The State, Respondent,
Henry Antonio Fuller, Appellant.
The Petition for Rehearing is granted. The opinion filed in this case on
June 28, 1999, is hereby withdrawn and the attached opinion is substituted
in its place.
FOR T'HE COURT
Columbia, South Carolina
November 22, 1999
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Henry Antonio Fuller, Appellant.
Appeal From Greenville County
Henry F. Floyd, Circuit Court Judge
Opinion No. 24961
Heard April 6, 1999 - Refiled November 22, 1999
REVERSED AND REMANDED
Deputy Chief Attorney Joseph L. Savitz, III, of South
Carolina Office of Appellate Defense, of Columbia, for
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Donald J. Zelenka, Assistant
Attorney General Derrick K. McFarland, of Columbia;
and Solicitor Robert M. Ariail, of Greenville, all for
TOAL, A.J.: In this criminal matter, Henry Antonio Fuller was convicted
for the murder of George Lollis. We reverse and remand.
At approximately 3:00 a.m. on August 15, 1996, George Lollis received a
phone call from a security company indicating that the alarm at his convenience
store had sounded. Mr. Lollis armed himself with a handgun and traveled in
his truck to the store. His wife, Patricia Lollis, also armed with a gun,
remained at home.
After meeting officers at his store and determining there were no
problems, Mr. Lollis returned home at around 4:00 a.m. Approximately forty
five minutes later, Mr. Lollis received a second phone call indicating the store
alarm had again been tripped. Mr. Lollis exited his house to get in his truck.
He again armed himself with a handgun. Mrs. Lollis watched from the house
as her husband walked to the truck. Mrs. Lollis testified that she saw two
"black figures" running toward her husband. Mr. Lollis was ultimately shot and
killed by his attackers.
Henry Antonio Fuller ("Defendant") was arrested for the Lollis murder.
Defendant provided a handwritten statement to police. In the statement,
Defendant stated that he, Darrell Holmes, and Bernard Holmes had planned
to rob the Lollis' home. To perpetrate the robbery, Darrell Holmes went to the
Lollis' store to set off the alarm. Defendant and Bernard Holmes waited for Mr.
Lollis outside of his home. In their first attempt to rob Mr. Lollis, Defendant
and Bernard Holmes were unsuccessful in completing the crime. On their
second attempt, Defendant claimed that he attacked Mrs. Lollis and wrestled
the gun away from her. Defendant further stated that Bernard Holmes and Mr.
Lollis shot each other in an ensuing gun fight. Mr. Lollis died from his wounds.
Bernard Holmes was later killed while attempting another, unrelated burglary.
On November 18, 1997, a jury found Defendant guilty of murder and
conspiracy. The trial judge sentenced Defendant to life imprisonment without
parole for murder and five years, consecutive, for conspiracy. Defendant
appeals, raising the following issues:
(1) Did the trial court err in denying Defendant's motion to represent
himself at trial?
(2) Did the trial court err by letting a possible accomplice testify that
a deceased third-party (decedent) told him that the decedent,
Defendant, and another man had committed the murder?
Defendant argues that the trial court erred by denying his request to
represent himself at trial. We agree.
On November 12, 1997, five days before trial, Defendant's counsel made
a motion for a continuance. The trial court denied the motion and fined counsel
for being dilatory. On the morning of trial, November 17, 1997, the following
colloquy occurred between the trial court and Defendant:
Court: Mr. Fuller, is there any reason why you are not going to wear
Defendant: For the record?
Court: Yes, sir.
Defendant: I'm not happy with Mr. - Mr. - Mr. Allen as my legal counsel.
Court: Well, that's not the question I asked you right now. We're talking
about the clothing first. Why - It makes no difference to me, but I have
been where Mr. Allen is and it doesn't make an impression on the jury if
you are sitting in your jail suit. However, that's your call, and I just want
to make sure that that's your call.
Defendant: Your honor, I don't wish to continue with Mr. Allen as my
counsel because his services have been ineffective. He hasn't done
anything to prepare for this trial.
Court: Well, your motion to have him releaved [sic] is denied. We're
going to proceed with the trial and Mr. Allen is going to be your lawyer.
Now, the question is, do you want to stay dressed like that, or do you
want to get your clothes on and come out here and be presentable to the
jury? And I don't care. It's up to you.
Defendant: Your honor, if you're going to allow him to continue as my
counsel I'd rather - I'd rather represent myself.
