State v. Fulton

• Decision Date: 23 November 1998
• Docket Number: No. 2904.,2904.
• Citation: 333 S.C. 359,509 S.E.2d 819
• Parties: The STATE of South Carolina, Respondent, v. Christopher J. FULTON, Appellant.
• Court: South Carolina Court of Appeals

333 S.C. 359

509 S.E.2d 819

The STATE of South Carolina, Respondent, v. Christopher J. FULTON, Appellant.

No. 2904.

Court of Appeals of South Carolina.

Heard November 5, 1998.

Decided November 23, 1998.

J. Joseph Condon, Jr., of North Charleston, for Appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General G. Robert DeLoach, III, all of Columbia; and Solicitor David Price Schwacke, of North Charleston, for Respondent.

ANDERSON, Judge:

Christopher J. Fulton was convicted of armed robbery and possession of a firearm during the commission of a violent crime. He received concurrent sentences of fifteen years in prison for armed robbery and five years for possession of a firearm. Fulton appeals, alleging the trial judge erred (1) in excluding a letter Fulton wrote to the victim on the basis it was a "self-serving statement," and (2) in allowing two State's witnesses to testify on reply when they did not remain sequestered after their initial testimony. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

At approximately 3:30 p.m. on October 29, 1996, Fulton accompanied Marcus Quarles to Israel Fogle's used car lot in Charleston County. After inspecting one of the vehicles, Fulton asked Fogle for his business card. Fogle opened his wallet, in which several $100, $50, and $20 bills were visible, and gave Fulton a business card. Fulton and Quarles then left the car lot and went to St. Andrews High School, where they ran into Keenan Brown.¹

Fulton, Quarles, and Brown returned to Fogle's car lot approximately thirty minutes later. Fulton asked Fogle for permission to look at a 1987 Plymouth on the lot. Fogle returned with the key. As Fogle attempted to unlock the door to the vehicle, Brown drew a pistol and demanded Fogle's wallet. When Fogle reached for his wallet, he grabbed the gun from Brown. During the struggle, Fogle dropped his wallet on the ground. All three men fled the scene, taking Fogle's wallet. Fogle attempted to fire the gun as the men left with his wallet, but the gun did not fire. Fulton, Quarles, and Brown met up several minutes later at St. Andrews High School. The three men were arrested later the same day.

At trial, Fulton admitted on direct examination that he accompanied Quarles and Brown to Fogle's used car lot. However, Fulton stated he left Quarles and Brown alone for several minutes to go to the restroom just before they left St. Andrews High. When Fulton returned from the restroom, Quarles asked him to return to the car lot to look at another vehicle. Fulton maintained he was unaware the others intended to rob Fogle when they returned to the lot. Fulton testified he attempted to explain to Fogle that he had nothing to do with the robbery when they were at the car lot. However, Fogle was "going crazy pointing the gun," so he got scared and ran.²

On cross-examination, Fulton admitted his written statement to the police did not include his alleged attempt to explain his innocence to Fogle. Rather, his statement merely indicated that after Brown started running away, he fled the scene with Quarles after Fogle held the gun on them. On re-direct examination, defense counsel sought to introduce a letter Fulton wrote to Fogle at some point after Fulton's arrest. The letter stated in pertinent part:

I was with the Two boys that rob you. I'm writing this letter to let you know that I didn't know that they were going to do that. At the time when you snatch the gun, I was trying to explain to you that I didn't know what was going on but I was so scared of the gun being pointed at me I ran. Being lock up in jail for Two week helped me open my eye's an wake up. To see who my friends really are. Now I'm out on bond doing house arrest waiting on the court date.

Over defense counsel's objection, the trial judge excluded the letter as self-serving. Fogle was called in reply and testified Fulton never tried to explain his innocence at the scene, but merely ran away after Fogle grabbed the gun.

ISSUES

I. Did the trial judge err in failing to allow Fulton's counsel to rehabilitate him with a prior consistent statement, i.e., Fulton's letter to the victim proclaiming his innocence?

II. Did the trial judge err in allowing two of the State's witnesses to testify in reply when they were no longer sequestered?

