State v. Warren

GOOLSBY, Judge

(concurring and dissenting):

I concur with Parts I and II of the majority opinion. I disagree with the holding set forth in Part III and, therefore, respectfully dissent. I would affirm the defendant James Warren’s conviction.

Warren argues an ongoing Lyle error resulted from the admission of evidence of allegations of prior sexual abuse made by Christy’s sister Brandy. The evidence of which Warren complains was admitted at least ten times without objection, sometimes elicited by the defendant himself.1 *613When the State attempted on other occasions to admit the same evidence, the effort was met with an objection. Each time defense counsel objected on the ground that the testimony constituted inadmissible prior-bad-act evidence, the court sustained the objection. Further, when counsel requested a curative instruction, the trial court instructed the jury to disregard the testimony.2

At the close of trial, Warren’s counsel requested the following jury charge:

The mere inference or suggestion of a prior bad act is never proof that the crime with which a defendant is charged actually happened. You must weigh all the evidence presented as it pertains to the crime for which the defendant is charged. What did or did not happen in the past, as it relates to other persons and the defendant, is not evidence as to whether the defendant is guilty of this charge. Alleged prior bad acts, as presented in this case, should not be considered as any proof that this crime was committed by the defendant.

Defense counsel explained to the court that the charge addressed Brandy’s cross-examination and introduction of her pre-trial statement (to which defense counsel did not object). The trial court refused to give the requested charge but added charges on moral turpitude and good character of the defendant.

I would hold the trial court did not abuse its discretion in failing to give a limiting instruction because (1) the court gave a sufficient curative instruction when an appropriate objection was raised to the challenged evidence and when a curative instruction was contemporaneously requested and (2) the challenged evidence, when met with no objection, came in without limitation.

Regarding the first reason why the trial court did not abuse its discretion, the requested charge was simply an instruction to disregard evidence of alleged prior bad acts, and the court *614had already given a charge of the kind requested upon sustaining an objection based on that ground.

The majority misinterprets my analysis on this point. When Christy testified regarding Brandy’s allegations, the trial court sustained Warren’s objection and gave a curative instruction. Because Warren did not object to the curative instruction or move for a mistrial, the error is deemed cured and no later curative charge is necessary. See State v. George, 323 S.C. 496, 510, 476 S.E.2d 903, 911-12 (1996) (“If the trial judge sustains a timely objection to testimony and gives the jury a curative instruction to disregard the testimony, the error is deemed to be cured. No issue is preserved for appellate review if the objecting party accepts the judge’s ruling and does not contemporaneously make an additional objection to the sufficiency of the curative charge or move for a mistrial.”), cert. denied, — U.S.-, 117 S.Ct. 1261, 137 L.Ed.2d 340 (1997). As a matter of law, then, when Warren failed to object to the curative instruction or move for a mistrial, he agreed that any error, and thus any prejudice, was cured.

I agree with the majority that the curative instruction that the trial court gave could not have cured subsequent references to Brandy’s allegations; however, because the trial court apparently agreed that allegations made by Brandy had no place in the trial on Christy’s abuse, it never would have been “necessary for defense counsel to cross-examine witnesses on these allegations and to refute the testimony by calling Brandy as a witness,” as the majority asserts, if Warren had raised appropriate objections to the “repeated references to Brandy’s case.”

Warren’s failure to object to evidence regarding Brandy’s allegations allowed the trial court to admit the evidence and to do so without limitation. This made a curative instruction at the end of the trial totally unnecessary. The trial court must instruct the jury to limit its consideration of evidence to the particular purpose for which it is offered. State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950). The challenged evidence was admitted at least ten times without objection and without limitation; therefore, it was not offered for a particular purpose.

