Davis Adv. Sh. No. 6
S.E. 2d


In The Supreme Court

The State, Respondent,


Joseph E. Garcia, Appellant.

Appeal From Chester County

Paul E. Short, Jr., Circuit Court Judge

Opinion No. 24896

Heard December 16, 1998 - Filed February 8, 1999


David L. Bruck and Assistant Appellate Defender

Melody J. Brown, of South Carolina Office of

Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Special Assistant Attorney General Robert F. Daley,

Jr., of Columbia; and Solicitor John R. Justice, of

Chester, for respondent.

BURNETT, A.J.: Appellant was convicted of murder and

sentenced to life imprisonment. We reverse.




Appellant admitted he shot and killed his girlfriend, Holly

Crouch Collins' while the two were at home on the evening of July 19,

1996. Appellant maintained the shooting was an accident. There were no


Over appellant's objection, the State presented witnesses who

testified, in essence, shortly before her death, the deceased was scared of

appellant. Specifically, these witnesses testified as follows:

1) Iva Hopper, Holly's grandmother, testified, the day before

Holly's death, she noticed a bruise below Holly's knee. She

asked Holly how she had acquired the bruise and Holly stated

appellant had kicked her.

2) Lisa Estes, Holly's cousin, testified a week before Holly's

death, Holly told her appellant stated, if she ever left him, he

would kill her and her family.

Appellant offered no evidence at trial.


Did the trial court err by ruling Estes' and Hopper's testimony

was admissible under Rule 803(3), SCRE, the "state of mind"



Appellant argues the trial court erred by admitting Estes' and

Hopper's testimony under the "state of mind" exception to the rule against

hearsay.1 Rule 803(3), SCRE. More particularly, appellant contends the

decedent's state of mind was not a relevant issue and, further, the

decedent's statements do not fall within the "state of mind" exception to

1Initially, appellant also objected to a statement made by Heather

Sloan. In his reply brief and at oral argument, however, appellant

essentially conceded Sloan's testimony was properly admitted and, as a

whole, was non-prejudicial.



the rule against hearsay.

Evidence is relevant, if it tends to "make the existence of any

fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence." Rule

401, SCRE. Here, the victim's state of mind - that she was scared of

appellant - was relevant because it -tended to disprove appellant's

contention the shooting was an accident; the victim's fear suggests

appellant may have intended the shooting. United States v. Tokars, 95

F.3d 1520 (11th Cir. 1996)(when relevant to the motive to kill, evidence of

the victim's state of mind is admissible under Rule 803(3), FRE); State v.

Wood, 881 P.2d 1158 (Ariz. 1994)(victim's statements about her fear of

defendant and her desire to end their relationship were relevant to trial

issues of defendant's motive and mental state); State v. Richards, 552

N.W.2d 197 (Minn. 1996)(where defendant raised accident and/or suicide

as a defense to homicide charge, victim's state of mind was relevant);

State v. Crawford, 472 S.E.2d 920 (N.C. 1996)(in homicide trial, victim's

state of mind was relevant to refute defendant's claim of self-defense and

accident); see also State v. Shurn, 866 S.W.2d 447 (Mo. 1993)(victim's

statements of fear are relevant where defendant argues self-defense).

We find, however, that, while the decedent's state of mind was

relevant, Hopper's and Estes' testimony concerning the victim's statements

to them were not admissible under the state of mind exception.2

"'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

generally inadmissible. Rule 802, SCRE.

Rule 803, SCRE, provides, in part, as follows:

The following are not excluded by the hearsay rule:

(3) Then existing mental, emotional, or physical condition.

2 41 C.J.S. Homicide 237 (1991)("[a]s a general rule, statements and

declarations by deceased are not evidence either for or against accused,

unless they come within some of the recognized exceptions to the hearsay




A statement of the declarant's then existing state of mind,

emotion, sensation, or physical condition (such as intent, plan,

motive, design, mental feeling, pain, and bodily health), but not

including a statement of memory or belief to prove the fact

remembered or believed unless it relates to the execution,

revocation, identification, or terms of declarant's will.

