South Carolina Lawyers Weekly
In the absence of an important public policy or at least an exceptional circumstance, modifying a defendant’s truest exercise of the Sixth Amendment right to an in-person confrontation of witnesses against him is inappropriate. Nevertheless, the Skype testimony in this case was harmless error since the witness’s testimony was largely cumulative to what was already before the jury.
We affirm defendant’s convictions for two counts of murder, kidnapping, first-degree burglary, and possession of a firearm during the commission of a violent crime.
Investigator Mason Moore, who interrogated defendant, had moved to Montana by the time of defendant’s trial. The circuit court permitted Moore to testify via Skype.
South Carolina has not specifically addressed the tension between two-way video testimony and a defendant’s rights under the Confrontation Clause. However, South Carolina has recognized that modifications to the traditional presentation of testimony may be appropriate in certain situations involving vulnerable witnesses, such as child victims.
We recognize that advancements in technology permit two-way closed circuit testimony to more closely approximate face-to-face confrontation. However, in the absence of an important public policy or at least an exceptional circumstance, modifying a defendant’s truest exercise of the Sixth Amendment right via in-person confrontation is inappropriate.
Nevertheless, we find the circuit court’s error in allowing the testimony was harmless.
Moore’s testimony was only relevant to events not presented by interrogation videos or covered by Investigator Kippton Coker’s testimony. Defendant does not allege wrongdoing by Moore other than through conduct contained in the videos.
Consequently, Moore’s testimony was largely cumulative to what was already before the jury. Accordingly, the circuit court’s erroneous decision to permit Moore to testify via Skype was harmless.
Photographs
Where the identification of the victims was not at issue, and where nothing in their pre-death photographs served to make any fact in issue more or less likely, the circuit court erred in admitting pre-death photographs of the victims. Nonetheless, given the overwhelming evidence of guilt and the nature of the error, we find the error was harmless.
Voluntary Confession
Investigators Coker and Moore told defendant the trunk of his car had been analyzed and only his fingerprints were found, his shoe matched a footprint left from kicking in the door, his ring matched a wound left on his ex-girlfriend, and one could hear him in the background of the 911 calls.
The primary evidence repeatedly referenced by the investigators related to the 911 calls, which they claimed made defendant’s story impossible to believe. While this information was either unconfirmed or inaccurate, courts have routinely held the misrepresentation of evidence does not render a confession involuntary unless it is demonstrated that the free will of the defendant was overborne.
One of the investigators told defendant that keeping up his “bullshit story” (about a fictitious boyfriend, “Robert,” committing the crimes) was going to land him in prison for life if not the death penalty. This comment was isolated, and the death penalty was a possible sentence for the crimes at issue. Defendant did not recant his “Robert” story until well after the death penalty was mentioned, and it does not appear to have overborne his will.
Finally, defendant argues statements that his daughter would think he was a cold-blooded killer who only survived because her father ran out of bullets was unduly coercive. However, these statements are not the type of tangible threat related to family members generally considered to render a confession involuntary. Such statements are more akin to a psychological tactic than actual coercion.
Overall, we conclude the circuit court did not abuse its discretion in admitting defendant’s statement as the evidence supports a finding his will was not overborne by the various tactics employed during his interrogation.
Sentencing
Defendant’s argument as to any error in his sentencing is unpreserved for appellate review.
Affirmed.
Dissent
(Short Jr., J.) The trial judge erred in sentencing defendant for possession of a firearm in the commission of a violent crime because S.C. Code Ann. § 16-23-790(A) prohibits such a sentence where life imprisonment without parole is imposed. I would vacate defendant’s five-year sentence for possession of a firearm during the commission of a violent crime.
State v. Johnson (Lawyers Weekly No. 011-032-18, 17 pp.) (Aphrodite Konduros, J.) (Paul Short Jr., J., dissenting) Appealed from Clarendon County Circuit Court (W. Jeffrey Young, J.) Laura Ruth Baer for Appellant; Alan McCrory Wilson, Donald Zelenka, W. Edgar Salter III and Ernest Adolphus Finney III for Respondent S.C. App.
