S.E. 2d
The Supreme Court of South Carolina
The State, Respondent
v.
Robert Anders, Petitioner.
ORDER
The State petitions for rehearing and to make more definite and certain;
the motions are denied. The opinion previously filed by this Court, Op. No.
24806 (S.C. Sup. Ct. filed June 22, 1998) (Davis Adv. Sh. No. 23, at 3), is
withdrawn and the following Opinion is substituted in its place.
Columbia, South Carolina
July 20, 1998
p.3
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Robert Anders, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Greenville County
Paul M. Burch, Judge
Opinion No. 24806
Heard May 26, 1998 - Refiled July 20, 1998
REVERSED
O.W. Bannister, Jr. and D. Garrison Hill, both of
Hill, Wyatt & Bannister, of Greenville, for
petitioner.
Attorney General Charles Molony Condon, Chief
Deputy Attorney General John W. McIntosh,
Assistant Deputy Attorney General Salley W. Elliott,
and Senior Assistant Attorney General Harold M.
Coombs, Jr., of Columbia, and Solicitor Robert M.
Ariail, of Greenville, for respondent.
WALLER, A.J.: We granted certiorari to review the Court of Appeals'
decision in State v. Anders and Simmons, ___S.C.___, 483 S.E.2d 780
p.4
STATE v. ANDERS
(1997). We reverse.
FACTS
Appellant, Robert Anders (Anders) and his codefendant, Larry Simmons
(Simmons) were convicted of conspiracy, third degree arson, and burning to
defraud an insurer, in connection with the October 17, 1992 fire which
destroyed Anders' construction firm (R.R.&E.) in Greer.
At their joint trial in May, 1995, Rhonda Sutherland, the wife of an
employee of R.R.&E., testified over Anders' objection that the Monday after
the fire, she heard Simmons joking that "Robert was going to pay him big for
blowing up the building," and explaining that he had set the fire by leaving
open propane gas tanks in each room with a lit cigarette in an ashtray on
top of a book of matches.1 The trial court ruled the statements were
admissible against Anders on the basis they were made by Simmons in the
furtherance of a conspiracy, so as to be admissible against both Anders and
Simmons.
The Court of Appeals held Simmons' statement was not admissible
under the co-conspirator exception since, even if made during the conspiracy,
the statement in no way advanced the conspiracy. The Court of Appeals
nonetheless affirmed in result, finding the statement admissible against
Simmons as a statement against penal interest; the Court further held
admission of the statement did not violate Anders' Sixth Amendment right
of confrontation, since Simmons was available and testified at trial.
DISCUSSION
We agree with the Court of Appeals' holding that Simmons' admission
to the crime in no way furthered the conspiracy. Accord United States v.
Posner, 764 F.2d 1535 (11th Cir. 1985), cert. denied (although statements
made to "allay suspicions" may be "in furtherance" of conspiracy, "spilling the
beans" does not further conspiracy); United States v. Pallais, 921 F.2d 684
(7th Cir. 1990), cert. denied, 112 S.Ct. 134 (1991) (casual admissions of
culpability are not "in furtherance" of conspiracy and are insufficiently
reliable to be considered by the jury). Accordingly, the Court of Appeals
correctly ruled the statement was not admissible under the co-conspirator
1 Although much circumstantial evidence was presented, the statement
attributed to Simmons was the only direct evidence of Anders' participation
in the fire.
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STATE v. ANDERS
exception. See State v. Sullivan, 277 S.C. 35, 42, 282 S.E.2d 838, 842 (1981)
(exception to rule against hearsay permits statements of one conspirator
made during the pendency of the conspiracy, and in furtherance thereof, to
be admitted against a co-conspirator once prima facie evidence of a conspiracy
is proved); see also South Carolina Rules of Evidence, Rule 801(d)(2)(e).2
However, we disagree with the Court of Appeals' conclusion that
Simmons' statement was nonetheless admissible as a statement against his
penal interest.
Out-of-court statements against penal interest, made by an unavailable
declarant, are admissible in both civil and criminal trials. State v. Doctor,
306 S.C. 527, 413 S.E.2d 36 (S.C. 1992). See also SCRE, Rule 804(b)(3).
Where the declarant is available to testify, the exception is inapplicable.
State v. McKnight, 321 S.C. 230, 467 S.E.2d 919 (1996). Here, as Simmons
was available and did testify, the exception for statements against penal
interest is clearly inapplicable. Accordingly, the Court of Appeals erred in
admitting the statement under this exception.3
The Court of Appeals further found that, since Simmons was present
and testified at trial, there was no Confrontation Clause violation in its
admission. In light of the fact that Simmons' statement was not admissible
2 This case was tried in May, 1995, prior to the effective date of the
South Carolina Rules of Evidence (SCRE).
3 The only other conceivable basis upon which to justify admission of
Simmons' statement against Anders would be as a prior inconsistent
statement. The timing of Sutherland's testimony precludes its use in such
a manner. See Commonwealth v. Sopota, 587 A.2d 805 (Pa. 1991)(admission
of prior inconsistent statement of a witness, for its substantive value, without
the person first taking the stand and denying having made it, is reversible
error). In Sopota, the court held the error was not cured when the declarant
was subsequently called as a witness by the defendant; once the declarant's
statement had been introduced by the state, the defendant was virtually
compelled to call the declarant in order that the declarant could explain the
discrepancies. Id. at 809-811. As in Sopota, once the State introduced
Sutherland's testimony, Simmons had little alternative but to take the stand
and either explain or deny the statement attributed to him.
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STATE v. ANDERS
against Anders,4 we need not address the Confrontation Clause issue.5 The
Court of Appeals' opinion is
REVERSED.6
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.
4 The statement was admissible against Simmons as an admission. The
fact that it was an admission by Simmons, however, does not render it
automatically admissible against Anders. On the contrary, Rule 801(d)(2)
provides a statement is an admission if it is "offered against a party and is
(A) the party's own statement in either an individual or a representative
capacity..." The statement here was not Anders' "own statement," and was
clearly therefore not admissible as an admission against Anders. Accord,
United States v. Hay, 122 F.3d 1233 (9th Cir. 1997)(codefendant's admissions
not admissible as nonhearsay against defendant under party admission
exemption).
To the extent the statement was admissible against Simmons, it should
have been redacted to omit any reference to Anders. Accord. State v. Clark,
286 S.C. 432, 334 S.E.2d 121 (1985) (it is error to admit codefendant's
confession without redacting references to defendant).
5 To the extent the Court of Appeals addressed the Confrontation Clause
issue, its opinion is vacated.
6 Our opinion in no way impacts Simmons' convictions.
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