amounted to an exercise of the trial
court's discretion. See Smith, 276 S.C. at 498, 280 S.E.2d at 202 ("It is an equal
abuse of discretion to refuse to exercise discretionary authority when it is warranted
as it is to exercise the discretion improperly."). We do not believe the record
demonstrates the trial court believed it lacked the discretion to consider the motion.
Indeed, the trial court: (1) entertained arguments from Gadsden and the State on the
issue; (2) referenced Gadsden's mental health issues and acknowledged the State's
flexibility in extending the plea offer during its ruling; (3) made a ruling on the
record denying Gadsden's motion; and (4) only ever indicated its belief that it lacked
discretion during the sentencing phase, post-conviction, at which point the LWOP
statute removed any sentencing discretion.

Because we find the trial court exercised its discretion to hear Gadsden's pre-trial
motion, we also review the merits of Gadsden's constitutional arguments that the
circuit court denied for an abuse of discretion. See State v. Hughes, 346 S.C. 339,
342, 552 S.E.2d 35, 36 (Ct. App. 2001) ("An abuse of discretion occurs when a trial
court's decision is unsupported by the evidence or controlled by an error of law.")

At the pre-trial hearing, the State explained the circumstances that led to its
determination to seek LWOP, noting if Gadsden had appeared at the trial as
scheduled on April 11, 2016, LWOP would not have been an option because the
State could not have noticed Gadsden within the statutorily required period. The
State explained Gadsden's failure to appear at the trial, and the subsequent
continuance of the trial date, provided the State sufficient time to notice Gadsden
under the statute of the State's intent to seek LWOP as a sentence. The State also
discussed a plea offer it extended Gadsden, which did not include a LWOP
requirement, and the State maintained at the pre-trial hearing the plea was still on
the table until the trial started. At the hearing, Gadsden argued he was being
punished for "asserting his right to trial," questioned why it took up until two days
before the trial was scheduled for the State to discover he was LWOP eligible, and
stated it would be cruel and unusual punishment for Gadsden to be subject to LWOP
now, since the trial date was re-scheduled due to his hospitalization for mental health
issues.1

Under the facts of this case, we find the prosecutor was within its discretion to seek
LWOP as a possible sentence, and complied with statutory procedures to notify
Gadsden of the State's intention to do so. Prosecutors have "broad" discretion,
though "there are undoubtedly constitutional limits upon its exercise."
Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978); see United States v. Goodwin,
457 U.S. 368, 380 n.11 (1982) ("A charging decision does not levy an improper
'penalty' unless it results solely from the defendant's exercise of a protected legal
right, rather than the prosecutor's normal assessment of the societal interest in
prosecution."); see also State v. Fletcher, 322 S.C. 256, 260, 471 S.E.2d 702, 704

1
Gadsden has schizophrenia. Two weeks before trial, Dr. Donna Schwartz-Maddox
found him incompetent to stand trial. However, the day of trial, Dr.
Schwartz-Maddox testified Gadsden was now competent—based on her evaluations
of him on the eve of trial—because of the effectiveness of his medications, and the
trial court agreed.
(Ct. App. 1996) ("In a criminal prosecution, however, punishment of the offender is
recognized as a proper motivation for a sentencing trial judge or a prosecutor."); id.
("[T]he presence of a punitive motivation, therefore, does not provide an adequate
basis for distinguishing governmental action that is fully justified as a legitimate
response to perceived criminal conduct from governmental action that is an
impermissible response to noncriminal, protected activity." (quoting Goodwin, 457
U.S. at 373)). Accordingly, Gadsden did not carry his "heavy burden of proving"
that the imposition of LWOP "could not be justified as a proper exercise of
prosecutorial discretion." State v. Odom, 412 S.C. 253, 264, 772 S.E.2d 149, 154
(2015) (quoting United States v. Wilson, 262 F.3d 305, 316 (4th Cir. 2001)). Aside
from implying that the timeline of the State's notice of LWOP was suspect, Gadsden
provided no evidence at the pre-trial hearing that the State was motivated by actual
vindictiveness—that "(1) the prosecutor acted with genuine animus toward the
defendant and (2) the defendant would not have been prosecuted but for that
animus"—nor that the "circumstances surrounding the initiation of the prosecution
pose[d] a realistic likelihood of vindictiveness" to raise a "presumption of
vindictiveness" under the law. Id. at 263–64, 772 S.E.2d at 154 (quoting Wilson,
262 F.3d at 314–17).

