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THE STATE OF SOUTH CAROLINA

In The Supreme Court

State of South Carolina, Respondent,

v.

Mekiel Letrel Mitchell, Appellant.

Appeal From Charleston County

Larry R. Patterson, Judge

Opinion No. 24777

Heard February 17, 1998 - Filed April 6, 1998

AFFIRMED

Tara Dawn Shurling, of Columbia, for appellant.

Charles Molony Condon, Attorney General, John W.

McIntosh, Deputy Attorney General, and Donald J.

Zelenka, Assistant Deputy Attorney General, all of

Columbia; and David Price Schwacke, Solicitor,

Ninth Judicial Circuit, of North Charleston, for

respondent.

WALLER, A.J.: On appeal is Appellant Mekiel Letrel Mitchell's

conviction of murder. We affirm.

FACTS

At approximately 5:30 p.m. on December 16, 1995, Kenneth Raymond

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Judy ("Victim") was shot in the back of the head while driving in his truck.

Appellant became a suspect when his car was found at the crime scene with

a box of bullets in the seat. He presented an alibi defense, claiming he was

not at the scene when the shooting occurred. He produced witnesses who

testified he left the scene with a girlfriend around 5:10 p.m. and was with

her until around 10:30 p.m.1

To counteract Appellant's defense, the State produced two eyewitnesses

who testified they saw Appellant shooting at Victim's truck as it was driving

away from him. Other witnesses testified they saw someone fitting

Appellant's description in the vicinity of the crime scene after the shooting

occurred. Another witness testified he was with Appellant all day until 5:30

p.m., when Appellant borrowed his truck, claiming he was going out to buy

cigarettes. A final State's witness testified Appellant had called him to

request the witness provide him with a false alibi. Because the murder

weapon was never found, ballistics and other forensic evidence was somewhat

inconclusive.

ISSUES

I. Did the trial judge err in refusing to order a recess of the trial?

II. Did the trial judge err in instructing the jury on the law of voluntary

manslaughter?

III. Did the trial judge err in refusing to allow Appellant access to the

criminal file of a State's witness, and in limiting Appellant's cross-

examination of the witness?

IV. Is Appellant entitled to a new trial because the cumulative effect of

trial errors deprived him of Due Process?

DISCUSSION

I. Trial Recess

Appellant argues the trial judge committed reversible error in refusing

to allow a trial recess to accommodate his counsel's illness. We disagree. As

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with requests for a trial continuance, requests for a recess during trial are

within the trial judge's discretion, and will be reversed on appeal only upon

a showing of an abuse of that discretion. State v. Durden, 264 S.C. 86, 212

S.E.2d 587 (1975); State v. Meyers, 262 S.C. 222, 203 S.E.2d 678 (1974).

Appellant's trial counsel filed a pre-trial brief2 stating counsel had "a

condition of 'cluster-type' migraine headaches which is currently active. This

condition is, for the most part, controlled by non-narcotic medication and

should not prevent the trial from going forward." He stated the condition

might "result in some unusual requests such as requests that lighting [in] the

courtroom be reduced or that there be a recess for the purposes of taking

medication." (emphasis supplied).

No mention was made of counsel's condition until about 4:00 p.m. on

the first day of trial. At this time, during a bench conference, the Solicitor,

in trying to inquire into how long the judge wanted to work that evening,

mentioned that "[counsel] is apparently not feeling too well." When the trial

judge indicated he wanted to work until 5:30, counsel stated, "5:30 would be

fine. But later I'm -- I'm starting to get that headache problem that was

mentioned in my brief." Trial proceeded and was concluded that day without

incident.

The next day, at 9:15 a.m., counsel told the trial judge, "I put in the

pre-trial brief the problem I have with migraine headaches. I woke up with

a massive one this morning. I'm good to go. I have medication I take called

Midrin, which is non-narcotic, I can take four in a day. I'm at three. When

those run out, I'm going to have to go to narcotic painkillers." (emphasis

supplied). The trial judge stated he was not inclined to "break down during

the day ... [f]or any reason." He informed counsel he could let his associate

finish trying the case "if something happens." When counsel pointed out his

associate had "no knowledge of the case other than where the documents

are," the judge stated, "I don't ever stop at three o'clock in the afternoon."

