State v. Carter

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.

Rodriques Carter, Appellant.

Appellate Case No. 2011-192646

Appeal From Hampton County
Carmen T. Mullen, Circuit Court Judge

Unpublished Opinion No. 2013-UP-240
Heard April 3, 2013 – Filed June 5, 2013

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia, for Respondent.

PER CURIAM: Appellant, Rodriques Carter, was convicted of criminal sexual
conduct (CSC) in the first degree, kidnapping, and burglary in the first degree.
Carter appeals, asserting the trial court erred in (1) finding that he opened the door
to inadmissible hearsay statements by the victim to her mother concerning the
identity of the victim's perpetrator and the circumstances of the assault and (2)
permitting the solicitor to shift the burden of proof to Carter during his closing
argument by remarking on Carter's failure to elicit certain testimony. We affirm.

1. Carter argues the trial court erred in finding he opened the door to inadmissible
hearsay statements by Victim concerning the identity of her perpetrator and the
circumstances of the assault, based upon Carter questioning Victim's mother
(Mother) about Mother's conduct as a result of Victim's statements. The record
shows that Mother testified on direct examination that she beat Carter with a lamp
because of what she learned he had done to her daughter. On cross examination,
Mother agreed she "beat [Carter] bloody," and that she beat him for about ten
minutes. Defense counsel then asked, "Based on what, based on what your
daughter said, right?" Mother replied, "No. Based on what I said." As defense
counsel continued questioning Mother, he again asked her if she was going to kill
Carter, and Mother acknowledged that was her intent. Counsel again asked,
"Based on what your daughter said?" Mother responded, "My daughter didn't say
that. I did." Thereafter, on re-direct examination, the following colloquy occurred:

[Solicitor]: [Defense Counsel] asked you based upon
what your daughter said. What did your daughter tell
you?

[Mother]: My daughter couldn't tell me anything but – –
–

[Defense Counsel]: Your Honor, I would – – –

[Mother]: [Carter] raped her.

Defense counsel then objected to this testimony as hearsay. The Solicitor
responded defense counsel had opened the door to the testimony, and defense
counsel disagreed that he had done so. The trial judge instructed the parties to
"just move past it." The solicitor stated, "I'm sorry?" and the trial court stated,
"That's okay." The Solicitor then indicated he had not heard the court's ruling, and
the trial judge stated, "Let's ask the next question. Just don't ask that question."
(emphasis added). The solicitor then asked Mother why she got upset. When
Mother began to respond by saying, "because my daughter – – –," the solicitor
interrupted her and instructed her not to say what her daughter said. Mother then
stated, "I'm not telling you what she said. I said because of my daughter. My child
was raped. That was my reason of being upset." Defense counsel objected and
moved to strike this testimony, arguing the witness had no basis in fact from her
own personal knowledge. The trial judge overruled the objection without further
comment.

On appeal, Carter contends the trial court erred in finding he opened the door to
inadmissible hearsay statements from Mother concerning who raped her daughter.
He argues the trial court abused its discretion in determining Carter opened the
door to the hearsay statements by Victim concerning the identity of the perpetrator
and the circumstances of the assault, because defense counsel's questions
concerned whether Mother's conduct of beating Carter was the result of statements
by Victim, and he never questioned Mother regarding the substance of those
statements.

At the outset, we find the only portion of testimony from Mother that is preserved
for review is that where Mother stated she was upset because her daughter had
been raped. Initially, the solicitor asked Mother what Victim had told her, and
defense counsel objected to Mother's testimony identifying Carter as the person
who raped Victim. Upon counsel's objection, the trial court specifically instructed
the solicitor to move past it and to not ask that question. While the solicitor argued
the defense opened the door to this testimony, there is no indication the trial court
agreed with this position or found the objected-to testimony admissible on this
basis. Rather, the trial court effectively sustained defense counsel's objection,
directing the solicitor to move on and not to ask that question. Thereafter, counsel
rephrased the question and made sure the witness understood she was not to state
what the victim said. Defense counsel did not move to strike this testimony and
did not ask for a mistrial. Accordingly, no issue is preserved for review as to this
testimony. See State v. Wilson, 389 S.C. 579, 583, 698 S.E.2d 862, 864 (Ct. App.
2010) (holding appellate courts have recognized that an issue will not be preserved
for review where a question is answered before an objection may be interposed and
the trial court sustains a party's objection to improper testimony, if the party does
not subsequently move to strike the testimony or move for a mistrial, the rationale
being that without a motion to strike or motion for a mistrial, when the objecting
party is sustained, he has received what he asked for and cannot be heard to
complain about a favorable ruling on appeal). Further, though Carter notes the
subsequently elicited testimony from Mother stating she was upset because her
daughter had been raped, he does not assert on appeal that this testimony was
improper hearsay or that its admission constituted reversible error.1

