State v. Evans, 24149
| Citation | 316 S.C. 303,450 S.E.2d 47 |
| Decision Date | 05 April 1994 |
| Docket Number | No. 24149,24149 |
| Parties | The STATE, Respondent, v. Jerry EVANS, Appellant. . Heard |
| Court | United States State Supreme Court of South Carolina |
Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense; and James M. Morton, Columbia, for appellant.
Attorney General T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Sr. Asst. Atty. Gen., Harold M. Coombs, Jr., Staff Atty., Rakale Buchanan Smith, and Sol. Richard Harpootlian, Columbia, for respondent.
Jerry Evans (Evans) appeals several convictions arising out of a motor vehicle accident, claiming that numerous trial errors require reversal. We disagree and affirm.
Shortly before noon on July 18, 1991, Lauren and Larrae Bernardo received fatal injuries when they were struck by a truck as they walked along Hardscrabble Road with their grandparents. Two other grandchildren were also injured. The truck did not stop and was last observed by the children's grandfather (Grandfather) turning left onto Clemson Road.
After an intense investigation, police charged Evans with two counts of murder, two counts of felony driving under the influence, two counts of leaving the scene of an accident involving death, and two counts of leaving the scene of an accident involving personal injury. Police also charged Evans' brother-in-law, Victor Altman (Altman), who allegedly was a passenger in the truck, with two counts of misprision of felony.
A joint trial was commenced on April 20, 1992. The State presented evidence that the children were struck by a blue and silver 1983 or 1984 Chevrolet pick-up truck with "stacked" headlights that had tool boxes and a ladder rack mounted in the bed. Although the truck was never found, several witnesses verified that Evans was known to have a truck matching that description. Other witnesses testified that they observed a blue and silver pickup truck in the area around the time of the accident. One motorist testified that a Chevrolet pick-up with "a faded blue or real light silver color" tailgate passed him in a curve and then turned onto Thornton Drive. Another witness testified that he was visiting a relative next door to Evans' residence on Thornton Drive at around 12:30 p.m. when a blue and silver pick-up truck with damage on the right front sped into Evans' driveway. This witness, who was familiar with both Evans and Altman, stated that Evans was driving, Altman was the passenger, and the truck had what appeared to be red paint in the damaged area. The State also presented a witness who testified that Evans discussed the accident with him while they were incarcerated together. According to this witness, Evans admitted that he had been drinking, took his eyes off the road for a moment, and hit the children.
Based on this evidence, the jury convicted Evans of two counts each of manslaughter, leaving the scene of an accident involving death, and leaving the scene of an accident involving personal injury. Evans appealed.
A witness for the State testified that Altman discussed the accident with him and made the statement, "I wasn't driving anyway." Evans contends that the statement implicates him as the driver and, because In Bruton the Supreme Court held that a defendant's rights under the Confrontation Clause are violated by the admission of a non-testifying codefendant's statement that expressly inculpates a defendant, even if a cautionary instruction is given. See Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28. The Court, in Richardson v. Marsh, specifically declined to extend this rule to the situation when a defendant's name or any reference to defendant is redacted, even though the statement's application to him is linked up by other evidence properly admitted against the defendant. 481 U.S. 200, 207, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987).
Altman did not testify at trial, the admission of this testimony violated [316 S.C. 307] the Confrontation Clause under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We disagree
Under Richardson, admission of the inferentially incriminating codefendant's confession which redacts any reference to the defendant does not violate the Confrontation Clause if a proper limiting instruction is given. Id. at 211, 107 S.Ct. at 1709. Based on the analysis in Richardson, we find that Bruton does not bar the statement presented here. The statement did not "on its face" incriminate Evans, although its incriminating import was certainly inferable from other evidence that was properly admitted against him. 1 See United States v. Williams, 936 F.2d 698 (2nd Cir.1991) (). Accordingly, its admission did not violate Bruton. 2
In the initial stages of the investigation, police subjected Grandfather to hypnosis in an effort to obtain a better description of the truck. Evans contends that the trial judge erred in allowing Grandfather to testify at trial because post-hypnotic testimony is inadmissible per se under State v. Pierce, 263 S.C. 23, 207 S.E.2d 414 (1974). We disagree.
