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South Carolina
Judicial Department
2004-UP-439 - State v. Bennett



In The Court of Appeals

The State,        Respondent,


Gary W. Bennett,        Appellant.

Appeal From Horry County
John M. Milling, Circuit Court Judge

Unpublished Opinion No. 2004-UP-439
Heard June 10, 2004 – Filed August 13, 2004


Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelanka and Senior Assistant Attorney General William E. Salter, III, all of Columbia; and Solicitor John Gregory Hembree, of Conway, for Respondent.

PER CURIAM:  Gary Wayne Bennett appeals his convictions for armed robbery and murder in connection with the death of Eva Marie Martin, arguing the trial court erred in limiting his cross-examination of the State’s key witness, Andrew Lindsay, on Lindsay’s prior conviction for second-degree murder.  Bennett argues he should have been able to impeach Lindsay by revealing the specific nature of Lindsay’s prior murder conviction, rather than being limited to a general characterization of the conviction as an unspecified felony.  We agree, but find the error harmless and affirm.


Martin was discovered murdered in her home on May 23, 2000.  Earlier that month, Bennett and Lindsay had plotted to rob a Horry County Taco Bell restaurant managed by Martin.  Martin was an acquaintance and a coworker of Bennett’s common-law wife.  Although Bennett and Lindsay obtained a key to the restaurant, they were unable to open its safe because they did not have the safe’s combination

Approximately two months later, police questioned Lindsay regarding Martin’s murder. [1]   Lindsay initially provided police at least two statements denying knowledge of or involvement in Martin’s murder.  He later recanted his statement, admitted involvement in Martin’s murder, but implicated Bennett as the murderer.  Lindsay was later charged with Martin’s murder, but entered a plea bargain with the State.  Pursuant to the agreement, Lindsay pled guilty to being an accessory after the fact, in exchange for which he would testify that Bennett killed Martin.          

Bennett was subsequently charged with and tried for murder and armed robbery in connection with Martin’s death.  The State moved in imine to limit Bennett’s impeachment of Lindsay by prohibiting testimony regarding Lindsay’s 1991 second-degree murder conviction from Illinois.  Conversely, Bennett wanted to impeach Lindsay on cross-examination by revealing the fact that he had previously been convicted of murder.  It is unchallenged that Lindsay’s murder conviction falls squarely within the admissibility parameters of Rule 609, SCRE. [2]   Rule 609(a)(1), SCRE, provides in relevant part that impeachment of a non-defendant witness’s credibility with evidence of the non-defendant witness’s past criminal convictions is permissible “if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted” and if under Rule 403, SCRE, the court determines that the evidence’s probative value is not “substantially outweighed” by the danger of unfair prejudice. Here, the trial judge indicated his intent to limit Bennett “to making inquiries without identifying [Lindsay’s 1991 second-degree murder conviction] as a second-degree murder charge” ostensibly out of concern that testimony regarding the specific nature of Lindsay’s second-degree murder conviction would prejudice Bennett.  We are unable to discern from the record the rule of evidence or legal principle relied upon by the trial judge in countermanding defense counsel’s intended strategic use of relevant and admissible evidence.  In this regard, Bennett’s counsel insisted that he, not the court, assess potential prejudice arising from the use of relevant and admissible evidence.  Bennett’s stated strategy was to confront and impeach Lindsay with every available weapon, including Lindsay’s murder conviction.  The trial judge, nevertheless, persisted with the limitation on Bennett’s desired impeachment of Lindsay.

Bennett later vigorously cross-examined Lindsay regarding, among other things, the details of his plea bargain, the fact that he lied to police in two sworn statements before admitting involvement in Martin’s murder, the fact that police found the Taco Bell’s safe combination on a piece of paper in Lindsay’s wallet at the time of his arrest, and the fact that he was currently serving a ten-year prison sentence for seven counts of second-degree burglary, to which he pled guilty in 2001.  Regarding Lindsay’s 1991 murder conviction, Bennett asked “You’re a convicted felon, received a sentence of fifteen years … to a charge that has nothing to do with the burglary charges you’re serving your time for now, isn’t that right?”  Lindsay replied, “Yes.”

