State v. Saltz

• Decision Date: 06 August 2001
• Docket Number: No. 25337.,25337.
• Citation: 346 S.C. 114,551 S.E.2d 240
• Parties: The STATE, Respondent, v. Michael Paul SALTZ, Appellant.
• Court: South Carolina Supreme Court

346 S.C. 114

551 S.E.2d 240

The STATE, Respondent, v. Michael Paul SALTZ, Appellant.

No. 25337.

Supreme Court of South Carolina.

Heard June 7, 2001.

Decided August 6, 2001.

Rehearing Denied September 12, 2001.

Jack B. Swerling, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Solicitor Warren B. Giese, all of Columbia, for respondent.

BURNETT, Justice:

Michael Saltz (appellant) appeals his conviction for murder. We reverse.

FACTS

Appellant was convicted of the murder of twelve-year-old Joseph Barefoot. Joseph disappeared on Sunday, May 25, 1997. As part of an extensive search for the missing boy, fliers were distributed throughout the community. The fliers described Joseph and indicated he was last seen in a white Chevy truck with a white male, aged fifteen to nineteen, named Mikey. It was inaccurate to state Joseph was "last seen" in the described truck. Two different witnesses described speaking to Joseph on Sunday afternoon, when he was out riding his bicycle. However, investigators later confirmed that seventeen-year-old Michael Saltz had given Joseph and his friend Charlie Mengedoht a ride in his white Chevy truck on Saturday, the day prior to Joseph's disappearance. Because of his description on the missing person flier, appellant was the brunt of considerable teasing during the summer of 1997, while Joseph remained missing. Appellant reportedly "bragged" about killing Joseph to a number of his teenage friends, in what he describes in his brief to this Court as an "irrational[ ] and self-destructiv[e]" reaction "to being cast as prime suspect in a highly publicized case." There was testimony appellant said he "did it" "to get everybody off his back."

On September 16, 1997, Joseph's skeletal remains were discovered in a heavily wooded area behind the golf course near Starling Goodson Road. Within days of the discovery of Joseph's remains, three of appellant's friends—Sydney Johnston, Selina Welch, and Todd Ledford—all provided sworn statements to police implicating appellant. Appellant was brought in for questioning and eventually confessed to the murder. Appellant's seven consecutive statements are highly contradictory,¹ and the final statement, in which he incriminates only himself, is factually improbable. However, some details included in appellant's statements are consistent with evidence discovered at the crime scene. Most significantly, appellant stated he tied Joseph to a tree with a black nylon cord. A black nylon cord was found tied around a tree where Joseph's bones were found.

ISSUES

I. Did the trial court erroneously rule on the admission of prior consistent statements?

A. Statement of Sydney Johnston

B. Statement of Tina Ashford

II. Did the trial court erroneously admit irrelevant evidence?

A. Appellant's school attendance record

B. Witness's feelings

III. Did the trial court err in limiting appellant's cross-examination of a witness for credibility and bias?

IV. Did the trial court err in admitting appellant's statements as voluntary?

V. Did the trial court err in denying appellant's motion for a directed verdict?

DISCUSSION

I. Prior consistent statements

Appellant argues the trial court twice erred in ruling on the admissibility of prior consistent statements of witnesses. In the first instance, appellant asserts the trial court erroneously permitted hearsay to bolster a prosecution witness's testimony. In the second instance, appellant asserts the trial court erroneously refused to admit testimony concerning a prior consistent statement of a defense witness. We agree the court erred in both instances.

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. State v. Tucker, 319 S.C. 425, 462 S.E.2d 263 (1995).

Prior consistent statements of a witness are not inadmissible hearsay if

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant's testimony and 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, in order for a prior consistent statement to be admissible pursuant to this rule, the following elements must be present:

(1) the declarant must testify and be subject to crossexamination,

(2) the opposing party must have explicitly or implicitly accused the declarant of recently fabricating the statement or of acting under an improper influence or motive (3) the statement must be consistent with the declarant's testimony, and

(4) the statement must have been made prior to the alleged fabrication, or prior to the existence of the alleged improper influence or motive.

A. Sydney Johnston/Jan Kopel

Appellant first argues the trial court erred in permitting Jan Kopel to testify concerning a prior consistent statement made by Sydney Johnston.

Sydney testified that appellant stated, "I killed Joseph Barefoot." On cross-examination, defense counsel questioned Sydney as follows:

Defense Counsel: Do you recall telling me that the first thing he said was, "I really didn't do it"? Do you recall?

Witness: No, I didn't say that.

Defense Counsel: You don't recall saying that?

Witness: No, I don't.

Defense Counsel: Do you recall telling me that when he finally said, "I did it," you used the word "sarcastically"? Do you recall that?

Witness: Yes. And my version of "sarcastically" is kind of bragging, kind of, I don't want to say vain because that's— but it's bragging.

Defense Counsel: Okay, but you don't recall saying that the first thing he said was, "I really didn't do"? [sic].

Witness: Right.

Defense Counsel: You don't recall that part?

Witness: No.

....

Defense Counsel: Well, do you recall saying to me at that time with everyone else present, not using the words that he said, "I killed him," but he said, "Yeah, I did it," as opposed to, "I killed him"? Do you recall making that statement?

Witness: Yes, I do, to you. And the more that I've been able to go back and look over everything, it was a "Yeah, I killed him" thing.

Over appellant's objection, the trial court permitted Kopel to testify concerning the following conversation, which took place between Kopel and Sydney the day after Joseph's remains were found:

She [Sydney] said that—they call him "JoJo" Barefoot or this child, "JoJo," had been found and that someone named Mikey had told her a while back—she didn't say exactly when—but he had killed this child that was missing. And she didn't know about anybody being missing or no bones had been found or body had been found or anything. And so she just kind of didn't know whether to believe him or not and was feeling guilty because she felt like maybe if she had come forward sooner that they may have found him.

Appellant argued to the trial court, and now argues on appeal, that Kopel's testimony was improperly permitted to bolster Sydney's testimony. Appellant argues that Rule 801(d)(1)(B), SCRE, is inapplicable in this instance because he very deliberately did not suggest that Sydney had recently fabricated her testimony or was acting under an improper influence or motive. On the contrary, appellant asserts, his cross-examination was very carefully restricted to whether or not Sydney's trial testimony was consistent with a statement she had made to defense counsel and his investigator shortly before trial. The trial court ruled that defense counsel's cross-examination placed Sydney's credibility before the jury, and thus Rule 801 permitted the State to offer a prior consistent statement. Thus, the precise issue here is whether questioning the witness concerning a prior in consistent statement invokes Rule 801(d)(1)(B). We conclude it does not.

Under the common law in South Carolina, proof of a prior consistent statement was admissible to rehabilitate a witness who had been impeached with a prior inconsistent statement. See, e.g., 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."). The State relies on these pre-SCRE cases. Rule 801(d)(1)(B) changed this rule. The plain language of Rule 801(d)(1)(B) only permits evidence of a prior consistent statement when the witness has been charged with recent fabrication or improper motive or influence. Although questioning a witness about a prior inconsistent statement does call the witness's credibility into question, that is not the same as charging the witness with "recent fabrication" or "improper influence or motive." Cf. Tome v. United States, 513 U.S. 150, 157, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) ("Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited.... The rule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told."). Appellant questioned the accuracy of the witness's memory; he did not charge her with recent fabrication or improper influence or motive. The State should not have been permitted to introduce hearsay testimony of Sydney's prior consistent statement because appellant's cross-examination of Sydney did not imply recent fabrication or improper influence or motive. The trial court's admission of the testimony pursuant to former evidentiary rules constituted an...