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

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)

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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

attempting another, unrelated burglary.

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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

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

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

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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.

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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

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.

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).

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