In closing arguments, Bennett focused on the impact of these issues on Lindsay’s credibility, ultimately building a case implicating Lindsay as Martin’s murderer.  Among other things, he suggested Lindsay more likely the perpetrator because while Bennett and his wife were close friends with Martin, Lindsay was a mere social acquaintance less likely to care about Martin’s welfare.  He further noted that Lindsay, not Bennett, was found in possession of the safe’s combination, and that Lindsay’s plea bargain with the State motivated him to falsely implicate Bennett as the murderer.

The trial judge instructed the jury regarding witness credibility and impeachment, noting that its consideration of a witness’s criminal record was limited to its assessment of the witness’s credibility.  Bennett was subsequently convicted for murder and armed robbery.  Because he had previously been convicted of first-degree burglary, Bennett was sentenced to concurrent life terms without parole under the recidivist statute. [3]   This appeal follows.


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 amounting to an error of law.  State v. Mitchell, 330 S.C. 189, 196, 498 S.E.2d 642, 645 (1998);  State v. Foster, 354 S.C. 614, 621, 582 S.E.2d 426, 429 (2003).  This rule is subject to the Sixth Amendment’s guarantee of a defendant’s right to a “meaningful” cross-examination of a witness.  State v. Mitchell, 330 S.C. at 196, 498 S.E.2d at 645.


Bennett argues the trial court improperly limited his cross-examination of Lindsay regarding Lindsay’s past conviction for second-degree murder. [4] According to Bennett, he should have been able to confront and impeach Lindsay with the murder conviction, rather than the court-imposed restriction on Lindsay’s cross-examination.  We agree, but find the error harmless.  As noted, Rule 609 permits impeachment of a non-defendant witness with the witness’s criminal conviction “if the crime was punishable by … imprisonment in excess of one year.”  This rule comports with the Sixth Amendment to the United States Constitution’s “Confrontation Clause,” through which a defendant has the right to cross-examine a witness concerning bias or partiality.  State v. Mizzell, 349 S.C. 326, 331, 563 S.E.2d 315, 319 (2002).  On cross-examination, any fact may be elicited which tends to show the witness’s interest, bias, or partiality.  Id.  “Before a trial judge may limit a criminal defendant’s right to engage in cross-examination to show bias on the part of the witness, the record must clearly show the cross-examination is inappropriate.”  Id.  In this case, Lindsay was a “witness” previously convicted of a crime, second-degree murder, which resulted in a sentence of fifteen years.  Thus, we find that the trial judge properly concluded that the evidence of Lindsay’s murder conviction was admissible under Rule 609(a)(1) of the South Carolina Rules of Evidence.  

Here, the trial judge’s basis for finding the cross-examination “inappropriate” arose from his concern regarding the potential prejudice to Bennett, who advocated admitting the evidence.  The court expressed concern that a jury might determine Bennett had committed the murder because Lindsay, his friend and co-defendant, had a previous murder conviction.  We find this rationale not only erroneous, but also an unwarranted intrusion into strategy determinations vested solely in the accused and his counsel.

“The authority to decide the objectives and means of litigation is divided between the client and the attorney.”  Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 1:4, 23 (2d ed. 2002); see Rule 407, SCAR, Rules of Prof. Conduct, 1.2(a) (a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued);  cf. Whitehead v. State, 308 S.C. 119, 122, 417 S.E.2d 529, 531 (1992) (Stating that in the context of post-conviction relief that “[c]ourts must be wary of second-guessing counsel’s trial tactics; and where counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel.”).  “Subject to a few exceptions, the client makes all decisions regarding the objectives of litigation and representation.”  Sanders & Nichols, Trial Handbook for South Carolina Lawyers, § 1:4 at 23.  However, “[t]he lawyer generally decides the means to be used to achieve the client’s legitimate objectives, especially legal and tactical questions.”  Id. at 24.  Where, as here, proposed evidence is relevant and admissible, and its use is merely a function of defense strategy involving the weighing of potential benefits and risks of prejudice, the decision of the defendant and his counsel controls.  The trial judge’s decision here directly contravened the strategic tactics of Bennett’s counsel and had the effect of limiting Bennett’s confrontation and impeachment of Lindsay.  We find this an improper limitation of Bennett’s right to confront a witness, amounting to legal error.

