State v. Heller
State v. Heller
Opinion of the Court
Following a jury trial, Christopher Heller was convicted of murder and assault and battery with intent to kill (ABWIK). Heller appeals, asserting the trial court erred in (1) allowing him to be impeached with his prior drug convictions pursuant to Rule 609(a)(1), SCRE, because the probative value of his drug convictions substantially outweighed their unduly prejudicial effect, (2) refusing to declare a mistrial where a witness made reference to Heller being on parole, and (3) refusing to grant an in camera hearing on the admissibility of a witness’s voice identification of Heller. We affirm.
In the early morning hours of August 25, 2006, a paramedic, responding to an unknown medical complaint at a trailer park, found Gustavo Guzman-Hernandez, known as “Chino,” lying in the roadway.
Mary was grievously wounded, with multiple lacerations and evisceration of her bowel. The attack on Mary was so brutal, medical personnel did not expect her to live. She had multiple stab wounds to her face, chest, neck, head and hands, with a laceration to her left lower quadrant in which the muscle had been completely transected and her intestines were protruding from her abdomen. However, after multiple surgeries, Mary did survive her wounds. An autopsy on Chino likewise revealed he suffered from numerous stab wounds, including four to his face, defensive wounds to his hand, a deep wound to his left shoulder, and a fatal, slashing stab wound to the right side of his chest which penetrated his heart. The pathologist opined a single-edged weapon, such as a knife, caused Chino’s injuries, and stated that a pocketknife is usually used in cases such as this. He determined the blade would likely have been three to four inches long but could have been longer.
The State presented the testimony of Billie Joe Risinger, known as “Tracy,” who was present at Mary’s trailer on the night of the stabbings. Tracy, who admitted she was addicted to crack cocaine, stated that on August 25, 2006, she saw Mary sitting with some other friends in Mary’s front yard. Tracy testified that they all had the same addiction, and she called one of their drug suppliers, Kevin Nails, who came over and “served them.” Tracy said she then left in a car with Kevin, along with a man named Devon and the defendant, Christopher Heller, who she had never seen before that night. Kevin
Mary Chavis also took the stand and testified to the circumstances surrounding the stabbings that night. According to Mary, in the early morning hours of August 25, 2006, she and
After Heller was developed as a suspect, investigators from South Carolina traveled to Baxley, Georgia, where a search warrant was executed on the residence where Heller resided. Heller later turned himself in at the Appling County Sheriffs Department, where he gave the South Carolina authorities a statement implicating himself in the matter. Specifically, when asked what had occurred in Columbia, South Carolina around 4:00 a.m. on August 25, 2006, Heller stated as follows:
*165 My cousin Kevin Nails and another black male left the Oasis club. My cousin stopped in the roadway to pick up and (sic) little white girl that was walking. Kevin dropped the girl and I off at (sic) trailer. Inside the trailer was a white lady and a Mexican man. The lady let us in. Once inside the white girl that Kevin picked up and I went into a bedroom and started smoking crack. I went outside for a few minutes and when I came back inside the lady that lived there told me I had to go. I told her I was waiting on Kevin to come back and pick me up. I just started stabbing the people.
Asked where he had obtained the knife, Heller replied, “It was mine; it was a fold up knife. It had a brown handle. The blade was about 2 or 3 inches long.” When asked who he started stabbing first, Heller stated, “The lady, the man jumped on my back inside the trailer.” Heller further indicated, after stabbing the lady and man, he ran and found an old empty trailer and hid there until around dark. He asked a lady if he could use her phone to call someone to pick him up, and he called Kevin. He stayed at the lady’s house until Kevin arrived, and Kevin called “mother, Carolyn Robinson,” who met them on the interstate. Kevin’s mother took Heller to his mother’s home in Georgia. Heller stated he threw the knife somewhere after leaving the girls’ trailer. He also indicated he was in Columbia for the purpose of going to the casino in Cherokee, North Carolina with Kevin and his aunt, Carolyn Robinson. The investigators testified they did not make any promises or threaten, coerce, or force Heller to give his statement, nor did they make any sort of threats or promises concerning Heller’s family members.
