THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Moses Abdul Dennis, Appellant.
Appeal From Charleston County
Daniel F. Pieper, Circuit Court Judge
Opinion No. 25022
Heard March 3, 1999 - Filed November 22, 1999
Assistant Appellate Defender Aileen P. Clare of the
South Carolina Office of Appellate Defense,
Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, and
Senior Assistant Attorney General William Edgar
Salter, III, all of Columbia, and Solicitor David P.
Schwacke of North Charleston, for respondent.
WALLER, A.J.: Moses Abdul Dennis (appellant) was convicted of
murder and sentenced to life in prison. We affirm.
The State accused appellant and his younger brother, Moses Otis
Dennis (Otis), of murdering Terrance Johnson (victim) in September 1995.
Appellant, Otis, and a third man fought with the victim in the early morning
hours in the street outside an apartment complex in Charleston. The fight
ended when the victim was shot once in the head. Appellant defended himself
at his first trial in December 1996 by calling witnesses who accused his brother
of shooting the victim. That case ended in a mistrial.
The State placed the brothers on trial together in July 1997. The
only physical evidence connecting either appellant or his brother to the crime
was appellant's palm print on the trunk of a borrowed car he had driven to the
scene. The State called three alleged eyewitnesses. Two witnesses testified they
heard the gunshot, turned, and sew appellant either pointing a handgun at the
victim or standing over the victim holding a gun. One witness testified that the
third man who participated in the fight, while looking at appellant, said,
"[D]amn, Mose, you shot him." The State's final eyewitness testified she saw
appellant and Otis fighting with the victim and heard the gunshot, but did not
see appellant standing over the victim with a gun.
A police officer testified she saw appellant, whom she knew, walking
away from the crime scene. Appellant was sweating noticeably when she
approached him, and he said someone had told him the victim had been shot.
Appellant repeatedly asked the officer whether the victim was dead.
Appellant called three alleged eyewitnesses in his defense. The first
witness testified she saw appellant begin fighting with the victim, but said that
Otis - not appellant - shot the victim after returning to the scene from the
nearby apartments. The second witness, Bernard Horlback, testified he did not
see the fight, but heard the gunshot and turned to see the victim lying on the
ground. One to two minutes later, Horlback saw Otis tucking a gun beneath his
shirt as he walked between apartment buildings. Otis told him that appellant
shot the victim, Horlback testified. Horlback conceded appellant could have shot
the victim, then handed Otis the gun. Appellant's third witness testified
appellant and the victim fought in the street. The witness heard the gunshot,
but claimed he did not remember what happened because he was "high" from
Neither appellant nor Otis testified. The jury convicted appellant
of murder and found Otis not guilty.
1. Did the trial judge err in denying appellant's
pretrial severance motion?
2. Did the trial judge err in denying appellant's
mistrial motion under Bruton v. United States 1
after jurors heard testimony about an excited
utterance made by a codefendant?
1. PRETRIAL SEVERANCE MOTION
Appellant contends the trial judge, relying in part upon Zafiro v.
United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), erred in
denying his pretrial severance motion. We disagree.
Otis and appellant in a pretrial motion asked the judge to sever the
trials. They argued that appellant's previous mistrial indisputably
demonstrated the mutually antagonistic nature of their defenses, which meant
a joint trial would compromise their right to a fair trial.
The judge denied the motion, ruling that the fact that such a defense
actually arose in appellant's previous trial - as compared with the typical case
in which such a defense is expected to arise - did not change the analysis. The
judge concluded that the existence of mutually antagonistic defenses did not
require severance, and appellant had not shown that a joint trial would violate
any specific trial right. The judge gave the jury cautionary instructions in his
opening comments and at the end of the trial.1
2 Before testimony. began, the judge told jurors:
Criminal defendants who are jointly tried for murder are not entitled
to separate trials as a matter of right. State v. Kelsey, 331 S.C. 50, 73-74, 502
S.E.2d 63, 75 (1998); State v. Holland, 261 S.C. 488, 201 S.E.2d 118 (1973); State
v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972). A defendant who alleges he was
improperly tried jointly must show prejudice before this Court will reverse his
conviction. State v. Crowe, supra. The general rule allowing joint trials applies
with equal force when a defendant's severance motion is based upon the
likelihood he and a codefendant will present mutually antagonistic defenses, i.e.,
accuse one another of committing the crime. State v. Leonard, 287 S.C. 462, 473,
Now, as you may have heard during the jury selection
process, there are two Defendants in this case charged
in separate indictments. You must consider each
charge separately, and you must decide separately
whether each individual Defendant is guilty or not
guilty of each charge alleged by the indictment. It is
your duty to give such consideration to each individual
Defendant on each separate charge alleged in the
indictment. You must therefore consider separately the
evidence and the law for each individual Defendant for
each charge and write your verdict accordingly.
