Shearouse Adv. Sh. No.
S.E. 2d


In The Supreme Court

The State, Respondent,


Moses Abdul Dennis, Appellant.

Appeal From Charleston County

Daniel F. Pieper, Circuit Court Judge

Opinion No. 25022

Heard March 3, 1999 - Filed November 22, 1999


Assistant Appellate Defender Aileen P. Clare of the

South Carolina Office of Appellate Defense,

Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, and

Senior Assistant Attorney General William Edgar

Salter, III, all of Columbia, and Solicitor David P.

Schwacke of North Charleston, for respondent.

WALLER, A.J.: Moses Abdul Dennis (appellant) was convicted of

murder and sentenced to life in prison. We affirm.




The State accused appellant and his younger brother, Moses Otis

Dennis (Otis), of murdering Terrance Johnson (victim) in September 1995.

Appellant, Otis, and a third man fought with the victim in the early morning

hours in the street outside an apartment complex in Charleston. The fight

ended when the victim was shot once in the head. Appellant defended himself

at his first trial in December 1996 by calling witnesses who accused his brother

of shooting the victim. That case ended in a mistrial.

The State placed the brothers on trial together in July 1997. The

only physical evidence connecting either appellant or his brother to the crime

was appellant's palm print on the trunk of a borrowed car he had driven to the

scene. The State called three alleged eyewitnesses. Two witnesses testified they

heard the gunshot, turned, and sew appellant either pointing a handgun at the

victim or standing over the victim holding a gun. One witness testified that the

third man who participated in the fight, while looking at appellant, said,

"[D]amn, Mose, you shot him." The State's final eyewitness testified she saw

appellant and Otis fighting with the victim and heard the gunshot, but did not

see appellant standing over the victim with a gun.

A police officer testified she saw appellant, whom she knew, walking

away from the crime scene. Appellant was sweating noticeably when she

approached him, and he said someone had told him the victim had been shot.

Appellant repeatedly asked the officer whether the victim was dead.

Appellant called three alleged eyewitnesses in his defense. The first

witness testified she saw appellant begin fighting with the victim, but said that

Otis - not appellant - shot the victim after returning to the scene from the

nearby apartments. The second witness, Bernard Horlback, testified he did not

see the fight, but heard the gunshot and turned to see the victim lying on the

ground. One to two minutes later, Horlback saw Otis tucking a gun beneath his

shirt as he walked between apartment buildings. Otis told him that appellant

shot the victim, Horlback testified. Horlback conceded appellant could have shot

the victim, then handed Otis the gun. Appellant's third witness testified

appellant and the victim fought in the street. The witness heard the gunshot,

but claimed he did not remember what happened because he was "high" from

smoking marijuana.



Neither appellant nor Otis testified. The jury convicted appellant

of murder and found Otis not guilty.


1. Did the trial judge err in denying appellant's

pretrial severance motion?

2. Did the trial judge err in denying appellant's

mistrial motion under Bruton v. United States 1

after jurors heard testimony about an excited

utterance made by a codefendant?



Appellant contends the trial judge, relying in part upon Zafiro v.

United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), erred in

denying his pretrial severance motion. We disagree.

Otis and appellant in a pretrial motion asked the judge to sever the

trials. They argued that appellant's previous mistrial indisputably

demonstrated the mutually antagonistic nature of their defenses, which meant

a joint trial would compromise their right to a fair trial.

