State v. McDonald, No. 25225.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PLEICONES, Justice
• Citation: 540 S.E.2d 464,343 S.C. 319
• Parties: The STATE, Respondent, v. Danny McDONALD, Appellant.
• Docket Number: No. 25225.
• Decision Date: 18 December 2000

343 S.C. 319
540 S.E.2d 464

The STATE, Respondent,
v.
Danny McDONALD, Appellant

No. 25225.

Supreme Court of South Carolina.

Heard September 19, 2000.

Decided December 18, 2000.

343 S.C. 320

Daniel L. Blake, of Hartsville, for appellant

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Derrick K. McFarland, all of Columbia; and Solicitor Jay E. Hodge, of Darlington, for respondent.

343 S.C. 321

PLEICONES, Justice

Appellant Danny McDonald ("Defendant") appeals his convictions of murder and attempted armed robbery in the death of Brock Hawkins. We reverse and remand.

FACTUAL BACKGROUND

Brock Hawkins("Victim") and Olar Thorson ("Thorson") entered a residential area of Hartsville after dark on February 2, 1995. Thorson, who drove the vehicle, stopped alongside a group of men and asked directions to "Mitch's" house. According to Thorson's testimony, Defendant pointed to a residence a short distance up the street. Victim got out of the car and walked to the house, returning moments later after getting no answer at the door. Thorson remained in the car at all times. When Victim returned to the automobile, a number of men from the group gathered around the vehicle and one of them displayed crack cocaine to Thorson and Victim. Thorson testified that Defendant, who was not wearing a mask, approached the car from the rear, brandished a sawed-off shotgun and placed it to Thorson's head, demanding money from Thorson and Victim.¹ Victim pushed Thorson's head forward, into the steering wheel, and depressed the accelerator. A split second later the gun fired, striking Victim in the left side of the head and causing his death. Thorson put the car in gear and sped away.

A second eyewitness, Robert Jackson, testified for the State that Defendant carried the gun and fired the fatal shot. Jackson's testimony, in contrast to Thorson's, indicated that the shooter was wearing a black mask. Jackson's identification of Defendant was largely based on the clothing worn by the shooter. Both Thorson and Robert Jackson testified that Rodney McPhail ("McPhail") was present at the scene of the crime.

Defendant offered and the court admitted testimony from Timmy Jackson, also indicted in connection with the shooting,

343 S.C. 322

that immediately after hearing a gunshot he observed McPhail standing on the passenger's side of the vehicle holding a sawed-off shotgun.² Timmy Jackson further testified that Defendant was not present at the scene immediately after the shot was fired. The defense called McPhail to testify and McPhail asserted his Fifth Amendment³ right against selfincrimination. Defense counsel then proffered testimony from Timmy Jackson that McPhail told Jackson he shot Victim because Victim would not part with his money. The court declined to admit this evidence, ruling it inadmissible hearsay

The defense proffered testimony from two other witnesses, Michael Mungo ("Mungo") and Gary Hawkins ("Hawkins"). Mungo testified that while he and McPhail were both in custody at the Darlington County Detention Center, he overheard McPhail tell an unidentified person that McPhail shot Victim and that Defendant was not involved in the incident. Hawkins would have testified that shortly after the incident McPhail admitted committing the offense, and that McPhail's stated reason for shooting Victim was that Victim would not pay McPhail for drugs. The trial court refused to admit the statements of Mungo and Hawkins on hearsay grounds.

Defendant was convicted of murder and attempted armed robbery. He received sentences of life imprisonment and ten years respectively. On appeal, he argues the trial court erred by refusing to admit the testimony of Timmy Jackson, Mungo, and Hawkins.

LAW/ANALYSIS

The State argues that we cannot consider the issue of admissibility of the proffered testimony because it is not properly preserved for appellate review. We disagree and find the grounds for offering and admitting the testimony were apparent from the context of the proffer. See Rule 103(a)(2), SCRE, and Note to Rule 103(a)(2), SCRE.

343 S.C. 323

Defendant called McPhail, the out-of-court declarant, as a witness. McPhail invoked his Fifth Amendment right to silence. A witness who invokes his Fifth Amendment right to silence is unavailable for hearsay purposes. Rule 804(a)(1), SCRE; State v....