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24806 - State v. Robert Anders

Davis Adv. Sh. No. 23
S.E. 2d

The Supreme Court of South Carolina





The State, Respondent

v.

Robert Anders, Petitioner.





ORDER





The State petitions for rehearing and to make more definite and certain;

the motions are denied. The opinion previously filed by this Court, Op. No.

24806 (S.C. Sup. Ct. filed June 22, 1998) (Davis Adv. Sh. No. 23, at 3), is

withdrawn and the following Opinion is substituted in its place.



Columbia, South Carolina

July 20, 1998

p.3


THE STATE OF SOUTH CAROLINA

In The Supreme Court





The State, Respondent,

v.

Robert Anders, Petitioner.



ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS





Appeal From Greenville County

Paul M. Burch, Judge





Opinion No. 24806

Heard May 26, 1998 - Refiled July 20, 1998



REVERSED



O.W. Bannister, Jr. and D. Garrison Hill, both of

Hill, Wyatt & Bannister, of Greenville, for

petitioner.





Attorney General Charles Molony Condon, Chief

Deputy Attorney General John W. McIntosh,

Assistant Deputy Attorney General Salley W. Elliott,

and Senior Assistant Attorney General Harold M.

Coombs, Jr., of Columbia, and Solicitor Robert M.

Ariail, of Greenville, for respondent.





WALLER, A.J.: We granted certiorari to review the Court of Appeals'

decision in State v. Anders and Simmons, ___S.C.___, 483 S.E.2d 780

p.4


STATE v. ANDERS



(1997). We reverse.





FACTS





Appellant, Robert Anders (Anders) and his codefendant, Larry Simmons

(Simmons) were convicted of conspiracy, third degree arson, and burning to

defraud an insurer, in connection with the October 17, 1992 fire which

destroyed Anders' construction firm (R.R.&E.) in Greer.





At their joint trial in May, 1995, Rhonda Sutherland, the wife of an

employee of R.R.&E., testified over Anders' objection that the Monday after

the fire, she heard Simmons joking that "Robert was going to pay him big for

blowing up the building," and explaining that he had set the fire by leaving

open propane gas tanks in each room with a lit cigarette in an ashtray on

top of a book of matches.1 The trial court ruled the statements were

admissible against Anders on the basis they were made by Simmons in the

furtherance of a conspiracy, so as to be admissible against both Anders and

Simmons.





The Court of Appeals held Simmons' statement was not admissible

under the co-conspirator exception since, even if made during the conspiracy,

the statement in no way advanced the conspiracy. The Court of Appeals

nonetheless affirmed in result, finding the statement admissible against

Simmons as a statement against penal interest; the Court further held

admission of the statement did not violate Anders' Sixth Amendment right

of confrontation, since Simmons was available and testified at trial.





DISCUSSION





We agree with the Court of Appeals' holding that Simmons' admission

to the crime in no way furthered the conspiracy. Accord United States v.

Posner, 764 F.2d 1535 (11th Cir. 1985), cert. denied (although statements

made to "allay suspicions" may be "in furtherance" of conspiracy, "spilling the

beans" does not further conspiracy); United States v. Pallais, 921 F.2d 684

(7th Cir. 1990), cert. denied, 112 S.Ct. 134 (1991) (casual admissions of

culpability are not "in furtherance" of conspiracy and are insufficiently

reliable to be considered by the jury). Accordingly, the Court of Appeals

correctly ruled the statement was not admissible under the co-conspirator


1 Although much circumstantial evidence was presented, the statement

attributed to Simmons was the only direct evidence of Anders' participation

in the fire.

p.5


STATE v. ANDERS





exception. See State v. Sullivan, 277 S.C. 35, 42, 282 S.E.2d 838, 842 (1981)

(exception to rule against hearsay permits statements of one conspirator

made during the pendency of the conspiracy, and in furtherance thereof, to

be admitted against a co-conspirator once prima facie evidence of a conspiracy

is proved); see also South Carolina Rules of Evidence, Rule 801(d)(2)(e).2





However, we disagree with the Court of Appeals' conclusion that

Simmons' statement was nonetheless admissible as a statement against his

penal interest.





Out-of-court statements against penal interest, made by an unavailable

declarant, are admissible in both civil and criminal trials. State v. Doctor,

306 S.C. 527, 413 S.E.2d 36 (S.C. 1992). See also SCRE, Rule 804(b)(3).

Where the declarant is available to testify, the exception is inapplicable.

State v. McKnight, 321 S.C. 230, 467 S.E.2d 919 (1996). Here, as Simmons

was available and did testify, the exception for statements against penal

interest is clearly inapplicable. Accordingly, the Court of Appeals erred in

admitting the statement under this exception.3





The Court of Appeals further found that, since Simmons was present

and testified at trial, there was no Confrontation Clause violation in its

admission. In light of the fact that Simmons' statement was not admissible


2 This case was tried in May, 1995, prior to the effective date of the

South Carolina Rules of Evidence (SCRE).





3 The only other conceivable basis upon which to justify admission of

Simmons' statement against Anders would be as a prior inconsistent

statement. The timing of Sutherland's testimony precludes its use in such

a manner. See Commonwealth v. Sopota, 587 A.2d 805 (Pa. 1991)(admission

of prior inconsistent statement of a witness, for its substantive value, without

the person first taking the stand and denying having made it, is reversible

error). In Sopota, the court held the error was not cured when the declarant

was subsequently called as a witness by the defendant; once the declarant's

statement had been introduced by the state, the defendant was virtually

compelled to call the declarant in order that the declarant could explain the

discrepancies. Id. at 809-811. As in Sopota, once the State introduced

Sutherland's testimony, Simmons had little alternative but to take the stand

and either explain or deny the statement attributed to him.



p.6


STATE v. ANDERS



against Anders,4 we need not address the Confrontation Clause issue.5 The

Court of Appeals' opinion is





REVERSED.6





FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.






4 The statement was admissible against Simmons as an admission. The

fact that it was an admission by Simmons, however, does not render it

automatically admissible against Anders. On the contrary, Rule 801(d)(2)

provides a statement is an admission if it is "offered against a party and is

(A) the party's own statement in either an individual or a representative

capacity..." The statement here was not Anders' "own statement," and was

clearly therefore not admissible as an admission against Anders. Accord,

United States v. Hay, 122 F.3d 1233 (9th Cir. 1997)(codefendant's admissions

not admissible as nonhearsay against defendant under party admission

exemption).





To the extent the statement was admissible against Simmons, it should

have been redacted to omit any reference to Anders. Accord. State v. Clark,

286 S.C. 432, 334 S.E.2d 121 (1985) (it is error to admit codefendant's

confession without redacting references to defendant).



5 To the extent the Court of Appeals addressed the Confrontation Clause

issue, its opinion is vacated.



6 Our opinion in no way impacts Simmons' convictions.

p.7