State v. Dennis

FINNEY, Chief Justice:

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 487 (1991) (admonishing trial judges to exercise caution in joint trials, especially to *290ensure 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 violation.

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, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (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.’” 527 U.S. at 133, 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, 391 U.S. 123, 128 n. 3, 88 S.Ct. 1620, 1623 n. 3, 20 L.Ed.2d 476, 480 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.