The STATE, Respondent v. Jerry EVANS, Appellant
24149
Supreme Court
Decided Oct. 3, 1994
Rehearing Denied Nov. 2, 1994
(450 S.E. (2d) 47)
TOAL, Justice
Accordingly, we disbar respondent from the practice of law. This disbarment shall run from March 28, 1994. Within fifteen days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that he has complied with Paragraph 30 of Rule 413, SCACR.
Disbarred.
Attorney General T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Sr. Asst. Atty. Gen. Harold M. Coombs, Jr., Staff Atty. Rakale Buchanan Smith, and Sol. Richard Harpootlian, Columbia, for respondent.
Heard April 5, 1994.
TOAL, Justice:
Jerry Evans (Evans) appeals several convictions arising out of a motor vehicle accident, claiming that numerous trial errors require reversal. We disagree and affirm.
FACTS
Shortly before noon on July 18, 1991, Lauren and Larrae Bernardo received fatal injuries when they were struck by a truck as they walked along Hardscrabble Road with their grandparents. Two other grandchildren were also injured. The truck did not stop and was last оbserved by the children‘s grandfather (Grandfather) turning left onto Clemson Road.
After an intense investigation, police charged Evans with two counts of murder, two counts of felony driving under the influence, two counts of leaving the scene of an accident in-
A joint trial was commenced on April 20, 1992. The State presented evidence that the children were struck by a blue and silver 1983 or 1984 Chevrolet pickup truck with “stacked” headlights that had toolboxes and a ladder rack mounted in the bed. Although the truck was never found, several witnesses verified that Evans was known to have a truck matching that description. Other witnesses testified thаt they observed a blue and silver pickup truck in the area around the time of the accident. One motorist testified that a Chevrolet pickup with “a faded blue or real light silver color” tailgate passed him in a curve and then turned onto Thornton Drive. Another witness testified that he was visiting a relative next door to Evans’ residence on Thornton Drive at around 12:30 p.m. when a blue and silver pickup truck with damage on the right front sped into Evans’ driveway. This witness, who was familiar with both Evans and Altman, stated that Evans was driving. Altman was the passenger, and the truck had what appeared to be red paint in the damaged area. The State also presented a witness who testified that Evans discussed the accident with him while they were incarcerated together. According to this witness, Evans admitted that he had been drinking, took his eyes off the road for a moment, and hit thе children.
Based on this evidence, the jury convicted Evans of two counts each of manslaughter, leaving the scene of an accident involving death, and leaving the scene of an accident involving personal injury. Evans appealed.
LAW/ANALYSIS
Codefendant‘s Confession
A witness for the State testified that Altman discussed the accident with him and made the statement, “I wasn‘t driving anyway.” Evans contends that the statement implicates him as the driver and, becаuse Altman did not testify at trial, the admission of this testimony violated
In Bruton the Supreme Court held that a defendant‘s rights under the Confrontation Clause are violated by the admission of a non-testifying codefendant‘s statement that expressly inculpates a defendant, even if a cautionary instruction is given. See Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28. The Court, in Richardson v. Marsh, 481 U.S. 200, 207, 107 S.Ct. 1702, 1707, 95 L.Ed. (2d) 176 (1987), specifically declined to extend this rule to the situation when a defendant‘s name or any reference to defendant is redacted, even though the statement‘s application to him is linked up by other evidence properly admitted against the defendant.
Under Richardson, admission of the inferentially incriminating codefendant‘s confession which redacts any reference to the defendant does not violate the Confrontation Clause if a proper limiting instruction is given. Id. at 211, 107 S.Ct. at 1709. Based on the analysis in Richardson, we find that Bruton does not bar the statement presented here. The statement did not “on its face” incriminate Evans, although its incriminating import was certainly inferable from other evidence that was properly admitted against him.1 See United States v. Williams, 936 F. (2d) 698 (2nd Cir. 1991) (Adopting the reasoning of Richardson, Confrontation Clause is not violated by the admittance of redacted confessions when the statement standing alone does not otherwise connect co-defendants to the crimes.). Accordingly, its admission did not violate Bruton.2
Posthypnotic Testimony
In the initial stages of the investigation, police subjеcted Grandfather to hypnosis in an effort to obtain a better description of the truck. Evans contends that
Pierce addressed the question whether persons present during hypnosis could testify as to the results of the examination. The Court adhered to the general rule that “testimony as to the results of hypnotic examination is not admissible if offered for the truth of the matter asserted,” and held that the trial judge did not abuse his discretion in excluding the testimony. Id. at 30, 207 S.E. (2d) at 418. Importantly, Pierce is limited to the testimony of persons other than the declarant when that testimony is to be admitted for the truth of the matter asserted. Contrary to Evans’ assertion, Pierce does not prohibit a declarant from testifying according to his own recollection. Therefore, we reject Evans’ claim that Grandfather‘s tеstimony was inadmissible under Pierce.
