The Supreme Court of South Carolina
In the Matter of the Care and Treatment of Vincent Neal
Way, Petitioner/Respondent,
v.
The State of South Carolina, Respondent/Petitioner.
Appellate Case No. 2011-199686
Lower Court Case No. 2007-CP-1002613
ORDER
The State's petition for rehearing is denied. This Court does, however, substitute
the attached, amended majority and concurring opinions previously filed in this
matter. The substantive changes are to the legal analysis regarding the dismissal of
certiorari as to the State in section III(B) of the original majority opinion and in
footnote 3 of the original concurring opinion.
s/ Jean H. Toal C.J.
s/ Costa M. Pleicones J.
s/ Donald W. Beatty J.
s/ John W. Kittredge J.
s/ Kaye G. Hearn J.
Columbia, South Carolina
November 12, 2014
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of the Care and Treatment of Vincent Neal
Way, Petitioner/Respondent,
v.
The State of South Carolina, Respondent/Petitioner.
Appellate Case No. 2011-199686
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Charleston County
The Honorable Deadra L. Jefferson, Circuit Court Judge
Opinion No. 27444
Heard November 20, 2013 – Re-Filed November 12, 2014
AFFIRMED AS MODIFIED IN PART;
CERTIORARI DISMISSED IN PART AS
IMPROVIDENTLY GRANTED
Appellate Defender LaNelle Cantey Durant, of
Columbia, for Petitioner/Respondent.
Attorney General Alan Wilson and Assistant Attorney
General William M. Blitch, both of Columbia, for
Respondent/Petitioner.
JUSTICE BEATTY: A jury found Vincent Neal Way met the definition of
a sexually violent predator (SVP) under South Carolina's SVP Act, S.C. Code Ann.
§§ 44-48-10 to -170 (Supp. 2013). The circuit court ordered Way to begin
involuntary civil commitment for long-term control, care, and treatment in the SVP
treatment program administered by the South Carolina Department of Mental
Health. Way appealed, and the Court of Appeals affirmed. In re the Care &
Treatment of Way, Op. No. 2011-UP-268 (S.C. Ct. App. filed Aug. 24, 2011).
This Court granted cross petitions for a writ of certiorari filed by Way and the
State. As to Way's appeal, we affirm as modified, and we dismiss the State's
petition for a writ of certiorari as improvidently granted.
I. FACTS
In 1993, Way pled guilty to committing a lewd act on a minor. The victim
was Way's 13-year-old niece, who was spending the night with Way (who was
then about 28 years old) and his wife. The victim reported that Way put his hand
inside her clothing while she was sleeping on the couch and fondled her, kissed her
thigh, and then laid on her and "began humping her." Way was sentenced to ten
years in prison, suspended upon the service of eighteen months in prison and five
years of probation.
In 1995, while on probation, Way pled guilty to contributing to the
delinquency of a minor. In that matter, Way allowed two girls who were
runaways, one 13 and one 15, to spend the night at his home without notifying the
police.
While still on probation in 1997, Way pled guilty to committing a lewd act
upon a minor. The victim was a 13-year-old girl, who reported that Way met her
at a boat dock in 1995 and gave her marijuana, then had sexual intercourse with
her. Way was sentenced to fifteen years in prison for this offense.
In 2007, prior to his release from prison, Way was referred to the
multidisciplinary team, which determined there was probable cause to believe Way
met the statutory definition of an SVP.1 The multidisciplinary team referred Way's
1
An SVP is defined as "a person who: (a) has been convicted of a sexually
violent offense; and (b) suffers from a mental abnormality or personality disorder
that makes the person likely to engage in acts of sexual violence if not confined in
a secure facility for long-term control, care, and treatment." S.C. Code Ann. § 44-
48-30(1)(a)-(b) (Supp. 2013).
case to the prosecutor's review committee, which filed a petition with the circuit
court for civil commitment proceedings. The circuit court concluded probable
cause existed and ordered a mental evaluation of Way to be performed by Dr.
Donna Schwartz-Watts. Dr. Schwartz-Watts performed an evaluation and was the
State's expert. Way also obtained an independent mental evaluation by an expert
of his own choosing, Dr. Tom Martin.
At the civil commitment proceeding in 2009, Dr. Schwartz-Watts testified
that she believed Way suffered from a mental abnormality or personality disorder
as defined by the SVP Act. Specifically, she diagnosed him as having a sexual
disorder, not otherwise specified, based on his prior sexual history with several 13-
year-old girls. She also diagnosed Way as having amnesia (for events prior to
1994) based on a head injury he sustained in a car accident in 1994. She found,
however, that any memory loss was not due to brain damage because testing
revealed Way has "a high average IQ."
Dr. Schwartz-Watts stated her evaluation indicated Way was likely to re-
offend. In particular, she noted his subsequent offenses occurred while he was still
on probation and the incidents occurred in places where others were present, which
showed Way had an inability to control his impulses.
