State v. Barbare

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.

John A.
Barbare, Appellant.

Appeal From Greenville County

C. Victor Pyle, Jr., Circuit Court Judge

Unpublished Opinion No. 2011-UP-087  

Submitted November 1, 2010 – Filed March
3, 2011

AFFIRMED

Robert M. Pachak, of Columbia, for
Appellant.

Attorney General Alan M. Wilson, Chief
Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General
Salley W. Elliott, Assistant Attorney General Julie M. Thames, Office of the
Attorney General, of Columbia; Robert Mills of Greenville, for Respondent.

PER CURIAM:  John Barbare appeals his conviction for armed
robbery.  On appeal, Barbare argues the trial court erred (1) by allowing an
officer to testify to the contents of a surveillance video that was no longer
available; and (2) by improperly shifting the burden of proof during its jury
instruction.  We affirm.[1]

FACTS

On
February 16, 2008, a robbery occurred at the Spinx convenience store in
Marietta, South Carolina.  Barbare was subsequently arrested and indicted for
armed robbery.

At
trial, Barbare made a motion to exclude any testimony related to the contents
of the surveillance video on the ground that the State failed to produce the
video.  According to Barbare, this failure constituted a violation of Rule 5 of
the South Carolina Rules of Criminal Procedure because the surveillance video contained
exculpatory evidence.  The State argued the surveillance video did not contain
any exculpatory evidence based on the ruling of a circuit court judge.  The
State also argued it should be permitted to discuss the contents of the
surveillance video if Barbare opened the door to this issue.  The trial court
did not review the prior judge's ruling regarding the exculpatory nature of the
surveillance video and granted the State's request to discuss the surveillance
video contents if Barbare made any references concerning the availability of
the surveillance video. 

The
State called several witnesses during its case in chief.  Hoyt Rash, the
store clerk, testified that Barbare, a regular customer of the store,
approached the counter and asked for two packs of cigarettes.  Rash indicated
Barbare pointed a gun at him and stole approximately $140 from the store.

Cheryl
Shipman, a store customer, testified she heard Barbare tell Rash that he was
going to shoot Rash if Rash did not open the cash register.  After hearing this
statement, Shipman hid behind an aisle and heard Barbare arguing with another store
customer.  Shipman exited the store and called 911. 

Officer
Brian Osborne of the Greenville County Sheriff's Office (Sheriff's Office)
reported to the store after the robbery and subsequently conducted a photo
lineup at the Sheriff's office.  Officer Osborne testified Rash identified
Barbare as the perpetrator of the armed robbery.  Officer Osborne stated Barbare
was arrested, waived his Miranda rights, and produced a written
confession implicating his involvement in the armed robbery.  Officer Matthew
Owens testified Barbare was coherent and did not appear to be intoxicated or
under the influence of drugs during his confession. 

On
cross-examination, Officer Owens answered several questions posed by Barbare
regarding the surveillance video.  In response, the State recalled Officer
Osborne to the witness stand to discuss the contents of the surveillance video. 
Barbare objected and argued Officer Osborne's testimony violated his Sixth Amendment
right to confront a witness because the State failed to produce the
surveillance video.  The trial court overruled Barbare's objection and allowed
Officer Osborne to testify to the contents of the surveillance video.

After
the State's presentation of the evidence, Barbare testified in his own defense. 
Barbare stated he went to the store to purchase cigarettes and beer.  While in
the store, Barbare stated an intoxicated customer bumped into him and a verbal
altercation ensued.  After this incident, Barbare testified he became scared
and upset and did not purchase any items from the store.  Barbare also claimed he
did not rob the store or confess to the robbery.

The
jury subsequently convicted Barbare for armed robbery, and the trial court sentenced
him to twenty years imprisonment.  This appeal followed. 

STANDARD OF REVIEW

In criminal cases, the
appellate court sits to review errors of law only. State
v. Martucci, 380 S.C. 232, 246, 669 S.E.2d 598, 605-06 (Ct. App. 2008).  This court is
bound by the trial court's factual findings unless they are clearly erroneous. State
v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  This court
does not reevaluate the facts based on its own view of the preponderance of the
evidence but simply determines whether the trial court's ruling is supported by
any evidence.  State v. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86
(Ct. App. 2007).

LAW/ANALYSIS

A. Violation of the Confrontation
Clause

Barbare argues Officer
Osborne's testimony regarding the contents of the store's surveillance video
violated his Sixth Amendment right to confront a witness.  We disagree.