The judge denied the motion, ruling that the fact that such a defense

actually arose in appellant's previous trial - as compared with the typical case

in which such a defense is expected to arise - did not change the analysis. The

judge concluded that the existence of mutually antagonistic defenses did not

require severance, and appellant had not shown that a joint trial would violate

any specific trial right. The judge gave the jury cautionary instructions in his

opening comments and at the end of the trial.1

1 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

2 Before testimony. began, the judge told jurors:

(continued... )



Criminal defendants who are jointly tried for murder are not entitled

to separate trials as a matter of right. State v. Kelsey, 331 S.C. 50, 73-74, 502

S.E.2d 63, 75 (1998); State v. Holland, 261 S.C. 488, 201 S.E.2d 118 (1973); State

v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972). A defendant who alleges he was

improperly tried jointly must show prejudice before this Court will reverse his

conviction. State v. Crowe, supra. The general rule allowing joint trials applies

with equal force when a defendant's severance motion is based upon the

likelihood he and a codefendant will present mutually antagonistic defenses, i.e.,

accuse one another of committing the crime. State v. Leonard, 287 S.C. 462, 473,


Now, as you may have heard during the jury selection

process, there are two Defendants in this case charged

in separate indictments. You must consider each

charge separately, and you must decide separately

whether each individual Defendant is guilty or not

guilty of each charge alleged by the indictment. It is

your duty to give such consideration to each individual

Defendant on each separate charge alleged in the

indictment. You must therefore consider separately the

evidence and the law for each individual Defendant for

each charge and write your verdict accordingly.

At the end of the trial, the judge told jurors:

As you are aware, there are two Defendants in this

case, and each Defendant is charged with one count of

murder. Whatever verdict you find does not have to be

the same as to all Defendants. You take each

Defendant and consider the evidence as to that

Defendant alone, and write your verdict accordingly, in

conformity with the evidence in the case and the

instructions which I have given to you. Where more

than one person is charged with a crime, you may

convict one and acquit the other if the evidence

warrants it, or you may acquit both or you may convict

both. It will depend upon your view of the testimony

and the evidence which you alone can act upon.



339 S.E.2d 159, 165 (Ct. App. 1986), reversed on other grounds, 292 S.C. 133,

355 S.E.2d 270 (1987).

The trial judge, however, must act cautiously in allowing a joint

trial. The judge must carefully consider problems that may arise from a joint

trial, such as redacted statements, and must assure protection of each

defendant's constitutional right to confront witnesses against him. State v.

Singleton, 303 S.C. 313, 315, 400 S.E.2d 487,_488 (1991). A proper cautionary

instruction may help protect the individual rights of each defendant and ensure

that no prejudice results from a joint trial. State v. Holland, 261 S.C. at 494, 201

S.E.2d at 121.

Motions for a severance and separate trial are addressed to the

discretion of the trial court. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118

(1997); State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), overruled on other

grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Absent a

showing of an abuse of discretion, this Court will not disturb the trial court's

ruling on appeal. State v. Nelson, 273 S.C. 380, 256 S.E.2d 420 (1979).

In Zafiro v. United States, supra, the United States Supreme Court

held that Rule 14 of the Federal Rules of Criminal Procedure does not require

severance as a matter of law when codefendants present mutually antagonistic

defenses. The Supreme Court noted it repeatedly has approved of joint trials.

The Supreme Court held that severance should be granted only when there is

a serious risk that a joint trial would compromise a specific trial right of a

codefendant or prevent the jury from making a reliable judgment about a

codefendant's guilt. The Supreme Court left the decision to the sound discretion

of the district court. Id. at 537-41, 113 S.Ct. at 937-39, 122 L.Ed.2d at 323-26.

The principles espoused in Zafiro are consistent with this Court's

precedent. Therefore, we hold the trial judge did not err in relying upon Zafiro.

We further hold the judge did not abuse his discretion in denying

appellant's pretrial motion to sever the joint trial. The State alleged that both

defendants participated in the murder of the victim. We agree with the judge

that the fact appellant in his first trial actually called witnesses who accused his

younger brother of shooting the victim does not change the analysis. Neither

appellant nor Otis pointed to any specific trial right that would be prejudiced by

a joint trial. Furthermore, the judge gave a cautionary instruction before



testimony began and in his closing charge. The instructions were similar to

those described approvingly by the Supreme Court. Zafiro, 506 U.S. at 541, 113

S.Ct. at 939, 122 L.Ed.2d at 326. Jurors obviously were able to follow those

instructions, as they found appellant guilty and his brother not guilty.


