THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
James Fossick, Appellant.
Appeal From Richland County
Gary E. Clary, Judge
Opinion No. 24849
Heard September 24, 1998 - Filed November 9, 1998
Assistant Appellate Defender M. Anne Pearce, of S.C.
Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles Molony Condon; Assistant
Deputy Attorney General Donald J. Zelenka; Assistant
Attorney General Robert F. Daley, Jr., and Solicitor
Warren B. Giese, all of Columbia, for respondent.
MOORE, A.J.: Appellant was convicted in 1986 for the
murder of Marilee Whitten. This Court affirmed by memorandum opinion
in 1987 but subsequently reversed the denial of post-conviction relief.
Fossick v. State, 371 S.C. 375, 453 S.E.2d 899 (1995) (counsel ineffective
for failing to object to solicitor's argument regarding lack of remorse).
Appellant was re-tried in May 1996, convicted, and sentenced to life
STATE v. FOSSICK
imprisonment. We affirm.
Seventeen-year-old Marilee Whitten was last seen alive on May 11,
1985. Her partially decomposed and naked body was found in a wooded
area of lower Richland County four days later. Appellant, who was
Marilee's co-worker, was interviewed several times by police over the next
four months. He ultimately confessed he killed Marilee after forcing her
into the trunk of his car, driving to a wooded area, and attempting to rape
her. Appellant subsequently led police to the murder weapon, a vase-like
lamp base, that he had discarded in a nearby trash heap.
Whether the trial judge erred in excluding impeachment
evidence of a prior inconsistent statement by State's witness
Shane Parker and, if so, was the error harmless?
Appellant and Marilee met at the animal clinic where they both
worked part-time. Shane Parker, another teenager, worked there also.
Shane testified for the State.
According to Shane's testimony, he, appellant, and Marilee all left
work shortly after 1:00 p.m. on Saturday, May 11. Shane spoke with
them briefly in the parking lot before leaving. He was driving around a
near-by neighborhood when he saw appellant's and Marilee's cars parked
on the side of the road. He spoke with appellant while Marilee remained
sitting in her car. This was around 1:30 p.m. Shane then drove off.
When he called Marilee's house later that afternoon, she was not at home.
Marilee's parents testified she never returned home from work.
On cross-examination, defense counsel asked Shane if he had once
had a girlfriend named Michelle. Shane acknowledged he had and that
they had double-dated with Michelle's sister and a friend named Lee
Keefe. Defense counsel then asked:
Q: Do you recall a time back in 1989 when you got mad at
Michelle and said, "I killed that bitch. I'll kill you, too."
STATE v. FOSSICK
A: No, that was never said.
Q: It was never said in the presence of your friend Lee Keeffe
and other individuals?
A: No, sir.
Q: So you deny saying that.
A: Yes, sir.
On re-direct, Shane again denied he had made such a statement. After
the State rested its case, appellant proffered the testimony of Lee Keeffe
to the effect that Keeffe heard Shane say to Michelle: "I killed that bitch
and I'll kill you."
The State objected on the ground that under Rule 608(b), SCRE,
extrinsic evidence is not admissible to attack a witness's credibility. To
the contrary, appellant argued this evidence was admissible as extrinsic
evidence of a prior inconsistent statement under Rule 613(b), SCRE. The
trial judge ruled the evidence inadmissible for impeachment under Rule
Rule 613(b) provides in pertinent part:
(b) Extrinsic Evidence of Prior Inconsistent Statement of
Witness. Extrinsic evidence of a prior inconsistent statement
by a witness is not admissible unless the witness is advised of
the substance of the statement, the time and place it was
1As an alternative ground for excluding this evidence, the trial judge
ruled it was inadmissible evidence of third-party guilt under State v. Parker,
294 S.C. 465, 366 S.E.2d 10 (1988), and State v. Gregory, 198 S.C. 98, 16
S.E.2d 532 (1941). Appellant never challenged this ruling until oral
argument before this Court. Accordingly, we decline to determine whether
Shane's statement should have been admitted as evidence of third-party guilt.
See State ex rel. Carter v. State, 325 S.C. 204, 481 S.E.2d 429 (1997) (Court
will not decide issue raised for first time at oral argument). Even if this
evidence is inadmissible as substantive evidence, however, it may still be
admissible for impeachment purposes. See State v. Staley, 294 S.C. 451, 365
S.E.2d 729 (1988) (defendant's prior convictions admissible for impeachment
but not evidence of guilt).
STATE v. FOSSICK
allegedly made, and the person to whom it was made, and is
given the opportunity to explain or deny the statement. If a
witness does not admit that he has made the prior inconsistent statement,
extrinsic evidence of such statement is admissible.
(emphasis added). Since Shane denied the statement, the proffered
extrinsic evidence was admissible under Rule 613(b).2 We conclude the
trial judge erred in excluding Keeffe's testimony as impeachment evidence
but find the error harmless.
In determining harmless error regarding any issue of witness
credibility, we will consider the importance of the witness's testimony to
the prosecution's case, whether the witness's testimony was cumulative,
whether other evidence corroborates or contradicts the witness's testimony,
the extent of cross-examination otherwise permitted, and the overall
strength of the State's case. State v. Holmes, 320 S.C. 259, 464 S.E.2d
334 (1995) (citing Delaware v. Van Arsdall, 475 U.S. 673 (1986)).
Here, the main thrust of Shane's testimony was that he left
appellant and Marilee about 1:30 p.m. on the day Marilee disappeared.
This same information was admitted intoevidence as part of a statement
appellant made to police months before his confession that he was with
Marilee at 1:30 p.m. that day when Shane saw them on the side of the
road. Appellant's father also testified to this statement which appellant
made to police in his father's presence. Accordingly, Shane's testimony
Further, Shane's testimony was relatively unimportant to the State's
case which rested on appellant's confession and the fact he led police to
the murder weapon. In addition, appellant was permitted extensive cross-
2 Rule 608(b), upon which the trial judge based his exclusion of this
evidence, does not apply. Rule 608(b) provides in pertinent part:
(b) Specific Instance of Conduct. Specific instances of the
conduct of a witness, for the purpose of attacking or supporting
the witness' credibility, other than conviction of crime as provided
in Rule 609, may not be proved by extrinsic evidence.
Although Rule 608 prohibits extrinsic evidence, it applies only to evidence of
conduct and not evidence of a statement. United States v. Higa, 55 F.3d 448
(9th Cir. 1995).
STATE v. FOSSICK
examination of Shane and impeached him with extrinsic evidence of
conduct Shane denied. In light of all these factors, exclusion of Shane's
prior inconsistent statement as impeaching evidence was harmless.
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.