Finally, as to Gadsden's argument that his mental illness precluded the State from
seeking LWOP, we hold this is unsupported by law. See U.S. Const. amend. VIII
("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted."); Curtis v. State, 345 S.C. 557, 575, 549 S.E.2d 591,
600 (2001) ("The Eighth Amendment only prohibits sentences which are grossly out
of proportion to the severity of the crime."). Gadsden cites generally to Miller v.
Alabama, 567 U.S. 460 (2012) and Aiken v. Byars, 410 S.C. 534, 765 S.E.2d 572
(2014), to support his argument that the factual circumstances of his case "may
prevent the use of mandatory LWOP" due to his mental illness. Both Miller and
Byars relate to LWOP sentences for juvenile offenders. In Miller, the United States
Supreme Court held mandatory LWOP sentences for juvenile offenders violated the
Eighth Amendment's prohibition on cruel and unusual punishments. 567 U.S. at
465. In Byars, the South Carolina Supreme Court concluded Miller applied
retroactively, and it found Miller's holding applied to permissible as well as
mandatory life sentencing schemes for juvenile offenders. 410 S.C. at 541–44, 544,
765 S.E.2d at 576–77. The court determined:

Miller establishes a specific framework, articulating that
the factors a sentencing court consider at a hearing must
include: (1) the chronological age of the offender and the
hallmark features of youth, including 'immaturity,
impetuosity, and failure to appreciate the risks and
consequence'; (2) the 'family and home environment' that
surrounded the offender; (3) the circumstances of the
homicide offense, including the extent of the offender's
participation in the conduct and how familial and peer
pressures may have affected him; (4) the 'incompetencies
associated with youth––for example, [the offender's]
inability to deal with police officers or prosecutors
(including on a plea agreement) or [the offender's]
incapacity to assist his own attorneys'; and (5) the
'possibility of rehabilitation.'

Id. at 544, 765 S.E.2d at 577 (quoting Miller, 567 U.S. at 477–78). The Byars court
went on to explain, "Miller requires that before a [LWOP] sentence is imposed upon
a juvenile offender, he must receive an individualized hearing where the mitigating
hallmark features of youth are fully explored." Id. at 545, 765 S.E.2d at 578.

Gadsden was in his twenties at the time of trial. Although he attempts to analogize
mental illness with being a juvenile, thus warranting "individualized sentencing"
instead of mandatory LWOP, we believe current law does not support a finding that
Gadsden's Eighth Amendment rights were violated by the LWOP sentence in this
case. The State determined Gadsden was eligible for LWOP on April 9, 2016, but
it did not decide to submit the paperwork to the LWOP committee until the trial was
continued. See § 17-25-45(G) ("The decision to invoke sentencing under this section
is in the discretion of the solicitor."). Gadsden was given notice of the State's
intention to seek LWOP as a sentence on May 2, 2016, after the trial was rescheduled
for June 6, 2019. See § 17-25-45(H) ("Where the solicitor is required to seek or
determines to seek sentencing of a defendant under this section, written notice must
be given by the solicitor to the defendant and defendant's counsel not less than ten
days before trial."). Gadsden was previously convicted for assault and battery with
intent to kill. Assault and battery with intent to kill is considered a "most serious
offense" under the statute. See § 17-25-45(C)(1). Gadsden was convicted at trial in
this case for armed robbery and two counts of kidnapping. See § 17-25-45(A)(1)(a)
("[U]pon a conviction for a most serious offense as defined by this section, a person
must be sentenced to a term of imprisonment for life without the possibility of parole
if that person has . . . (1) one or more prior convictions for: (a) a most serious offense;
. . . .") (emphasis added). There is no doubt a wide disparity between Gadsden's life
sentence and the twelve-year sentence White received. The trial court was
concerned about the disparity, but was powerless under current law to impose a
lesser sentence on Gadsden. So are we.
Accordingly, Gadsden's convictions and sentence are

AFFIRMED.

WILLIAMS, GEATHERS, and HILL, JJ., concur.