South Carolina Lawyers Weekly
It’s bad enough having a girlfriend who begs to help prosecutors send you to prison for 46 years. But it’s even worse when a judge prevents the jury from learning that she avoided the same sentence by turning state’s witness.
That scenario led a divided South Carolina Court of Appeals to determine that Jo Pradubsri was entitled to a retrial on drug and gun charges. The majority found that the trial court had deprived Pradubsri of his constitutional right to question his girlfriend, Melisa Martin, about the sentence she dodged by securing a plea deal.
During a traffic stop early one fall morning in 2008 in Irmo, deputies found a gun in a car that Pradubsri was driving and $700 cash. Martin, his passenger, had another gun in her purse. She also had crack stuffed in her pants and underwear, and clutched in her hand.
Both were charged with trafficking crack cocaine, possessing crack with intent to distribute near a school and unlawful carrying of a pistol. But Martin’s charges were reduced after she wrote a desperate letter from jail to prosecutors offering to testify against Pradubsri in exchange for a lenient sentence, which ended up being 18 months.
While Martin told the deputies that the drugs were hers, she changed her story at trial, testifying that the crack actually belonged to Pradubsri. Jurors learned about her letter and plea deal, but Lexington County Circuit Court Judge Thomas A. Russo refused to let Pradubsri ask Martin about the sentence she’d avoided, which included a minimum mandatory of seven years.
Russo reasoned that Martin could not tell jurors about the sentence she dodged because it was the same sentence Pradubsri was facing. Typically, jurors are not supposed to know about a defendant’s possible sentence, unless the state is seeking the death penalty.
On appeal, Pradubsri and his attorney, Dayne C. Phillips, an assistant appellate defender based in Columbia, contended that the trial court violated Pradubsri’s right to confront the prosecution’s chief witness about her potential bias.
“The disparity in sentences shows why you have this type of rule,” Phillips said. “It’s the epitome of being able to present potential bias.”
Allowing critical information
In her decision reversing Russo and remanding the case for retrial, appellate Judge Aphrodite K. Konduros wrote for the majority that “Pradubsri’s right to meaningful cross-examination outweighed the State’s interest in excluding the evidence.”
“Because the evidence was critical to showing Martin’s potential bias,” she added, “the trial court erred in refusing to allow that evidence into the record.”
The decision reinforces the so-called confrontation rule acknowledged by the state’s Supreme Court in 1991’s State v. Brown and later solidified in 2002’s State v. Mizzell, then clarified in last year’s State v. Gracely.
The latter ruling, which was issued two weeks before oral arguments in the case at hand, held that “the fact that a cooperating witness avoided a mandatory minimum sentence is critical information that a defendant must be allowed to present to a jury.”
Avoidance of the minimum mandatory is key in triggering the confrontation rule, Phillips said. But whether the trial court’s violation of the rule is harmful and constitutes reversible error hinges on the importance of the witness who took the plea.
It was that issue which divided the Pradubsri court. Konduros and Judge Paul E. Short Jr. concluded that the state’s case was built on Martin’s testimony, while Judge James E. Lockemy contended in his dissent that other witnesses, namely the deputies, could place Pradubsri at the scene of the crime. Lockemy then asserted that the trial court’s error was harmless and its order should have been affirmed.
‘A motive to lie’
Assistant Attorney General William M. Blitch Jr. of Columbia, who handled the state’s case on appeal, said he planned to file a petition for rehearing. He declined to talk about the court’s decision.
Greenwood defense lawyer E. Charles Grose Jr., who was not involved in the matter, said the opinion was unsurprising in light of the case law.
“Generally speaking, on cross-examination the right to inquire into a motive or bias is pretty broadly construed,” he said. “When somebody avoids a lengthy prison sentence by testifying, that’s a huge bias and potentially a motive to lie. It’s a fact that a jury should be entitled to consider.”
The 17-page decision is State v. Pradubsri, Lawyers Weekly No. 011-059-13. The full text of the ruling can be found at sclawyersweekly.com.
Follow Phillip Bantz on Twitter @SCLWBantz