LAW/ANALYSIS

I. USE OF PRIOR CONSISTENT STATEMENT FOR REHABILITATION

Fulton argues the trial judge erred in excluding his letter to Fogle as a "self-serving" prior consistent statement because it was admissible as rehabilitative, although not substantive, evidence to rebut the implication his testimony at trial was a recent fabrication or the result of an improper motive. We disagree.

The admission or exclusion of evidence is left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion. See State v. Tucker, 319 S.C. 425, 462 S.E.2d 263 (1995),cert. denied, 516 U.S. 1080, 116 S.Ct. 789, 133 L.Ed.2d 739 (1996); State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981). To warrant reversal, an appellant must show not only an alleged error, but resulting prejudice. State v. Thompson, 305 S.C. 496, 409 S.E.2d 420 (Ct.App.1991) (the admission and exclusion of evidence is largely a matter of trial judge discretion, and the judge's rulings will not be overturned on appeal unless the judge committed a manifest abuse of discretion and the defendant suffered prejudice as a result).

Under the South Carolina Rules of Evidence (SCRE), a prior consistent statement is admissible if the declarant testifies at trial and is subject to cross-examination concerning the statement, the statement is consistent with the declarant's testimony, and it is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose. Rule 801(d)(1)(B), SCRE.

Thus, under our Rules of Evidence, enacted in 1995, a prior consistent statement made by a witness before a motive to fabricate arose is admissible to rebut an express or implied charge of recent fabrication or improper motive. Pursuant to Rule 801, the prior consistent statement is nonhearsay and comes in as substantive evidence, i.e., it is admissible for the truth of the matter asserted. See Note to Rule 801(d)(1)(B), SCRE. In this case, Fulton wrote the letter to the victim proclaiming his innocence at some point after his arrest and detention. At that point, Fulton clearly had an obvious motive to fabricate his exculpatory claim he had no knowledge of the robbery. Therefore, the statement is not admissible under Rule 801(d)(1)(B). Fulton concedes this point on appeal and agrees his statement is not admissible as substantive evidence under Rule 801(d)(1)(B) because it was written after his improper motive arose.

Fulton contends, however, the letter is an admissible prior consistent statement notwithstanding the Rule because it was offered for "rehabilitative purposes" rather than as substantive evidence. He contends the temporal requirement that the statement be made before a motive to fabricate arose is not applicable when the statement is offered merely as rehabilitative evidence rather than as substantive evidence under Rule 801(d)(1)(B); he essentially asserts a prior consistent statement made at any point may potentially be used in rebuttal. We disagree, concluding the requirement that the prior consistent statement predate the motive to fabricate existed under the common law prior to enactment of the SCRE and survives its adoption.

South Carolina Law Prior to the Adoption of the SCRE

Before the adoption of Rule 801(d)(1)(B), SCRE, South Carolina common law allowed prior consistent statements to be used for merely "rehabilitative" purposes—the statement could be used to rehabilitate a witness whose credibility had been called into question by a charge of recent fabrication or improper motive. Contrary to Fulton's assertion, the requirement in Rule 801(d)(1)(B) that the prior consistent statement be made before a motive to fabricate existed is not totally new. Rather, as stated in the Note to Rule 801, SCRE, this limitation is "similar to the limitation previously contained in [South Carolina] case law that a prior consistent statement is admissible only where it was made prior to the declarant's relation to the cause." (Emphasis added.) Cf., e.g., Jolly v. State, 314 S.C. 17, 20, 443 S.E.2d 566, 568 (1994) ("[W]hen 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 cause.'") (citation omitted);³ Burns v. Clayton, 237 S.C. 316, 336-37, 117 S.E.2d 300, 310 (1960) ("Where the credit of a witness has been impeached by proof or imputation that he has made declarations inconsistent with what he has sworn to, an exception to the hearsay rule permits proof of his declarations, consistent with what he has sworn to, made on other occasions prior to the existence of his relation to the cause.").

"Under state common law existing before adoption of the evidentiary rules, the consistent statement was required to have been made before `existence of the [witness's] relationship to the cause.'" E. Warren Moise, Impeachment Evidence: Attacking and Supporting the Credibility of Witnesses in South Carolina 51 (1996) (citation omitted). This phrasing is found in an early case from our supreme court, State v. McDaniel, 68 S.C. 304, 47 S.E. 384 (1904). In McDaniel, after the State's impeachment of a defense witness with prior inconsistent statements, defense counsel attempted to...