Evans also raises the novel claim that admission of Grandfather‘s posthypnotic testimony violated the Confrontation Clause. We disagree.
We are aware that dangers exist with the use of hypnosis as an investigative tool3 and that courts have taken divergent views as to the admissibility of posthypnotic testimony. Evans urges us to adopt the view that posthypnotic testimony is inadmissible unless stringent safeguards аre followed to ensure reliability of the hypnotic procedure. See, e.g., State v. Hurd, 86 N.J. 525, 432 A. (2d) 86 (1981).4 Al-
To determine whether a witness‘s testimony is independent of the dangers associated with hypnosis, a court must examine whether: 1) the witness‘s trial testimony was “generally consistent” with prehypnotic statements, 2) considerable circumstantial evidence corroborates the witness‘s posthypnotic testimony, and 3) the witness‘s responses to examination by counsel “generally were not the automatic responses of a preconditioned mental process.” Id. at 959-61. Because this is a novel issue in South Carolina, we instruct the Bench and Bar that in the future any determination as to the admissibility of posthypnotic testimony should be made in camera. If the trial judge determines that such evidence is admissible, the parties may fully explore questions of credibility before the jury.5
In this case, Grandfathеr‘s posthypnotic recollection of the accident differs from his prehypnotic recollection only in that
Expert Testimony
Evans contends that the trial judge erred in allowing an expert to render an opinion that Evans was impaired by alcohol and crack cocaine at the time of the accident. According to Evans, the hypothetical question did not contain facts sufficient to allow the expert to formulate an opinion. We disagree.
A witness testified that Evans sharеd one gram of crack cocaine with four other people and consumed approximately twelve cans of beer during the period between 10:00 p.m. the night before the accident and 4:00 a.m. the day of the accident. The State then called an expert to correlate the amount of alcohol and drugs ingested with a level of impairment. To elicit the expert‘s opinion, the solicitor asked the following hypothetical question:
Q: Doctor, let me give this hypothetical to you. Between ten p.m. and four a.m. the consumption of twelve Budweiser beers of that size which is a twelve ounce?
A: Twelve ounce.
Q: Twelve ounce beers. Then at approximately beginning at ten o‘clock until whenever they finished five people share one half a gram of crack cocaine. Smoked it. And then at apрroximately one thirty a.m. again five people shared smoking a half a gram of cocaine. The hypothetical person we are talking about would have had then twelve beers and shared a half a gram with five people and a half a gram with five people. Okay? The question then becomes and can you tell me with a degree, a reasonable degree of
medical certainly whethеr or not that person‘s ability to operate a motor vehicle sometime between eleven forty-five and noon stopping at four a.m. would have been appreciably impaired? Can you first of all say yes or no to that question and then I‘ll let you explain?
On cross-examination, the expert testified that his opinion was based on an average-sized individual consuming average-purity cocaine.
An еxpert may give an opinion base upon personal observations or in answer to a properly framed hypothetical question that is based on facts supported by the record. State v. Burton, 302 S.C. 494, 397 S.E. (2d) 90 (1990); State v. King, 222 S.C. 108, 71 S.E. (2d) 793 (1952). Although some of the details assumed in the hypothetical question may not have been specifically proven, there is no error in permitting an expert to give his opinion in response to the question if the material fаcts assumed were within the range of the evidence. See Ballew v. Liberty Life Ins. Co., 270 S.C. 301, 241 S.E. (2d) 907 (1978). We find no error in allowing the expert to render an opinion that Evans was under the influence at the time of the accident.
Hearsay
Evans next contends the trial judge erred in allowing a police investigator to testify that debris found at the scene came from a 1983 or 1984 Chevrolet pickup. According to Evans, the investigator was relating only what he was told by employees of automobile dealerships and, therefore, admission of the investigator‘s testimony violated the Confrontation Clause. We disagree.
The investigator testified that he contacted local truck dealerships and with their assistance was able to develop an opinion that debris found at the scene came form a 1983 or 1984 Chevrolet truck. This conclusion, although facilitated by the investigator‘s contact with truck dealers and manufacturers, was based on personal observations made when comparing parts found at the scene with those found on many different trucks. Contrary to Evans’ assertion, the record conclusively shows the investigator was not merely relating what he was told by others. Accordingly, we reject Evans’ claim that the testimony was hearsay and find no violation of the Confrontation Clause.
Evans finally contends that the trial judge erred in refusing to allow three prison inmates to testify that another inmate said he was the driver who hit the children. We disagree.
