Appellate Oral Argument | South Carolina Court of Appeals | Evidence Exclusion Issue

Good morning, please be seated.

Madam Clerk, court calls case number 2021-000457, the State versus Christopher P. Cooper.

Thank you. Ms. Franklin Best.

Good morning, Judge Gathers, and members of the court, and may it please the court. Christopher Cooper's jury never heard relevant and probative evidence that impeached the complainant's credibility, and her version of events. Specifically, the numerous discussions between the complainant and Cooper's brother, that they had regarding money, that might have been exchanged in return for the complainant's intention to, quote, like, help the appellant out. What counsel was attempting to show with this evidence was that the purported victim was motivated by money, which the jury could have considered in assessing whether these crimes even happened, or the extent to which criminal activity occurred. Arguably, if they didn't fully believe her, they may have found that the Coopers entered the house, but maybe there was consensual sexual conduct, they could have found any number of other things. What makes the evidence so probative is that there were a series of contacts between the brother and the complainant. This was not some one-off remark or one brief encounter. Even under the state's version of events, there were multiple contacts between the complainant and Cooper's brother that centered on money., and the jury should have been allowed to consider that, and then accord it any weight that they wanted to.

Well, don't they have to make some strong inferences one way or the other? There's no direct evidence here. There's not like a tape recording, or anything like that, of the conversations they're having, other than that one that she made, which really doesn't seem to have anything that would leap out at anyone listening to it, to give them reason to infer that they're discussing a bribe, or extortion.

Right. Well, and part of that is because the judge never heard from her during the trial. I mean, as they're trying to proffer this and sort of make a determination, like the extent to which these contacts happened, they heard from Mr. Earl Cooper. But even though the complainant was there, they never called her. I mean, the Attorney General's Office gave its version, its characterization of what happened.

Well, did counsel ask that the court consider consider her testimony, and did he ask to be allowed, or she asked to be allowed, to present that testimony to the court?

Well, I think— well, I don't know that she would have wanted to, but the Attorney General's Office, you know, sort of took the lead here and said, you know, Your Honor, here's what this is going to show, and they just sort of, you know, led with that. But no, I mean, she, she was there. She did not testify. He put up Mr. Cooper, Earl Cooper, to testify, but no, he did not call her.

It was sort of offered in this posture, right, of we would like to ask her whether she's offered to pay, offered to make the charges go away for money, and if she says no, we would like to introduce this as extrinsic impeachment evidence, right? That was the posture?

Yes, that was the posture. That's correct. But whether a witness, um, and here the key witness was perhaps motivated by money to color or change her version of events is a prototypical form of bias, and counsel should have been allowed to explore that with the jury. You look— I'm sorry, Judge, you had—

No, no, no, I'm sorry. I'm sorry for my facial expressions derailing you.

Sorry. But this was far from a collateral matter, as the whole basis of the prosecution here was this complainant's testimony, and then Cooper's statement, There was also physical proof that they had oral intercourse, but as to whether or not this intercourse was actually rape, the sole evidence on that particular charge came from the purported victim. Now, the South Carolina Supreme Court's opinion in State v. Finley is, I would submit, Your Honor, sort of on four, all fours with this case. In that case, the court found it reversible error to exclude evidence that could impeach a witness's testimony as to a material issue. And that's what this was. Did the complainant turn what may have been a consensual encounter into rape, in order to extort money from the Coopers?

Do I recall correctly that Findlay had a recording?

There was a recording in Findlay, but Your Honor, I mean, there was a recording here, as well.

But, different kinds of recordings, though, right?

But, there was, again, some evidence to show that these things happened. I mean, I don't think Findlay sort of rested on the quality of the recording. I mean, here there were clearly recordings. There were also— I mean, this is very significant. I mean, they had investigators. They had two different investigators who were involved in this, um, you know, whether it's extortion, whether it's bribery, whatever it is. I mean, there were two investigators. There were, you know, interviews with these people. I mean, this was not— again, it was not a one-off. I mean, this was a series of events, contacts between these two parties, and that's what takes it from being collateral, to being probative. It's because there were, you know, intense efforts to try to exchange money in this case.

What about the Court's concern that this could have as much, or maybe more damage to the defendant, than it could in terms of impeaching the credibility of the victim?

Well, I mean, I believe, Your Honor, that, I mean, it's up to the jury to make those decisions. I mean, it's not up to the trial court to keep away from the jury evidence that's probative and material to the issues in the case. I mean, again, you know, I think that's what the State would have argued. I mean, I think the State could have made these negative inference arguments to the jury, and, you know, argued that maybe it cut against Mr.