Appellant contends the trial judge erred in denying his mistrial

motion on the grounds that the statement at issue was not an excited utterance,

and that it was inadmissible under the Bruton doctrine. We disagree.


While cross-examining eyewitness Horlback, the prosecutor elicited

the following testimony:

Q. When you saw - I'm going to call him Moses Otis

Dennis - when you saw Moses Otis Dennis, that was

real shortly after the shooting, wasn't it?

A. Yes, sir.

Q. You all were still all excited and everything, weren't


A. Yes, sir.

Q. And [Otis] told you that his brother had shot [the

victim] because [the victim] had taken a swing at his


A. Uh huh.

Q. He said that, didn't he?

A. Yes, sir.

Appellant argues the State did not establish the statement in

question was an excited utterance that was admissible under Rule 803(2), SCRE.

"'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), SORE. An excited utterance is 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." Rule 803(2), SORE. A

statement that is admissible because it is "not hearsay" under Rule 801(d),



SCRE, or because it falls within an exception in Rule 803, SORE, may be used

substantively, i.e., to prove the truth of the matter asserted. Simpkins v. State,

303 S.C. 364, 401 S.E.2d 142 (1991); 2 McCormick on Evidence, 251, 254

(1992); C.B. Mueller & L.C. Kirkpatrick, Modern Evidence - Doctrine and

Practice, 8.24 (1995).

The rationale behind the excited utterance exception is that the

startling event suspends the declarant's process of reflective thought, reducing

the likelihood of fabrication. In determining whether a statement falls within

the excited utterance exception, a court must consider the totality of the

circumstances. State v. Hill, 331 S.C. 94, 99, 501 S.E.2d 122, 125, cert. denied,

U.S. , 119 S.Ct. 597, 142 L.Ed.2d 539 (1998).

Appellant's argument that the State failed to show the statement

was an excited utterance argument is unpersuasive. Otis allegedly had just seen

his brother shoot an unarmed man, abruptly ending a fistfight. Horlback

testified Otis made the statement to him when he saw Otis one to two minutes

after the shooting, tucking a gun beneath his shirt as he walked between

apartment buildings. The statement was an excited utterance admissible under

Rule 803(2), SCRE. Accord State v. Burdette, 335 S.C. 34, 41-44, 515 S.E.2d

525, 529-30 (1999) (victim's statement to police less than one hour after attack

was an excited utterance).


Appellant next contends the trial judge should have granted his

mistrial motion because he was denied his right to confront Otis about the

statement in violation of the Sixth Amendment's Confrontation Clause, citing

Bruton v. United States, supra. We have not previously addressed a case in

which an appellant alleged a statement, even if admissible as an excited

utterance, is nonetheless barred by the Confrontation Clause.

In Bruton, the Supreme Court held that a defendant's rights under

the Confrontation Clause of the Sixth Amendment3 are violated by the admission

3 "In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . ." U.S. Const. amend. VI. The

provision is applicable to the states under the Fourteenth Amendment. Pointer




of a non-testifying codefendant's confession that inculpates a defendant, even if

a cautionary instruction is given. Bruton, 391 U.S. at 126, 88 S.Ct. at 1622, 20

L.Ed.2d at 499; State v. Evans, 316 S.C. 303, 307, 450 S.E.2d 47, 50 (1994). The

Supreme Court recognized that the

truthfinding function of the Confrontation Clause is

jeopardized when an accomplice's confession is

introduced against a defendant without the benefit of

cross-examination. The danger emanating from a

denial of the right to confront and cross-examine a

witness is that an accomplice's statements are often

unreliable and must, therefore, be viewed with

suspicion because of the likelihood of an accomplice's

desire to exonerate himself by implicating others.

State v. Martin, 292 S.C. 437, 439, 357 S.E.2d 21, 22 (1987) (citing Bruton).

