THE STATE OF
In The Court of Appeals
The State, Respondent,
Frank Robert Patterson, Appellant.
�G. Thomas Cooper, Jr., Circuit Court Judge
Opinion No. 4069
Heard December 6, 2005 � Filed January 9, 2006
Assistant Appellate Defender Robert M. Dudek, of
Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter III; and Solicitor Warren Blair Giese, of Columbia, for Respondent.
ANDERSON, J.:� Frank Robert Patterson appeals his conviction for murder.� He argues the trial court erred (1) in admitting a witness�s statement to police; (2) by requiring Patterson�s presence during the videotaping of a witness�s testimony; and (3) by refusing to charge the jury on proximate cause.� We affirm.
Patterson was accused of murdering his girlfriend, Sharon Clark, by beating her to death.� Clark and her friend, Mary Richardson, walked to Patterson�s home where the three of them drank for several hours.� Later that night, Clark and Richardson decided to leave despite Patterson�s insistence
Richardson screamed at Patterson to stop hitting
Clark was taken to
The grand jury indicted Patterson for murder.� Due to medical reasons,
STANDARD OF REVIEW
In criminal cases, the appellate court sits to review errors of law only and is bound by the factual findings of the trial court unless clearly erroneous.� State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001); State v. Preslar, 364 S.C. 466, 613 S.E.2d 381 (Ct. App. 2005); State v. Wood, 362 S.C. 520, 525, 608 S.E.2d 435, 438 (Ct. App. 2004).� �The appellate court does not re-evaluate the facts based on its own view of the preponderance of the evidence, but simply determines whether the trial judge�s ruling is supported by any evidence.�� State v. Staten, 364 S.C. 7, 15, 610 S.E.2d 823, 827 (Ct. App. 2005) (citing State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct. App. 2003)); see also State v. Landis, 362 S.C. 97, 101, 606 S.E.2d 503, 505 (Ct. App. 2004) (�In criminal cases, the court of appeals sits to review errors of law only and is bound by the factual findings of the trial court unless clearly erroneous.�).� This Court should examine the record to determine whether any evidence supports the trial court�s ruling.� See
On review, we are limited to determining whether the trial judge abused his discretion.� State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); Preslar, 364 S.C. 466, 613 S.E.2d 381.� An abuse of discretion occurs when the trial court�s ruling is based on an error of law.� State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003).� In order for an error to warrant reversal, the error must result in prejudice to the appellant. See State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); see also State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995) (holding error without prejudice does not warrant reversal).
I.� Rule 106, SCRE
Patterson claims the trial court erred in admitting
The State and defense counsel agreed to take
Ms. Pringle: Your Honor, I�ll go ahead and put on the record with respect to the next witness who is a Mary Richardson, we have stipulated with the Solicitor�s Office previously that Ms. Richardson�s testimony may be admitted by videotape, previously taped testimony 2002.� Your Honor, we of course obviously have no problem with the admission of the videotape in lieu of her testimony even though it is our understanding that she may be available to testify; with one caveat, Your Honor, that we have agreed to cut the tape off at the end of cross-examination.� Mr. Cathcart indicates that he is going to just walk right up there and turn it off as soon as the end of cross. Mr. Cathcart: I believe the area she is talking about is the redirect by the State.
(Emphasis added.)� The record indicates that the videotape was played for the jury.� No objection was made at the conclusion of the taped testimony.�
Initially, we note the issue of whether
Adverting to the merits, we find the trial court properly ruled
When a writing, or recorded statement, or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Rule 106 was promulgated by Order of the Supreme Court and became effective September 3, 1995.� See Editor�s Note, Rule 106, SCRE.� The Rule restates the common law rule of completeness with one significant change.� Prior to the enactment of Rule 106, when part of a document, writing, or conversation was introduced into evidence, the opposing party could introduce the remainder of the communication.� See Dukes v. Smoak, 181 S.C. 182, 186 S.E. 780 (1936).� However, whereas under common law the opposing party was required to wait until cross-examination to complete the communication, under Rule 106, the party can now require introduction of the remainder of the statement contemporaneous with the original proffer.� See Rule 106, SCRE.�
As the South Carolina Supreme Court explained in State v. Taylor, �The text of Rule 106, SCRE, is substantially similar to Rule 106 of the Federal Rules of Evidence.� Rule 106, Fed.R.Evid., is based on the rule of completeness and seeks to avoid the unfairness inherent in the misleading impression created by taking matters out of context.�� 333 S.C. 159, 170, 508 S.E.2d 870, 876 (1998) (internal quotation marks omitted) (quoting Rainey v. Beech Aircraft Corp., 784 F.2d 1523, 1529 (11th Cir. 1986)).� The rule applies to oral communications as well as written statements.� State v. Cabrera-Pena, 361 S.C. 372, 379, 605 S.E.2d 522, 526 (2004); State v. Jackson, 265 S.C. 278, 284, 217 S.E.2d 794, 797 (1975).�
In Cabrera-Pena, the State elected to use a witness to elicit portions of the defendant�s conversation.� 361 S.C. at 380, 605 S.E.2d at 526.� Our supreme court found the rule of completeness required the defendant to be permitted to inquire into the full substance of the conversation.�
Patterson argues that because the inquiry referred to an alleged omission by
After eliciting testimony from
Finally, even if the trial judge had erred in admitting the entire statement, Patterson has failed to demonstrate any resulting prejudice because the jury never heard the statement.� An error not shown to be prejudicial does not constitute grounds for reversal. See State v. Preslar, 364 S.C. 466, 472-73, 613 S.E.2d 381, 384 (Ct. App. 2005) (�A court�s ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error, which results in prejudice to the defendant.�) (citations omitted); Rule 103, SCRE (�Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]�).� The jury never heard the disputed portion of the videotape, and therefore, we cannot discern any prejudice to Patterson.� State v. Gathers, 295 S.C. 476, 482, 369 S.E.2d 140, 143 (1988), aff�d, 490 U.S. 805 (1989).
