State v. Sanders, 3684.
| Decision Date | 20 October 2003 |
| Docket Number | No. 3684.,3684. |
| Citation | 588 S.E.2d 142,356 S.C. 214 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Tunzy Antwain SANDERS, Appellant. |
Deputy Chief Attorney Joseph L. Savitz, III, Office of Appellate Defense, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Derrick K. McFarland, of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.
In a re-trial, Tunzy Sanders was convicted of murder, attempted armed robbery, and criminal conspiracy. He appeals, arguing his rights under the Confrontation Clause of the Sixth Amendment were violated when the trial court admitted the prior testimony of Aurelien Vigier, a jailhouse informer, inasmuch as he was unable to confront and cross-examine Vigier about an alleged "tacit understanding" that Vigier would receive "some benefit by virtue of his cooperation in this case." We affirm.
Sanders and two others were charged following the shooting death of a restaurant employee who was leaving at the close of business with that day's proceeds. At the first trial, two jailhouse informants, Aurelien Vigier and David Staley, testified appellant confessed to the crime while imprisoned. The State also introduced the statement of Temetrius Williams, which placed Sanders and his cohorts at the scene with the intent to commit a robbery. Williams retracted her statement on the stand.
The jury found Sanders guilty as charged. Sanders appealed the convictions on the ground his Sixth Amendment right to counsel was violated when his sister, an attorney from another state, was removed as counsel prior to trial. Our supreme court reversed the convictions and remanded the case for a new trial. State v. Sanders, 341 S.C. 386, 534 S.E.2d 696 (2000).
Prior to re-trial of the case, the State moved to admit a transcript of Vigier's testimony from the first trial into evidence, asserting Vigier could not be located for service of subpoena because he had left the state in violation of the terms of a probationary sentence. Sanders objected to the admission of the prior testimony, arguing its admission would violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. Specifically, Sanders' sister, acting as defense counsel, asserted that had she been allowed to participate at the first trial she would have been more thorough than defense counsel was in cross-examining Vigier concerning his alleged deal with the State in exchange for his testimony against Sanders. She further asserted that facts regarding the alleged deal were revealed only after Vigier testified in the first trial. The trial court found Vigier's testimony was admissible under Rule 804, SCRE.
The case proceeded to re-trial without a jury. Despite Sanders' denial of any involvement in the murder or robbery, the trial court found Sanders guilty as charged and sentenced him to thirty-five years imprisonment for murder, twenty-five years imprisonment for armed robbery, and five years imprisonment for criminal conspiracy.
Sanders asserts the admission of Vigier's prior testimony violated his Confrontation Clause rights because he was not afforded an opportunity to cross-examine the witness regarding "subsequent revelations" pertaining to the State's alleged "deal" with the witness. We disagree.
[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Here, Vigier was unavailable and his prior testimony fell within an established hearsay exception. Thus, Sanders' Confrontation Clause rights were not violated.
Under Rule 804(b), SCRE, certain statements are not excluded by the hearsay rule if the declarant is unavailable as a witness. Rule 804(b)(1) provides:
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