The Confrontation Clause of
the Sixth Amendment, which was extended to the states by the Fourteenth
Amendment, guarantees the right of a criminal defendant to confront witnesses
against him, and this includes the right to cross-examine witnesses.  State
v. Holder, 382 S.C. 278, 283, 676 S.E.2d 690, 693 (2009). 

During cross-examination, Barbare
asked Officer Owens several questions about the surveillance videotape. The
colloquy between Barbare and Officer Owens provides in pertinent part:

Defense
Counsel:  You were aware that the Spinx station had a functioning video
surveillance system?

Officer
Owens:  From -- yeah.

Defense
Counsel:  And that it was working that night?

Officer
Owens:  It could have been.  I don't know.

Defense
Counsel:  And could have been viewed?

Officer
Owens:  Yeah.

Defense
Counsel:  People had viewed the video?

Officer
Owens:  Did I view the video?

Defense
Counsel:  No.  Other officers viewed the video?

Officer
Owens:  I – yeah.

Defense
Counsel:  No video was ever obtained?

Officer
Owens:  Not from me.

Defense
Counsel:  It's not in evidence?

Officer
Owens:  Okay.

Defense
Counsel:  It's not put into evidence in P&E?

Officer
Owens:  I didn't put any video in P&E.

After Barbare's cross-examination
of Officer Owens, the State recalled Officer Osborne to testify to the contents
of the surveillance video.  Once Barbare questioned Officer Owens about the
store's surveillance video, Barbare opened the door to this issue.  We conclude
the State was permitted to recall Officer Osborne to the witness stand to rebut
Barbare's cross-examination of Officer Owens' testimony regarding the store's
surveillance video.  Thus, we discern no error from the trial court's decision in
allowing Officer Osborne to testify to the contents of the videotape.  See State v. Stroman, 281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984)
(stating "where one party introduces evidence as to a particular fact or
transaction, the other party is entitled to introduce evidence in explanation
or rebuttal thereof, even though [the] latter evidence would be incompetent or
irrelevant had it been offered initially").

B.  Jury Instruction

Barbare also argues the trial
court's jury instruction violated his right to due process because the trial
court improperly shifted the burden of proof.  We disagree.

The law to be charged to the
jury must be determined by the evidence presented at trial.  State v.
Patterson, 367 S.C. 219, 231, 625 S.E.2d 239, 245 (Ct. App. 2006).  A trial
court is required to charge only the current and correct law of this state.  Id. 
A jury charge is correct if it contains the correct definition of the law when
read as a whole.  Id. at 232, 625 S.E.2d at 245.  Jury
instructions must be considered as a whole, and if as a whole they are free
from error, any isolated portions which might be misleading do not constitute
reversible error.  State v. Smith, 315 S.C. 547, 554, 446 S.E.2d 411,
415 (1994). 

During the jury
charge, the trial court stated,

Ladies
and gentlemen, I charge you that the State does not have an absolute duty to
preserve potentially useful evidence that might exonerate a defendant.  To
establish a due process violation, a defendant must demonstrate, first of all,
that the State destroyed the evidence in bad faith.  And, secondly, that the
evidence possessed an exculpatory value apparent before the evidence was destroyed,
and that the [d]efendant cannot obtain other evidence of comparable value by
other means. 

Barbare objected to this
portion of the jury instruction and argued the charge suggested "a
burden-shifting message."  The trial court's statement that the State does
not have an absolute duty to preserve potentially useful evidence that might
exonerate a defendant is a correct pronouncement of the law.  See State
v. Breeze, 379 S.C. 538, 545, 665 S.E.2d 247, 251 (Ct. App. 2008)
(stating the State does not have an absolute duty to safeguard potentially
useful evidence that might vindicate a defendant and that a defendant must
demonstrate (1) that the State destroyed the evidence in bad faith, or (2) that
the evidence possessed an exculpatory value apparent before the evidence was
destroyed and the defendant cannot obtain other evidence of comparable value by
other means to support a due process claim).  Therefore, we conclude the trial
court's jury instruction was free from error. 

CONCLUSION

Accordingly, the trial
court's decision is

AFFIRMED.

FEW, C.J., SHORT and WILLIAMS, JJ., concur.

[1] We decide this case without oral argument
pursuant to Rule 215, SCACR.