State v. Pradubsri – cross-examining the snitch as to charges, potential sentences, and plea-bargaining

In State v. Pradubsri, decided May 1, 2013, the S.C. Court of Appeals re-affirmed that a defendant must be permitted to cross-examine a cooperating witness on the length of any potential sentence of the witness’ charges, even though it may inform the jury as to the potential sentence that the defendant faces.  In this case, the co-defendant’s charges were reduced from trafficking in crack cocaine 28-100 grams, which had a mandatory minimum sentence of 7 years and carried up to 30 years, and she was permitted to plead guilty to a lesser included offense and a sentence of 18 months.

The Court held that it was not harmless error, and the defendant’s convictions for (1) trafficking crack cocaine in an amount of twenty-eight grams or more but less than one hundred grams, (2) possession with intent to distribute (PWID) crack cocaine within proximity of a school, and (3) unlawful carrying of a pistol were reversed.

Pradubsri maintains the restriction on cross-examination regarding Martin’s exact potential legal exposure prior to her acceptance of the State’s plea offer violated his Sixth Amendment right to confrontation and was in contravention of our supreme court’s decision in State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002). We agree.

“The jury is, generally, not entitled to learn the possible sentence of a defendant because the sentence is irrelevant to finding guilt or innocence.” Id. at 331, 563 S.E.2d at 318. “However, other constitutional concerns, such as the Confrontation Clause, limit the applicability of this rule in circumstances where the defendant’s right to effectively cross-examine a co-conspirator witness of possible bias outweighs the need to exclude the evidence.” Id. at 331-32, 563 S.E.2d at 318. . . .

“A defendant has the right to cross-examine a witness concerning bias under the Confrontation Clause.” Id. at 331, 563 S.E.2d at 317. “On cross-examination, any fact may be elicited which tends to show interest, bias, or partiality of the witness.” Id. (internal quotation marks omitted).

South Carolina and federal appellate courts have consistently held that a defendant has the right to cross-examine a cooperating witness on the mandatory minimum and maximum sentences that the witness faces, whether they have already pled and were sentenced or if the charges are still pending, whether there is a “plea agreement” or not, or even when the cooperating witness could have been charged but was not.

In State v. Brown, 303 S.C. 169, 399 S.E.2d 593, (1991), the S.C. Supreme Court held it was reversible error not to permit the defendant to cross examine a co-defendant whose charges had been reduced from trafficking in cocaine to conspiracy, on the potential penalties the co-defendant faced on the original trafficking charges – the defendant’s right to meaningful cross-examination outweighs the State’s interest in excluding the evidence.

In State v. Elijah Smith, 315 S.C. 547, 446 S.E.2d 411 (S.C. 1994), the S.C. Supreme Court held it was error not to permit cross-examination of an eyewitness about his pending but unrelated charges; in this case it was harmless error because there were multiple witnesses and because the jury heard the question anyway before it was objected to.

In State v. Jeffrey Jones, 343 S.C. 562, 541 S.E.2d 813 (S.C. 2001), the S.C. Supreme Court held it was reversible error, in the guilt phase of a capital trial, to not allow defense counsel to cross-examine a cooperating witness regarding prior plea bargaining with the prosecutor’s office in unrelated cases, where the defense “sought to explore past dealings between Brown and the office prosecuting the current charges, not to impeach Brown through those dismissed charges, but rather to expose Brown’s bias and prejudice in the present case. This excluded evidence had “a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity” of Brown’s testimony.”

In State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002), the co-defendant had the same charges that the defendant had, the charges were still pending, the co-defendant had no “plea agreement” with the state, and the S.C. Supreme Court held it was reversible error not to permit the defendant to cross-examine the co-defendant on the potential sentence that they faced.

In State v. Sims, 348 S.C. 16, 558 S.E.2d 518 (S.C. 2002), the S.C. Supreme Court held that it was error (harmless error in this case) not to allow cross-examination as to what a witness’ pending charges were – although the witness admitted he had charges, and stated there was no agreement with the state, the defendant has the right to ask what the charges are and the potential penalties.  “There was the substantial possibility Peterson would give biased testimony in an effort to have the solicitor highlight to his future trial judge how he had cooperated in the instant case. The excluded evidence had “a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity” of Peterson’s testimony, State v. Jones, supra. Therefore, under these circumstances, we find the trial court committed error under Rule 608(c) by improperly limiting the scope of appellant’s cross-examination.”

In State v. Gracely, 399 S.C. 363, 731 S.E.2d 880 (2012), the S.C. Supreme Court held that the defendant must be permitted to question the co-defendants not only as to the potential maximum sentence but also as to the mandatory minimum sentences that they faced.  “The fact that a cooperating witness avoided a mandatory minimum sentence is critical information that a defendant must be allowed to present to the jury.” Id. at 374-75, 731 S.E.2d at 886.

The defense in Pradubsri preserved the record by arguing that the Sixth Amendment right to confrontation was violated, but it is not clear from the opinion whether defense counsel cited to the cases:

The State objected to this testimony as being irrelevant, but Pradubsri argued that pursuant to his right to confrontation under the Sixth Amendment, he was allowed to elicit this testimony from Martin. Further, Pradubsri contended case law supported his argument.

“Contended case law supported his argument,” is not quite as compelling as “citing numerous cases that supported his argument” would have been, assuming that the prosecutor and judge did not already know that the cross-examination was proper.

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