Once the investigators returned to Richland County with Heller, they drove to the area of Mary’s trailer park, where Heller pointed out a small, abandoned trailer he claimed to have stayed in between the time of the incident and going to call Kevin. Heller was also asked to show them the area where he threw the knife. The investigators then drove Heller to the Sheriffs Department. A few days later, one of the investigators took Heller back to the trailer park area, where Heller gave more information to narrow down where he threw the knife. However, the authorities were never able to locate the knife.
Heller testified in his own defense. He acknowledged he was with Kevin and Devon on August 25, when Kevin picked up a white girl who had called him. They then went to Mary’s, where Devon went into a back room with Tracy. After that, Heller stated he went back there with Tracy and smoked crack. Tracy started arguing with him about drugs, and though Heller was not mad or hostile, “the lady” told him he should leave and informed him he should go across the street to use a man’s phone. Heller claims he then left without argument, but the man across the street would not allow him to use the phone. According to Heller, he then walked to a store and used a pay phone to call his cousin, but the call was dropped. Heller then went to an abandoned trailer and stayed there “until [his] high went down.” Heller acknowledged he was drinking, smoking crack, and smoking weed that night. Once he “calmed down,” some twelve to thirteen hours later, he borrowed a phone from a lady and called Kevin again. Kevin picked him up and took him to a store where they met up with Heller’s aunt. He stayed at his aunt’s house that night, and the next day she took him home to Baxley, Georgia. While in Georgia, Heller found out his mother had been taken downtown. Concerned about his mother’s heart condition, he went to the local Sheriffs Department, where he was told he was a suspect. Heller claimed the South Carolina investigators told him they were charging his mother with aiding and abetting, and the only way they would release her and his girlfriend was if Heller “[took] these
Heller denied stabbing or killing anyone on the night in question. He admitted going to Mary’s trailer -with Kevin and Devon after picking up Tracy and smoking crack with Tracy, but denied smoking crack with Mary. He acknowledged that Kevin received a call and Kevin and Devon left, but he wanted to stay to have sex with Tracy. Heller agreed that he was there at the trailer with Mary, Tracy and Chino; he went into the back bedroom and smoked crack with Tracy; he argued with Tracy; Mary told him to leave because she did not like the arguing; he went across the street to use a phone, but the person would not let him; and he ended up staying in an abandoned trailer all night and through the daylight hours until about 9:30 p.m., when he finally saw Kevin.
Heller disavowed parts of the statement he signed. Specifically, he acknowledged the parts of the statement indicating he went to a trailer, they picked up a girl, and he and the girl got into a little argument whereupon he was asked to leave. He also testified he indicated in his statement that he went into a bedroom with the white girl Kevin had picked up and they started smoking crack, and when the lady that lived there told him he had to leave, he told her he was waiting for Kevin “to come back and pick him up.” However, he claimed he told the investigators he did not know anything about a knife, acknowledging only that he had a little key-chain pocketknife. Heller denied stating that “a white lady and a Mexican man” were inside the trailer,” that the lady let him inside, and that he “just started stabbing people.” He further denied ever saying anything regarding who he stabbed first, what he did after stabbing the lady and the man, and what happened to the knife. Heller also testified, when they got back to South Carolina, he showed the investigators the abandoned trailer in which he stayed, but claimed when they asked where he threw the knife, he told them he did not know anything about a knife. He further testified that he was not given the statement to read over it until he was back in South Carolina, and though he was read and he signed his waiver of rights, he did so because he did not have a choice.
ISSUES
1. Whether the court erred by allowing impeachment of Heller with his prior drug convictions pursuant to rule 609(a)(1), SCRE, because the probative value of these drug and drug dealing convictions was substantially outweighed by their unduly prejudicial effect, particularly where the solicitor admitted the nature of the convictions made them relevant to whether the jury believed Heller that the police were lying and coerced his statement, since this impermissibly invited the jury to find Heller was acting in character in this case with his past drug convictions.
2. Whether the court erred by refusing to declare a mistrial where witness Kevin Nails testified, in response to the solicitor’s question about where Heller was going after he left South Carolina, that Heller had to get back to Georgia because he was on “parole leave,” since defense counsel made a pretrial motion to exclude this evidence, and he correctly argued a curative instruction was not going to solve the prejudice.