Rule 803(3), SCRE, is identical to its counterpart in the

Federal Rules of Evidence. Under the Federal Rules of Evidence, "Rule

803(3) provides an exception for statements of present state of mind,

emotion or physical condition." S. Saltzburg, M. Martin, D. Capra, Federal

Rules of Evidence Manual, p.1656 (1998). These statements are

considered trustworthy because "they are based on unique perception; that

is, the declarant has a unique perspective into his own feelings and

emotions." Id. Statements may either directly or circumstantially show

the declarant's state of mind, emotion, or physical condition. M. Graham,

Handbook of Federal Evidence (1996).

Like Rule 803(3), FRE, Rule 803(3), SCRE, "does not permit a

statement of memory or belief to prove the fact remembered," unless

relating to the declarant's will. Id The purpose of this exclusion is "to

avoid the virtual destruction of the hearsay rule which would otherwise

result from allowing state of mind, provable by a hearsay statement, to

serve as a basis for an inference of the happening of the event which

produced the state of mind.3 Advisory Committee Note to Rule 803(3),

FRE. Consequently, while the present state of the declarant's mind is

admissible as an exception to hearsay, the reason for the declarant's state

of mind is not. United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.

1980)("But the state-of-mind exception does not permit the witness to

relate any of the declarant's statements as to why he held the particular

3 Rule 803(3), FRE, is a codification of the holding in Shepard v.

United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933), where the

Court held the ill victim's statement to her nurse that she had taken her

husband's whiskey before collapsing and he had poisoned her was

inadmissible. The Court noted the statement "spoke to a past act, and

more than that, to an act by some one not the speaker." Id. U.S. at 106,

S.Ct. at 26, L.Ed. at 202. The Court distinguished the victim's statement

from those "[d]eclarations of intention, casting light upon the future . . .". Id.



state of mind, or what he might have believed that would have induced

the state of mind. If the reservation in the text of the rule is to have any

effect, it must be understood to narrowly limit those admissible statements

to declarations of condition - 'I'm scared'- and not belief - 'I'm scared

because [someone] threatened me'.").

Hopper's and Estes' testimony concerning statements the

deceased made to them were improperly admitted under Rule 803(3),

SCRE. While their testimony presents circumstantial evidence of the

decedent's fear of appellant and concern for her safety, the testimony

improperly reveals the reason for her state of mind (i.e., that appellant

had kicked and threatened to kill her). United States v. Joe, 8 F.3d 1488

(10th Cir. 1993)(under Rule 803(3), FRE, witness could testify declarant

stated she was "afraid sometimes," but not because she thought her

husband was going to kill her); State v. Wood, supra (witness' testimony

'[declarant] told me that she did not want to stay at the apartment

because [defendant] had threatened her life" was inadmissible under Rule

803(3), Ariz.R.Evid.); State v. Bell, 950 S.W.2d 482 (Mo. 1997)(testimony

that decedent had stated defendant had assaulted her on prior occasions

was inadmissible hearsay); State v. Reynolds, 687 N.E.2d 1358 (Ohio

1998)(declarant's statements that she was fearful or concerned are

admissible but reasons for emotions are not admissible). Accordingly, the

trial judge erred in admitting Hopper's and Estes' testimony.4

4 The trial judge also ruled Hopper's and Estes' testimony was also

admissible under Rule 803(l), SCRE, present sense impression, and Rule

803(2), SCRE, excited utterance. Under Rule 803(l), SCRE, a statement

describing or, explaining an event or condition is admissible if "made while

the declarant was perceiving the event or condition, or immediately

thereafter." Under Rule 803(2), SCRE, "a statement relating to a startling

event or condition made while the declarant was under the stress of

excitement caused by the event or condition" is admissible. The deceased's

statements to Hopper and Estes were neither a present sense impression

nor an excited utterance. There was no indication as when appellant had

kicked or threatened the deceased so as to determine the timing of the

events in relation to her statements to Hopper and Estes. See State v.

Hill, 331 S.C. 94, 501 S.E.2d 122 (1998)(where it was unknown whether

declarant's statement was made under the stress of excitement caused by

the event, the statement was not admissible as excited utterance); State v.

Burroughs, 328 S.C. 489, 492 S.E.2d 408 (Ct. App. 1997)(victim's



In light of the entire record and, because the incompetent

testimony offered by Hopper and Estes directly refutes appellant's accident

defense, we conclude the admission of their testimony was not harmless

beyond a reasonable doubt. Accordingly, appellant's conviction and

sentence are hereby reversed.


FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.

statement to police and nurse approximately ten hours after incident was

inadmissible as present sense impression).