Trial proceeded with no other mention of counsel's condition, with one

exception. After the judge charged the jury in the late afternoon, counsel

objected to part of it. Noting counsel did not object when the Solicitor

requested the charge, the judge overruled the objection. Counsel responded,

"Well, I've been suffering from a severe migraine headache all day and I

didn't think that I was having a problem." (emphasis supplied).

22, 1996.

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Based on this record, Appellant argues he is entitled to a new trial.

Initially, this issue is procedurally barred because, while he indicated he

might need a recess, counsel never actually requested one. State v. Williams,

303 S.C. 410, 401 S.E.2d 168 (1991) (issue not raised to and ruled on by the

trial court is not preserved for appeal).3

In a similar vein, and largely because of the procedural problem,

Appellant cannot show prejudice from the judge's ruling. State v. Babb, 299

S.C. 451, 385 S.E.2d 827 (1989) (denial of a motion for a continuance will not

be disturbed absent an abuse of discretion resulting in prejudice). Appellant

points to several alleged trial errors counsel made during the second day of

trial, which he argues show counsel must have been impaired by his

headache. Even assuming Appellant is correct that these incidents were trial

errors (which we specifically decline to address), there is absolutely nothing

in the current record to show a causal connection between them and counsel's

health. At no time, even in his post-trial motion, did counsel ever state the

point at which he became so impaired by his headache that he needed a

recess. At no time did he state when (or if) his non-narcotic medication ran

out and he was presented with the option of taking narcotic medication,

having his assistant try the case, or proceeding himself with no medication.

Even when he was trying to excuse his failure to object to a jury charge at

the end of that day, counsel never stated he was actually impaired; to the

contrary, he stated he did not think he was having a problem. See State v.

Williams, 321 S.C. 455, 469 S.E.2d 49 (1996) (burden is on appellant to

provide a sufficient record for review.

We find no reversible error.

because the trial judge stated they would work until 5:30 regardless. We

find this argument unpersuasive under the facts of this case. This situation

is similar to a motion in limine to exclude evidence. We have consistently

held a ruling in limine is not final, and unless an objection is made at the

time the evidence is offered and a final ruling procured, the issue is not

preserved for review. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996).

The idea behind this rule is that events may occur after the preliminary

ruling that could affect the judge's view of the issue. Here, the last

representation the trial judge heard was that counsel was "good to go." We

find counsel should have raised the issue at some point later if he really felt

impaired.

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II. Voluntary Manslaughter

Appellant next argues the trial judge committed reversible error in

submitting the lesser included offense of voluntary manslaughter to the jury

over his objection. We disagree. Any possible error would be harmless

because the jury convicted Appellant of the greater offense of murder. State

v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980); State v. Anderson, 253 S.C.

168, 169 S.E.2d 706 (1969).

III. Criminal File/ Limited Cross Examination

Appellant next argues the trial judge violated Brady v. Maryland4 in

failing to require the Solicitor to provide its entire criminal file on Linda

Erway, a State's witness in his case; or in the alternative, in refusing to

inspect the file in camera to see if it contained any exculpatory material.

Appellant further argues the judge's improperly limiting his cross-

examination of Erway deprived him of a fair trial. We disagree.

Erway was an eyewitness to the shooting who originally gave police a

statement which failed to implicate Appellant. She also failed to pick

Appellant out of a police lineup. However, the week before trial, she changed

her statement and identified Appellant for the first time as the shooter.

Appellant wanted her criminal file to impeach her testimony at trial. It was

his theory Erway changed her story because she had pending criminal

charges against her, and either had a deal with the Solicitor's office or

wanted to please them in the hopes of favorable treatment.5

As an initial matter, we find these issues are procedurally barred.

