State v. Lawrence ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Travis Latrell Lawrence, Appellant.
Appellate Case No. 2018-000989
Appeal From Dorchester County
Maite Murphy, Circuit Court Judge
Opinion No. 5863
Submitted May 3, 2021 – Filed October 6, 2021
AFFIRMED
Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Assistant
Attorney General William Frederick Schumacher, IV,
both of Columbia, and Solicitor David Michael Pascoe,
Jr., of Orangeburg, all for Respondent.
HILL, J.: A jury convicted Travis Latrell Lawrence of attempted murder. He now
appeals, raising two grounds. The first is that the trial court erred in ruling his
co-defendant who was awaiting trial, Terrell Bennett, was protected by the right
against self-incrimination from being forced to testify at Lawrence's trial. The
second error Lawrence alleges is the admission of evidence that Bennett was the
subject of a traffic stop three months before the attempted murder occurred. We see
no error in the trial court's handling of the self-incrimination issue, but it was error,
albeit harmless, to admit the traffic stop evidence. We therefore affirm.
I. FACTS
The victim, Clayton Baxter, testified he was at home when Bennett called asking to
borrow money. Baxter told Bennett to come over. Baxter considered Bennett—who
called him "Unc"—to be his nephew. They had known each other over twenty years,
as Baxter's sister raised Bennett. When Bennett arrived outside Baxter's house, he
called Baxter and asked if anyone else was inside (Baxter's pregnant friend was
asleep upstairs). When Baxter opened the door to let Bennett in, he noticed someone
walking behind Bennett and asked, "Who's that behind you?" The answer was
Lawrence, who emerged pointing a .38 revolver at Baxter. Baxter testified he knew
Lawrence, having met him through Bennett some six or seven times. Lawrence told
Baxter to "give me the money," Bennett closed the door, and the three moved
towards the dining room table. Baxter, who is six foot seven inches tall and weighs
three hundred pounds, noticed Lawrence lower the revolver. Baxter grabbed
Lawrence and slammed him on the table. The fracas soon involved all three men,
and at some point, the gun fired, sending a bullet towards the upstairs bedroom,
fortunately not striking anyone. Lawrence then went to the kitchen and found a
knife, which he used to slice Baxter across the face and stab him in the head, back,
and shoulder. Lawrence and Bennett then departed, taking the knife, gun, and
seventy dollars cash. Baxter called 911.
Baxter testified he told the responding officers Lawrence and Bennett had attacked
him. While cross-examining Baxter, Lawrence tried to establish that Baxter initially
identified Bennett as the stabber. Lawrence also insinuated that—due to Baxter's
previous drug conviction and the presence of marijuana, scales, and cash in his
home—the entire episode had erupted over a botched drug deal. Baxter denied
naming Bennett as the stabber, contradicting some evidence from the officers' body
cameras, including a clip played to the jury where Baxter stated, "'Rell [Terrell] did
it" and "Trav" was with him and that Bennett drove a gold Cadillac. The semantic
quibbling on cross continued over what the definition of "it" is, with Baxter
clarifying that Lawrence was the one who stabbed him, Bennett had also held the
gun on him at one point during the melee, and both Lawrence and Bennett were
involved in the attack and robbery. Baxter also picked Lawrence out from a photo
array police showed him shortly after the crime.
Over Lawrence's relevance objection, the trial court allowed the State to call a
patrolman who testified he had pulled Bennett over for a "simple traffic stop" three
months before the attack on Baxter, and Bennett was driving a gold Cadillac Deville.
In his case, Lawrence called one of the responding officers to testify his incident
report reflected Baxter stated he was stabbed by "'Rell." Lawrence also subpoenaed
Bennett to testify, but Bennett invoked his right against self-incrimination. After
hearing in camera testimony ex parte, the trial court upheld Bennett's right, finding
his proposed testimony incriminating. The jury found Lawrence guilty of attempted
murder but not guilty of armed robbery and possession of a firearm by a person
convicted of a crime of violence.
II. STANDARD OF REVIEW
As to the trial court's ruling on the self-incrimination issue, we have been unable to
find any previous South Carolina case establishing a specific standard of review.
Our default is the benchmark for criminal cases: we review only errors of law and
are bound by the factual findings of the trial court unless they are clearly erroneous.
See State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 200 (2006). We may only
reverse the trial court's evidentiary ruling admitting the traffic stop if it amounts to
an abuse of discretion, meaning it is unsupported by the law or the record. See State
v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006).
III. DISCUSSION
A. Co-defendant Bennett's Right Against Self-incrimination
Lawrence claims the trial court erred in finding Bennett demonstrated an objectively
reasonable fear of incrimination. We disagree, as the trial court's ruling was well
supported by the record and correctly applied the law.
Lawrence subpoenaed Bennett to testify because he believed Bennett could help him
prove Baxter initiated the fight and, therefore, Lawrence had acted in self-defense.
