S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
State of South Carolina, Respondent,
v.
Darryl Lamont Holmes, Appellant.
Appeal From Greenville County
John W. Kittredge, Circuit Court Judge
Opinion No. 25189
Heard May 9, 2000 - Filed August 21, 2000.
REVERSED
J. Falkner Wilkes, of Meglic, Wilkes & Godwin, of
Greenville, for appellant.
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General Derrick K. McFarland, of
Columbia; and Solicitor Robert M. Ariail, of
Greenville, for respondent.
JUSTICE BURNETT: Darryl Holmes (appellant) appeals his
convictions for murder and conspiracy, asserting the trial court improperly
allowed the State to introduce prejudicial hearsay evidence against him. We
agree and reverse appellant's convictions.
p.528
State v. Holmes
FACTS
Appellant was indicted for murder, conspiracy, and felony accessory
before the fact for his alleged participation in the murder and attempted
robbery of George Lollis. The facts of this case are fully set out in State v.
Fuller, Op. No. 24961(S.C. Sup. Ct. filed Nov. 22, 1999) (Shearouse Adv. Sh.
No. 35 at 71). Appellant's alleged role in the crime involved driving Henry
Fuller and Bernard Holmes to the victim's home, setting off the alarm at the
victim's store to lure the victim out of his home, and returning to pick up
Fuller and Bernard Holmes. At trial, the circuit court permitted the State to
introduce hearsay statements attributed to Bernard Holmes and Henry
Fuller implicating appellant in the crimes. The jury found appellant guilty
of murder and conspiracy.
ISSUES
I. Did the trial court err in admitting a non-self-inculpatory
statement, collateral to a self-inculpatory statement, under Rule
804(b)(3), SCRE?
II. Did the trial court err in admitting the out-of-court confession
of an accomplice pursuant to Rule 804(b)(3), SCRE?
III. Did admission of statements of unavailable accomplices
violate the Confrontation Clause?
DISCUSSION
I. Did the trial court err in admitting a non-self-inculpatory
statement, collateral to a self-inculpatory statement, under Rule
804(b)(3), SCRE?
Appellant argues the trial court erred in allowing Bernard McKinney
to testify as to statements made to him by Bernard Holmes. We agree.
"`Hearsay' is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted." Rule 801(c), SCRE. Hearsay is inadmissible unless the
statement is of a type specifically excepted from the rule. Rule 804(h)(3)
p.529
State v. Holmes
excepts from the hearsay rule statements against interest made by an
unavailable declarant, 1 i.e.:
A statement which was at the time of its making so far contrary
to the declarant's pecuniary or proprietary interest, or so far
tended to subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, that a
reasonable person in the declarant's position would not have
made the statement unless believing it to be true.
Rule 804(b)(3), SCRE.
At appellant's trial, McKinney testified about planning the robbery
with Bernard Holmes and appellant and his involvement in two aborted
attempts to commit the crime. He also testified he was at a friend's house
the night of the murder and did not participate, but that Bernard Holmes
told McKinney he, Henry Fuller, and appellant committed the crime.
Prior to appellant's trial, McKinney gave identical testimony against
Henry Fuller. This Court subsequently ruled the testimony inadmissible in
State v. Fuller, Op. No. 24961(S.C. Sup. Ct. filed Nov. 22, 1999) (Shearouse
Adv. Sh. No. 35 at 71). We held a non-self-inculpatory statement, which is
collateral to a self-inculpatory statement, is not admissible under Rule
804(b)(3), SCRE as a statement made by an unavailable declarant against
his penal interest.
The State argues the testimony at issue here should, nevertheless, be
admissible against appellant because there is other evidence corroborating
the testimony. This argument misapprehends our holding in Fuller, where
we stated "an accomplice's self-inculpatory statement combined with other
independent evidence can inculpate a criminal defendant." Id. at 78.
However, our opinion made clear the statement must first qualify under
Rule 804(b)(3). Bernard Holmes' alleged hearsay statement implicating
appellant does not qualify as a statement against interest under Rule
804(b)(3), regardless of the existence of evidence corroborating the
1 Bernard Holmes was unavailable to testify because he was killed
attempting another, unrelated burglary.
p.530
State v. Holmes
statement.
II. Did the trial court err in admitting the out-of-court confession
of an accomplice pursuant to Rule 804(b)(3), SCRE?