3. Whether the court erred by refusing to grant defense counsel an in camera hearing on the proper foundation being laid for witness Tracy Risinger’s voice identification of Heller as the man who knocked on the door and spoke immediately before the murder because a proper foundation for Risinger’s voice identification evidence was never established for this extraordinarily prejudicial claim.
LAW/ANALYSIS
A. Impeachment with prior drug convictions
Prior to Heller taking the stand, the solicitor argued she should be allowed to impeach Heller with five previous convictions, should Heller decide to testify. She stated Heller had a 1999 conviction for possession with intent to distribute (PWID) marijuana, and he pled guilty to four other drug charges on the same date in 2001, including another PWID marijuana, two counts of “manufacture, sell, dispense distribute with intent to distribute” charges, and one count of drug
When Heller took the stand, he acknowledged in direct examination that he had been convicted of marijuana and cocaine charges and drug dealing. On cross-examination, Heller agreed he was convicted of PWID marijuana on April 8,1999, and the other specific drug charges of PWID marijuana, two counts of manufacturing, selling, dispensing, and distributing with intent to distribute, and one count of drug trafficking within 1,000 feet of a park, recreation facility, or public housing on August 3,2001.
On appeal, Heller argues Rule 609(a)(1), SCRE, allows a defendant to be impeached with a crime punishable by a sentence in excess of one year if the court, subject to a Rule 403, SCRE, determination,
Rule 609(a), SCRE, provides as follows:
For the purpose of attacking the credibility of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
Our supreme court has approved consideration of the following five factors, along with any other relevant factors, when weighing the probative value for impeachment of prior convictions against the prejudice to the accused: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue. State v. Colf, 337 S.C. 622, 627, 525 S.E.2d 246, 248 (2000); State v. Howard, 384 S.C. 212, 221, 682 S.E.2d 42, 47 (Ct.App. 2009). This court has noted a preference for an on-the-record Coif balancing test by the trial court under Rule 609(a)(1), SCRE. See State v. Martin, 347 S.C. 522, 530, 556 S.E.2d 706, 710 (Ct.App. 2001) (“While Coif involved the admission of prior convictions more than ten years old under Rule 609(b), SCRE, this court has implicitly recognized the value of these factors in making such a determination under Rule 609(a)(1), and urged the trial bench to not only articulate its ruling, but also provide the basis for it, thereby clearly and easily informing the appellate courts that a meaningful balancing of the probative value and the prejudicial effect has taken place as required by Rule 609(a)(1).”) (internal quotation marks omitted). Meaningful appellate review is best achieved when the trial court articulates its ruling
Here, the trial court simply denied Heller’s motion to exclude the prior convictions without performing an on-the-record Coif analysis. However, any error in a trial court’s failure to conduct the proper balancing test under Rule 609, SCRE, may be considered harmless. State v. Williams, 380 S.C. 336, 344, 669 S.E.2d 640, 644 (Ct.App. 2008). In order for an appellate court to reverse a case based on erroneous admission of prior convictions, prejudice must be shown. State v. Young, 378 S.C. 101, 107, 661 S.E.2d 387, 390 (2008). “Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result.” State v. Pagan, 369 S.C. 201, 212, 631 S.E.2d 262, 267 (2006).
A harmless error analysis is contextual and specific to the circumstances of the case: “No definite rule of law governs [a finding of harmless error]; rather the materiality and prejudicial character of the error must be determined from its relationship to the entire case. Error is harmless when it could not reasonably have affected the result of the trial.”
State v. Byers, 392 S.C. 438, 447-48, 710 S.E.2d 55, 60 (2011) (quoting State v. Reeves, 301 S.C. 191, 193-94, 391 S.E.2d 241, 243 (1990)). Further, “[i]t is well settled that the admission of improper evidence is harmless where it is merely cumulative to other evidence.” State v. McFarlane, 279 S.C. 327, 330, 306 S.E.2d 611, 613 (1983).