At the second day of trial, after the State had presented Baxter and other witnesses,
Bennett appeared and invoked his right against self-incrimination. The trial court
conducted a hearing on the record in camera with only Bennett, his lawyer, and
essential court personnel present. The trial court also took in camera testimony
from a police investigator who was present on several occasions when Bennett was
interviewed. The trial court ruled Bennett would face a "hazard of incrimination" if
compelled to testify and, therefore, had the right not to testify.
The right against self-incrimination is enshrined in both the South Carolina and the
United States Constitutions. See U.S. Const. amend. V; S.C. Const. Art I, §12. Our
Supreme Court has assumed the analysis of our state constitutional right is in
lockstep with federal precedent. Grosshuesch v. Cramer, 377 S.C. 12, 23 n.2, 659
S.E.2d 112, 118 n.2 (2008). The right, which is also ensured by statute, S.C. Code
Ann. § 19-11-80 (2014), "protects the innocent as well as the guilty." Ohio v. Reiner,
532 U.S. 17, 18 (2001). It protects the innocent because an innocent witness' truthful
answers may, in ambiguous circumstances and when combined with other evidence,
furnish the government with incriminating proof "from the speaker's own mouth."
Id. at 21; see Akhil Amar, The Bill of Rights 116 (1998) (Fifth Amendment protects
"the innocent but inarticulate defendant, who might be made to look guilty if subject
to crafty questions from a trained inquisitor"). It protects a person from being forced
to testify against himself, a basic liberty that embodies many of our country's values
and aspirations and is a monument to man's struggle to greater dignity and freedom.
Michigan v. Tucker, 417 U.S. 433, 444 (1974); see also State v. Thrift, 312 S.C. 282,
296, 440 S.E.2d 341, 349 (1994). The framers placed the guarantee in the federal
bill of rights, constitutionalizing a common law right that had developed in England
over the centuries and was designed to shield citizens from the debasing horrors of
forced confessions obtained by such infamous tyrannies as the Star Chamber and the
Spanish Inquisition (which no one expected). See generally Tucker, 417 U.S. at
440; Leonard Levy, Origins of the Fifth Amendment (1968).
"[N]o rule, on the subject of evidence, is better established then that a witness shall
not be bound to criminate himself. The only difficulty arises in the application of
the rule." State v. Edwards, 2 Nott & McC. 13, 14, 11 S.C.L. 13, 14 (Const. Ct. App.
S.C. 1819). When a criminal defendant calls a witness who invokes the right against
self-incrimination, competing interests of justice collide. A criminal defendant's
right to present evidence "has constitutional dimensions," drawing from the Sixth
Amendment rights to confrontation and compulsory process. United States v. Nixon,
418 U.S. 683, 711 (1974); Washington v. Texas, 388 U.S. 14, 19 (1967). Layered
upon this is the common law command that, in general, parties have a right to "every
man's evidence." See Trammel v. United States, 445 U.S. 40, 50 (1980) (quoting
United States v. Bryan, 339 U.S. 323, 331 (1950)). When a witness stakes his
constitutional right not to testify against these weighty interests, the trial court must
strike the balance, at times a tricky task. The trial court must be mindful that the
right against self-incrimination is to be broadly drawn, see Hoffman v. United States,
341 U.S. 479, 486 (1951), and the defendant's right to confrontation and to present
evidence must yield to the opposing Fifth Amendment right as long as the witness
has a legitimate fear of possible incrimination. See, e.g., United States v. Khan, 728
F.2d 676, 678 (5th Cir. 1984).
The task is made more difficult by the lack of guidance as to the procedure the trial
court should use. See United States v. Dalton, 918 F.3d 1117, 1130 (10th Cir. 2019)
(noting no standard procedure exists). While a trial court cannot, except in
exceptional circumstances, uphold a witness' blanket assertion of a
self-incrimination claim, it likewise cannot interrogate the witness to an extent that
would expose the very incriminating evidence the right is designed to safeguard.
The proceeding, which the trial court here held on the record, in camera, and ex
parte, should be designed to permit the witness or his lawyer to explain in general
terms his legitimate fear of incrimination, after which the trial court may probe
further, by examination if necessary, to determine if the witness' fear of prosecution
is genuine, objectively reasonable, and meets the low threshold of Hoffman and
Grosshuesch. We are not presented with a challenge to the procedure the trial court
used but note in camera and ex parte self-incrimination hearings present many pros
and cons. See United States v. Melchor Moreno, 536 F.2d 1042, 1047 n.7 (5th Cir.
1976) (cataloging advantages and disadvantages of in camera, ex parte inquiry of a
witness' Fifth Amendment claim).
A witness' claim to his right against self-incrimination must be upheld unless it is
"perfectly clear" the testimony sought has no possible tendency to incriminate.
Malloy v. Hogan, 378 U.S. 1, 12 (1964). But a "witness is not exonerated from
answering merely because he declares that in so doing he would incriminate
himself—his say-so does not of itself establish the hazard of incrimination."