Just before Way testified, Way's counsel renewed a motion to preclude the
State from mentioning the fact that Way had seen an expert of his own choosing,
Dr. Martin, who would not be testifying. Counsel acknowledged Way saw Dr.
Martin and was evaluated, but stated the doctor did not make a report of his
findings.
The circuit court observed that one can always comment about a witness
who is not called, and that it is done every day in criminal and civil cases. Way's
counsel countered that the inference usually applies to fact witnesses, whereas
here, they consulted an expert for an evaluation in accordance with a statute that
made the funds available for a second evaluation. The court disagreed, stating the
statute merely creates a right. The court explained, "I don't think there is anything
that precludes the State from asking him, did you demand to be evaluated, to have
an independent evaluation, and was that evaluation done? I think that ends the
inquiry."
During cross-examination, the State asked Way if, "in preparation for this
hearing, you were transported . . . from the jail to Columbia to see a Dr. Martin to
be evaluated for these proceedings," and Way confirmed that he was transported to
see a doctor and that he was asked questions and had evaluations, but he did not
recall any specifics.
In closing argument, the State made the following additional reference to Dr.
Martin and invoked what is commonly called the "missing witness rule," arguing
the jury could infer the absence of Dr. Martin indicated that his testimony would
have been adverse to Way:
Now on cross-examination I asked the respondent, did you go
to be evaluated by Dr. Martin pursuant to this case?
....
Now Dr. Martin is not here. And the question, I think the
inference you can draw from that is would Dr. Martin's testimony, if
he was here, be adverse to the respondent? So, that's where we are.
At the conclusion of the evidence, the jury found Way met the definition of
an SVP, and the circuit court ordered him to be civilly committed for long-term
control, care and treatment. Way appealed, and the Court of Appeals affirmed.
This Court granted cross-petitions for certiorari by Way and the State regarding the
State's cross-examination of Way and its closing argument.
II. STANDARD OF REVIEW
"In an action at law, on appeal of a case tried by a jury, the jurisdiction of
the appellate court extends merely to the correction of errors of law." Carson v.
CSX Transp., Inc., 400 S.C. 221, 229, 734 S.E.2d 148, 152 (2012). "The scope of
cross-examination rests largely in the discretion of the trial court." Duncan v. Ford
Motor Co., 385 S.C. 119, 133, 682 S.E.2d 877, 884 (Ct. App. 2009) (citation
omitted). Likewise, "[a] trial court is allowed broad discretion in dealing with the
range and propriety of closing argument to the jury." O'Leary-Payne v. R.R. Hilton
Head, II, Inc., 371 S.C. 340, 352, 638 S.E.2d 96, 102 (Ct. App. 2006).
"An abuse of discretion occurs when the trial court's ruling is based on an
error of law or, when grounded in factual conclusions, is without evidentiary
support." Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). To
warrant reversal, an appealing party must demonstrate not only error in the court's
ruling, but also resulting prejudice. Id. at 390, 529 S.E.2d at 539; see also Duncan,
385 S.C. at 133, 682 S.E.2d at 884 (stating reversal requires a showing of both a
manifest abuse of discretion and prejudice).
III. LAW/ANALYSIS
The pertinent issues before the Court of Appeals concerned (1) the cross-
examination of Way, during which the State asked Way whether he had another
evaluation performed by Dr. Martin; and (2) the State's closing argument, in which
it argued an adverse inference could be taken by the jury from Dr. Martin's absence
at trial. The Court of Appeals "agree[d] with the trial court's decision to allow the
State to cross-examine Way regarding a second mental evaluation, [but] h[e]ld it
was improper for the State to imply a negative inference regarding the absence of
Way's expert witness before the jury." In re the Care & Treatment of Way, Op.
No. 2011-UP-268 (S.C. Ct. App. filed Aug. 24, 2011), slip op. at 4. However, the
Court of Appeals affirmed on the basis of harmless error. Id. at 6.
A. Way's Appeal
In his appeal, Way challenges the propriety of both the State's cross-
examination of Way and its invocation of the missing witness rule in closing
argument.
We disagree with the Court of Appeals to the extent it found it did not
constitute error for the State to question Way about Dr. Martin. The Court of
Appeals found this issue should properly be addressed according to the South
Carolina Rules of Evidence (SCRE) and established precedent. Id. at 4. The court
noted all relevant evidence is generally admissible under Rule 402, SCRE, yet
relevant evidence may be excluded under Rule 403, SCRE if its probative value is
substantially outweighed by the danger of unfair prejudice. Id. The court also
cited precedent for the proposition that a trial judge has wide latitude in the
admissibility of evidence, and that an appellate court reviews such rulings based on
an abuse of discretion standard. Id. (citing, inter alia, State v. Torres, 390 S.C.
618, 703 S.E.2d 226 (2010)).