Thus, Bruton is grounded in two concerns: a defendant's constitutional right to

cross-examine his accusers and the inherent unreliability of statements made

by a defendant who stands to gain by shifting blame to a codefendant.

The Supreme Court, however, emphasized that the hearsay

statement inculpating Bruton was not admissible against him under traditional

rules of evidence. The Supreme Court expressed no opinion on whether the

admission in a joint trial of evidence properly admissible under an established

hearsay exception would violate the Confrontation Clause. Bruton, 391 U.S. at

128 n.3, 88 S.Ct. at 1623 n.3, 20 L.Ed.2d at 480 n.3.

The Supreme Court consistently has held that the Confrontation

Clause "does not necessarily prohibit the admission of hearsay statements

against a criminal defendant, even though the admission of such statements

might bethought to violate the literal terms of the Clause." Idaho v. Wright, 497

U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638, 651(1990). Although the

Supreme Court has recognized that "hearsay rules and the Confrontation Clause

are generally designed to protect similar values, [it] also has been careful not to


v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The South

Carolina constitution provides the same protection to a defendant. S.C. Const.

art. I, 14.



equate the Confrontation Clause's prohibitions with the general rule prohibiting

the admission of hearsay statements." Id. at 814,110 S.Ct. at 3146,111 L.Ed.2d

at 651 (citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597


An incriminating statement admissible under an exception to the

hearsay rule also is admissible under the Confrontation Clause only if it bears

adequate "indicia of reliability." The indicia of reliability requirement is met

when the hearsay statement falls within a firmly rooted hearsay exception.4 Id.

4 In Idaho v. Wright, the Supreme Court, citing Ohio v. Roberts, supra,

stated the first step in determining whether an incriminating statement

admissible under an exception to the hearsay rule also is admissible under the

Confrontation Clause was that the State must either produce, or demonstrate

the unavailability of, a declarant whose statement it wished to use against the

defendant. Id. at 814, 110 S.Ct. at 3146, 111 L:Ed.2d at 651. The Supreme

Court has clarified that view, stating "the unavailability analysis is a necessary

part of the Confrontation Clause inquiry only when the challenged out-of-court

statements were made in the course of a prior judicial proceeding," as they were

in Ohio v. Roberts. White v. Illinois, 502 U.S. 346, 353-56,112 S.Ct. 736, 741-42,

116 L.Ed.2d 848, 857 (1992); see also United States v. Inadi, 475 U.S. 387, 106

S.Ct. 1121, 89 L.Ed.2d 390 (1986) (Confrontation Clause does not require

showing of unavailability as condition to admission of out-of-court statement of

nontestifying co-conspirator that is admissible under Federal Rules of Evidence);

State v. Hutto, 325 S.C. 221, 226 n.7, 481 S.E.2d 432, 434 n.7 (1997) (recognizing

the clarification).

The Supreme Court also has held that a hearsay statement may be

deemed sufficiently reliable to avoid violating the Confrontation Clause when it

is supported by a showing of particularized guarantees of trustworthiness. The

second method of determining reliability appears to be grounded, at least in

part,. in the residual or catchall hearsay exception found in Federal Rule of

Evidence 807 (formerly Rule 803(24), FRE) and in some states' rules of evidence.

See Lilly v. Virginia, 527 U.S. , 119 S.Ct. 1887, 1901-02, 144 L.Ed.2d 117,

136-38 (1999) (explaining that analysis Supreme Court uses today closely links

Confrontation Clause, which has ancient origins, to modern hearsay rules)

(Breyer, J., concurring); Idaho v. Wright, 497 U.S. at 816-27, 110 S.Ct. at 3147-




at 814-16, 110 S.Ct. at 3146-47, 111 L.Ed.2d at 652-53.

The Supreme Court has held that an excited utterance, or

spontaneous declaration, is one such firmly rooted exception to the hearsay rule,

and its admission does not violate the Confrontation Clause. White v. Illinois,

502 U.S. 346, 357, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 860 (1992). The excited

utterance exception has existed for at least two centuries. Id. at 355 n.8, 112

S.Ct. at 742 n.8, 116 L.Ed.2d at 859 n.8.

