State v. Clark ( 1994 )

Chandler, Justice:

We granted rehearing to reconsider Opinion No. 93-MO-173, filed June 21, 1993. That opinion is vacated and the following opinion substituted in it its place.

Appellant, Kevin Michael Clark (Clark), was convicted of possession with intent to distribute (PWID) crack cocaine and PWID marijuana. He was sentenced to concurrent terms of fifteen years and three years, and fined $25,000.

We affirm.

FACTS

Clark and two other men were approached by police as they sat in a parked car in front of a convenience store at 1:30 a.m. After being subjected to a pat-down search, Clark consented to a search of the vehicle. The vehicle belonged to one John Anthony Frilando, whose girlfriend, Quisha, lent the vehicle to Clark without Frilando’s knowledge. Police discovered 98 bags of marijuana and a matchbox of crack cocaine in the car. A small quantity of crack cocaine was subsequently found on Clark’s person. Clark denied any knowledge of the marijuana and cocaine found in the automobile.

At trial, Clark moved for permission to cross-examine Frilando regarding a murder indictment pending against him in the same circuit; Clark contended that Frilando, hoping to gain favorable treatment for himself, was likely to be biased toward the State. The Solicitor responded that Frilando was testifying, not freely and voluntarily, but subject to a subpoena. Further, the Solicitor advised the Court that there was no agreement between the State and Frilando. Trial Court ruled that Frilando could not be questioned about the pending murder charge.

Frilando testified that he was asleep when his girlfriend, Quisha, loaned the automobile to Clark, that he had no knowledge of the drugs, and that he had not driven the vehicle since 4:30 p.m., some nine hours prior to the 1:30 a.m. arrest. Clark’s counsel cross-examined Frilando regarding his prior burglary conviction and parole revocation.

ISSUE

Was Clark’s Sixth Amendment right to confront the witnesses against him violated by trial court’s refusal to permit inquiry into the pending murder indictment against Frilando?

DISCUSSION

The Confrontation Clause guarantees a defendant the opportunity to cross-examine a witness concerning bias. State v. Brown, 303 S.C. 169, 399 S.E. (2d) 593 (1991). Considerable latitude is allowed in the cross-examination of a witness for potential bias. Id. A defendant demonstrates a Confrontation Clause violation where he is prohibited from “engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias . . . from which jurors ... could ... draw inferences relating to the reliability of the witness.” Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed. (2d) 674, 684 (1986). A violation of the confrontation clause is not per se reversible but is subject to a harmless error analysis. Id.

Whether such an error is harmless in a particular case depends upon a host of factors. . . . The factors include the importance of the witness’ 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. Id. at 684, 106 S.Ct. at 1438, 89 L.Ed. (2d) at 686-687.

"When the foregoing Van Arsdall factors are applied to the record here, it is clear that any error was harmless beyond a reasonable doubt:

1. Importance of Witness’ Testimony: Frilando’s testimony was inconsequential to the State’s case. He testified that he had no knowledge of the drugs found in the car. Clark testified that two co-defendant passengers were in the vehicle with him, and that the car had been loaned to him by Quisha. Clearly, the jury could have concluded that the drugs found in Frilando’s car had been placed there either by Quisha or one of the passengers. Frilando’s testimony was irrelevant.

2. Cumulative Testimony: This factor has no application here inasmuch as Frilando in no way aided the State’s case against Clark.

3. Corroborating Testimony: As Frilando’s testimony was not relevant, the third element of Van Arsdall is inapplicable.

4. Extent of Cross-examination: The cross-examination here accords with Van Arsdall. Clark was permitted to impeach Frilando’s credibility on his prior conviction for burglary, his parole revocation, and Frilando’s admission that he had been in “some trouble” recently.

5. Strength of Case: It is clear that Frilando’s testimony added nothing to the strength of the prosecution’s case. The elements of the offenses with which Clark was charged were established through the arresting officers who found the drugs, and through the expert witness who identified the substances.

We hold that any error in limitation of Clark’s cross-examination of Frilando was harmless beyond a reasonable doubt.

Clark’s remaining issue is affirmed pursuant to Rule 220(b)(1) and the following authorities: Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. (2d) 889 (1968); State v. Culbreath, 300 S.C. 232, 387 S.E. (2d) 255 (1990).

Affirmed.

Harwell, C.J., and Moore, J., concur. Toal and Finney, JJ., dissenting in separate opinion.