State v. Jenkins ( 1996 )

Goolsby, Judge

(dissenting):

I respectfully dissent.

“It is well settled that a reviewing court may not consider error alleged in [the] exclusion of testimony unless the record on appeal shows fairly what the rejected testimony would have been.” State v. Roper, 274 S.C 14, 20, 260 S.E. (2d) 705, 708 (1979); see also State v. Cabbagestalk, 281 S.C. 35, 314 S.E. (2d) 10 (1984) (failure to make an offer of proof prevents the appellate court from determining whether the exclusion of testimony is prejudicial and thus precludes the appellant from raising the issue on appeal). The court of appeals should not address the merits of an issue not preserved for review. Hendrix v. Eastern Distribution, Inc., 320 S.C. 218, 464 S.E. (2d) 112 (1995).

Jenkins claims the trial court prohibited her from proffering the testimony that she hoped to elicit concerning the confidential informant. The record, however, does not support her claim. In response to Jenkins’s only request to proffer the testimony, the trial court stated, “If you want to . . . proffer it, I’m not going to — ” at which point Jenkins interrupted the trial court and, instead of making the proffer, requested to present the testimony in front of the jury.¹ Not unexpectedly, the State objected. Although Jenkins never chose to return to the subject of her proffer, it certainly was not due to any ruling by the trial court denying her right to make one.

The majority’s reference to several colloquies between defense counsel and the trial court show only the trial court had noted Jenkins’s objection. Her objection notwithstanding, the law in this state is clear that, in order to obtain a reversal, Jenkins still must have proffered the testimony she hoped to elicit to prove she was prejudiced by the trial court’s ruling. Roper, 274 S.C. 14, 260 S.E. (2d) 705. It is apparent that, at least at one point, defense counsel realized he needed to make a proffer to preserve the issue for appeal and requested the right to do so. It is worthy of note that this request came subsequent to all of the passages the majority cites for the purpose of showing that defense counsel believed either a request for proffer was not necessary or such a request would be futile.

The majority, while conceding the purpose of the rule requiring a proffer is to enable the reviewing court to discern prejudice from the adverse ruling, holds the record here “clearly demonstrated[d]” prejudice because “it was very clear what testimony defense counsel hoped to elicit on cross-examination.” (Emphasis mine.) The majority’s explanation demonstrates its misapplication of the rulé, which requires an appellant to proffer testimony, not mere questions. Roper, 274 S.C. 14, 260 S.E. (2d) 705. Without showing Jenkins’s disallowed questions would have elicited testimony that was both favorable and material to her case, Jenkins cannot show she was prejudiced by the trial court’s ruling. Explaining the answers she hoped her questions would elicit is not sufficient.

Moreover, even had Jenkins made a proffer of the testimony her questions would have elicited, I would hold the trial court did not abuse its discretion in excluding the testimony. Our supreme court held in State v. Gregory, 198 S.C. 98, 104-05, 16 S.E. (2d) 532, 534-35 (1941):

[Ejvidence offered by [the] accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible. . . . Remote acts, disconnected and outside the crime itself, cannot be separately proved for such a purpose. An orderly and unbiased judicial inquiry as to the guilt or innocence of a defendant on trial does not contemplate that such defendant be permitted by the way of defense to indulge in the conjectural inferences that some other person might have committed the offense for which he is on trial, or by fanciful analogy to say to the jury that someone other than he is more probably guilty.

Here, the evidence that Jenkins sought to introduce would not have been inconsistent with her own guilt. Even had she been allowed to pursue the line of questioning proposed, the best she could have hoped for would have been to establish that the informant may have had a motive to plant the drugs. I would therefore hold the trial court properly excluded the testimony. Cf. State v. Southerland, 316 S.C. 377, 447 S.E. (2d) 862 (1994), overruled on other grounds by State v. Chapman, 317 S.C. 302, 454 S.E. (2d) 317 (1995) (in a murder trial, the trial court properly excluded evidence that people other than the defendant had a motive to murder the victim).

Finally, because I recognize this was a very close evidentiary issue, even were I of the opinion that the inferences Jenkins sought to establish rose above the hazy line separating reasonable inferences from mere conjecture, I would not hold the trial court’s decision to exclude the testimony amounted to an abuse of discretion. See Gregory, 198 S.C. 98, 16 S.E. (2d) 532 (the admission and rejection of proffered testimony is largely within the sound discretion of the trial court and its exercise of such will not be disturbed on appeal absent an abuse of that discretion).

I would affirm.

1 The entire exchange proceeded as follows:

DEFENSE COUNSEL: Your honor, might I suggest that this is a classic time that I would like to proffer my cross-examination of this case officer who not only — I assume that his — he is telling me that his reports are made a part of what was submitted by Officer Baggett who testified here yesterday. May I cross-examine him if you would not allow me in the presence of the jury as to the facts as to — he obviously has knowledge of the fact that someone was given three $20 bills and allegedly made a purchase there as a controlled buy earlier in the day. It’s not having anything to do with the search warrant, Your Honor.

THE COURT: If you want to ... proffer it, I’m not going to—

DEFENSE COUNSEL: But may I do it in front of the jury!

THE COURT: No. No.

PROSECUTOR: Your Honor, I object. What is the purpose of it? The search warrant has been ruled on. There is no other relevance. There’s no other relevance to it.

(Emphasis added.)