II.� Presence During Videotaping of Witness Testimony
Patterson argues the trial court erred by requiring his presence during the videotaping of
Patterson made no objection after
Even if the issue were properly preserved, we find the trial court did not err by requiring Patterson�s presence during the videotaping of
Rule 16, SCRCrimP provides:
Except in cases wherein capital punishment is a permissible sentence, a person indicted for misdemeanors and/or felonies may voluntarily waive his right to be present and may be tried in his absence upon a finding by the court that such person has received notice of his right to be present and that a warning was given that the trial would proceed in his absence upon a failure to attend court.� ��������
Apodictically, a criminal defendant has a constitutional right guaranteed by the Confrontation Clause of the Sixth Amendment to be present at trial.� See U.S. Const. amend. VI; Illinois v. Allen, 397
The right to be present at trial is not the right to be absent from trial.� A criminal defendant has no absolute right to be absent during trial proceedings.� In State v. Moore, the South Carolina Supreme Court held a defendant had no constitutional right to be absent from trial to prevent in-court identification.� 308 S.C. 349, 351, 417 S.E.2d 869, 870 (1992).� The court found the State has a corresponding right to have the defendant present, elucidating: ��[I]t is the right of the prosecution to have [the defendant] in the view of the presiding judge and jury, and the counsel engaged in the trial.���
The conduct of a criminal trial is left largely to the sound discretion of the trial judge, who will not be reversed in the absence of a prejudicial abuse of discretion.� �The general rule in this State is that the conduct of a criminal trial is left largely to the sound discretion of the presiding judge and this Court will not interfere unless it clearly appears that the rights of the complaining party were abused or prejudiced in some way.�� State v. Bridges, 278 S.C. 447, 448, 298 S.E.2d 212, 212 (1982) (citing State v. Sinclair, 275 S.C. 608, 274 S.E.2d 411 (1981)); Cf. State v. Tuckness, 257 S.C. 295, 185 S.E.2d 607 (1971).� Patterson�s sole reason for desiring to be absent was his belief that he had a right to waive his presence.� Although a criminal defendant has a constitutional right to be present during court proceedings, the defendant has no absolute corresponding right to be absent.� The precedent extant edifies that a defendant may waive his right to be present in very limited scenarios.� The trial court did not err by refusing to allow Patterson to waive his presence at
Further, the alleged prejudicial statement was made during recross-examination and was not played for the jury.� Patterson could not have been prejudiced by testimony the jury never heard.� An error not shown to be prejudicial does not constitute grounds for reversal.� See State v. Preslar, 364 S.C. 466, 472-73, 613 S.E.2d 381, 384 (Ct. App. 2005) (�A court�s ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error, which results in prejudice to the defendant.�) (citations omitted); Rule 103, SCRE (�Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]�).� Therefore, we find Patterson cannot show he was prejudiced.� See Gathers at 482, 369 S.E.2d at 143 (finding the duty is upon the defendant to prove prejudice.).�
III.� Jury Charge
Patterson contends the trial court erred in refusing to charge the jury on proximate cause because there was evidence
The law to be charged must be determined from the evidence presented at trial.� State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001); State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 512 (2000); State v. Lee, 298 S.C. 362, 364, 380 S.E.2d 834, 835 (1989); State v. Staten, 364 S.C. 7, 40, 610 S.E.2d 823, 840 (Ct. App. 2005).� The trial court is required to charge only the current and correct law of
To warrant reversal, a trial court�s refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.� State v. Reese, 359 S.C. 260, 273, 597 S.E.2d 169, 176 (Ct. App. 2004).� �Failure to give requested jury instructions is not prejudicial error where the instructions given afford the proper test for determining issues.� Burkhart, 350 S.C. at 263, 565 S.E.2d at 304.� �If, as a whole, the charges are reasonably free from error, isolated portions which might be misleading do not constitute reversible error.�� Zeigler, 364 S.C. at 106, 610 S.E.2d at 865 (citing State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991); State v. Jackson, 297 S.C. 523, 377 S.E.2d 570 (1989)).� A jury charge which is substantially correct and covers the law does not require reversal.� State v. Foust, 325 S.C. 12, 479 S.E.2d 50 (1996); State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994).