Cooper, Doesn't that kind of go to the court's concern that it was a trial within a trial, that was going to potentially confuse or mislead the jury, as it was attempting to get to the primary issue in this case?

But, I think this is the primary issue. It is one of the primary issues. I mean, the fact that there were these numerous contacts, the fact that there was this investigation, was at the complainant's, um, I mean, it was because of her. I mean, even under the, Attorney General's version of what happened there, if you believe everything that they recounted to the court, which is that Earl Cooper came into this Platinum West, and they had this initial contact, but then he left. Even the state concedes that she went to where he works the very next day, and that began all of these conversations. I mean, again, it was inconvenient, right? I mean, there were numerous contacts,, and you can tell from the transcript that the Attorney General's Office really just didn't want to kind of get into all this, right? It was going to prolong the trial. It was going to add additional witnesses that were going to have to testify, but that is because of the complainant's actions themselves.

Well, doesn't it kind of go against what I would consider to be a logical approach, if somebody was going to extort someone, that they wouldn't go and immediately report the contact to the Solicitor's Office?

Which is exactly what the victim did in this case, and that's exactly what Mr. Earl Cooper did as well. I mean, again, we're going based on just sort of what the Attorney General's office is, you know, stated, and then what Mr. Earl Cooper also stated, and that is that he also initially reached out to law enforcement after these attempts. Um, again, may I ask a question?

Forgive me. Um, When you're distinguishing what you see as the central issue versus collateral issues, it's your position that the central issue is what, her credibility, or the offer to bribe?

Her credibility, Your Honor. I mean, you know, in any case where you've got a key witness who is going to testify to these events, you know, her credibility is, it matters. Again, these were just numerous attempts in order to gain money. The state could have argued against all of these inferences. They certainly have the prerogative to do so. But just to simply conclusively hold that this is a collateral matter, even though it goes to a central witness's credibility, I think really leaves out a large part of this story, and for that reason it is highly prejudicial.

Let me ask you— I'm sorry, Ms. Franklin-Best, let me ask you, was there anything to— was it substantiated that the brother's cousin, um, that the victim met him at the place of work with with her cousin. Couldn't these things be verified?

I thought that that is where the audio recording was made. I mean, there was an audio recording, and I'm hoping I'm not misremembering the record, but it was my understanding that that's where that happened, because I think there were two recordings. I think one was from the complainant, and then also her cousin who came in with the child.

Okay, was there an actual physical note presented that's referenced in the record? Was there?

I am unaware that there was a note that was actually presented, Your Honor. Okay. Um, but you know, I would just sort of note again that even the Attorney General stated to the court on a record on appeal, page 111, that they kept meeting. Um, again, there were investigators who are here, but you know, the reason why this became so complicated and the reason why I think— oh, I'm sorry, my My time is up.

I'll let you complete your thought.

Finish that thought. Again, it's because of the complainant's actions here. I mean, her going to the place of business, and these multiple contacts, and that took it from being collateral, to being a very material piece of evidence. Thank you, Your Honors.

We'll hear from you on reply. Mr. Farley.

Thank you. May it please the court, I'm Mark Forthing, appearing on behalf of the State, in its case against the appellant, Christopher Cooper. Jumping to that first issue, there's a couple of big problems I have with the substance of it, but there's a bigger problem I've got, really based on my view of how it's raised on appeal, versus how it was ruled upon. The ruling from Judge Brown sure seems to be, predicated primarily on 403. Judge Brown goes through Finley and Vanover, and why he thinks this case is different than those cases, which reduces the probative value of the evidence. And remember, Finley was talking about the admission of a recording after the victim had already testified, "The appellant reached out through his girlfriend to me, and offered to give me money to drop the charges." There was a recording, that completely refuted that. It showed the exact opposite, that it was actually the complainant in that case that had called the appellant's girlfriend, offering to drop the charges in exchange for money. That's not what we have here, so it's a completely different case from Findlay, and I think Judge Brown recognized that, recognizing that limited the probative value greatly. He went through Vanover, pointed out the things in Vanover that supported this evidence not being admissible, but then he said, "Also, I can exclude this evidence, even if it's otherwise inadmissible, if it might confuse the issues, or mislead the jury." He's using language straight out of 403, before he says, "I'm not letting this in." There's no argument on appeal that the judge erred by excluding the evidence under 403. The whole argument is, this isn't admissible, because it's relevant. It's admissible, based on 404, which I still can't figure out, ground of 404 this would even be admissible under, and now the discussion seems to have shifted. It was 608, I think, originally, at one point in time, and now it seems like it shifted to 608, which is bias. It's a moving target, what the actual argument is, but I think the judge's basis was 403, and if the judge's basis is 403, and that has not been appealed, that ruling is the law of the case, and we're done. However, even if we could get past that, and move on to the merits of the issue, I think what Judge Brown did here is infinitely reasonable. So, you have to look at probative value on one hand, you have to look at the potential for prejudice on the other. The probative value is very, very minimal. This is something that occurred in July of 2018.