Here, Mary positively identified Heller in a photographic line-up and thereafter made an in-court identification of Heller as the man she evicted from her home and who then returned and stabbed both her and Chino. Additionally, Tracy picked Heller from a photographic line-up and also identified Heller in court as the man Mary evicted from her home, who thereafter returned and whose voice she heard during a knock on the door, immediately after which she heard Mary being brutally attacked. Heller’s cousin, Kevin, also identified Heller as the individual he left at Mary’s trailer with Mary, Tracy, and Chino prior to the attack, as the person who Tracy indicated to him had “snapped” and as the person who
B. Mention of “parole leave”
During Kevin’s direct examination concerning Heller’s whereabouts that night, Kevin explained that he called his mother after he picked up Heller, they met his mother at a Burger King, and Heller got in the van with Kevin’s mother to go to Lexington for the night. The following colloquy then occurred:
A: I think they left like either a day — I think a day after she picked him up from me.
Q: Okay. They leave to go where?
A: To Baxley.
*173 Q: Back to Baxley—
A: Yes.
Q: —Georgia?
A: Because he was here on like a parole leave. He had a certain amount of time until he had to be back.
At this point, trial counsel objected and moved to strike. The trial court sustained the objection and instructed the jury to “[disregard his comment about the parole.” The solicitor finished examining Kevin, at which point the trial court decided to take a fifteen minute break. After the jury left the courtroom, trial counsel asked to put a matter on the record and moved for a mistrial based upon Kevin’s mention that Heller was on parole. Counsel argued he had filed a pretrial motion so witnesses would be instructed not to bring up Heller’s parole.
Heller argues the mention of him being on parole clearly showed he had a prior criminal record. He asserts that admission of evidence implying a defendant has a prior criminal record is reversible error, and the trial court’s instruction to the jury to disregard the reference to parole was insufficient to cure the prejudice. Heller further contends this situation should not be considered one where there is a vague reference to a defendant’s prior criminal record such that it would not justify a mistrial because, here, the solicitor knew she was going to attempt to impeach him with his prior drug convictions at the time she argued against the mistrial motion. Consequently, it was not a vague and isolated reference. Accordingly, Heller contends the trial court erred by refusing to declare a mistrial.
C. In camera hearing on voice identification
During direct examination, Tracy testified concerning the events leading up to the stabbing of Mary. Specifically, in regard to what occurred after Kevin and Devon departed, leaving Tracy, Mary, Chino, and Heller at the trailer, Tracy stated that the remaining group smoked crack. According to Tracy, Heller was acting strangely, prompting Mary to ask him to leave. Tracy stated that Heller “gave [her] the creeps,” and “he tried to follow [her] out.” Heller initially complied with Mary’s request and left the trailer, but returned three to five minutes later. Thereafter, Chino left to get a phone, as Mary and Tracy wanted Kevin to come pick up Heller. Only Tracy and Mary remained at the trailer at that
Q: So that night when someone came and knocked on the door, did the person say anything.
A: I don’t know what exactly he said. I just heard — I just heard her saying, “No, no,” and I heard him say something, and then I heard a whole lot of noise—
Q: Like—
A: —like banging, like (indicating).
Q: Did the voice belong to a man or a woman?
A: A man.
Q: And could you identify that voice?
A: Yes.
Q: And who was that voice belonging to?
[Defense Counsel]: Objection, Your Honor.
[The Court]: Overruled. Go ahead.
A: I would say him.
Q: The defendant?
A: Uh-huh, without a doubt.
When Tracy heard that voice, she told Mary not to open the door, but Mary told her to just shut the bedroom door. When Tracy heard banging and screaming, she then locked the door and hid under the bed. Tracy thereafter made an in-court identification of Heller as the man she heard come into the trailer while she was in the bedroom. During cross-examina
Sometime thereafter, trial counsel stated he wanted to place on the record that, during the bench conference, he had requested an in camera hearing, in the vein of a Neil v. Biggers hearing, to cross-examine Tracy on her voice identification outside the presence of the jury. The trial court acknowledged that a request had been made for an in camera hearing, which the court denied. The court noted it had initially sustained the objection to the testimony, but allowed the prosecution the opportunity to lay the foundation for Tracy’s voice identification. Once the foundation was properly laid and an objection was made, the court overruled the objection. At the close of the State’s case, trial counsel renewed his previous objections and motions, specifically noting he had requested an in camera hearing regarding Tracy’s voice identification “[a]ccording to Neil v. Biggers.”