At the end of the trial, the judge told jurors:
As you are aware, there are two Defendants in this
case, and each Defendant is charged with one count of
murder. Whatever verdict you find does not have to be
the same as to all Defendants. You take each
Defendant and consider the evidence as to that
Defendant alone, and write your verdict accordingly, in
conformity with the evidence in the case and the
instructions which I have given to you. Where more
than one person is charged with a crime, you may
convict one and acquit the other if the evidence
warrants it, or you may acquit both or you may convict
both. It will depend upon your view of the testimony
and the evidence which you alone can act upon.
339 S.E.2d 159, 165 (Ct. App. 1986), reversed on other grounds, 292 S.C. 133,
355 S.E.2d 270 (1987).
The trial judge, however, must act cautiously in allowing a joint
trial. The judge must carefully consider problems that may arise from a joint
trial, such as redacted statements, and must assure protection of each
defendant's constitutional right to confront witnesses against him. State v.
Singleton, 303 S.C. 313, 315, 400 S.E.2d 487,_488 (1991). A proper cautionary
instruction may help protect the individual rights of each defendant and ensure
that no prejudice results from a joint trial. State v. Holland, 261 S.C. at 494, 201
S.E.2d at 121.
Motions for a severance and separate trial are addressed to the
discretion of the trial court. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118
(1997); State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), overruled on other
grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Absent a
showing of an abuse of discretion, this Court will not disturb the trial court's
ruling on appeal. State v. Nelson, 273 S.C. 380, 256 S.E.2d 420 (1979).
In Zafiro v. United States, supra, the United States Supreme Court
held that Rule 14 of the Federal Rules of Criminal Procedure does not require
severance as a matter of law when codefendants present mutually antagonistic
defenses. The Supreme Court noted it repeatedly has approved of joint trials.
The Supreme Court held that severance should be granted only when there is
a serious risk that a joint trial would compromise a specific trial right of a
codefendant or prevent the jury from making a reliable judgment about a
codefendant's guilt. The Supreme Court left the decision to the sound discretion
of the district court. Id. at 537-41, 113 S.Ct. at 937-39, 122 L.Ed.2d at 323-26.
The principles espoused in Zafiro are consistent with this Court's
precedent. Therefore, we hold the trial judge did not err in relying upon Zafiro.
We further hold the judge did not abuse his discretion in denying
appellant's pretrial motion to sever the joint trial. The State alleged that both
defendants participated in the murder of the victim. We agree with the judge
that the fact appellant in his first trial actually called witnesses who accused his
younger brother of shooting the victim does not change the analysis. Neither
appellant nor Otis pointed to any specific trial right that would be prejudiced by
a joint trial. Furthermore, the judge gave a cautionary instruction before
testimony began and in his closing charge. The instructions were similar to
those described approvingly by the Supreme Court. Zafiro, 506 U.S. at 541, 113
S.Ct. at 939, 122 L.Ed.2d at 326. Jurors obviously were able to follow those
instructions, as they found appellant guilty and his brother not guilty.
2. EXCITED UTTERANCE EXCEPTION AND BRUTON DOCTRINE
Appellant contends the trial judge erred in denying his mistrial
motion on the grounds that the statement at issue was not an excited utterance,
and that it was inadmissible under the Bruton doctrine. We disagree.
A. EXCITED UTTERANCE EXCEPTION
While cross-examining eyewitness Horlback, the prosecutor elicited
the following testimony:
Q. When you saw - I'm going to call him Moses Otis
Dennis - when you saw Moses Otis Dennis, that was
real shortly after the shooting, wasn't it?
A. Yes, sir.
Q. You all were still all excited and everything, weren't
A. Yes, sir.
Q. And [Otis] told you that his brother had shot [the
victim] because [the victim] had taken a swing at his
A. Uh huh.
Q. He said that, didn't he?
A. Yes, sir.
Appellant argues the State did not establish the statement in
question was an excited utterance that was admissible under Rule 803(2), SCRE.
"'Hearsay' is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted." Rule 801(c), SORE. An excited utterance is a "statement
relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition." Rule 803(2), SORE. A
statement that is admissible because it is "not hearsay" under Rule 801(d),
SCRE, or because it falls within an exception in Rule 803, SORE, may be used
substantively, i.e., to prove the truth of the matter asserted. Simpkins v. State,
303 S.C. 364, 401 S.E.2d 142 (1991); 2 McCormick on Evidence, §§ 251, 254
(1992); C.B. Mueller & L.C. Kirkpatrick, Modern Evidence - Doctrine and
Practice, § 8.24 (1995).
The rationale behind the excited utterance exception is that the
startling event suspends the declarant's process of reflective thought, reducing
the likelihood of fabrication. In determining whether a statement falls within
the excited utterance exception, a court must consider the totality of the
circumstances. State v. Hill, 331 S.C. 94, 99, 501 S.E.2d 122, 125, cert. denied,
U.S. , 119 S.Ct. 597, 142 L.Ed.2d 539 (1998).
