State v. Foster, 25666.
| Decision Date | 12 June 2003 |
| Docket Number | No. 25666.,25666. |
| Parties | The STATE, Petitioner, v. Randall Scott FOSTER, Respondent. |
| Court | South Carolina Supreme Court |
Attorney General Henry Dargan McMaster, Chief Deputy, Attorney General John W. McIntosh, Assistant Deputy, Attorney General Charles H. Richardson, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor William Townes Jones, IV, of Greenwood, for Petitioner.
Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for Respondent.
We granted the State's petition for a writ of certiorari to review the Court of Appeals' opinion in State v. Foster, Op. No. 2001-UP-321 (Ct.App. filed Feb. 6, 2001). We affirm.
Respondent Randall Scott Foster was indicted for murder and possession of a weapon during the commission of a violent crime. The victim was his wife, Marilyn, who died from a single gunshot wound to her head. At trial, the jury was instructed on self-defense, accident, involuntary manslaughter, voluntary manslaughter and murder. The jury convicted Foster of voluntary manslaughter and the weapon charge, and the trial court sentenced him to twenty years and five years, concurrent. In an unpublished decision, the Court of Appeals reversed and remanded for a new trial. State v. Foster, supra.
Foster and Marilyn lived in their Prosperity home with Marilyn's three children and Foster's daughter. On Saturday night, April 25, 1998, Foster and Marilyn went out drinking and dancing. They returned home sometime after two a.m. on April 26. Very shortly thereafter, Marilyn was fatally shot.
The testimony at trial as to exactly what transpired was conflicting. Marilyn's son, Steven, and her daughter, Michelle, both testified for the State. Steven said he was sleeping on the couch when he was awakened by Foster and Marilyn arguing. He heard Marilyn say, "Are you going to shoot me?," Foster say "yes," and the gun go off. On crossexamination, Steven was questioned about a statement he made to police on the day of the shooting that he heard Foster ask Marilyn if she was going to shoot him. Steven responded he was in shock and unsure of what he said. On redirect, the State published Steven's entire statement. According to Steven's statement, Marilyn got her gun, told Foster "to get out," and Foster asked if she was going to shoot him. Then, Foster and Marilyn "started fighting over the gun," and after Michelle walked into the room, the gun went off.
Michelle, Marilyn's oldest child at age 14, testified that she witnessed the shooting. Michelle was also awakened by the couple's argument. She followed Foster into the bedroom where Marilyn was undressing. According to Michelle, Marilyn was by the dresser and "had the gun out." 1 Foster asked Marilyn if she was going to shoot him and then took the gun away from her. Marilyn asked "Are you going to shoot me now?" Foster replied yes, raised the gun to her head, and shot her. Michelle testified there was no scuffle over the gun.
According to Foster, who testified in his own defense, he and Marilyn enjoyed a normal evening out, drinking,2 dancing, and socializing with friends. They began arguing during the car ride home because Marilyn was angry Foster had danced and flirted too much with their friend, Linda. After entering the house, Marilyn told him to get his daughter and leave. He said no and wanted to go to bed. Marilyn replied, "Well, I have something that will make you leave" and pulled the gun out of her drawer. Foster then said, "What are you going to do, shoot me?" Foster went over to Marilyn, grabbed the gun, and they struggled over the gun. Foster testified that he had one hand on the gun and Marilyn's hands were on his hand. He was trying to pull the gun away from her, he pulled it up, and the gun went off only inches from her head. Immediately after shooting Marilyn, Foster called 911.
The police showed up within minutes of the 911 call and apprehended Foster without incident. They bagged his hands to preserve any gunshot residue.
Various aspects of the forensic evidence were discussed at trial. The fingerprints from the gun were analyzed, but the test was inconclusive. Therefore, the SLED investigator could not say who handled the weapon. The gunshot residue tests conducted on Foster and Marilyn, however, revealed that both had gunshot residue on their hands. Marilyn had gunshot residue on the back of each of her hands, while Foster had residue on his left palm only. When Foster cross-examined the pathologist, he testified that the results of the gunshot residue tests "strongly suggest" that Marilyn's hands completely covered Foster's. Moreover, the pathologist could not say who had control over the gun when it was discharged. Foster presented his own forensic expert who opined there was most probably a struggle over the weapon and that Marilyn's hands were over Foster's hand.
As the only eyewitness, the testimony of Michelle was pivotal to the State's murder case. In its opening statement, the State told the jury: "the crux of the case is what you are going to hear from Michelle." On cross-examination, Foster's counsel questioned Michelle about a statement she made to police on April 28:
Counsel then proceeded on a line of questioning regarding Michelle's prior inconsistent statements to others on the day of the killing. Specifically, Michelle was asked whether she had told some family friends on the morning of the incident that she thought it was an accident. Michelle insisted she had simply said she could not believe Foster "could do anything like that." On redirect, the State presented Michelle with her police statement and she read it to herself. The State asked whether the statement differed from her testimony, and Michelle replied in the negative.
After Michelle and two other witnesses testified, the State sought to admit into evidence Michelle's written statement to police.3 Foster objected. Initially, the objection was based on relevance. The State argued, inter alia, that Michelle's statement was admissible as a prior consistent statement. Foster's counsel further argued he did not "want to give more credibility to her statement than her verbal testimony." The trial court ruled the statement was not hearsay and allowed its admission.
During Foster's defense, he presented two witnesses who both stated Michelle had said her mother's shooting was an "accident." Additionally, one of these witnesses testified Michelle had said Foster and Marilyn were fighting over the gun, and the other testified Michelle had said "it wasn't [Foster's] fault."
The jury convicted Foster of voluntary manslaughter and the weapon charge. On appeal, the Court of Appeals found the trial court erred in allowing Michelle's prior consistent statement. Finding that the error was not harmless, the Court of Appeals reversed Foster's convictions and remanded for a new trial.
Did the Court of Appeals correctly reverse Foster's convictions because of the improper admission of Michelle's prior consistent statement?
The State maintains that Foster's cross-examination question to Michelle about her prior consistent statement "opened the door" to its admission. Alternatively, the State contends that the Court of Appeals erred in finding the statement inadmissible under Rule 801(d)(1)(B), SCRE. We disagree.4
The admission or exclusion of evidence is within the discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. State v. Saltz, 346 S.C. 114, 551 S.E.2d 240 (2001). An abuse of discretion occurs when the trial court's ruling is based on an error of law. State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000).
The issue in the instant case is governed by South Carolina's Rules of Evidence, adopted in 1995. Pursuant to Rule 801, prior consistent statements of a witness are not inadmissible hearsay if:
Rule 801(d)(1)(B), SCRE; accord Saltz, supra.
509 S.E.2d at 826 (citation omitted).
The situation here is very similar to the facts of Saltz. In that case, a State witness, Sydney Johnston, testified she had heard the defendant say he "killed" the victim. On cross-examination, defense counsel posed questions to Sydney about whether she had originally...
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