S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina, Respondent,
v.
Mekiel Letrel Mitchell, Appellant.
Appeal From Charleston County
Larry R. Patterson, Judge
Opinion No. 24777
Heard February 17, 1998 - Filed April 6, 1998
AFFIRMED
Tara Dawn Shurling, of Columbia, for appellant.
Charles Molony Condon, Attorney General, John W.
McIntosh, Deputy Attorney General, and Donald J.
Zelenka, Assistant Deputy Attorney General, all of
Columbia; and David Price Schwacke, Solicitor,
Ninth Judicial Circuit, of North Charleston, for
respondent.
WALLER, A.J.: On appeal is Appellant Mekiel Letrel Mitchell's
conviction of murder. We affirm.
FACTS
At approximately 5:30 p.m. on December 16, 1995, Kenneth Raymond
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Judy ("Victim") was shot in the back of the head while driving in his truck.
Appellant became a suspect when his car was found at the crime scene with
a box of bullets in the seat. He presented an alibi defense, claiming he was
not at the scene when the shooting occurred. He produced witnesses who
testified he left the scene with a girlfriend around 5:10 p.m. and was with
her until around 10:30 p.m.1
To counteract Appellant's defense, the State produced two eyewitnesses
who testified they saw Appellant shooting at Victim's truck as it was driving
away from him. Other witnesses testified they saw someone fitting
Appellant's description in the vicinity of the crime scene after the shooting
occurred. Another witness testified he was with Appellant all day until 5:30
p.m., when Appellant borrowed his truck, claiming he was going out to buy
cigarettes. A final State's witness testified Appellant had called him to
request the witness provide him with a false alibi. Because the murder
weapon was never found, ballistics and other forensic evidence was somewhat
inconclusive.
ISSUES
I. Did the trial judge err in refusing to order a recess of the trial?
II. Did the trial judge err in instructing the jury on the law of voluntary
manslaughter?
III. Did the trial judge err in refusing to allow Appellant access to the
criminal file of a State's witness, and in limiting Appellant's cross-
examination of the witness?
IV. Is Appellant entitled to a new trial because the cumulative effect of
trial errors deprived him of Due Process?
DISCUSSION
I. Trial Recess
Appellant argues the trial judge committed reversible error in refusing
to allow a trial recess to accommodate his counsel's illness. We disagree. As
1Appellant did not testify.
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STATE v. MITCHELL
with requests for a trial continuance, requests for a recess during trial are
within the trial judge's discretion, and will be reversed on appeal only upon
a showing of an abuse of that discretion. State v. Durden, 264 S.C. 86, 212
S.E.2d 587 (1975); State v. Meyers, 262 S.C. 222, 203 S.E.2d 678 (1974).
Appellant's trial counsel filed a pre-trial brief2 stating counsel had "a
condition of 'cluster-type' migraine headaches which is currently active. This
condition is, for the most part, controlled by non-narcotic medication and
should not prevent the trial from going forward." He stated the condition
might "result in some unusual requests such as requests that lighting [in] the
courtroom be reduced or that there be a recess for the purposes of taking
medication." (emphasis supplied).
No mention was made of counsel's condition until about 4:00 p.m. on
the first day of trial. At this time, during a bench conference, the Solicitor,
in trying to inquire into how long the judge wanted to work that evening,
mentioned that "[counsel] is apparently not feeling too well." When the trial
judge indicated he wanted to work until 5:30, counsel stated, "5:30 would be
fine. But later I'm -- I'm starting to get that headache problem that was
mentioned in my brief." Trial proceeded and was concluded that day without
incident.
The next day, at 9:15 a.m., counsel told the trial judge, "I put in the
pre-trial brief the problem I have with migraine headaches. I woke up with
a massive one this morning. I'm good to go. I have medication I take called
Midrin, which is non-narcotic, I can take four in a day. I'm at three. When
those run out, I'm going to have to go to narcotic painkillers." (emphasis
supplied). The trial judge stated he was not inclined to "break down during
the day ... [f]or any reason." He informed counsel he could let his associate
finish trying the case "if something happens." When counsel pointed out his
associate had "no knowledge of the case other than where the documents
are," the judge stated, "I don't ever stop at three o'clock in the afternoon."