1
At any rate, we find such testimony is not inadmissible hearsay, as it was merely
Mother's explanation of why she was so upset, i.e. her belief her daughter had been
Finally, we find any error in admitting the evidence to be harmless. As argued by
Carter, our supreme court, in the case of Jolly v. State, 314 S.C. 17, 443 S.E.2d 566
(1994), held that "[i]mproper corroboration testimony that is merely cumulative to
the victim's testimony . . . cannot be harmless, because it is precisely this
cumulative effect which enhances the devastating impact of improper
corroboration." Id. at 21, 443 S.E.2d at 569. However, as noted by the State, in
State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011), a majority of our supreme
court collectively overruled Jolly to the extent it imposed a categorical or per se
rule regarding harmless error. See id. at 482, 716 S.E.2d at 95-96 (Kittredge, J.,
concurring in a separate opinion joined by Hearn, J.) (agreeing "with Chief Justice
Toal that the apparent categorical rule emanating from Jolly v. State and its
progeny precluding a finding of harmless error goes too far," and though it may be
a rare occurrence for the State to prove harmless error beyond a reasonable doubt
in these circumstances, such determinations are necessarily context dependent and
a categorical rule is at odds with longstanding harmless error jurisprudence), id. at
483, 716 S.E.2d at 96 (Toal, C.J., dissenting) (disagreeing with the string of cases
providing improperly admitted hearsay testimony that is merely cumulative to the
victim's testimony can never be harmless error, finding those cases create a rule of
per se prejudice when testimony is cumulative to the victim's testimony, and such a
rule is contrary to the traditional analysis of improperly admitted hearsay

raped. See Rule 801(c), SCRE ("'Hearsay' is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted."). Additionally, this testimony was permissible
under our rules of evidence, because the statement that Victim was raped did not
go beyond the parameters set forth in our rules, which limit testimony
corroborating a victim's complaint of sexual assault to time and place. See Rule
801(d)(1)(D), SCRE (providing a statement is not hearsay if "[t]he declarant
testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is . . . consistent with the declarant's testimony in a
criminal sexual conduct case or attempted criminal sexual conduct case where the
declarant is the alleged victim and the statement is limited to the time and place of
the incident"). See also Dawkins v. State, 346 S.C. 151, 156, 551 S.E.2d 260, 262
(2001) (holding, when a victim in a CSC case testifies, evidence from other
witnesses that the victim complained of a sexual assault is admissible in
corroboration, limited to the time and place of the assault). Here, Mother's
testimony that her daughter was raped does not go beyond the limited
corroborative testimony allowed by Rule 801, SCRE.
testimony, which requires a finding of prejudice, and concluding Jolly should be
overruled).

Here, we first note that not only did Victim testify that Carter raped her, but the
neighbor, Marie, also testified that Victim told her Carter had raped her. No
objection was made to this testimony by Marie, whose testimony occurred prior to
that of Mother. Thus, Mother's testimony was cumulative to the unobjected-to
testimony of Marie, and did not simply corroborate Victim's testimony.
Additionally, the medical testimony of Dr. Morad supports Victim's testimony that
something traumatic happened to Victim, as did the testimony of Marie and
Marie's husband, who answered their door to the distraught Victim. Under the
circumstances, Carter has not shown that the testimony of Mother in this regard
prejudiced him. See id. at 484, 716 S.E.2d at 96 (Toal, C.J., dissenting) (providing
a defendant should always be required to prove he suffered prejudice from the
improper introduction of cumulative hearsay testimony).

2. Carter contends the trial court erred in permitting the State to shift the burden of
proof to him by remarking, during closing arguments, on Carter's failure to elicit
testimony concerning DNA evidence. We disagree.

"The State may not comment on a defendant's exercise of a constitutional right."
McFadden v. State, 342 S.C. 637, 640, 539 S.E.2d 391, 393 (2000). "Specifically,
the solicitor must not comment, either directly or indirectly, on a defendant's
silence, failure to testify, or failure to present a defense." Id. Here, we do not
believe the solicitor's argument, when examined in context, was a direct or an
indirect comment on Carter's silence, his failure to testify, or his failure to present a
defense. Rather, it was a response to defense counsel's consistent assertions during
closing argument that, although there was evidence there were vaginal swabs taken
during Victim's medical examination, there was no sperm and no DNA. The
solicitor was merely attempting to counter defense counsel's argument that there
was no DNA or sperm by pointing out that none of the witnesses were ever asked
if there was DNA or sperm present.

However, even assuming the argument constituted an improper comment on
Carter's constitutional right to remain silent or not to testify or call witnesses, we
believe the comment was harmless and did not so infect the trial with unfairness as
to make the resulting conviction a denial of due process. See State v. Hill, 382 S.C.
360, 369, 675 S.E.2d 764, 769 (Ct. App. 2009) (noting, in a case where appellant
asserted the solicitor improperly commented on his right to remain silent and his
right to not present a defense, while it is impermissible for the State to comment
directly or indirectly upon a defendant's failure to testify at trial, even improper
comments on a defendant's failure to testify do not automatically require reversal if
they are not prejudicial to the defendant, and the defendant must show the
improper comment deprived him of a fair trial). Further, we note the trial court
charged the jury that the State bore the burden of proving Carter guilty beyond a
reasonable doubt, that Carter had the constitutional right to remain silent and
assertion of that right could not be considered or discussed by the jury, and that
Carter was not required to prove his innocence, but the burden remained on the
State to prove Carter's guilt. See id. at 370, 675 S.E.2d at 769 (finding the trial
court's jury instruction that the defendant's silence could not be considered in any
manner whatsoever and the defendant had no burden of proof and was not required
to prove his innocence should be deemed to have cured any error or prejudice that
may have resulted from any alleged improper comment from the solicitor's closing
argument).

AFFIRMED.

HUFF, WILLIAMS, and KONDUROS, JJ., concur.