State v. Clark

Toal, Justice,

dissenting:

I respectfully dissent. The majority admits that Clark’s right to confront the witness against him was violated but finds the error harmless beyond a reasonable doubt. The majority makes this determination based upon the witness’ testimony that he did not know anything about the drugs found in his automobile while the automobile was in Clark’s possession. The majority then applied the factors enumerated in Delaware v. Van Arsdall, 475 U.S. 673, 680 , 106 S.Ct. 1431, 1436 , 89 L.Ed. (2d) 674, 684 (1986) and found none of the Van Arsdall factors applicable. The majority relies on Van Arsdall for the proposition that a violation of the defendant’s confrontation clause right to cross-examine the witness is always harmless error unless the error falls squarely into one of the enumerated factors in Van Arsdall . I disagree.

Whether a constitutional error is harmless in any particular case depends on the facts and circumstances of each case. See Sullivan v. Louisiana, — U.S. —, 113 S.Ct. 2078 , 124 L.Ed. (2d) 182 (1993) (appellate court must de novo review the *483 record to determine effect of error). The United States Supreme Court in Van Arsdall, 475 U.S. 673 , 106 S.Ct. 1431 , 89 L.Ed. (2d) 674 (1986), held that whether the denial of the defendant’s constitutional right to confront the witness was harmless error depends on a “host of factors.” Van Arsdall , at 684, 106 S.Ct. at 1438 , 89 L.Ed. (2d) at 686. A mechanical application of the Van Arsdall factors is, in my view, contrary to Van Arsdall and this Court’s prior opinions. Id. at 684 , 106 S.Ct. at 1438 , 89 L.Ed. at 686; Arnold v. State, — S.C. —, 420 S.E. (2d) 834, 839 (1992) cert. denied, — U.S. —, 113 S.Ct. 1302 , 112 L.Ed. (2d) 691 (1993).

In Van Arsdall v. State, 486 A. (2d) 1 (Del. 1985) rev’d 475 U.S. 673, 680 , 106 S.Ct. 1431, 1436 , 89 L.Ed. (2d) 674, 684 (1986), the Delaware Supreme Court held that a violation of the defendant’s Sixth Amendment right to confront the witness was a per se error which required reversal. The United States Supreme Court reversed and remanded the case to the Delaware Supreme Court for a harmless error determination. Delaware v. Van Arsdall, 475 U.S. 673, 680 , 106 S.Ct. 1431, 1436 , 89 L.Ed. (2d) 674, 684 (1986). On remand, the Delaware Supreme Court found that the error was not harmless. Van Arsdall v. State, 524 A. (2d) 3 (Del. 1987). 1

Van Arsdall was prohibited from questioning the prosecution’s witness about a pending indictment for public drunkenness which was dismissed in exchange for the witness’ testimony. The prosecution’s witness testified that he saw Van Arsdall shortly before the murder sitting on a bed in the apartment where the murder occurred. The Delaware Supreme Court recognized that the witness’ “testimony, standing alone, appears to have established nothing with regard to the fact of Van Arsdall’s presence at the scene of the crime which could have had an effect on the jury’s verdict.” Id. at 11. Van Arsdall admitted he was present when the victim was killed. Id. at 5-6. If, however, the prosecution’s witness was not telling the truth, then the converse of the witness’ testimony may have been true, in which case, the *484 Delaware Supreme Court held that the jury may have found Van Arsdall’s version of events more plausible. 2

Logically, the case at bar is remarkably similar to Van Arsdall . Here the State’s witness was under indictment in the same circuit for murder. The trial judge prohibited Clark from bringing to the attention of the jury the possible bias of the witness as a result of the pending murder indictment. The automobile where the drugs were found belonged to the State’s witness who testified that he did not know anything about the drugs. Clark also testified that he had no knowledge of the drugs found in the automobile. As in Van Arsdall , Clark’s co-defendants were acquitted by the jury.

Had Clark been able to show the possible bias on the part of the witness, the jury may not have believed the State’s witness’ testimony. If the jury did not believe the State’s witness knew nothing of the drugs, logic dictates that the jury conclude the witness knew about the drugs. See Van Arsdall, 524 A. (2d) at 11. Under such circumstances, the jury may have acquitted Clark, as they did Clark’s co-defendants.

In order for a constitutional error to be harmless, the error must have been harmless beyond a reasonable doubt. Arnold v. State, — S.C. —, 420 S.E. (2d) 834 (1992). The phrase “harmless beyond a reasonable doubt” means that the error, beyond a reasonable doubt, did not contribute to the verdict. Id. In making this determination, the reviewing court must review the entire record to determine what effect the error had on the verdict. See e.g. Id. The only evidence presented by the prosecution of Clark’s intent to distribute the controlled substance was Clark’s possession of the automobile where the drugs were found. The jury was required to infer Clark’s intent to distribute the drugs from the weight of the drugs found in the automobile. I cannot hold beyond a reasonable doubt the jury would have inferred Clark’s guilt of possession with the intent to distribute if the jury thought the owner of the automobile may have owned the drugs. Thus, I cannot conclude beyond a reasonable doubt the error did not contribute to the verdict.

*485 I would reverse and remand for a new trial.

Finney, J., concurs.

On remand from the United States Supreme Court, the Delaware Supreme Court based its holding on Delaware state law. The standard for harmless error review in Delaware, however, is the same as the federal standard. See Van Arsdall v. State, 524 A. (2d) 3, 10 (Del. 1987) (citing Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed. (2d) 705 (1967)).

Van Arsdall testified that his co-defendant killed the victim while Van Arsdall attempted to aid the victim. Van Arsdall’s co-defendant was acquitted in a separate trial. Van Arsdall v. State, 524 A. (2d) 3 (Del. 1987).