Patterson relies on State v. Matthews, 291 S.C. 339, 353 S.E.2d 444 (1986), and State v. Jenkins, 276 S.C. 209, 277 S.E.2d 147 (1981), for the proposition that, at the very minimum, he was entitled to a jury charge on proximate cause.�
The sixteen-year-old decedent in Matthews was shot in the head and pronounced dead after being transported to a hospital.� Her kidneys were harvested and donated for transplantation.� The appellant, Earl Matthews, argued the doctors prematurely declared the victim dead.� Matthews maintained the removal of her kidneys was a superseding cause of death which relieved him of liability for her murder.� 291 S.C. at 346, 353 S.E.2d at 448.� The appellant conceded negligent medical treatment would not relieve him of liability; however, he argued declaring the victim brain dead and removing her kidneys did not constitute medical treatment.�
In Jenkins, the victim had a rare, fatal reaction to the dye used in performing an arteriogram�a common procedure administered to determine the extent of injuries to the major blood vessels.� 276 S.C. at 210-11, 277 S.E.2d at 148. �Evidence at trial showed the victim would have �survived absent the reaction, but that she would not have survived without medical treatment.��
Unlike the present case, both Jenkins and Matthews involved a medical procedure between the appellant�s crime and the victim�s death.� In Mathews, the appellant claimed the removal of the victim�s kidneys was a superseding cause of death.� In Jenkins, despite appellant�s contention that the victim�s reaction to the dye was the cause of death, the South Carolina Supreme Court found no prejudice in the trial court�s failure to charge the jury as requested.� The court found �one who inflicts an injury on another is deemed by law to be guilty of homicide where the injury contributes mediately or immediately to the cause of the death of the other.�� Jenkins, 276 S.C. at 211, 277 S.E.2d at 148 (emphasis added).� In neither case did appellant argue, as Patterson here argues, that removal from life support was the intervening cause of death.�
Because Clark showed signs of improvement, Patterson avers the doctors prematurely removed
�Courts have confronted whether a victim�s removal from life support renders a homicide verdict against the weight of the evidence and have rejected the contention that there was insufficient evidence to support a conviction[.]�� State v. Pelham, 824 A.2d 1082, 1091 (N.J. 2003) (citing State v. Fierro, 603 P.2d 74 (Ariz. 1979); Porter v. State, 823 S.W.2d 846 (Ark. 1992); People v. Saldana, 121 Cal. Rptr. 243 (Ct. App. 1975); State v. Guess, 692 A.2d 849 (Conn. App. 1997), aff�d, 715 A.2d 643 (1998); Johnson v. State, 404 S.E.2d 108 (Ga. 1991); People v. Caldwell, 692 N.E.2d 448 (Ill. App. 1998); Ewing v. State, 719 N.E.2d 1221 (Ind. 1999); Carrigg v. State, 696 N.E.2d 392 (Ind. Ct. App. 1998); Spencer v. State, 660 N.E.2d 359 (Ind. Ct.App. 1996); People v. Bowles, 607 N.W.2d 715 (Mich. 2000); State v. Olson, 435 N.W.2d 530 (Minn. 1989); State v. Meints, 322 N.W.2d 809 (Neb. 1982); People v. Laraby, 665 N.Y.S.2d 180 (N.Y. App. Div. 1997), aff�d, 703 N.E.2d 756 (N.Y. 1998); State v. Johnson, 381 N.E.2d 637 (Ohio 1978); Eby v. State, 702 P.2d 1047 (Okla. Crim. App. 1985); Commonwealth v. Kostra, 502 A.2d 1287 (Pa. Super. 1985); State v. Ruane, 912 S.W.2d 766 (Tenn. Crim. App. 1995); Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993)).
The trial court refused Patterson�s jury charge on proximate causation, finding the mere fact
The trial court has a duty to instruct the jury only on an issue that is supported by the evidence.� Knoten, 347 S.C. at 302, 555 S.E.2d at 394.� We find the trial court did not err in failing to instruct the jury on proximate cause.� The State�s evidence clearly established
Accordingly, the conviction of the appellant for murder is
GOOLSBY and SHORT, JJ., concur.