State v. Staten

364 S.C. 7

610 S.E.2d 823

The STATE, Respondent, v. Dushun STATEN, Appellant.

No. 3955.

Court of Appeals of South Carolina.

Heard February 9, 2005.

Decided March 7, 2005.

Rehearing Denied August 26, 2005.

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General S. Creighton Waters, all of Columbia; and Solicitor Warren Blair Giese, of Columbia, for Respondent.

ANDERSON, J.:

Dushun Staten appeals his convictions for murder and lynching in the first degree. He argues the trial court erred in (1) admitting a prior statement by the decedent; (2) barring evidence regarding an alleged confession; and (3) refusing to charge the jury on the law of mere association and mere suspicion. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On January 15, 2001, Phillip Lee, Jr., a student of Benedict College and a reputed gang member of the Crips, was gunned down on Benedict's campus. Brothers Lucius and Dushun Staten were indicted for the offenses of murder and lynching in the first degree for this crime. They were tried together in 2002. The jury found Dushun and Lucius guilty of lynching in the first degree, but only Dushun guilty of murder.¹ The trial court sentenced Lucius to fifteen years, suspended upon the service of eight years for lynching. The court sentenced Dushun to thirty years for murder and ten years for lynching, to run concurrently.

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 (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). The appellate 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. State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct.App.2003). A trial court's ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error that results in prejudice to the defendant. State v. McLeod, 362 S.C. 73, 606 S.E.2d 215 (Ct.App.2004); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct.App.2003). An abuse of discretion occurs when the trial court's ruling is based on an error of law. State v. Horton, 359 S.C. 555, 598 S.E.2d 279 (Ct.App.2004).

The appellate court should examine the record to determine whether there is any evidence to support the trial court's ruling. See Wilson, 345 S.C. at 6, 545 S.E.2d at 829. If there is any evidence in the record, the appellate court should affirm. Id.

LAW/ANALYSIS

I. Statement Made by the Decedent

Dushun claims the trial court erred in admitting Andrew Britt's testimony that Lee told him that Dushun pulled a gun on him shortly prior to the incident. We disagree. Andrew Britt, Lee's cousin and Benedict roommate, testified that on the evening before the shooting, Lee, normally a "very calm," "laid back kind of person," arrived in his dorm room "very hysterical and like scared." Britt asked: "Phil, what's wrong with you?" Though Lee avoided answering Britt's questions for a while, Lee eventually confessed that "they just pulled a . . . gun on me." When Britt asked who "pulled" the gun on him, Lee declared: "The niggers we had a[n] argument with on Saturday."²

Dushun timely objected to this testimony based on the hearsay rule, but the trial court overruled the objection. Later, on cross-examination by Lucius's attorney, Britt stated that Lee actually said, "The small kid pulled out a gun and asked . . . what's up now." Britt believed Lee was specifically referring to the "little brother," Dushun.

A. Efficacy of Crawford v. Washington³

The Confrontation Clause of the Sixth Amendment guarantees an accused the right "to be confronted with the witnesses against him" in a criminal prosecution. U.S. Const. amend. VI. The provision is applicable to the states under the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The South Carolina constitution provides the same protection to a defendant. S.C. Const. art. I, § 14.

The right of confrontation is essential to a fair trial in that it promotes reliability in criminal trials and ensures 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 Confrontation Clause guarantees the accused the right to confront those testifying against him in court and further defines the scope of the admissibility of statements against him made by witnesses out-of-court. See Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). A defendant exercises his right of confrontation through cross-examination, which has been described as the "greatest legal engine ever invented for the discovery of truth." Green, 399 U.S. at 158,90 S.Ct. 1930 (internal quotations omitted).

For nearly twenty-five years, the question of whether an unavailable witness's prior statements could be used against a criminal defendant at trial was governed by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980):

[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Id. at 66, 100 S.Ct. 2531. Thus, under Roberts, an unavailable witness's out-of-court statement was admissible if it: (1) fell within a firmly rooted exception to the hearsay rule; or (2) contained such particularized guarantees of trustworthiness that adversarial testing of the statement through cross-examination would add little to the assessment of the reliability of the evidence.

In March 2004, the Supreme Court concluded that the long-standing Roberts rule was untenable. The Court, in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), announced a new test to determine the admissibility under the Confrontation Clause of hearsay offered against the accused. Crawford was convicted of assault and attempted murder. Over his confrontation objection, the prosecution was allowed to offer a recorded statement his wife made to the police in which she appeared to contradict Crawford's claim that he attacked the victim in self-defense. Because the wife herself was under suspicion of facilitating the assault, her statement was admitted for its truth under Washington's hearsay exception for declarations against penal interest. This exception required the prosecution to show that the declarant was unavailable to testify, and due to that unavailability, Crawford did not have an opportunity to cross-examine his wife about her out-of-court statement. The Court reversed Crawford's conviction. Crawford changes the Court's previous confrontation analysis.

Crawford traced the development of Confrontation Clause jurisprudence, beginning with English common law and extending to recent decisions made by state and federal courts throughout the country. As a threshold matter, the Supreme Court's analysis identified the "principal evil" which the Confrontation Clause was intended to deter, "the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. at 50, 124 S.Ct. at 1363. The Court rejected the view that the regulation of out-of-court statements could be accomplished solely by the rules of evidence. Id. at 50-51, 124 S.Ct. at 1364.

The Crawford Court clarified the Confrontation Clause "applies to `witnesses' against the accused—in other words, those who `bear testimony.'" Id. at 51, 124 S.Ct. at 1364. "Testimony" is typically a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. (internal quotations omitted). "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id.

With respect to testimonial hearsay, at least, the Supreme Court overruled its previous decision in Roberts to maintain consistency with the Framers' intent. Id. at 68, 124 S.Ct. at 1374; see also Thomas J. Reed, Crawford v. Washington and the Irretrievable Breakdown of a Union: Separating the Confrontation Clause from the Hearsay Rule, 56 S.C. L. Rev. 185, 216 (2004) ("In Crawford v. Washington, the United States Supreme Court finally overruled Ohio v. Roberts, divorcing the Confrontation Clause and the hearsay rule because of an irreconcilable breakdown of the relationship.") (footnotes omitted). The unpardonable vice of the Roberts test is "its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude." Id. at 63, 124 S.Ct. at 1371. The Court concluded:

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...