Pierce addressed the question whether persons present during hypnosis could testify as to the results of the examination. The Court adhered to the general rule that "testimony as to the results of hypnotic examination is not admissible if offered for the truth of the matter asserted," and held that the trial judge did not abuse his discretion in excluding the testimony. Id. at 30, 207 S.E.2d at 418. Importantly, Pierce is limited to the testimony of persons other than the declarant when that testimony is to be admitted for the truth of the matter asserted. Contrary to Evans' assertion, Pierce does not prohibit a declarant from testifying according to his own recollection. Therefore, we reject Evans' claim that Grandfather's testimony was inadmissible under Pierce.
Evans also raises the novel claim that admission of Grandfather's post-hypnotic testimony violated the Confrontation Clause. We disagree.
We are aware that dangers exist with the use of hypnosis as an investigative tool 3 To determine whether a witness's testimony is independent of the dangers associated with hypnosis, a court must examine whether: 1) the witness's trial testimony was "generally consistent" with pre-hypnotic statements, 2) considerable circumstantial evidence corroborates the witness's post-hypnotic testimony, and 3) the witness's responses to examination by counsel "generally were not the automatic responses of a preconditioned mental process." Id. at 959-61. Because this is a novel issue in South Carolina, we instruct the Bench and Bar that in the future any determination as to the admissibility of post-hypnotic testimony should be made in camera. If the trial judge determines that such evidence is admissible, the parties may fully explore questions of credibility before the jury. 5
and that courts have taken divergent views as to the admissibility of post-hypnotic testimony. Evans urges us to adopt the view that post-hypnotic testimony is inadmissible unless stringent safeguards are followed to ensure reliability of the hypnotic procedure. See, e.g., State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981). 4 Although[316 S.C. 309] adherence to the procedures enunciated in Hurd is preferable, we do not find the question whether admission of post-hypnotic testimony violates the Confrontation Clause answered solely by evaluating the procedures used in the hypnosis session. See Harker v. State of Maryland, 800 F.2d 437 (4th Cir.1986) (admissibility of post-hypnotic testimony is not determined merely by reliability or non-reliability of procedures used). The Confrontation Clause guarantees a criminal defendant the right to confront witnesses against him. Consequently, to determine whether the admission of post-hypnotic testimony violates the Confrontation Clause, we must examine whether hypnosis affected the witness's ability to testify and respond freely to cross-examination. See McQueen v. Garrison, 814 F.2d 951, 958 (4th Cir.), cert. denied, 484 U.S. 944, 108 S.Ct. 332, 98 L.Ed.2d 359 (1987). If post-hypnotic testimony is shown to be independent of the dangers associated with hypnosis, the admission of the testimony does not violate the Confrontation Clause
In this case, Grandfather's post-hypnotic recollection of the accident differs from his pre-hypnotic recollection only in that he was able to recall the color of the driver's hair and more accurately recall the color of the truck after hypnosis. In all other respects, Grandfather's recollection of the accident remained unchanged. Importantly, Grandfather's post-hypnotic testimony is corroborated by physical evidence found at the scene and the testimony of other witnesses. Further, Grandfather's uncertain responses to both direct and cross examination indicate that his testimony was not the automatic response "of a preconditioned mental process." Therefore, we find that Grandfather's testimony was independent of the dangers associated with hypnosis and conclude that the trial judge did not abuse his discretion in admitting the testimony.
Evans contends that the trial judge erred in allowing an expert to render an opinion that Evans was impaired by alcohol and crack cocaine at the time of the accident. According to Evans, the hypothetical question did not contain facts sufficient to allow A witness testified that Evans shared one gram of crack cocaine with four other people and consumed approximately twelve cans of beer during the period between 10:00 p.m. the night before the accident and 4:00 a.m. the day of the accident. The State then called...
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