Early on the first day of trial, counsel brought this issue up to the trial

judge, stating he knew what the pending charges were but wanted the entire

file. The Solicitor stated there was no agreement with Erway regarding her

testimony. The trial judge ruled Appellant could ask Erway if she had

pending charges, but could not "go into those specific charges." Appellant's

counsel's response was, "Right." Because counsel acquiesced in the judge's

limitation of his cross-examination, and made no other objections regarding

5 Erway had fired the attorney she had hired to represent her on the

pending charges because she could not afford him. This dismissal apparently

occurred shortly before she changed her statement to police.

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wanting the criminal files, Appellant cannot now complain about this issue.

See, e.g., State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (issue not

raised to and ruled on by the trial court is not preserved for appeal); Ex

parte McMillan, 319 S.C. 331, 461 S.E.2d 43 (1995) (party cannot acquiesce

to issue at trial and then complain on appeal).

In any event, we find no prejudice to Appellant on either issue.

As a general rule, a trial court's ruling on the proper scope of cross-

examination will not be disturbed absent a manifest abuse of discretion. This

rule is subject, however, to the Sixth Amendment's guarantee of a defendant's

right to a "meaningful" cross-examination.

[A] criminal defendant states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in

otherwise appropriate cross-examination designed to show a

prototypical form of bias on the part of the witness, and thereby

"to expose to the jury the facts from which the jurors ... could

appropriately draw inferences relating to the reliability of the

witness."

. . .

[However, the Confrontation Clause does not] prevent a trial

judge from imposing any limits on defense counsel's inquiry into

the potential bias of a prosecution witness. On the contrary,

trial judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-

examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues 'witness' safety, or

interrogation that is repetitive or only marginally relevant.

State v. Smith, 315 S.C. 547, 551-52, 446 S.E.2d 411, 414 (1994) (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679-80, 106 S. Ct. 1431, 1435-36, 89

L. Ed. 2d at 674, 683-84 (1986)).6

to misrepresent may be shown to impeach the witness either by examination

of the witness or by evidence otherwise adduced." To the extent Appellant

argues his right to cross-examine Erway pursuant to this rule was infringed,

we find no reversible error for the same reasons discussed infra. See State

v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990) (to reverse a case based on

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In Smith, the defendant, charged with murder, sought to impeach an

eyewitness with pending criminal charges, which the trial judge disallowed.

Finding "nothing in the record to indicate that the attempted cross-

examination [was] improper,"7 we held, "it appears that Smith's Sixth

Amendment rights have been violated." 315 S.C. at 552, 446 S.E.2d at 414.

It is noteworthy that in Smith the judge had stopped the defendant's cross-

examination only after the witness generally admitted to having pending

charges, but before any more specific information was brought out. Smith

indicates a defendant may have a right to question a potentially biased

witness on more than just whether there are pending charges against the

witness.

However, we find that to the extent Appellant was entitled to further

question Erway, 8 any error is harmless. See id. (recognizing harmless error

analysis applies to Sixth Amendment violations).

Whether such an error is harmless in a particular case depends

upon a host of factors .... The factors include the importance

of the witness's 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.

Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686.

Erway was not the only eyewitness to the shooting who implicated Appellant

at trial. Furthermore, the judge did allow Appellant to question her about

the pending charges. See, e.g., Smith, 315 S.C. at 552-53, 446 S.E.2d at 414

(finding any Sixth Amendment violation harmless in part because witness

was impeached with general pending charges).

7 See State v. Graham, 314 S.C. 383, 385-86, 444 S.E.2d 525, 527 (1994)

(cautioning bench that before a criminal defendant can be prohibited from

engaging in cross-examination designed to show bias, "the record must clearly

show that the cross-examination is somehow inappropriate").

8 Smith did not elaborate on how much detail is allowable or required.

We likewise decline to address the proper scope of cross-examination on the

present record.

