State v. Dennis

• Decision Date: 22 November 1999
• Docket Number: No. 25022.,25022.
• Citation: 337 S.C. 275,523 S.E.2d 173
• Parties: The STATE, Respondent, v. Moses Abdul DENNIS, Appellant.
• Court: South Carolina Supreme Court

337 S.C. 275

523 S.E.2d 173

The STATE, Respondent, v. Moses Abdul DENNIS, Appellant.

No. 25022.

Supreme Court of South Carolina.

Heard March 3, 1999.

Decided 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, Justice:

Moses Abdul Dennis (appellant) was convicted of murder and sentenced to life in prison. We affirm.

FACTS

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 saw 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.

ISSUES

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 States¹ after jurors heard testimony about an excited utterance made by a codefendant?

DISCUSSION

1. PRETRIAL SEVERANCE MOTION

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.²

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, 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.

2. EXCITED UTTERANCE EXCEPTION AND BRUTON DOCTRINE

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.

A. EXCITED UTTERANCE EXCEPTION

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 you?

A. Yes, sir.

Q. And [Otis] told you that his brother had shot [the victim] because [the victim] had taken a swing at his brother?

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), SCRE. 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), SCRE. 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, SCRE, 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...