Hoffman, 341 U.S. at 486. Instead, the court makes the call, and it must uphold the
privilege as long as it is "evident from the implications of the question, in the setting
in which it is asked that a responsive answer to the question or an explanation of
why it cannot be answered might be dangerous because injurious disclosure could
result." Id. at 486–87. In making this assessment, the trial court considers the facts
and peculiarities of the case and uses its wisdom and practical experience to imagine
how the witness' own words might ensnare him in the teeth of a criminal law.
The right protects answers that are incriminating on their face, as well as any that
might form a "link in the chain" needed to prosecute the witness for a crime. Id. at
486. Accordingly, the privilege "protects against any disclosures which the witness
reasonably believes could be used in a criminal prosecution or could lead to other
evidence that might be so used." Kastigar v. United States, 406 U.S. 441, 445
(1972). The hazard of prosecution need not be certain, nor even likely; the
possibility of prosecution is enough. First Union Nat'l Bank v. First Citizens Bank
& Trust Co. of S.C., 346 S.C. 462, 467, 551 S.E.2d 301, 303 (Ct. App. 2001); United
States v. Johnson, 488 F.2d 1206, 1209–10 (1st Cir. 1973). Because of the
fundamental importance of the right, a trial court may not be unduly skeptical of the
witness' fear, for it may be the witness cannot explain his need for the right without
surrendering it. Hoffman, 341 U.S. at 486–87. At the same time, the court is not
bound to uphold the right if the witness' danger of incrimination is "imaginary and
unsubstantial." Reiner, 532 U.S. at 21 (quoting Mason v. United States, 244 U.S.
362, 366 (1917)). In the past, many courts required assertion of the privilege on a
"question by question" basis, but a more enlightened view is that when the hazard is
openly apparent, the witness "need not be tested by the rote recitation of questions
that have obvious answers of which the judge is already aware." United States v.
Stewart, 907 F.3d 677, 685 (2d. Cir. 2018).
Though the trial court's examination of Bennett may have been too specific (and
involved unnecessary inquiry of the police witness), we affirm the upholding of
Bennett's right to not testify. The hazard of incrimination was openly apparent.
Bennett was not facing just a risk of prosecution; he was already being prosecuted
as Lawrence's indicted co-defendant. Almost anything Bennett could utter about the
incident would likely be used against him at his upcoming trial. The trial court well
understood the situation and also knew Bennett's proposed testimony was at odds
with what the State was contending was the truth. See United States v. Mares, 402
F.3d 511, 514–15 (5th Cir. 2005) (affirming trial court's refusal to allow defendant
to examine co-perpetrator outside presence of jury and rule on co-perpetrator's Fifth
Amendment right on a question by question basis; by the time issue surfaced at trial,
trial court had heard enough evidence of co-perpetrator's actions exposing him to
robbery and other charges to understand the implications of the proposed testimony
and the corresponding scope of co-perpetrator's Fifth Amendment privilege).
B. Admission of the Pre-trial Traffic Stop of Co-defendant Bennett
At trial, the State argued the traffic stop evidence was relevant because it
corroborated Baxter's identification of Bennett. The trial court agreed, a decision
we review for abuse of discretion. Relevant evidence "means evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence." Rule 401, SCRE.
To be sure, Baxter testified Bennett drove a gold Cadillac to his house that day, and
he told the responding officers Bennett drove a gold Cadillac. But Bennett's identity
was not an issue at Lawrence's trial. Nor was the ownership of the gold Cadillac.
The only identity of consequence was who stabbed Baxter, a fact the gold Cadillac
evidence could not illuminate.
The State maintains the evidence was relevant because it bolstered Baxter's
credibility. We must, however, take a rational approach to the impact of this
evidence. To call its probative value weak would be a monstrous understatement.
No one disputes Baxter knew Bennett well. They had enjoyed a close relationship
for over twenty years and considered each other family. Corroborating Baxter's
knowledge of Bennett was not relevant or probative. On the other hand, testimony
that Bennett was stopped by police shortly before the attack was at best a waste of
time and, at worst, a deliberate attempt by the prosecution to paint Lawrence as
someone who consorted with law breakers. We therefore conclude the traffic stop
evidence should not have been admitted as its probative value was dwarfed by the
dangers of unfair prejudice to Lawrence, confusion of the issues, misleading the jury,
and waste of time. Rule 403, SCRE. Although we have little doubt the State
presented the traffic stop simply for its spillover prejudicial effect, the evidence was
so feckless it is an easy call for us to deem it harmless. See State v. Tapp, 398 S.C.
376, 389, 728 S.E.2d 468, 475 (2012) (error is harmless when it appears beyond a
reasonable doubt that it did not contribute to the verdict).
We decide this case without oral argument pursuant to Rule 215, SCACR.
AFFIRMED.
WILLIAMS and THOMAS, JJ., concur.