Trial proceeded with no other mention of counsel's condition, with one
exception. After the judge charged the jury in the late afternoon, counsel
objected to part of it. Noting counsel did not object when the Solicitor
requested the charge, the judge overruled the objection. Counsel responded,
"Well, I've been suffering from a severe migraine headache all day and I
didn't think that I was having a problem." (emphasis supplied).
2This brief was filed March 19, 1996. Appellant's trial was March 20-
22, 1996.
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STATE v. MITCHELL
Based on this record, Appellant argues he is entitled to a new trial.
Initially, this issue is procedurally barred because, while he indicated he
might need a recess, counsel never actually requested one. State v. Williams,
303 S.C. 410, 401 S.E.2d 168 (1991) (issue not raised to and ruled on by the
trial court is not preserved for appeal).3
In a similar vein, and largely because of the procedural problem,
Appellant cannot show prejudice from the judge's ruling. State v. Babb, 299
S.C. 451, 385 S.E.2d 827 (1989) (denial of a motion for a continuance will not
be disturbed absent an abuse of discretion resulting in prejudice). Appellant
points to several alleged trial errors counsel made during the second day of
trial, which he argues show counsel must have been impaired by his
headache. Even assuming Appellant is correct that these incidents were trial
errors (which we specifically decline to address), there is absolutely nothing
in the current record to show a causal connection between them and counsel's
health. At no time, even in his post-trial motion, did counsel ever state the
point at which he became so impaired by his headache that he needed a
recess. At no time did he state when (or if) his non-narcotic medication ran
out and he was presented with the option of taking narcotic medication,
having his assistant try the case, or proceeding himself with no medication.
Even when he was trying to excuse his failure to object to a jury charge at
the end of that day, counsel never stated he was actually impaired; to the
contrary, he stated he did not think he was having a problem. See State v.
Williams, 321 S.C. 455, 469 S.E.2d 49 (1996) (burden is on appellant to
provide a sufficient record for review.
We find no reversible error.
3Appellant asserts it would have been futile to have requested one
because the trial judge stated they would work until 5:30 regardless. We
find this argument unpersuasive under the facts of this case. This situation
is similar to a motion in limine to exclude evidence. We have consistently
held a ruling in limine is not final, and unless an objection is made at the
time the evidence is offered and a final ruling procured, the issue is not
preserved for review. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996).
The idea behind this rule is that events may occur after the preliminary
ruling that could affect the judge's view of the issue. Here, the last
representation the trial judge heard was that counsel was "good to go." We
find counsel should have raised the issue at some point later if he really felt
impaired.
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STATE v. MITCHELL
II. Voluntary Manslaughter
Appellant next argues the trial judge committed reversible error in
submitting the lesser included offense of voluntary manslaughter to the jury
over his objection. We disagree. Any possible error would be harmless
because the jury convicted Appellant of the greater offense of murder. State
v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980); State v. Anderson, 253 S.C.
168, 169 S.E.2d 706 (1969).
III. Criminal File/ Limited Cross Examination
Appellant next argues the trial judge violated Brady v. Maryland4 in
failing to require the Solicitor to provide its entire criminal file on Linda
Erway, a State's witness in his case; or in the alternative, in refusing to
inspect the file in camera to see if it contained any exculpatory material.
Appellant further argues the judge's improperly limiting his cross-
examination of Erway deprived him of a fair trial. We disagree.
Erway was an eyewitness to the shooting who originally gave police a
statement which failed to implicate Appellant. She also failed to pick
Appellant out of a police lineup. However, the week before trial, she changed
her statement and identified Appellant for the first time as the shooter.
Appellant wanted her criminal file to impeach her testimony at trial. It was
his theory Erway changed her story because she had pending criminal
charges against her, and either had a deal with the Solicitor's office or
wanted to please them in the hopes of favorable treatment.5
As an initial matter, we find these issues are procedurally barred.