Let me interrupt you, if I might. For purposes of discussion, Let's say there was an actual recording that substantiated, or at least seemingly substantiated, what the brother's contentions were. Would you still then make the argument that it shouldn't come in?

Based on the contentions that the brother made in this case, that would still be my position. And even if there were an actual recording, even a recording of her saying what brother said she said?

Yes, because what brother said she said was, I need $25,000 and I'll help your brother. Page 462.

I'll help your brother. What does "help your brother" mean in this context? We have to keep in mind, too, this is from the perspective—

But isn't that for the jury to interpret what it means? I mean, I think that we can all speculate, and at least it shows, perhaps, that the initial criminal act is questionable.

See, I don't understand that logical leap, respectfully, Your Honor, because what we're talking about is, In July of 2017, or at least it calls into question, you know, her credibility.

It calls into question—

well, and, and here's my problem with that. In July of 2017, she ran out of her house screaming for help from her neighbors because she— her home had just been burglarized and raped. She had just been raped. The police responded to the scene. She gave that statement. A year later, she has a conversation with Earl Cooper, and during that conversation, he initially claims that he didn't, but on cross-examination, he admitted a lot of things that he had said on direct were inconsistent with the truth. But he admits, "She told me, 'I've been raped. This happened.'" So she's not saying anything that she said before isn't the case. Earl said, "What happened to you is horrible. I'm on your side, not on his side. We want to help you, because we know that the harm has been done to you." She was financially distressed as a result of this. She said she lost her home, had all kinds of financial problems related to this. Her having financial problems, and offering to help, is not her saying, "I'm going to lie on the stand." It's not her saying, "I'm going to try to get the prosecutors to drop the charges." We don't know what it means. It could have as easily have meant, "I'll say I have forgiven the defendant at sentencing, and ask for leniency." It doesn't have anything necessarily to do with her credibility, but my big problem with it is, It's what defense counsel recognized at trial, that after Judge Brown pointed out, if we admit this evidence, there is a very, very, very strong likelihood, particularly considering that Earl Cooper testified inconsistently during the trial himself, which causes— raises major red flags to his credibility. If the jury hears this, they're going to view it as evidence that Chris Cooper, via his family, attempted to influence the victim in this case, to help him get out of the charges. Appellate counsel for Cooper says that's an issue for the jury. Our Supreme Court said the exact opposite, in State v. Rogers. In State v. Rogers, it was the father that made an attempt to influence a witness. That evidence was admitted, and the Supreme Court reversed the conviction, because they said, unless you can link it to the actual defendant, not just the defendant's family members, it is a prostitution of justice for that to come in, and is incredibly prejudicial. And so that is what Judge Brown specifically recognized. He called that to defense counsel's attention, and defense counsel's response to that was, "I hate to agree with you, but I understand. I understand what you're saying. I agree with you." So he even recognized during the trial the great, great risk we had, and that's my big problem. Nothing she said, even in the version of events that is the best version of events for the defendant, was, "The rape didn't happen. I'm willing to say the rape didn't happen. This is all made up." If we do bring it in, it comes in potentially as evidence of the defendant's guilt, that can't come in as evidence of guilt. That's one of the things that's so interesting about this issue for me. It's a no-win situation for the trial judge, because if the trial judge says, I'm going to let it in, and it comes in, we would be having the same argument, except for 3 or 4 years from now, in the context of PCR, where PCR counsel's argument is defense counsel was a complete moron for letting that come in, because it was so damaging, since it wasn't directly connected to Christopher Cooper, and the jury could have viewed it as that. No matter what ruling he makes, it's going to be fussed at in some capacity, and that is the type of ruling particularly on 403, that is entitled to substantial deference on appeal, and I think is the right one in this particular case. If I may, though, very quickly turn to the other two issues, I want to note right off the bat, that the voluntariness of the confession issue has been changed, ever so slightly, since we finished the briefing in this case, by Robert Lee Miller III's decision from our Supreme Court, where the standard of review has changed. The reality is, though, that has no impact on the outcome of this case, because what the Supreme Court said in Robert Lee Miller III is, fact findings are entitled to deference still, they're reviewed any evidence, the ultimate conclusion of voluntariness is reviewed de novo. Here, the entirety of the argument regarding the voluntariness of the confession is predicated on a fact finding. I completely, completely agree with the concept, that if a defendant got picked up by police, and invoked his right to counsel 5 times, or 6 times, however many times Mr. Cooper said it happened, and they ignored him over, and over, and over again, until he gave a written confession, that we got a big problem from an admissibility standpoint, because Miranda's been violated. Judge Brown just didn't buy that. He accepted the version of events from the officers. It's a fact-finding. There is evidence to support it, and so the voluntariness of the confession issue is done. Turning to the, um, As to the identification evidence issue, there's a lot of problems with this one. My biggest one is, it's not preserved, because at no point in time, ever, was any Biggers-based issue raised to Judge Brown. Judge Brown's— the defense counsel's argument was, the objection goes to the identification of my client, as being in Vaughn Court, and saying that her voice, that she recognized the voice from that day, because there was no type of test, no type of procedure that was done, to see whether it sounded like this person, versus another person. She put his character at issue by saying he's been arrested, we know he's been arrested. So it's based on authentication, the absence of a special test to determine whether the voice identification is accurate, and based on character. Those are the arguments that Judge Brown addressed. When Judge Brown addressed them, he said, am I missing something? Am I wrong? I may be wrong. Tell me if I'm wrong. The response to that wasn't, well, I've actually got another argument, Your Honor. It violates Biggers. His argument was, nope, I agree with you. That's what the rule says. He never objected after that, and he elicited it on cross. So I don't think it's preserved at all, in any way, shape, or form. But even if it is, this is not Simmons, the case that was cited on reply. In Simmons, it was a situation where an undercover narco identified a witness. They brought him to an identification, or he came to the bond hearing at the request of the investigating officer, who told him to come. This is, and I see I'm out of time, can I finish this thought, please? The, uh, this is a situation where the bond hearing that occurred, to the extent that we could even say it's identification procedure, which I have a problem with under the concept here, there's no possible way it could be unnecessary, in light of the fact that it was being conducted based on the defendant's constitutional right for bond, and the victim's presence there was not an investigator, like in Simmons' request. It was because she had a constitutional right to be there. So, there is no possible way for it to be necessary. The totality of circumstances support that it's reliable, anyway., and it's entirely harmless, in light of the absolutely, utterly, stunningly overwhelming evidence of guilt we have, in the form of the confession, and the DNA evidence. If there's no further questions, thank you very much.

