State v. Terry, 25085.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WALLER, Justice
• Citation: 529 S.E.2d 274,339 S.C. 352
• Parties: The STATE, Respondent, v. Gary DuBose TERRY, Appellant.
• Docket Number: No. 25085.,25085.
• Decision Date: 13 March 2000

339 S.C. 352
529 S.E.2d 274

The STATE, Respondent,
v.
Gary DuBose TERRY, Appellant

No. 25085.

Supreme Court of South Carolina.

Heard October 5, 1999.

Decided March 13, 2000.

Rehearing Denied April 19, 2000.

339 S.C. 354

Assistant Appellate Defender Robert M. Dudek, of S.C. Office of Appellate Defense, of Columbia, for appellant

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General William Edgar Salter, III, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for respondent.

WALLER, Justice:

Gary Dubose Terry was convicted of murder, first degree burglary, first degree criminal sexual conduct (CSC), and malicious injury to a telephone system. He was sentenced to death for murder, thirty years each for burglary and CSC, and ten years for malicious injury to a telephone. This case consolidates his direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-3-25 (1985). We affirm.

FACTS

The victim in this case, 47 year old Urai Jackson, was found beaten to death in her Lexington County home on May 24, 1994. The window on the carport door to her home had been broken out and the telephone wires had been pulled from the phone box. Victim's mostly nude body was found in the living room, and semen was found in her vagina. She had several blunt trauma wounds to the head, and a number of defensive wound injuries. The cause of death was blunt trauma with skull fracture and brain injury.

ISSUES

1. Did the court err in refusing to permit Terry to introduce his own statement to police into evidence? Should the court, in any event, have permitted Terry to elicit testimony to the effect that he had given a statement in order to demonstrate his cooperation with police?

2. Did the court err in ordering Terry to disclose his Charter River Hospital records to the state?

339 S.C. 355

1. ADMISSION OF TERRY'S STATEMENT

On March 24, 1995,¹ Terry gave a statement to police in which he maintained he had gone to victim's house and had consensual sex with her.² According to Terry, the victim became angered when he started to leave and grabbed him by the hair. He lost his temper and started hitting her with something. He couldn't recall the object but believed victim may have brought it with her from the bedroom.³ He hit her several times then left.

At the outset of trial, Terry moved to suppress this statement, contending it was involuntarily given. The trial judge conducted a Jackson v. Denno⁴ hearing and ruled the statement was admissible.

Terry elected not to testify at trial. When the state decided not to introduce the statement during the guilt or innocence phase of trial,⁵ Terry contended he should be permitted to introduce it as a statement against his penal interest. The court ruled Terry could not introduce the statement.

Terry contends he should have been permitted to introduce his confession as a "statement against penal interest" under Rule 804(b)(3), S.C. Rules of Evidence (SCRE), because he was "unavailable"⁶ as a witness by virtue of his exercise of his

339 S.C. 356

fifth amendment privilege against self-incrimination. We disagree

Rule 804(b)(3) provides:

(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement, (emphasis supplied)

Initially, Terry's purpose in offering the statement was in an attempt to provide the jury with some evidence tending to reduce the crime from murder to manslaughter. Accordingly, as he intended to offer the statement to exculpate himself, it was not admissible "unless corroborating circumstances clearly indicate[d] [its] trustworthiness." We find no such corroborating circumstances.⁷ See State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992) (testimony of three witnesses corroborated out of court confessions of declarants). Accordingly, the trial court properly declined to admit the statement.

In any event, we concur with the trial court's ruling that Terry could not use his fifth amendment privilege against self-incrimination as both a sword and a shield.

Several courts have been faced with the issue of whether a defendant who has procured his own unavailability by invoking his protection against self-incrimination is "unavailable" as a witness for purposes of Rule 804(b)(1) (former testimony). In U.S. v. Kimball, 15 F.3d 54 (1994), the Fifth Circuit Court of Appeals held a defendant who creates his own unavailability by invoking his fifth amendment privilege against self-incrimination

339 S.C. 357

is not "unavailable," stating, "[w]hile sensitive to the importance of not discouraging or prejudicing a defendant who invokes the fifth amendment, we cannot accept the view proposed by Kimball. A defendant seeking to testify and make exculpatory statements must face cross-examination. That is a basic rule of our adversary system." To hold otherwise would permit "the criminally-accused to set out all the facts which fall in his favor without laying himself open to cross-examination." Castro v. State of Texas, 914 S.W.2d 159, 163 (Tex.Ct.App.1995). Accord Dennis v. State of Texas, 961 S.W.2d 245 (Tex.Ct.App. 1997) (testimony's sponsor may not make himself unavailable by invoking fifth amendment privilege and then benefit from that unavailability). While the above-cited cases involve the "former testimony" exception to the hearsay rule, we find the same policy considerations apply here. Accordingly, we hold the circuit court properly refused to allow Terry to introduce the statement

Terry next asserts that, even if the trial court properly excluded his statement to police, he should have been permitted to elicit the fact that he had given a statement in order to demonstrate that he had cooperated with police. He contends the jury "was left with the erroneous impression [he] stood silent in the face of an accusation that he committed murder." We disagree.

Initially, defense counsel told the jury Terry had given a confession. Accordingly, his claim that the jury had the erroneous impression he had not cooperated with police is simply untenable.

In any event, the fact that Terry gave police a statement was simply irrelevant to any issue at trial. Admission of the fact that Terry cooperated with police, without giving the substance of the statement, would, in our opinion have been confusing and misleading to the jury. Accord, People v. Harvey, 208 Cal.Rptr. 910, 925, 163 Cal.App.3d 90, 115 (1985) (as with "absence of flight," evidence of a defendant's cooperation with authorities may not necessarily indicate innocence and is therefore properly excluded in light of possibility of confusing the jury). Accordingly, we find it was properly excluded. Moreover, given the fact that Agent Frier testified Terry was cooperative in all his dealing with police, and

339 S.C. 358

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