In State v. Doctor 306 S.C. 527, 413 S.E. (2d) 36 (1992), we followed
Evans also contends that the trial judge erred in refusing to call the inmate who claimed to be the driver as a court‘s witness so he could be impeached with testimony that he had confessed to the crime. We disagree
In State v. Anderson, 304 S.C. 551, 406 S.E. (2d) 152 (1991), we established the following prerequisites for a court‘s witness: 1) the prosecution is unwilling to vouch for the veracity or integrity of the witness, 2) there is a close relationship between the accused and the prospective Court‘s witness, 3) there is evidence thаt the proposed witness was an eyewitness to the act giving rise to the prosecution, 4) the witness gave a sworn statement concerning the relevant facts which have been or will probably be contradicted, and 5) the absence of the witness‘s testimony would likely result in a miscarriage of justice. See also Riddle v. State, ___ S.C. ___, 443 S.E. (2d) 557 (1994). Here, the proposed witness had not given a sworn statement. Therefore, the trial judge did not err in refusing to call him as a court‘s witness.
For the foregoing reasons, Evans’ conviction are
Affirmed.
CHANDLER, Acting C.J., MOORE, J., and WILLIAM H. BALLANGER, Acting Associate Justice, concur.
FINNEY, Justice:
I respectfully dissent from that part of the majority opinion which upholds the admission of the co-defendant‘s statement. In my opinion, the admission of Altman‘s statement, “I wasn‘t driving anyway” violated Evans’ Confrontation Clause rights.
Evans was charged with driving the vehicle which killed the children: Altman merely with misprision of felon, that is, the failure to report Evan‘s crime. There was рhysical evidence placing Altman at the scene, and evidence that there were two people in the truck when the children were struck. The trial judge redacted the explicit reference in Altman‘s statement naming Evans as the driver, but refused to redact the statement that Altman was not the driver, an indisputable reference to the existence of an additional person. Although not named that persоn could only be Evans.
A nontestifying codefendant statement need not name the defendant in order to incriminate him. State v. Singleton, 303 S.C. 313, 400 S.E. (2d) 487 (1991) (redaction of appellant‘s name but not his general physical description violated appellant‘s Confrontation Clause rights); see also State v. LaBarge, 275 S.C. 168, 268 S.E. (2d) 278 (1980) [substitution of “Mr. X” for defendant‘s name would not satisfy Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. (2d) 476 (1968)]. In Richardson v. Marsh, the Supreme Court held that the redaction of any reference to the existence of another defendant satisfies the Confrontation Clause, even if other evidence links the defendant to the crime where a proper limiting instruction is given. Id. (Emphasis added.) Here, the redaction is incomplete and unequivocally indicates the presence of another, more culpable individual. Further, there was no contemporaneous limiting instruction.1 Under the circumstances of this case, Altman‘s statement, fairly understood, incrimi-
I concur in the majority‘s conclusion that neither the admission of the Grandfather‘s posthypnotic statement regarding the truck‘s color nor the admission of the “expert” testimony of intoxication require reversal, albeit for different reasons. I would hold that a statement obtained, as was the Grandfather‘s, in violation of every procedural safeguard outlined in State v. Hurd, 86 N.J. 525, 432 A. (2d) 86 (1981), is per se inadmissable. The majority holds that a trial judge may admit such a statement if she determines that it is “more accurate,” that is, that it better reflects the “true facts” in the case. Such a determinatiоn requires the trial judge to make an inappropriate intrusion into the jury‘s province to decide the facts. I would hold that the trial judge erred in admitting the Grandfather‘s posthypnotic recollection of the truck‘s color because it was obtained without proper procedural safeguards, but that the admission was harmless error in light of Evans’ attorney‘s concession in his closing argument that the color of the vеhicle which struck the children was simply not a contested issue. State v. Shaw, 258 S.C. 236, 188 S.E. (2d) 186 (1972).
Further, any error in the admission of the “expert” testimony on intoxication is harmless under the facts of this case. Evans was charged with felony DUI but convicted only of the lesser offense of involuntary manslaughter.2 The jury was told by the solicitor3 that if it returned an involuntary manslaughter verdict, that would mean it found Evans was not under the influence of drugs or alcohol. The jury did return such a verdict, and thus obviously did not aсcept the “expert” testimony. Any error in its admission was harmless beyond any doubt. See State V. Rochester, 301 S.C. 196, 391 S.E. (2d) 244 (1990) (any error in admission of evidence of sexual intercourse harmless where judge directed a verdict on criminal sexual conduct charge).
Finally, the majority finds no error in the trial judge’ re-
For the foregoing reasons, I dissent in part and concur in part.