Early on the first day of trial, counsel brought this issue up to the trial
judge, stating he knew what the pending charges were but wanted the entire
file. The Solicitor stated there was no agreement with Erway regarding her
testimony. The trial judge ruled Appellant could ask Erway if she had
pending charges, but could not "go into those specific charges." Appellant's
counsel's response was, "Right." Because counsel acquiesced in the judge's
limitation of his cross-examination, and made no other objections regarding
4 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
5 Erway had fired the attorney she had hired to represent her on the
pending charges because she could not afford him. This dismissal apparently
occurred shortly before she changed her statement to police.
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STATE v. MITCHELL
wanting the criminal files, Appellant cannot now complain about this issue.
See, e.g., State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (issue not
raised to and ruled on by the trial court is not preserved for appeal); Ex
parte McMillan, 319 S.C. 331, 461 S.E.2d 43 (1995) (party cannot acquiesce
to issue at trial and then complain on appeal).
In any event, we find no prejudice to Appellant on either issue.
As a general rule, a trial court's ruling on the proper scope of cross-
examination will not be disturbed absent a manifest abuse of discretion. This
rule is subject, however, to the Sixth Amendment's guarantee of a defendant's
right to a "meaningful" cross-examination.
[A] criminal defendant states a violation of the Confrontation
Clause by showing that he was prohibited from engaging in
otherwise appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness, and thereby
"to expose to the jury the facts from which the jurors ... could
appropriately draw inferences relating to the reliability of the
witness."
. . .
[However, the Confrontation Clause does not] prevent a trial
judge from imposing any limits on defense counsel's inquiry into
the potential bias of a prosecution witness. On the contrary,
trial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues 'witness' safety, or
interrogation that is repetitive or only marginally relevant.
State v. Smith, 315 S.C. 547, 551-52, 446 S.E.2d 411, 414 (1994) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679-80, 106 S. Ct. 1431, 1435-36, 89
L. Ed. 2d at 674, 683-84 (1986)).6
6Additionally, SCRE 608(c) provides that "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." To the extent Appellant
argues his right to cross-examine Erway pursuant to this rule was infringed,
we find no reversible error for the same reasons discussed infra. See State
v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990) (to reverse a case based on
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STATE v. MITCHELL
In Smith, the defendant, charged with murder, sought to impeach an
eyewitness with pending criminal charges, which the trial judge disallowed.
Finding "nothing in the record to indicate that the attempted cross-
examination [was] improper,"7 we held, "it appears that Smith's Sixth
Amendment rights have been violated." 315 S.C. at 552, 446 S.E.2d at 414.
It is noteworthy that in Smith the judge had stopped the defendant's cross-
examination only after the witness generally admitted to having pending
charges, but before any more specific information was brought out. Smith
indicates a defendant may have a right to question a potentially biased
witness on more than just whether there are pending charges against the
witness.
However, we find that to the extent Appellant was entitled to further
question Erway, 8 any error is harmless. See id. (recognizing harmless error
analysis applies to Sixth Amendment violations).
Whether such an error is harmless in a particular case depends
upon a host of factors .... The factors include the importance
of the witness's testimony in the prosecution's case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise
permitted, and of course, the overall strength of the prosecution's
case.
Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686.
Erway was not the only eyewitness to the shooting who implicated Appellant
at trial. Furthermore, the judge did allow Appellant to question her about
the pending charges. See, e.g., Smith, 315 S.C. at 552-53, 446 S.E.2d at 414
(finding any Sixth Amendment violation harmless in part because witness
was impeached with general pending charges).
erroneous exclusion of evidence, error and prejudice must be shown).
7 See State v. Graham, 314 S.C. 383, 385-86, 444 S.E.2d 525, 527 (1994)
(cautioning bench that before a criminal defendant can be prohibited from
engaging in cross-examination designed to show bias, "the record must clearly
show that the cross-examination is somehow inappropriate").
8 Smith did not elaborate on how much detail is allowable or required.
We likewise decline to address the proper scope of cross-examination on the
present record.