While the Court of Appeals was correct that the admission of this testimony
is governed by the SCRE and our case law, for the reasons discussed in another
decision issued by this Court, In re the Care & Treatment of Gonzalez, Op. No.
27443 (S.C. Sup. Ct. filed Sept. 3, 2014) (Shearouse Adv. Sh. No. 35 at 31), we
find the probative value of questioning Way about his retention of a non-testifying
psychiatric expert was substantially outweighed by the danger of unfair prejudice.
See Rule 403, SCRE ("Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence."). As a
result, we conclude the State should not have been allowed to cross-examine Way
about his retention of his non-testifying expert witness, Dr. Martin.
We further conclude that it was error to allow the State to assert during
closing argument that the jury could infer the missing witness's testimony would
have been adverse to Way's case. The Court of Appeals found it was error because
when a party lacks control over the retained expert witness, an adverse inference is
improper. Way, No. 2011-UP-268, slip op. at 5. As we explained in Gonzalez, we
believe invocation of the missing witness rule should be limited to fact witnesses,
and it should not be invoked as to medical, psychological, psychiatric, or similar
medical expert opinion witnesses. The application of an adverse inference as to
these types of experts allows a jury to simply speculate as to what the expert might
have said. In our view, an adverse inference is not appropriate regarding the
opinions held by medical, psychological, psychiatric, or similar medical experts, as
the condition of a party is based upon numerous complex factors that do not
readily lend themselves to being reduced to a discrete, adverse inference, as
compared to a fact witness.
That being said, however, we must next examine whether the errors as to the
State's cross-examination and closing argument constitute reversible error under a
harmless error analysis. "Error is harmless where it could not have reasonably
affected the result of the trial." Judy v. Judy, 384 S.C. 634, 646, 682 S.E.2d 836,
842 (Ct. App. 2009). "Generally, appellate courts will not set aside judgments due
to insubstantial errors not affecting the result." Id. (citing State v. Sherard, 303
S.C. 172, 176, 399 S.E.2d 595, 597 (1991)). "No definite rule of law governs this
finding; rather, the materiality and prejudicial character of the error must be
determined from its relationship to the entire case." Id. (citation omitted).
In this case, the Court of Appeals held any error was harmless beyond a
reasonable doubt, stating "[e]vidence of Way's prior sexual criminal history, the
testimony of the State's expert witness, and the testimony of the victim of Way's
1993 [] offense provided relevant and substantive evidence to support the jury's
determination." Way, No. 2011-UP-268, slip op. at 6.
During cross-examination, the State asked Way if he had seen Dr. Martin for
an evaluation, and during cross and closing the State never referred to Dr. Martin
as Way's expert or mentioned that Way had retained Dr. Martin for an independent
evaluation but then did not call him as a witness, so there was only limited
information elicited at trial in this regard. All of the information regarding Dr.
Martin's role as Way's expert was confined to the colloquy among the parties and
the circuit court. In addition, Way was not prevented from rebutting the adverse
inference if he deemed it necessary. See Dansbury v. State, 1 A.3d 507, 522 (Md.
Ct. Spec. App. 2010) ("Where a party raises the missing witness rule during
closing argument, its use is just that—an argument. . . . Furthermore, the opposing
side also has an opportunity to refute the argument and counter with reasons why
the inference is inappropriate." (alteration in original) (citation omitted)).
Consequently, we agree with the Court of Appeals that any error could not have
reasonably affected the outcome here.
B. The State's Appeal
The State has also filed a cross-petition for a writ of certiorari in this case.
However, we now dismiss the writ of certiorari as to the State as improvidently
granted.
IV. CONCLUSION
Based on the foregoing, the decision of the Court of Appeals is affirmed as
modified as to Way's appeal, and we dismiss the writ of certiorari as to the State.
AFFIRMED AS MODIFIED IN PART; CERTIORARI DISMISSED
IN PART AS IMPROVIDENTLY GRANTED.
TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J.,
concurring in result only in a separate opinion.
JUSTICE PLEICONES: I agree with the majority that it was error for the trial
judge to permit the State to invoke the missing witness rule2 for the reasons set
forth in my concurrence In the Matter of Gonzalez, Op. No. 27443 S.C. ___, ___
S.E.2d ___, 2014 WL (S.C. Sup. Ct. filed September 3, 2014) (Pleicones, J.,
concurring). I also agree the error was harmless.3 I therefore concur in result only
and would affirm the Court of Appeals' decision as modified.
2
I disagree with the majority's discussion of Rule 403. As I understand the
majority's opinion in Gonzalez, the missing witness rule can never be invoked for
opinion witnesses. Therefore, a Rule 403 analysis is unnecessary. Likewise, I
would find the majority's distinction between the invocation of the rule on cross-
examination or during closing argument unnecessary.
3
Unlike the majority, I do not base my harmless error finding on the fact that Way
could have rebutted the adverse inference if he deemed it necessary.