However, an improper limitation of the defendant’s right to confront a witness is not per se reversible if the error was “harmless beyond a reasonable doubt.”  State v. Mizzell, 349 S.C. at 333, 563 S.E.2d at 318.  An error is harmless beyond a reasonable doubt where, in view of the entire record, the error did not contribute to the verdict beyond a reasonable doubt.  See Id., 349 at 334, 563 S.E.2d at 319.  While we recognize the importance of Lindsay’s testimony to the State’s case, we are persuaded that the error is harmless in light of the overwhelming level of impeachment otherwise permitted during Bennett’s cross-examination of Lindsay, including the details of his plea bargain, the fact that he was in prison for multiple counts of burglary, and the fact that he had lied to police in multiple statements before admitting his involvement in the crime.  We further note that some impeachment value was derived from the reference to the Lindsay’s murder conviction as a “felony” for which he received a “fifteen year sentence.”  Moreover, Bennett was allowed to argue, without objection, the issue of Lindsay’s third-party guilt during his closing argument.  In light of the totality of these circumstances, we find the error harmless beyond a reasonable doubt.  This conclusion is consistent with decisions in other jurisdictions.  Where a trial court errs in limiting a defendant’s ability on cross-examination to confront and impeach a witness, such error is generally harmless when the cross-examiner is allowed to otherwise pursue a thorough and meaningful cross-examination.  See Artis v. U.S., 505 A.2d 52 (D.C.App. 1986) (In a prosecution for burglary and larceny it was error to curtail appropriate line of cross-examination of prosecution witness concerning juvenile charges pending against him, but such error was harmless where cross-examination otherwise highlighted witness’s motives to curry favor with the government to escape prosecution for burglaries and other offenses and to avoid possible revocation of his probation);  Morris v. State, 166 Ga.App. 137, 303 S.E.2d 492 (1983) (Error occurred in burglary prosecution where defendant was precluded from cross-examining accomplice who testified for prosecution regarding existence of any pending charges and promises of immunity, but error was harmless where defendant was able to question defendant regarding his motives through another line of questioning);  State v. Long, 372 N.E.2d 804 (Ohio, 1978) (Where examination of record in homicide prosecution disclosed that defense counsel aggressively cross-examined eyewitness to homicide and that such examination, among other things, elicited witness's admission that at time of trial he was incarcerated and had been convicted of receiving stolen property, even if trial court erred in not allowing cross-examination of such witness as to whether he had pending motion for shock probation, no material prejudice was demonstrated by record and any error was harmless beyond reasonable doubt); see generally, R.P. Davis, Annotation, Preventing or Limiting Cross-Examination Of Prosecution’s Witness As To His Motive For Testifying, 62 A.L.R.2d 610 (1958 & 2004 Supp.).  Accordingly, Bennett’s convictions are



[1]        In the interim, Lindsay and his wife moved from South Carolina.

[2]        We are not confronted with that portion of Rule 609, SCRE, dealing with use of a prior conviction against an accused.  Rule 609, SCRE, and related case law provide for considerations unique to the accused.  See Green v. State, 338 S.C. 428, 433-34, 527 S.E2d. 98, 101 (2000) (Declining to hold past convictions of the accused inadmissible in all cases, but instead finding that a trial court should weigh the probative value of the prior convictions against their prejudicial effect to the accused and determine, in its discretion, whether to admit the evidence.  In doing so, the factors a trial court should consider are (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness’ subsequent history; (3) the similarity between the past crime and the charged crime; and (5) the centrality of the credibility issue.).  The Green factors are not implicated by the testimony of a witness who is not the accused, such as Lindsay.

[3]        South Carolina’s recidivist statute, S.C. Code Ann. §17-25-45 (Supp. 2000), mandates, among other things, an automatic life without parole sentence when a person has been convicted of more than one “most serious” offense.  Such “most serious” offenses, as defined by the statute, include first-degree burglary, murder, and armed robbery.  Here, the State notified Bennett and his counsel that because Bennett had a prior first-degree burglary conviction, he would be subject to a sentence of life in prison without parole if convicted on either the murder or armed robbery charge.

[4]        Bennett objected to the court’s limitation of his cross-examination of Lindsay in the in limine hearing, but he did not renew his objection when Lindsay testified.  Generally, an in limine ruling does not preserve an issue for review because a motion in limine is not a final determination.  State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001).  An issue ruled upon in an in limine hearing is therefore not preserved for appellate review unless the moving party makes a contemporaneous objection when the evidence is introduced, except where the judge’s ruling is, in effect, a final ruling.  Id.  Here, due to the circumstances surrounding the trial judge’s ruling in the present case, the State conceded at oral argument that the issue is preserved for review.  We accept the State’s stipulation and address the issue on its merits.