Thank you.

Ms. Franklin Best.

Thank you, Your Honors. Just to address a couple of issues here, as to 403, and the idea that this was somehow too complicated, or too confusing for a jury to figure out. I mean, I just don't think there's any basis for that. I mean, to have somebody come and talk about these exchange of money for, or for whatever the consideration was going to be to help out this defendant, is not a complicated issue. I think anyone could really sort of understand what was going on. The idea that, you know, using this, this money as some effort to sway the victim, again, I mean, that is a jury question. I mean, that is certainly what the state would have argued argued, but I think that a juror should have been allowed to assess that and determine whether or not they believe that, or whether, you know, a woman who claims to have endured such a violent encounter but who is then willing to help out that person for money, you know, whether or not the encounter was as terrible as she alleged it was. I mean, these are the kinds of issues that go to a key witness's credibility. Our South Carolina Supreme Court has numerous cases that have found that restrictions on the right to explore the bias of a witness as reversible error, beginning with like State v. Mizell, State v. Brown, State v. Graham. In a case so heavily dependent on one witness to recount the salient facts of an offense, a conviction cannot stand if the defense does not have an opportunity to challenge that witness about a prototypical form of bias. The jury was left with a distorted version of the events,, and Kibler was prejudiced by the admission of this testimony because it related directly to her credibility and possible motive to shade or even falsify her testimony. My friend just said that, you know, the evidence was overwhelming because of his confession. It's important to look at that statement, because while he does concede that there was physical contact, physical sexual contact, he does not say that it was non-consensual. Respectfully, Your Honors, we ask this court to reverse this conviction, and to remand for a new trial.

What about the confession? I mean, we've kind of overlooked that, until we were in response, but I mean, I have, what was the error in Judge Brown's examination of the totality of circumstances, under Schneckloth?

I mean, I will— I mean, candidly, we have some unrefuted evidence on the part of the defendant to— in how he described what, what happened. We— I made the argument with the information that I had, and I made my best attempt at it. I understand that the judge has wide latitude to make credibility findings, and did so in this case. Thank you. Thank you.

Thank you both for your very fine arguments. We'll be in recess.