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On direct, Erway testified she had been convicted three or four times

for drug offenses. During cross, she readily admitted she was currently on

probation for drug-related charges and was a recovering drug addict. She

also admitted she had been recently charged with another criminal offense.9

She stated she fired her attorney two weeks before trial, and that she was

not currently represented on the pending charge. She denied having made

any deals with the Solicitor's office in exchange for her testimony. During

closing argument, counsel argued his theory of Erway's motive to the jury at

length. Therefore, under these facts, any error in limiting the scope of

Appellant's cross-examination would not warrant reversal.

We also find no Brady violation occurred under the facts of this case.10

"[T]he suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution." Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at

218. "[B]rady applies to impeachment evidence as well as exculpatory

evidence." State v. Von Dohlen, 322 S.C. 234, 241, 471 S.E.2d 689, 693

(1996) (internal citations omitted). However, "Impeachment or exculpatory

evidence is material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would

have been different." Id. See also State v. Penland, 275 S.C. 537, 539, 273

S.E.2d 765, 766 (1981) (Under Brady, "the test is not whether the solicitor

failed to reveal the information, but whether the omission deprived the

defendant of a fair trial.") (internal quotation omitted); Fradella v. Town of

Mount Pleasant, 325 S.C. 469, 479, 482 S.E.2d 53, 58 (Ct. App. 1997) ("the

mere possibility that an item of undisclosed information might have helped

the defense, or might have affected the outcome of the trial, does not

establish 'materiality' in the constitutional sense. . . ." "A defendant shows

a Brady violation by demonstrating that 'favorable evidence could [have been

presented] to put the whole case in such a different light as to undermine

confidence in the verdict."'). (internal citations omitted). Appellant was

allowed to present facts and argument regarding Erway's motive to testify to

show the jury how recent it was.

10Appellant knew not only that Erway had pending charges, but also

knew what those charges were. In this sense, his asserted Brady violation

is more limited than the error in limiting cross-examination. See State v.

Nance, 320 S.C. 501, 466 S.E.2d 349 (1996) (Brady applies to undisclosed

evidence held by the State).

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the jury. We therefore find no reversible error.

IV. Cumulative Error

Finally, Appellant argues the above-discussed issues on appeal, along

with the following additional trial error, had a cumulative prejudicial impact

that deprived him of a fair trial. We disagree.

Appellant argues the trial judge improperly refused to consider a

written statement, allegedly made by one of the State's eyewitnesses,

discovered after the jury began deliberating. We find this argument is

without merit. First, the statement is not in the record on appeal and

therefore this Court does not know exactly what information it contained.

See State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996) (burden is on

appellant to provide a sufficient record for review).11 In any event, it is clear

from the evidence in the record that the judge did consider the statement in

denying Appellant's post-trial motions.12

Finally, we find Appellant has suffered no prejudice warranting a new

trial based on cumulative trial error. "As we have stressed on more than one

occasion, the Constitution entitles a criminal defendant to a fair trial, not a

perfect one." Van Arsdall, 475 U.S. at 681, 106 S. Ct. at 1436, 89 L. Ed. 2d

at 684.

record on appeal by refusing to make the statement an appellate exhibit. We

disagree. When Appellant brought the statement to the judge's attention, the

jury was still deliberating. At this time, Appellant asked that the statement

be made an appellate exhibit. The judge refused to consider the issue at that

time, but told defense counsel he would look into it after the jury reached a

verdict. The judge stated he would allow defense counsel to put "anything

you want to on the record" after the jury's verdict. The merits of the

argument were considered during the post-trial motions hearing. Appellant

never attempted to have the statement admitted at this hearing.

12 He found the statement, which apparently would have contradicted

either the witness's police statement or his trial testimony, was of

questionable probative value because it was unsworn, undated and

unnotarized. He also found it was cumulative to other evidence produced at

trial, specifically that the witness admitted on the stand that he made

inconsistent statements.

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AFFIRMED.

FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.

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