State v. Sims

• Decision Date: 17 April 2008
• Docket Number: No. 4371.,4371.
• Citation: 661 S.E.2d 122,377 S.C. 598
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Keith Anthony SIMS, Appellant.

661 S.E.2d 122

377 S.C. 598

The STATE, Respondent, v. Keith Anthony SIMS, Appellant.

No. 4371.

Court of Appeals of South Carolina.

Heard April 8, 2008.

Decided April 17, 2008.

Rehearing Denied May 22, 2008.

Joseph L. Savitz, III, Chief Appellate Defender, of Columbia, for Appellant.

Henry Dargan McMaster, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, Assistant Deputy Attorney General, Melody J. Brown, Assistant Attorney General, and Solicitor Warren B. Giese, all of Columbia, for Respondent.

ANDERSON, J.:

Keith Anthony Sims appeals his murder conviction, arguing the trial judge allowed the State's witness to relate a non-testifying third party's statement, violating Rule 802, SCRE. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Sims shot and killed Brian Anderson, and with the help of Natalie English, Derrick Ruff and Nikki Davis, hid the body and attempted to hide or destroy all other evidence. On December 30, 2003, the night of the shooting, Anderson and Sims attended a birthday party, and Anderson gave Sims a ride home. The two men engaged in a conversation about their past disagreements, and Anderson spoke of taking care of his "beefs" before the New Year. Previously, the men were in a dispute over whether Sims owed Anderson money. Sims testified, during their ride home, he believed Anderson was reaching under his seat to obtain a firearm and Sims fatally wounded Anderson with a weapon he had on his person. Sims recounted the events:

We was talking about past arguments that we had. He was telling me that he had all these — all these different guns. He started telling me about how — he started telling me about how he could have then have brought harm to me and my family, how he could have then have brought harm to me and my family.

So . . . when we was pulling up my driveway, he was telling me that I was taking — I was taking food out — out his unborn baby, out his unborn baby's mouth. He said that I was taking food out his unborn baby's mouth.

And when he stopped the car he was telling me that — he was telling me that he was going to take care of all his beefs before the New Year. He was telling me that he was going to — that he was going to end all his beefs before the New Year, that he was going to end all his beefs before the New Year.

And he was reaching underneath his seat. So I thought he was fixing to — he was fixing to grab him a gun to shoot me. So I pulled out my gun. Out of fear I shot.

. . .

. . . I thought he was reaching for his gun. So I thought he was reaching for his gun to shoot me and kill me. So out of fear I pulled my gun out and shot.

When asked by his counsel whether he intended to kill Anderson, Sims replied:

No. I didn't mean to kill him. I was pulling my gun out because I thought he was fixing to kill me. I guess just out of — out of fear I shot.

Sims enlisted his girlfriend, Natalie English; his friend, Derrick Ruff; and Ruff's girlfriend, Nikki Davis, to hide the body and dispose of the remaining evidence. During her direct examination by the State, Davis proffered:

Well, it was like around 3 something in the morning and I heard a knock at the door. And I wasn't going to answer the door. I was like, Derrick's mom just kept, you know, telling me to open the door. So I went and I opened the door. And Keith came in with Natalie with his arm folded.

. . .

He told me to wake up "Black", which is Derrick, and I told him I can't get him up. You just — you get him up yourself, basically. So he started hitting on Derrick, you know, to get him up. And Derrick got up. . . .

. . .

So he started hitting him to get him up. And Derrick finally got up and told him, you know, to go in the back. And they went to the back and they started talking. Which Natalie, you know, she was already in. She came. She sat —

. . .

So I just started rubbing her back and telling her that everything was going to be all right and stuff. And she wouldn't tell me. I kept asking her what was going on. She wouldn't tell me what was going on. And so she asked me if I wanted to go to Charleston. And I told her, yeah, I needed to go to Charleston because at the time I was two months pregnant with my daughter and I needed to get my Medicaid card and my social security card and stuff like that. So I told her, yeah, I was going to go. So I started getting dressed and stuff like that. And then at that time Keith came out first, and Derrick he was still in the kitchen or whatever. And Keith asked me whether or not I was going or not. I told him, yeah, I was going. And he asked me if they had — if we had any bricks or anything like that. So I told him, I don't know. Just go look in the backyard.

. . .