*615Furthermore, a failure to make a proper contemporaneous objection to the admission of evidence cannot, as Warren attempts to do here, be “bootstrapped” by a subsequent request for a limiting instruction. See State v. Vaughn, 124 Idaho 576, 861 P.2d 1241 (Ct.App.1993) (holding refusal to charge requested limiting instruction not error when defendant neither objected to evidence nor requested limiting instruction when the evidence was offered); People v. Herr, 203 A.D.2d 927, 611 N.Y.S.2d 389 (1994) (holding refusal to charge instruction on voluntariness of defendant’s statement not error when defendant failed to object to admission of the statement), aff'd, 86 N.Y.2d 638, 635 N.Y.S.2d 159, 658 N.E.2d 1032 (1995); cf. State v. Moultrie, 316 S.C. 547, 451 S.E.2d 34 (Ct.App.1994) (finding a failure to make a proper contemporaneous objection to the admission of evidence cannot be bootstrapped later by a motion for mistrial).

I disagree with the majority’s application of State v. Smalls, 260 S.C. 44, 194 S.E.2d 188 (1973), to the facts of this case. In particular, I do not agree with the majority’s contention that Warren’s counsel was placed in a situation similar to defense counsel in that case. In Smalls, the defendant testified on direct about his prior convictions to avoid an inference that he was trying to conceal them because the prosecution would likely offer them as impeachment evidence.

First, Smalls and the other cases cited by the majority3 are distinguishable because the evidence in those cases related to impeachment of the defendant; the evidence here was neither offered by the State to impeach Warren nor offered by Warren to anticipate impeachment. Further, in the cases cited by the majority, the defendant’s first opportunity to raise the issue of limiting the jury’s consideration of evidence was when jury charges were submitted to the court. Here, Warren could have objected and asked for instructions as necessary.

More important, the majority incorrectly assumes that “once the jury heard th[e] evidence [of prior sexual abuse of *616Brandy], even though the judge gave a curative instruction, defense counsel apparently concluded as a matter of trial strategy that Warren had to introduce testimony denying the allegations.” The record before us reveals that after the jury heard the challenged evidence but before the court instructed the jury to disregard it, Warren’s counsel informed the court that she did not intend to use Brandy’s allegations at all. The following exchange occurred between Warren’s counsel, Ms. Hardee, and the court:

THE COURT: Well, think, now. Because if you tell me you are not going to bring it up, I might think about not letting the solicitor ask that question.
MR. LEIENDECKER (co-defense counsel): She’s already asked the question in front of the jury.
THE COURT: Well, I realize — well, then, you object to it? How do you want me to cure it?
MS. HARDEE: Stopping the State in regards to that line of questioning.
THE COURT: All right. Now, if I stop her, are you not going to bring out in your defense the fact that both of them brought it against him and one of them was dropped?
MS. HARDEE: Sir, to tell you that, that was not my plan to—
THE COURT: Do you want to argue it? I don’t mind you arguing.
MS. HARDEE: Your Honor, that was not my plan to do that. This is Christy’s case.
THE COURT: Are you telling me if I keep it out now you’re not going to bring it in. Is that what you’re telling me?
MS. HARDEE: No sir. I mean, yes, I’m not going to bring it in. My intention was not to bring Brandy in this case. She is here to testify; however, she’s not here to testify in regards to her allegations, not at all.
THE COURT: Do you want me to try to correct this for the jury?
MS. HARDEE: Yes, sir.
*617THE COURT: And [what] would you like for me to tell the jury?
MS. HARDEE: The basic thing — Oh God, they already hear[d] it, disregard.

(Emphasis added.)

The court then charged the following:

Now, Mr. Foreman, members of the jury, there was some exchange of involving a sister of this defendant, of this young lady. That doesn’t have anything to do with this case so just disregard that. I don’t know anything about it, and I’m not going to try anything else even if there is anything else.

Warren’s counsel then responded, “All right.”

I would affirm.4

. The majority opinion sets out the instances in which the questioned evidence was admitted without objection.

. Defense counsel also objected to other attempts by the State to admit the same evidence but did not argue that the evidence was inadmissible as a prior bad act. The trial court overruled these objections and allowed the testimony without limitation. These objections form no basis for Warren's appeal.

. Namely, State v. Peterson, 287 S.C. 244, 335 S.E.2d 800 (1985), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State v. Staley, 294 S.C. 451, 365 S.E.2d 729 (1988); and State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950).

. It is unnecessaiy to address, as the State urges this court to do, whether the trial court properly denied the requested charge because it was an improper comment on the facts and a misstatement of the law.