[T]he evidentiary rationale for permitting hearsay

testimony regarding spontaneous declarations . . . is

that such out-of-court declarations are made in contexts

that provide substantial guarantees of their

trustworthiness . . . . A statement that has been offered

in a moment of excitement - without the opportunity to

reflect on the consequences of one's exclamation - may

justifiably carry more weight with a trier of fact than a

similar statement offered in the relative calm of the

courtroom ....

To exclude such probative statements under the

strictures of the Confrontation Clause would be the

height of wrongheadedness, given that the

Confrontation Clause has as a basic purpose the


53, 111 L.Ed.2d at 652-60 (affirming Idaho Supreme Court's decision that,

although a statement fell within Idaho's catchall hearsay exception, admitting

it would violate Confrontation Clause because it lacked sufficient particularized

guarantees of trustworthiness); Ohio v. Roberts, 448 U.S. at 66 & n.9, 100 S.Ct.

at 2539 & n.9, 65 L.Ed.2d at 608 & n.9 (describing the two methods of

determining the reliability of a statement, and noting complexity of reconciling

hearsay rules and Confrontation Clause).

Unlike the rules in the federal system and in other states, the South

Carolina Rules of Evidence do not contain the residual or catchall hearsay

exception. See Notes to Rule 803, SORE. We express no opinion on the second

method of determining reliability because it is not at issue in this case.



promotion of the integrity of the factfinding process ...

. [A] statement that qualifies for admission under a

firmly rooted hearsay exception is so trustworthy that

adversarial testing [by cross-examination] can be

expected to add little to its reliability.

Id. at 355-57, 112 S.Ct. at 742-43, 116 L.Ed.2d at 859-60 (internal quotes


Although White v. Illinois did not raise a Bruton issue because only

one defendant was on trial, we believe the principles and logic of the decision

apply with equal force in appellant's case. A federal appellate court concluded

the same in a case factually similar to appellant's seventeen years before the

Supreme Court decided White v. Illinois. In McLaughlin v. Vinzant, 522 F.2d

448 (1st Cir. 1975), the defendant and his female companion were tried jointly,

he for murder and she as an accessory. Three witnesses testified the female

companion ran back to an apartment the couple had left, about one minute after

the witnesses heard a gunshot, and said the defendant had just "shot someone."

The First Circuit upheld the admission of the excited utterance and found no

Bruton violation. Id. at 449-50; accord United States v. Vazquez, 857 F.2d 857,

864 (1st Cir. 1988) (finding no Bruton violation in the admission of a customs

official's testimony in a joint trial about a codefendant's excited utterance

implicating defendant, which was made when authorities detained the two men).

We hold that Otis's excited utterance, as repeated to the jury by

eyewitness Horlback, is not barred by the Confrontation Clause. Otis allegedly

made the statement one to two minutes after purportedly seeing his brother

fatally shoot an unarmed man. Its spontaneous nature ensures its reliability

without the need for cross-examination. An excited utterance differs markedly

from a statement or confession a codefendant makes to an investigator after

having had time to collect his or her thoughts, time enough perhaps to concoct

a story identifying an accomplice as the perpetrator. Otis's statement falls

within a firmly rooted exception to the hearsay rule and consequently does not

violate the Confrontation Clause. White v. Illinois, supra; accord State v.

Burdette, 335 S.C. at 44-45, 515 S.E.2d at 530-31 (holding that admission of an

excited utterance made by a victim to police did not violate the Confrontation

Clause because the excited utterance exception is a firmly rooted hearsay

exception) (citing White v. Illinois, supra).