Appellant argues the trial court erred in allowing a police officer to
read into evidence Henry Fuller's redacted confession. 2 We agree.
The trial court ruled those portions of Henry Fuller's confession which
inculpate appellant were inadmissible under Rule 804(b)(3), SCRE.
Nevertheless, he permitted a redacted version of the confession, eliminating
any reference to appellant, to be read into evidence.
Non-self-inculpatory statements do not fall within the 804(b)(3)
exception to the hearsay rule simply because they are "made within a
broader narrative that is generally self-inculpatory. " 3 Williamson v. United
States, 512 U.S. 594, 600-01 (1994); Fuller; at 77. In Fuller, we applied Rule
804(b)(3) very narrowly to only those portions of a hearsay statement which
are plainly self-inculpatory. 4
2 Henry Fuller refused to testify, claiming a Fifth Amendment privilege.
Although he had already been convicted of murder at the time of appellant's
trial, his appeal was pending before this Court. He stated to the court that
he would not testify even if ordered to under threat of contempt. Appellant
does not challenge the trial court's finding of unavailability.
3 As the United States Supreme Court has noted, it is not always clear
whether a statement is truly "against interest." See Williamson v. United
States, 512 U.S. 594, 603-04 (1994). "Confessions" which shift blame to co
conspirators cannot reasonably be viewed as self-inculpatory.
This is such a case. Fuller repeatedly depicts himself as caught up in
the crime, being led by Bernard Holmes in, particular. For example, he
states, "I told Bernard I didn't want anything to do with it," "I had butterflies
in my stomach and Bernard kept saying, `Come on, man, come on,'" and "I
did not mean for nobody to get hurt."
4 In fact, a truly self-inculpatory statement of an accomplice would
probably only be relevant if offered by the State to further a co-conspirator (4 continued...)
p.531
State v. Holmes
Although the redacted statement did not directly refer to appellant, the
State's main purpose in seeking to introduce Fuller's statement was clearly
to implicate appellant by inference. Like the hearsay statements of Bernard
Holmes held inadmissible in Fuller, Fuller's non-self-inculpatory statements
made collateral to a self-inculpatory statement are inadmissible under Rule
804(b)(3).
III. Did admission of statements of unavailable co-conspirators
violate the Confrontation Clause?
Appellant argues admission of hearsay statements of his alleged co
conspirators violated the Confrontation Clause. We agree.
In all criminal prosecutions, the accused has the right "to be confronted
with the witnesses against him." U.S. Const. Amend. VI; Pointer v. Texas,
380 U.S. 400 (1965) (applying Sixth Amendment to the States). Admission of
a non-testifying accomplice's untested confession against the defendant
violates the Confrontation Clause. Lilly v. Virginia, 119 S.Ct. 1887 (1999).
Lilly is remarkably on point factually. Benjamin Lee Lilly, his brother
Mark, and Mark's roommate Gary Wayne Barker went on a crime spree,
culminating in murder. Mark and Barker gave separate statements to the
police implicating Lilly. Mark refused to testify at his brother's trial, and the
Commonwealth of Virginia offered his taped statements, arguing they were
admissible as declarations against penal interest by an unavailable witness.
The trial court admitted the tapes, Lilly was convicted, and the Supreme
Court of Virginia affirmed. Lilly, 119 S.Ct. at 1892-93. The United States
Supreme Court reversed. Although none of the four opinions in Lilly
garnered more than a plurality, all nine Justices agreed the Confrontation
Clause was violated when the untested confession of a non-testifying
accomplice was admitted against the defendant.
Because of the fractured nature of the Supreme Court's Lilly decision,
and because it is based largely on the federal hearsay rules, we decline to
adopt the reasoning of the Lilly plurality. We simply conclude that appellant
suffered a paradigmatic Confrontation Clause violation. The use of an
(4 continued...) liability theory or by the defendant to exculpate himself.
p.532
State v. Holmes
accomplice's confession "creates a special, and vital, need for cross
examination." Gray v. Maryland, 523 U.S. 185, 194-95 (1998). The
opportunity to confront his accusers was denied appellant when Bernard
Holmes' and Henry Fuller's hearsay statements were admitted against him.
Moreover, Fuller's statement in this case was not saved by redacting
direct references to appellant. The trial court erred in permitting the
redaction based on the Bruton line of cases. See Bruton v. United States,
391 U.S. 123 (1968). Redaction has come into play as a tool to allow
admission of a co-defendant's confession against the confessor in a joint
trial. The point of redaction is to permit the confession to be used against
the non-testifying confessor, while avoiding implicating his co-defendants.
