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24849 - State v. Fossick

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

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

James Fossick, Appellant.

Appeal From Richland County

Gary E. Clary, Judge

Opinion No. 24849

Heard September 24, 1998 - Filed November 9, 1998

AFFIRMED

Assistant Appellate Defender M. Anne Pearce, of S.C.

Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles Molony Condon; Assistant

Deputy Attorney General Donald J. Zelenka; Assistant

Attorney General Robert F. Daley, Jr., and Solicitor

Warren B. Giese, all of Columbia, for respondent.



MOORE, A.J.: Appellant was convicted in 1986 for the

murder of Marilee Whitten. This Court affirmed by memorandum opinion

in 1987 but subsequently reversed the denial of post-conviction relief.

Fossick v. State, 371 S.C. 375, 453 S.E.2d 899 (1995) (counsel ineffective

for failing to object to solicitor's argument regarding lack of remorse).

Appellant was re-tried in May 1996, convicted, and sentenced to life

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STATE v. FOSSICK





imprisonment. We affirm.





FACTS



Seventeen-year-old Marilee Whitten was last seen alive on May 11,

1985. Her partially decomposed and naked body was found in a wooded

area of lower Richland County four days later. Appellant, who was

Marilee's co-worker, was interviewed several times by police over the next

four months. He ultimately confessed he killed Marilee after forcing her

into the trunk of his car, driving to a wooded area, and attempting to rape

her. Appellant subsequently led police to the murder weapon, a vase-like

lamp base, that he had discarded in a nearby trash heap.





ISSUE





Whether the trial judge erred in excluding impeachment

evidence of a prior inconsistent statement by State's witness

Shane Parker and, if so, was the error harmless?





DISCUSSION





Appellant and Marilee met at the animal clinic where they both

worked part-time. Shane Parker, another teenager, worked there also.

Shane testified for the State.





According to Shane's testimony, he, appellant, and Marilee all left

work shortly after 1:00 p.m. on Saturday, May 11. Shane spoke with

them briefly in the parking lot before leaving. He was driving around a

near-by neighborhood when he saw appellant's and Marilee's cars parked

on the side of the road. He spoke with appellant while Marilee remained

sitting in her car. This was around 1:30 p.m. Shane then drove off.

When he called Marilee's house later that afternoon, she was not at home.

Marilee's parents testified she never returned home from work.





On cross-examination, defense counsel asked Shane if he had once

had a girlfriend named Michelle. Shane acknowledged he had and that

they had double-dated with Michelle's sister and a friend named Lee

Keefe. Defense counsel then asked:



Q: Do you recall a time back in 1989 when you got mad at

Michelle and said, "I killed that bitch. I'll kill you, too."



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STATE v. FOSSICK





A: No, that was never said.

Q: It was never said in the presence of your friend Lee Keeffe

and other individuals?

A: No, sir.

Q: So you deny saying that.

A: Yes, sir.

On re-direct, Shane again denied he had made such a statement. After

the State rested its case, appellant proffered the testimony of Lee Keeffe

to the effect that Keeffe heard Shane say to Michelle: "I killed that bitch

and I'll kill you."





The State objected on the ground that under Rule 608(b), SCRE,

extrinsic evidence is not admissible to attack a witness's credibility. To

the contrary, appellant argued this evidence was admissible as extrinsic

evidence of a prior inconsistent statement under Rule 613(b), SCRE. The

trial judge ruled the evidence inadmissible for impeachment under Rule

608(b).1





Rule 613(b) provides in pertinent part:



(b) Extrinsic Evidence of Prior Inconsistent Statement of

Witness. Extrinsic evidence of a prior inconsistent statement

by a witness is not admissible unless the witness is advised of

the substance of the statement, the time and place it was


1As an alternative ground for excluding this evidence, the trial judge

ruled it was inadmissible evidence of third-party guilt under State v. Parker,

294 S.C. 465, 366 S.E.2d 10 (1988), and State v. Gregory, 198 S.C. 98, 16

S.E.2d 532 (1941). Appellant never challenged this ruling until oral

argument before this Court. Accordingly, we decline to determine whether

Shane's statement should have been admitted as evidence of third-party guilt.

See State ex rel. Carter v. State, 325 S.C. 204, 481 S.E.2d 429 (1997) (Court

will not decide issue raised for first time at oral argument). Even if this

evidence is inadmissible as substantive evidence, however, it may still be

admissible for impeachment purposes. See State v. Staley, 294 S.C. 451, 365

S.E.2d 729 (1988) (defendant's prior convictions admissible for impeachment

but not evidence of guilt).

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STATE v. FOSSICK





allegedly made, and the person to whom it was made, and is

given the opportunity to explain or deny the statement. If a

witness does not admit that he has made the prior inconsistent statement,

extrinsic evidence of such statement is admissible.





(emphasis added). Since Shane denied the statement, the proffered

extrinsic evidence was admissible under Rule 613(b).2 We conclude the

trial judge erred in excluding Keeffe's testimony as impeachment evidence

but find the error harmless.





In determining harmless error regarding any issue of witness

credibility, we will consider the importance of the witness's testimony to

the prosecution's case, whether the witness's testimony was cumulative,

whether other evidence corroborates or contradicts the witness's testimony,

the extent of cross-examination otherwise permitted, and the overall

strength of the State's case. State v. Holmes, 320 S.C. 259, 464 S.E.2d

334 (1995) (citing Delaware v. Van Arsdall, 475 U.S. 673 (1986)).





Here, the main thrust of Shane's testimony was that he left

appellant and Marilee about 1:30 p.m. on the day Marilee disappeared.

This same information was admitted intoevidence as part of a statement

appellant made to police months before his confession that he was with

Marilee at 1:30 p.m. that day when Shane saw them on the side of the

road. Appellant's father also testified to this statement which appellant

made to police in his father's presence. Accordingly, Shane's testimony

was cumulative.





Further, Shane's testimony was relatively unimportant to the State's

case which rested on appellant's confession and the fact he led police to

the murder weapon. In addition, appellant was permitted extensive cross-




2 Rule 608(b), upon which the trial judge based his exclusion of this

evidence, does not apply. Rule 608(b) provides in pertinent part:

(b) Specific Instance of Conduct. Specific instances of the

conduct of a witness, for the purpose of attacking or supporting

the witness' credibility, other than conviction of crime as provided

in Rule 609, may not be proved by extrinsic evidence.

Although Rule 608 prohibits extrinsic evidence, it applies only to evidence of

conduct and not evidence of a statement. United States v. Higa, 55 F.3d 448

(9th Cir. 1995).

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STATE v. FOSSICK





examination of Shane and impeached him with extrinsic evidence of

conduct Shane denied. In light of all these factors, exclusion of Shane's

prior inconsistent statement as impeaching evidence was harmless.





AFFIRMED.

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





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