Court: I'm not going to let you do that. Now Mr. Allen is going to be
representing you in this case.
The above colloquy occurred before the charges were read to Defendant and
before the jury was selected and sworn.
Under the Sixth Amendment, an accused may waive the right to counsel
and proceed pro se. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed.
2d 562 (1975); State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998). That right
must be preserved even if the court believes that the defendant will benefit from
the advice of counsel. United States v. Singleton, 107 F.3d 1091 (4 1h Cir. 1997).
Once the defendant has waived counsel, the trial judge has the responsibility
to ensure that the accused is informed of the dangers and disadvantages of self
representation, and makes a knowing and intelligent waiver of the right to
counsel. Reed, supra.
A defendant's right to waive the assistance of counsel is not unlimited.
The request to proceed pro se must be clearly asserted by the defendant prior
to trial. Reed, supra. If the request to proceed pro se is made after trial has
begun, the grant or denial of the right to proceed pro se rests within the sound
discretion of the trial judge. Singleton, supra; United States v. Lawrence, 605
F.2d 1321 (4 th Cir. 1979). In Lawrence, the Fourth Circuit held that the
defendant's request to proceed pro se was untimely because the trial
proceedings had already consumed one day during which counsel had conducted
their voir dire examination and the jury selected. The only remaining formality
was the swearing of the jury. Lawrence, supra; see also Robards v. Rees, 789
F.2d 379 (6 th Cir. 1986) (request for self-representation was properly denied
where the clerk had already called the roll of jurors).
The State argues that Defendant's request was untimely because it was
made the morning of trial. Defendant, on the other hand, contends the request
was timely because it was asserted before the commencement of trial
proceedings. We decline to hold that a motion to proceed pro se made on the
day of trial, but before the commencement of trial proceedings, is either timely
or untimely as a matter of law. See People v. Mogul, 812 P.2d 705 (Colo. Ct.
App. 1991). As noted in Mogul, there may be a variety of reasons which might
excuse a last minute request by a defendant to proceed pro se. Id. at 708.
Therefore, "it is incumbent upon the trial court to determine whether the
request is made for purposes of delay or to gain tactical advantage, and whether
the lateness of the request may hinder the administration of justice. " Id. at 709.
In the instant case, Defendant's request to proceed pro se was made in an
atmosphere of his escalating dissatisfaction with big attorney. Several days
before trial, the trial court fined Defendant's attorney for being dilatory. On the
morning of trial, Defendant complained to the trial court that his counsel had
been ineffective in preparing for trial. This suggests that Defendant's purpose
in making the request was not to delay or stall the proceedings, but rather to
address his growing concerns about his attorney. More significantly, the trial
court failed to conduct an adequate hearing to fully assess the purpose behind
Defendant's request or to determine what effect granting the request would
have had on the proceedings. This omission by the trial court requires reversal.
B. HEARSAY TESTIMONY
Defendant argues that the trial court erred by letting a possible
accomplice, Bernard McKinney, testify that Bernard Holmes, a third-party now
deceased, had told the accomplice McKinney 1 that decedent, Defendant, and
Darrell Holmes had murdered Mr. Lollis. We agree.
Before trial, the State informed the trial court that it intended to call
Bernard McKinney to testify that decedent had told him that decedent, Darrell
Holmes, and Defendant were involved in Mr. Lollis's murder. The State argued
the statement was admissible as an exception to hearsay under Rule 804(b)(3),
SCRE 2 (statement against interest by unavailable declarant). Defendant moved
qualify him as a coconspirator such that his testimony would not be hearsay
under Rule 801(d)(2)(E).
2 Rule 804(b)(3), SCRE, provides:
(b) Hearsay Exceptions: The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(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.
in limine to exclude the statement, arguing the statement was not reliable and
violated his right to confront and cross-examine the witness. Defendant argued
the statement was unreliable because McKinney was trying to exculpate
himself, since he was also charged with murder and conspiracy at that time.
The trial court ruled that the statement was admissible under Rule
804(b)(3), SCRE. The court also stated that the rule set forth in Bruton v.
United States, 391 U.S. 123) 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) 3 would not
be violated because Defendant and McKinney were not being tried together in
the same trial.