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STATE v. MITCHELL
On direct, Erway testified she had been convicted three or four times
for drug offenses. During cross, she readily admitted she was currently on
probation for drug-related charges and was a recovering drug addict. She
also admitted she had been recently charged with another criminal offense.9
She stated she fired her attorney two weeks before trial, and that she was
not currently represented on the pending charge. She denied having made
any deals with the Solicitor's office in exchange for her testimony. During
closing argument, counsel argued his theory of Erway's motive to the jury at
length. Therefore, under these facts, any error in limiting the scope of
Appellant's cross-examination would not warrant reversal.
We also find no Brady violation occurred under the facts of this case.10
"[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution." Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at
218. "[B]rady applies to impeachment evidence as well as exculpatory
evidence." State v. Von Dohlen, 322 S.C. 234, 241, 471 S.E.2d 689, 693
(1996) (internal citations omitted). However, "Impeachment or exculpatory
evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different." Id. See also State v. Penland, 275 S.C. 537, 539, 273
S.E.2d 765, 766 (1981) (Under Brady, "the test is not whether the solicitor
failed to reveal the information, but whether the omission deprived the
defendant of a fair trial.") (internal quotation omitted); Fradella v. Town of
Mount Pleasant, 325 S.C. 469, 479, 482 S.E.2d 53, 58 (Ct. App. 1997) ("the
mere possibility that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the trial, does not
establish 'materiality' in the constitutional sense. . . ." "A defendant shows
a Brady violation by demonstrating that 'favorable evidence could [have been
presented] to put the whole case in such a different light as to undermine
confidence in the verdict."'). (internal citations omitted). Appellant was
allowed to present facts and argument regarding Erway's motive to testify to
9Appellant knew the specific date of the charge and thus was able to
show the jury how recent it was.
10Appellant knew not only that Erway had pending charges, but also
knew what those charges were. In this sense, his asserted Brady violation
is more limited than the error in limiting cross-examination. See State v.
Nance, 320 S.C. 501, 466 S.E.2d 349 (1996) (Brady applies to undisclosed
evidence held by the State).
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STATE v. MITCHELL
the jury. We therefore find no reversible error.
IV. Cumulative Error
Finally, Appellant argues the above-discussed issues on appeal, along
with the following additional trial error, had a cumulative prejudicial impact
that deprived him of a fair trial. We disagree.
Appellant argues the trial judge improperly refused to consider a
written statement, allegedly made by one of the State's eyewitnesses,
discovered after the jury began deliberating. We find this argument is
without merit. First, the statement is not in the record on appeal and
therefore this Court does not know exactly what information it contained.
See State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996) (burden is on
appellant to provide a sufficient record for review).11 In any event, it is clear
from the evidence in the record that the judge did consider the statement in
denying Appellant's post-trial motions.12
Finally, we find Appellant has suffered no prejudice warranting a new
trial based on cumulative trial error. "As we have stressed on more than one
occasion, the Constitution entitles a criminal defendant to a fair trial, not a
perfect one." Van Arsdall, 475 U.S. at 681, 106 S. Ct. at 1436, 89 L. Ed. 2d
at 684.
11 Appellant argues the trial judge prevented him from making a proper
record on appeal by refusing to make the statement an appellate exhibit. We
disagree. When Appellant brought the statement to the judge's attention, the
jury was still deliberating. At this time, Appellant asked that the statement
be made an appellate exhibit. The judge refused to consider the issue at that
time, but told defense counsel he would look into it after the jury reached a
verdict. The judge stated he would allow defense counsel to put "anything
you want to on the record" after the jury's verdict. The merits of the
argument were considered during the post-trial motions hearing. Appellant
never attempted to have the statement admitted at this hearing.
12 He found the statement, which apparently would have contradicted
either the witness's police statement or his trial testimony, was of
questionable probative value because it was unsworn, undated and
unnotarized. He also found it was cumulative to other evidence produced at
trial, specifically that the witness admitted on the stand that he made
inconsistent statements.
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STATE v. MITCHELL
AFFIRMED.
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.
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