State v. Washington
| Decision Date | 16 September 2020 |
| Docket Number | Appellate Case No. 2017-001111,Opinion No. 5773 |
| Citation | 431 S.C. 619,848 S.E.2d 794 |
| Parties | The STATE, Respondent, v. Mack Seal WASHINGTON, Appellant. |
| Court | South Carolina Court of Appeals |
Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General Jonathan Scott Matthews, both of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.
Mack Seal Washington appeals his convictions for first-degree burglary, malicious injury to property, and obtaining goods by false pretenses, arguing the trial court erred in admitting an audio recording of certain hearsay statements a police detective made while interrogating him. We agree this was error and reverse and remand for a new trial.
On August 21, 2015, someone broke into a Johns Island home and stole several items, including a rifle and a Husqvarna weed eater. Police began focusing on Washington as a suspect when his fingerprints matched a latent print found on a washing machine at the burgled home. They later discovered that on the day of the burglary, Washington pawned a Winchester rifle at a pawnshop in North Charleston and a Husqvarna weed eater at a different branch of the same pawn shop. Washington was arrested on March 23, 2016, and Detective Timothy McCauley interviewed him the next day. After giving Washington Miranda warnings, McCauley began the interview, which largely consisted of McCauley asking Washington to explain how his fingerprints ended up at the crime scene and whether he could prove his innocence.
Before trial, Washington objected to the admissibility of the audio recording of the interview on three grounds: hearsay, improper bolstering of the State's fingerprint expert's testimony, and that it contained improper opinion evidence. The trial court excluded a few of McCauley's comments on bolstering grounds but admitted a redacted version of the audio. Listening to this redacted version, the jury heard McCauley make such comments to Washington as:
In addition to McCauley's testimony, the State's case included the testimony of the victims and the responding officer, the fingerprint evidence, and evidence relating to pawn tickets. The jury convicted Washington on all counts.
Detective McCauley's interrogation method may have been a proper investigative technique, but every word he uttered during the out of court interview was inadmissible hearsay. Any doubt about its inadmissibility was removed by State v. Brewer , 411 S.C. 401, 768 S.E.2d 656 (2015), decided more than two years before Washington's trial, which held similar remarks made by a detective during an interrogation to be "unmistakable hearsay." 411 S.C. at 406–07, 768 S.E.2d at 659. While we acknowledge Brewer did not create a "categorical rule" that any statement made by a police officer during an interrogation is inadmissible, we also acknowledge such statements "will rarely be proper for a jury's consideration." Id. For hearsay purposes, there is no daylight between the detective's remarks in Brewer and McCauley's remarks here.
Washington's statements during the interview are not hearsay because they are admissions of a party offered against that party. Rule 801(d)(2)(A), SCRE. Therefore, when McCauley testified, the State could have admitted Washington's statements by asking McCauley about them, avoiding the hearsay taint of McCauley's statements in the recording.
At the trial, the assistant solicitor contended McCauley's statements were not hearsay because they were not offered for their truth but to give Washington's answers "context." There is no "context" exception to the hearsay rule. Brewer rejected this same argument as "patently without merit," finding it had "no support in the law." Id. Undeterred, the State recycles the argument before us, still unaccompanied by any authority to support it. The statements were inadmissible hearsay, and we reverse the trial court's ruling admitting them.
As in Brewer , here there was no objection made to the recording on burden-shifting grounds. Nevertheless, as in Brewer , Detective McCauley's repeated requests that Washington explain why he was not guilty amounted to a "grave constitutional error."
Id. at 408, 768 S.E.2d at 659. As Justice Kittredge so well put it, Id.
We respect our good dissenting colleague's contention that Washington did not adequately preserve his hearsay objection on appeal. We are convinced, though, that Washington preserved the hearsay issue given his specific hearsay objection to the trial court, and his extensive reliance on Brewer in his brief and at oral argument. See Toal et al., Appellate Practice in South Carolina 75 (3d ed. 2016) ("[W]here an issue is not specifically set out in the statement of issues, the appellate court may nevertheless consider the issue if it is reasonably clear from appellant's arguments."). While Washington may not have wrapped his issues up in a neat categorical box, we do not believe he abandoned the hearsay argument on appeal or that we should not address it. See Calhoun v. Calhoun , 339 S.C. 96, 105–06, 529 S.E.2d 14, 19–20 (2000) (); Eubank v. Eubank , 347 S.C. 367, 374 n.2, 555 S.E.2d 413, 417 (2001) ; cf. Rule 208(b)(1)(B), SCACR () (emphasis added).
The State did not raise preservation in its brief. Although the issue was raised by the panel at oral argument, the State spent considerable time in its brief and at oral argument claiming the recording is not hearsay. While we may invoke preservation rules on our own, we should not be quick to disturb the parties’ silence. See Atlantic Coast Builders and Contractors, LLC v. Lewis , 398 S.C. 323, 333, 730 S.E.2d 282, 287 (2012) ( ) (Toal, C.J., concurring).
The error was not harmless. State v. Young , 420 S.C. 608, 625, 803 S.E.2d 888, 897 (Ct. App. 2017) (). In Brewer , the defendant was tried on charges related to two shootings occurring the same night. A majority of the court found the error harmless as to the charges related to the first shooting (which had numerous eyewitnesses to Brewer firing shots, a photograph of Brewer at the scene with a gun, and evidence of there being only one shooter), but not harmless as to the murder charge related to the second shooting (of which there was only "thin, circumstantial" evidence against Brewer, and testimony that at least two shooters were present). Brewer , 411 S.C. at 409–10, 768 S.E.2d at 660.
The prosecution's case against Washington was strong but circumstantial, led by the fingerprint evidence. The State acknowledges fingerprint evidence alone is often not enough to get a burglary case to a jury. See State v. Bennett , 415 S.C. 232, 781 S.E.2d 352 (2016) ; State v. Mitchell , 332 S.C. 619, 506 S.E.2d 523 (Ct. App. 1998). In its brief, the State argues it was important to present the recording of McCauley's interview of Washington because it allowed the State to bolster the fingerprint evidence and attack Washington's alibi in detail. The State explained the recording gave them the opportunity to do both, without which their case would have been, in their words, "vulnerable to a directed verdict."
Washington told Detective McCauley he was working at the time of the burglary, but the State called his employer, who testified they had no record of Washington's attendance at work that day. The pawn tickets were incriminating, but there was evidence the victim first described the missing...
To continue reading
Request your trial
-
State v. McClure
... ... at 407, 768 S.E.2d at 659 (explaining there is "no ... support in the law for the State's argument that the ... interrogators' statements were admissible for purposes of ... context or for the effect the statements had on [the ... defendant]"); State v. Washington, 431 S.C ... 619, 622-23, 848 S.E.2d 794, 796 (Ct. App. 2020) (finding the ... trial court erroneously admitted a video interrogation where ... police stated the defendant's fingerprints were at the ... scene of the crime, that he had pawned certain stolen ... ...