When McKinney was finally called to the stand to testify, he stated that
he, decedent, and Darrell Holmes had planned to rob the Lollis' weeks before
the murder. In fact, McKinney and the Holmes' had made two attempts to rob
Mr. Lollis prior to the murder. McKinney testified that the plan was for Darrell
Holmes to trip the alarm at the Lollis' store, while McKinney and decedent
waited for Mr. Lollis outside of his residence. McKinney claimed that on the
night of the murder, he was at a friend's house and did not participate in the
crime. McKinney further claimed that three to four days after the murder,
decedent told him that decedent, Darrell Holmes, and Defendant had gone to
the Lollis'home on the night of the murder and attempted to rob Mr. Lollis.
The decedent further told McKinney that Mr. Lollis shot him, and if
"[Defendant] wouldn't have been there he probably would have got shot in the
The hearsay statements recounted by McKinney essentially amounted to
statements by a deceased third-party that inculpated Defendant and subjected
the declarant to criminal liability. Thus, the issue before this Court is whether
and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of
3 Bruton held that where a confession by a codefendant, who did not
testify, was admitted in evidence at a joint trial, a defendant was denied his
constitutional right of confrontation, even though the jury was instructed that
the codefendant's confession must be disregarded in determining the
defendant's guilt or innocence. See State v. Miller, 266 S.C. 409, 223 S.E.2d 774
a non-self-inculpatory statement, which is collateral to a self-inculpatory
statement, may nonetheless come in under Rule 804(b)(3), SCRE, as a
statement made by an unavailable declarant against his penal interest.
conclude that such statements are inadmissible.
The U.S. Supreme Court has held that third-party statements such as the
one involved in this case are inherently unreliable. See Lilly v. Virginia, 527
U.S. 119S.Ct.1887,144L.Ed.2dll7(1999). In Lilly, a plurality of justices
found accomplices' confessions that inculpate a criminal defendant do not fall
within a firmly rooted hearsay exception. Id. 527 U.S. at _, 119 S. Ct. at
1898-99. The Court, however, went on to conclude that such hearsay
statements can be admissible where they are supported by a showing of
"particularized guarantees of trustworthiness." Id. 527 U.S. at 1 119 S. Ct
at 1899-1900. The Court based the admittance of such statements in part on
the residual or catchall hearsay exception found in Federal Rule of Evidence
807 (formerly Rule 803(24), FRE). Unlike the Federal Rules of Evidence, South
Carolina has expressly chosen not to adopt such a catchall exception. See Notes
to Rule 803, SCRE. Since our rules of evidence do not contain a catchall
hearsay exception, our courts do not undertake such an analysis when
Our holding on this issue is in accord with the United States Supreme
Court's interpretation of federal Rule 804(b)(3), which is identical to Rule
804(b)(3), SCRE. In Williamson v. United States, 512 U.S. 594, 114 S. Ct. 243 1,
129 L. Ed. 2d 476 (1994), the United States Supreme Court clarified the scope
of Rule 804(b)(3), FRE, with regard to statements that inculpate the defendant
as well as subject the declarant to criminal liability. The Court stated: "the fact
that a statement is collateral to a self-inculpatory statement says nothing at all
about the collateral statement's reliability." Williamson, 512 U.S. at 600, 114
S. Ct. at 2435, 129 L. Ed. 2d at 483. The Court further held:
In our view, the most faithful reading of Rule 804(b)(3) is that it
does not allow admission of non-self-inculpatory statements, even
if they are made within a broader narrative that is generally self
inculpatory. The district court may not just assume for purposes of
Rule 804(b)(3) that a statement is self-inculpatory because it is part
of a fuller confession, and this is especially true when the statement
implicates someone else.
Id. at 600-01, 114 S. Ct. at 2435, 129 L. Ed. 2d at 483. However, as noted in
Williamson, it may very well be that a statement which qualifies under Rule
804(b)(3) may also be used against a criminal defendant. For example, an
accomplice's self-inculpatory statement combined with other independent
evidence can inculpate a criminal defendant: "'I was robbing the bank on Friday
morning' coupled with someone's testimony that the declarant and the
defendant drove off together Friday morning, is evidence that the defendant
also participated in the robbery." Id. at 603, 114 S. Ct. at 2436, 129 L. Ed. 2d
at 485. Moreover, a statement is not per se inadmissible simply because the
declarant names another person. Nevertheless, such statements must meet the
strict requirements of Rule 804(b)(3).
Based on the foregoing, we REVERSE the trial court and REMAND for
a new trial.
Finney, CA, Moore, Waller and Burnett, JJ., concur.