On appeal, Heller argues the trial court erred in refusing to grant his motion for an in camera hearing on the admissibility of Tracy’s voice identification testimony. He asserts Tracy was improperly allowed to give this testimony because there was insufficient foundation for it, and because South Carolina law concerning the admission of voice identification evidence indicates a trial judge should establish some foundation for the admissibility of such evidence. He contends Tracy’s voice identification was “very suspect,” noting Tracy first met Heller on the night of the incident, and she “was in another room.” Thus, Heller maintains the trial court should have allowed an in camera hearing to determine if there was a proper foundation for Tracy’s voice identification. Heller additionally cites the California case of People v. Clark, 3 Cal.4th 41, 10 Cal.Rptr.2d 554, 833 P.2d 561 (1992), for the proposition that the trial court erred in failing to hold an in camera hearing on the voice identification evidence.
In the case at hand, it is undisputed that Tracy’s voice identification occurred for the first time in court. Heller did not challenge the voice identification by Tracy as being suggestive or in any way tainted by a previous, illegal identification or confrontation. Thus, a Biggers hearing was not warranted in this case.
CONCLUSION
Based on the foregoing, we find, although the trial court failed to make an on-the-record Coif analysis, any possible error in the admission of Heller’s prior convictions was harmless nonetheless. Additionally, the issue concerning the mention of Heller being on “parole leave” by the witness is not preserved for our review. Finally, we hold a Biggers hearing was not required on the voice identification because Heller did not challenge the voice identification as being based upon an inherently suggestive out of court proceeding, and a proper foundation was laid for the admission of the testimony.
AFFIRMED.
. Gustavo also had nicknames of "Mechanic” and "Mechanico,” but was primarily referred to throughout the testimony as “Chino.”
. Tracy testified she could not remember exactly where on his body she had seen the tattoos, but she was sure there was one that said "made man,” and a tattoo that had dollar signs, and she thought there may be
. The State points out that a Rule 403 balancing test is applied when a conviction is offered to impeach a witness who is not the defendant, and Rule 609(a)(1), SCRE provides its own balancing test in the case of impeaching a defendant, which is simply that the probative value of admitting such evidence outweighs its prejudicial effect to the accused. Thus, the State contends Heller has, both at trial and on appeal, objected "under the wrong rule.” At any rate, the State contends the trial court committed no error in denying Heller’s motion, whether applying the Rule 403, SCRE analysis, which requires evidence to be excluded if its probative value is substantially outweighed by the danger of undue prejudice, or the appropriate standard under Rule 609(a)(1).
. No such motion is included in the record, nor does the transcript show such a motion was ever addressed by the trial court.
. Under this inquiry, the court must first determine whether the identification process was unduly suggestive and, next, must determine whether the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed. State v. Moore, 343 S.C. 282, 287, 540 S.E.2d 445, 447 (2000). Only if the procedure was suggestive need the court consider whether there was a substantial likelihood of irreparable misidentification. Id. at 287, 540 S.E.2d at 447-48.
. Heller’s reliance on the California Supreme Court case of People v. Clark, for the proposition that the trial court erred in failing to hold an in camera hearing on the voice identification evidence, is equally misplaced, as that case involved an in camera hearing wherein a voice identification was challenged as impermissibly suggestive based upon
. Rule 104(c), SCRE, provides that "[hjearings on the admissibility of ... pretrial identifications of an accused shall in all cases be conducted out of the hearing of the jury,” and "[hjearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.” However, Heller has not cited this rule, either at trial or on appeal, and additionally has presented no argument whatsoever that "the interests of justice require” an in camera hearing on the matter.
. We note that Heller did not specifically challenge the foundation for the voice identification as inadequate at trial, but simply argued that he was entitled to an in camera hearing to cross-examine Tracy on the voice identification. At any rate, we believe a sufficient foundation was laid, as Tracy testified concerning her opportunity to hear Heller's voice earlier that night, she gave a description of his voice as being raspy and deep, and she confirmed she could recognize his voice if she heard it again.
Reference
- Full Case Name
- The STATE v. Christopher HELLER
- Cited By
- 8 cases
- Status
- Published