Our holding is consistent with Lilly v. Virginia, 527 U.S. ___, 119

S.Ct. 1887, 144 L.Ed.2d 117 (1999), a recent case in which the Supreme Court

considered the Bruton doctrine, the Confrontation Clause, and firmly rooted

hearsay exceptions. In Lilly, a Virginia trial court admitted a nontestifying

codefendant's confession to police that implicated his defendant brother as

evidence against the defendant brother. The Virginia Supreme Court held that

the codefendant's custodial confession was a statement against his penal interest

and, because that qualifies as a firmly rooted hearsay exception under Virginia

law, admitting the codefendant's confession did not violate the defendant

brother's Confrontation Clause rights. Lilly, 527 U.S. at ___, 119 S.Ct. at 1893,

144 L.Ed.2d at 125.

A plurality of the Supreme Court reversed, holding that an

accomplice's custodial confession that inculpates a codefendant is not within a

firmly rooted hearsay exception. Id. at ___, 119 S.Ct. at 1898-99 & n.5, 144

L.Ed.2d at 133 & n.5. The dissenters found the plurality's analysis and holding

unnecessarily broad. The plurality, concurring, and dissenting justices,

however, all appear to support the continued vitality of the Bruton doctrine.

Furthermore, nothing in any of the opinions disturbs the principle that a

nontestifying codefendant's statement which is deemed reliable because it falls

within a firmly rooted hearsay exception may be admitted without violating the

Confrontation Clause.5


We affirm the trial judge's denial of appellant's pretrial severance

motion and conclude the judge did not err in relying upon Zafiro v. United

States, supra. We affirm the denial of appellant's mistrial motion because the

admission of the excited utterance of a codefendant did not violate appellant's

rights under the Confrontation Clause and Bruton v. United States, supra.


Toal, Moore and Burnett, JJ., concur. Finney, C.J., dissenting

in a separate opinion.

5 The Virginia courts and the Supreme Court also addressed the second

method of determining the reliability of a statement, i.e., whether the statement

contains sufficient particularized guarantees of trustworthiness. Again, our

opinion does not address that method. See footnote 4.



FINNEY, C.J.: I respectfully dissent. The State chose to try

appellant and his brother jointly for the murder of Terrance Johnson, and

therefore elected to subject itself to the special evidentiary considerations

which arise in such situations. See State v. Singleton, 303 S.C. 313, 400

S.E.2d 488 (1991) (admonishing trial judges to exercise caution in joint

trials, especially to ensure protection of Confrontation Clause rights); State

v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987) (urging "state to carefully

consider all the available alternatives before deciding to try co-defendants

jointly . . . ."). In my opinion, the admission of Otis' statement to Horlback

that appellant shot Johnson is the quintessential Confrontation Clause


The majority holds that the brother's "excited utterance",

inculpating only the appellant, made only one to two minutes after the

shooting, and made to a witness who observed the brother leaving the scene

while attempting to secrete the murder weapon, is so inherently reliable that

its admission is constitutionally permissible. The suggestion that this

statement is reliable because the brother did not have time to concoct a

blame-shifting story is naive, as is any assertion that the context in which

the statement was made provides a substantial guarantee of its

trustworthiness. To characterize all 'excited utterances' as 'firmly rooted'

hearsay exceptions exempt from the strictures of the Confrontation Clause is

an oversimplification similar to that made by the Virginia Supreme Court

and criticized by the United States Supreme Court in Lilly v. Virginia, 119

S.Ct. 1887 (1999). In the Lilly plurality opinion, the Court explicitly

reiterated, "It is clear that our cases consistently have viewed an

accomplice's statements that shift or spread blame to a criminal defendant as

falling outside the realm of those 'hearsay exception [s] [that are] so

trustworthy that adversarial testing can be expected to add little to [the

statements'] reliability."' 119 S.Ct. at 1898 (internal citation omitted).

While the issue raised in this appeal was left open by the United

States Supreme Court in Bruton v. United States, 390 U.S. 123, 128 n. 3

(1968), nothing in subsequent decisions by that Court persuades me that the

type of statement at issue here would ever be deemed admissible in a joint

trial. I would reverse appellant's conviction.