See, e.g., Richardson v. Marsh, 481 U.S. 200 (1987) (redacted confession in
joint trial), Gray v. Maryland, 523 U.S. 185 (1998) (same). Redaction may
not be used as a means to avoid the strictures of the hearsay rules and the
Confrontation Clause.
CONCLUSION
The hearsay statements at issue in this case were not admissible under
Rule 804(b)(3), SCRE as statements against interest. Furthermore, their
admission violated appellant's right to confront the witnesses against him.
Appellant's convictions are REVERSED.
TOAL, C.J., WALLER, J., and Acting Justice L. Henry McKellar,
concur. PLEICONES, J., concurring in a separate opinion.
p.533
STATE v. HOLMES
PLEICONES, J.: I concur with the majority's conclusion that appellant's
convictions must be reversed, but write separately because I would analyze
several of the issues differently.
In Part I, the majority concludes that the trial court erred in allowing
witness McKinney to testify to statements' made to McKinney by accomplice
Holmes. The admission of these hearsay statements, which implicated
appellant in the crimes, violated appellant's confrontation clause rights, Lilly
v. Virginia, 527 U.S. 198, 119 S.Ct. 1887, 144 L.Ed. 2d 117 (1999), and were
not admissible under Rule 804 (b)(3), SCRE. Williamson v. United States,
512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994); State v. Fuller, 337
S.C. 236, 523 S.E.2d 168 (1999). The State's argument that accomplice
Holmes' statement should nonetheless be admitted because it is corroborated
by other evidence fundamentally misreads Williamson and Fuller. These
opinions hold that the portion of an accomplice's hearsay. statement (even a
confession made to the police) which is "truly self-inculpatory" may be
admissible under Rule 804 (b)(3) if (1) the state is proceeding under a co-
conspirator liability theory and (2) "the statement was sufficiently against
the declarant's penal interest such "that a reasonable person in the
declarant's position would not have made the statement unless believing it to
be true," and this question can only be answered in light of all the
surrounding circumstances." Here, the whole of accomplice Holmes'
statement, not merely a "truly self-inculpatory" portion, was admitted.
Accomplice Holmes' hearsay statement to witness McKinney is simply not
the type of statement which may be admissible under Rule 804(b)(3).
In Part II of the opinion, the majority concludes that accomplice
Fuller's redacted statement was inadmissible under Rule 804(b)(3). I agree,
because as the majority notes in footnote 3,Fuller's statement minimized his
role and shifted blame to appellant. In my view, Fuller's "arguably
inculpatory statements are too closely intertwined with his self-serving
declarations to be ranked as trustworthy" and consequently they cannot be
deemed reliable. Williamson, supra, 512 U.S. at 608 (Ginsburg, J.,
concurring). Thus, it too is not a "truly self, inculpatory" statement of an
accomplice which may be admissible under Rule 804 (b)(3). Further, since
Fuller's redacted statement was not within any hearsay exception, its
admission violated appellant's confrontation clause rights. Lilly v. Virginia,
p.534
STATE v. HOLMES
supra.
In Part III, the majority appears to adopt a rule that in separate trials,
an accomplice's confession, even if it meets Williamson's and Fuller's Rule
804(b)(3) "truly self-inculpatory" test, can never be admitted because to do so
would violate the confrontation clause. I disagree. In my opinion, an
accomplice's truly self-inculpatory confession, made under circumstances
demonstrating it was sufficiently against the declarant's penal interest, may
be admissible without running afoul of the constitution. See Williamson and
Fuller. Further, other hearsay statements by an accomplice may be
admissible in the defendant's trial without violating the confrontation clause
because they fall within a firmly rooted hearsay exception. 1 Cf., State v.
Dennis, 337 S.C. 275, 523 S.E.2d 173 (1999)(admission of codefendant's
excited utterance that defendant shot the victim did not violate defendant's
confrontation clause rights). My analysis therefore differs from that part of
the majority opinion which holds that the admission of an accomplice's
confession in a separate trial is a per se violation of the confrontation clause.
For the reasons given above, I concur in the result reached here.
1 For example, admission of a statement pursuant to the excited
utterance exception found in Rule 803 (2), SCRE, does not violate the
confrontation clause. White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.
2d 848(1992).
p.535