State v. Davis

613 S.E.2d 760

The STATE, Respondent, v. Christopher F. DAVIS, Appellant.

No. 3970.

Court of Appeals of South Carolina.

Heard March 9, 2005.

Decided March 28, 2005.

Rehearing Denied June 22, 2005.

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Deputy Chief Attorney Joseph L. Savitz, III, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelanka, Assistant Attorney General Jeffrey A. Jacobs, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.

ANDERSON, J.:

Christopher F. Davis appeals his convictions for murder, armed robbery, and possession of a firearm during the commission of a violent crime. Davis contends that admission of hearsay statements violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. We disagree and affirm.

FACTUAL/PROCEDURAL BACKGROUND

A jury convicted Davis of robbing and murdering Paul Williams (the victim). Davis argues the trial judge erred by allowing Shawn Hicks, a witness at trial, to testify to hearsay statements made by Gregg Hill. Davis claims the statements by declarant Hill were testimonial in nature, and, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), admission of the evidence violated his rights under the Confrontation Clause. The State contends the convictions should be affirmed because the statements were not testimonial and fit within the excited utterance exception to the rule against hearsay.

Hicks was selling drugs near the victim's house on the night of the murder. At Davis's trial, Hicks averred that he heard Davis, the victim, and Reggie Stevens arguing. Hicks then heard a gunshot and observed three individuals running from the victim's backyard. Witnesses, including Hicks, identified Stevens as one of the individuals, but could not identify the other two.

Five to ten minutes after hearing the gunshot, Hicks sold drugs to Stevens and Hill. Approximately fifteen to thirty minutes after the gunshot, Stevens and Hill returned with Davis, who was carrying a shotgun and a bag of coins. Davis purchased drugs from Hicks with the coins and offered to sell Hicks the shotgun. At this time, the hearsay statements at issue were uttered by Hill to Hicks. Hicks testified as follows:

Q. What, if anything, did anybody say to you to prevent you from buying it [the shotgun]?

A. Well, he told me not to purchase the shotgun.

Q. Who told you?

A. Greg Hill.

....

Q. [W]hat did Greg Hill tell you that night ...?

A. Chris and Reggie went in the house.

Q. All right. Did he say anything about Paul being shot or anything?

A. Yeah. That's why he told me not to get the shotgun.

Q. Because?

A. Paul had been shot with it.

The trial judge found Hill's declarations admissible as statements made in the furtherance of a conspiracy and admitted the testimony over Davis's objection.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Wood, 362 S.C. 520, 608 S.E.2d 435 (Ct.App.2004). This Court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 527 S.E.2d 105 (2000); State v. Landis, 362 S.C. 97, 606 S.E.2d 503 (Ct.App.2004). This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases. Wilson, 345 S.C. at 6, 545 S.E.2d at 829. On review, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); State v. Rochester, 301 S.C. 196, 391 S.E.2d 244 (1990); see also State v. Corey D., 339 S.C. 107, 529 S.E.2d 20 (2000) (noting an abuse of discretion is a conclusion with no reasonable factual support). This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence. Wilson, 345 S.C. at 6, 545 S.E.2d at 829; State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct.App.2003).

LAW/ANALYSIS

I. Confrontation Clause

Among other protections, the Sixth Amendment assures: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. The Sixth Amendment was incorporated and made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002). The right of confrontation is essential to a fair trial in that it promotes reliability in criminal trials and insures that convictions will not result from testimony of individuals who cannot be challenged at trial. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Gillian, 360 S.C. 433, 602 S.E.2d 62 (Ct.App.2004). The primary interest secured by the Confrontation Clause is the right to cross-examination. Gillian at 450, 602 S.E.2d at 71 (citing State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (2001); Starnes v. State, 307 S.C. 247, 414 S.E.2d 582 (1991)); see also State v. Graham, 314 S.C. 383, 444 S.E.2d 525 (1994) (observing that specifically included in defendant's Sixth Amendment right to confront a witness is the right to meaningfully cross-examine an adverse witness).

Certain hearsay statements traditionally have been admissible against a defendant even though the declarant was unavailable at trial and even though the defendant did not have a prior opportunity to cross-examine the declarant. Under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), hearsay statements were admissible if they bore "adequate `indicia of reliability' " — a test that could be met by showing the evidence (1) fell within a firmly rooted hearsay exception, or (2) bore particularized guarantees of trustworthiness. Roberts at 66, 100 S.Ct. 2531; State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (Ct.App.2003). However, in Crawford, the United States Supreme Court broke away from Roberts and radically changed the Confrontation Clause landscape.

A. Crawford v. Washington

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Michael Crawford was convicted of assault for stabbing Kenneth Lee, who allegedly tried to rape Crawford's wife, Sylvia. At trial, the State played for the jury Sylvia's tape-recorded statement to the police describing the stabbing. Sylvia did not testify at trial due to Washington's marital privilege, which "generally bars a spouse from testifying without the other spouse's consent." Id. at 40, 124 S.Ct. at 1357 (citing Wash. Rev.Code § 5.60.060(1) (1994)). This privilege, however, does not extend to a spouse's out-of-court statements admissible under a hearsay exception. Whether Crawford saw a weapon in Lee's hands was a critical fact for his claim of self-defense. Because Sylvia was unable to testify at trial, Crawford claimed the admission of Sylvia's statement was a violation of his federal constitutional right under the Sixth Amendment to be confronted with the witnesses against him.

Following Roberts, the trial court allowed Sylvia's statement on the ground that it bore guarantees of trustworthiness. The Washington Court of Appeals reversed. The Washington Supreme Court then reinstated the conviction, and the Supreme Court of the United States granted certiorari.

Justice Scalia, writing for the seven-Justice majority, announced a fundamental change in Confrontation Clause jurisprudence:

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendments protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." ... To be sure, the Clauses ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

Id. at 61, 124 S.Ct. at 1370 (emphasis added). Crucial to the Courts decision was its emphasis on testimonial hearsay. "[I]f the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id. at 53, 124 S.Ct. at 1365 (footnote omitted). Thus,

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Id. at 68, 124 S.Ct. at 1374 (footnote omitted).

B. Defining the Line Between Testimonial and Nontestimonial

The holding in Crawford is unequivocal: "[w]here testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." 541 U.S. at 68, 124 S.Ct. at 1374. However, the Court left "for another day any effort to spell out a comprehensive definition of `testimonial.'" Id. (footnote omitted). Therefore, Crawford's reach largely will be determined by the definition courts give to the term "testimonial."

1. Guidance from Crawford

The Crawford Court established that whatever else testimonial covers, "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police...