. . . And we went to a Shell station afterwards. And Derrick got out to get gas. And at the time it was just — and Natalie got out and she went in the store. And at the time it was just me and Keith inside the car. And, you know, I was joking with him and stuff, just like, why didn't you get me anything for my birthday and stuff like that. You know, he gave me $10 for my birthday or whatever. And he told me to go inside the store to make sure Natalie was getting everything that he told them to get.

So I got out of the car and I went and I just peeked my head inside the store. And at that time she had, you know, like the gloves and stuff like on top of the counter. So I figured that's what he told her to get. And I came back out into the car. And everybody came and they got inside the car. And then we headed to —

. . .

And we parked right in front of the lady's house. And I just figured that they were going to go. And so we all were going to go inside the house. But me and Natalie stayed inside the car and Keith and Derrick got out. And they started toting like this long thing I guess to a car, and a chain, you know, some bricks, just toting it to the back of the house right behind me.

. . .

The next thing I knew he [Sims] sped from behind the house inside of another car. And that's when I, you know, started pushing Natalie. I'm asking her what's going on? Did he steal a car or what's going on? Where did he that from and stuff like that. And then she told me, you know, Keith had murdered somebody. . . .

. . .

Keith dragged him out and he started to drag him by himself but I guess he couldn't do it. And Derrick started to help. And they got like just a little bit with the — he had just got a little bit with the guy and then Derrick came back and got Natalie. And Natalie told me to come on. And — and while we were — or when I got out of the car Keith was — he told me to put my socks on my hands, which I just did what he said. I put my socks on my hands. And Natalie grabbed one leg and I grabbed the other. . . .

. . .

We just started dragging him. And we just dragged him `til we — we got like to this little balcony thing. And then the guy was just laying like flat on the ground. And Keith was just saying things to him. And we were just trying to get him — we were just trying to get him through.

. . .

. . . So he said that our next best thing was to just try to lift him up. So we lifted him up and it took a while. And we just finally got him over. And everybody just ran or walked off and never looked back. But before — while we was walking off, Keith stayed and I heard a splash. And I just walked back to the car. And they got back into the car. And Keith brought some things to the car inside a paper bag. And I looked inside the bag and there was a cellphone and a chain and the guy's wallet.

. . .

And we left there and just kept on going. And somewhere during that time we — he [Sims] told me to get rid of it [the contents of the paper bag]. Actually he told me to get ride of it. . . .

Sims objected to Davis being permitted to testify English said "Keith had murdered somebody," arguing it was hearsay. The trial court overruled the objection without comment.

ISSUE

Did the trial judge err in allowing one co-conspirator to testify to another co-conspirator's statement relating Sims' own statement of guilt, characterizing it as non-hearsay, and finding it was calculated to induce participation in disposing of the victim's body and other evidence?

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only." State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006) (citing State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001)); State v. Preslar, 364 S.C. 466, 472, 613 S.E.2d 381, 384 (Ct. App.2005). The Appellate Courts are "bound by the trial court's factual findings unless they are clearly erroneous." Baccus, 367 S.C. at 48, 625 S.E.2d at 220 (citing State v. Quattlebaum, 338 S.C. 441, 442, 527 S.E.2d 105, 111 (2000)); Preslar, 364 S.C. at 472, 613 S.E.2d at 384.

"The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion." State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006) (citing State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002)); State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-848 (2006) (citing State v. Frank, 262 S.C. 526, 533, 205 S.E.2d 827, 830 (1974)); State v. Key, 256 S.C. 90, 94, 180 S.E.2d 888, 890 (1971); State v. Funderburk, 367 S.C. 236, 239, 625 S.E.2d 248, 249-250 (Ct.App. 2006); Preslar, 364 S.C. at 472, 613 S.E.2d at 384 ("On review, we are limited to determining whether the trial judge abused his discretion."). We will "not re-evaluate the facts based on [our] own view of the preponderance of the evidence but simply [determine] whether the trial judge's ruling is supported by any evidence." Wilson, 345 S.C. at 6, 545 S.E.2d at 829; Preslar, 364 S.C. at 472, 613 S.E.2d at 384. "An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law." Pagan, 369 S.C. at 208, 631 S.E.2d at 265 (citing State v. McDonald, 343 S.C. 319, 325, ...