State v. Dennis, No. 2484

• Court: Court of Appeals of South Carolina
• Writing for the Court: CURETON; HOWELL, C.J. and CONNOR
• Citation: 468 S.E.2d 674,321 S.C. 413
• Parties: The STATE, Respondent, v. Anthony DENNIS, Appellant. . Heard
• Docket Number: No. 2484
• Decision Date: 06 February 1996

Page 674

468 S.E.2d 674 321 S.C. 413 The STATE, Respondent,
v.
Anthony DENNIS, Appellant. No. 2484. Court of Appeals of South Carolina. Heard Feb. 6, 1996.
Decided March 18, 1996.

Assistant Appellate Defender Lisa T. Gregory, of the South Carolina Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General G. Robert DeLoach, III, Columbia; and Solicitor Wade S. Kolb, Sumter, for respondent.

CURETON, Judge:

Anthony Dennis and Clarence Major were charged with and jointly tried for the commission of a number of crimes arising out of the robbery of the Coastal Munn-E-Saver convenience store in Sumter, and the abduction of a 17-year-old [321 S.C. 416] woman from the store, whom they sexually assaulted. They were convicted of armed robbery, kidnapping, conspiracy

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to kidnap, first degree criminal sexual conduct, and possession of a weapon during a violent crime. Dennis appeals. We affirm.

I.

Dennis first argues the trial judge erred in allowing the emergency room nurse who examined the victim to read her written commentary regarding what the victim told her. Dennis claims the notes contained inadmissible hearsay and violated his right to confront an adverse witness. We disagree.

The victim testified in detail about the robbery, abduction and sexual assaults. The judge then allowed the nurse to read from her notes what the victim told her about the sexual assaults. The narrative included details and particulars of the attack. Defense counsel objected and moved for a mistrial on the ground the testimony was not limited in scope to the time and place of the assault. The judge ruled, however, that the statement formed part of the res gestae of the entire event.

This issue is controlled by Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994), in which the Supreme Court stated:

The rule against hearsay prohibits the admission of evidence of an out-of-court statement to prove the truth of the matter asserted unless an exception to the rule applies. Simpkins v. State, 303 S.C. 364, 401 S.E.2d 142 (1991). We have recognized three exceptions to the rule against hearsay that allows prior consistent statements of a witness to be admitted. First, in criminal sexual conduct cases, when the victim testifies, evidence from other witnesses that she complained of the sexual assault is admissible in corroboration, limited to the time and place of the assault and excluding details or particulars. Id. at 367, 401 S.E.2d at 143. Second, the res gestae or excited utterance exception allows corroborative rape testimony without the time/place exception. State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993). Third, when a witness has been impeached by proof that the witness has made a prior inconsistent statement, proof is allowed that the witness made a prior consistent statement, provided that the prior consistent statement must have been made before the "existence of [the] relation of [the witness] to the [321 S.C. 417] cause." Burns v. Clayton, 237 S.C. 316, 117 S.E.2d 300 (1960).

Id. at 20, 443 S.E.2d at 568.

On appeal, Dennis argues that the testimony violated the time and place limitation of the first exception described in Jolly. Dennis also argues the statement was not admissible under an exception which permits a health care professional to testify as to a patient's statement as information upon which the health care professional relies in reaching a medical opinion. See Howle v. PYA/Monarch, Inc., 288 S.C. 586, 344 S.E.2d 157 (Ct.App.1986). Dennis does not, however, argue the court erred in admitting the statement as part of the res gestae of the event, an exception which, as noted in Jolly, does not contain the time and place limitation. Hence, this issue is not preserved for appeal.

Even if the issue had been properly raised and argued on appeal, we would affirm. To qualify as part of the res gestae exception to hearsay, a statement must be substantially contemporaneous with the litigated transaction and be the spontaneous utterance of the mind while under the active, immediate influence of the event. State v. Kelley, --- S.C. ----, 460 S.E.2d 368 (1995). The rationale behind this exception lies in the special reliability accorded to a statement uttered in spontaneous excitement which suspends the declarant's powers of reflection and fabrication. Id. Whether a statement is admissible under the res gestae exception to the hearsay rule depends on the circumstances of each case and the determination is generally left to the sound discretion of the trial court. State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989). There are no hard and fast rules as to when the res gestae ends. Id.; see State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978)...