Appellant's argument that the State failed to show the statement
was an excited utterance argument is unpersuasive. Otis allegedly had just seen
his brother shoot an unarmed man, abruptly ending a fistfight. Horlback
testified Otis made the statement to him when he saw Otis one to two minutes
after the shooting, tucking a gun beneath his shirt as he walked between
apartment buildings. The statement was an excited utterance admissible under
Rule 803(2), SCRE. Accord State v. Burdette, 335 S.C. 34, 41-44, 515 S.E.2d
525, 529-30 (1999) (victim's statement to police less than one hour after attack
was an excited utterance).
B. BRUTON DOCTRINE
Appellant next contends the trial judge should have granted his
mistrial motion because he was denied his right to confront Otis about the
statement in violation of the Sixth Amendment's Confrontation Clause, citing
Bruton v. United States, supra. We have not previously addressed a case in
which an appellant alleged a statement, even if admissible as an excited
utterance, is nonetheless barred by the Confrontation Clause.
In Bruton, the Supreme Court held that a defendant's rights under
the Confrontation Clause of the Sixth Amendment3 are violated by the admission
confronted with the witnesses against him . . . ." U.S. Const. amend. VI. The
provision is applicable to the states under the Fourteenth Amendment. Pointer
of a non-testifying codefendant's confession that inculpates a defendant, even if
a cautionary instruction is given. Bruton, 391 U.S. at 126, 88 S.Ct. at 1622, 20
L.Ed.2d at 499; State v. Evans, 316 S.C. 303, 307, 450 S.E.2d 47, 50 (1994). The
Supreme Court recognized that the
truthfinding function of the Confrontation Clause is
jeopardized when an accomplice's confession is
introduced against a defendant without the benefit of
cross-examination. The danger emanating from a
denial of the right to confront and cross-examine a
witness is that an accomplice's statements are often
unreliable and must, therefore, be viewed with
suspicion because of the likelihood of an accomplice's
desire to exonerate himself by implicating others.
State v. Martin, 292 S.C. 437, 439, 357 S.E.2d 21, 22 (1987) (citing Bruton).
Thus, Bruton is grounded in two concerns: a defendant's constitutional right to
cross-examine his accusers and the inherent unreliability of statements made
by a defendant who stands to gain by shifting blame to a codefendant.
The Supreme Court, however, emphasized that the hearsay
statement inculpating Bruton was not admissible against him under traditional
rules of evidence. The Supreme Court expressed no opinion on whether the
admission in a joint trial of evidence properly admissible under an established
hearsay exception would violate the Confrontation Clause. Bruton, 391 U.S. at
128 n.3, 88 S.Ct. at 1623 n.3, 20 L.Ed.2d at 480 n.3.
The Supreme Court consistently has held that the Confrontation
Clause "does not necessarily prohibit the admission of hearsay statements
against a criminal defendant, even though the admission of such statements
might bethought to violate the literal terms of the Clause." Idaho v. Wright, 497
U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638, 651(1990). Although the
Supreme Court has recognized that "hearsay rules and the Confrontation Clause
are generally designed to protect similar values, [it] also has been careful not to
v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The South
Carolina constitution provides the same protection to a defendant. S.C. Const.
art. I, § 14.
equate the Confrontation Clause's prohibitions with the general rule prohibiting
the admission of hearsay statements." Id. at 814,110 S.Ct. at 3146,111 L.Ed.2d
at 651 (citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597
An incriminating statement admissible under an exception to the
hearsay rule also is admissible under the Confrontation Clause only if it bears
adequate "indicia of reliability." The indicia of reliability requirement is met
when the hearsay statement falls within a firmly rooted hearsay exception.4 Id.
stated the first step in determining whether an incriminating statement
admissible under an exception to the hearsay rule also is admissible under the
Confrontation Clause was that the State must either produce, or demonstrate
the unavailability of, a declarant whose statement it wished to use against the
defendant. Id. at 814, 110 S.Ct. at 3146, 111 L:Ed.2d at 651. The Supreme
Court has clarified that view, stating "the unavailability analysis is a necessary
part of the Confrontation Clause inquiry only when the challenged out-of-court
statements were made in the course of a prior judicial proceeding," as they were
in Ohio v. Roberts. White v. Illinois, 502 U.S. 346, 353-56,112 S.Ct. 736, 741-42,
116 L.Ed.2d 848, 857 (1992); see also United States v. Inadi, 475 U.S. 387, 106
S.Ct. 1121, 89 L.Ed.2d 390 (1986) (Confrontation Clause does not require
showing of unavailability as condition to admission of out-of-court statement of
nontestifying co-conspirator that is admissible under Federal Rules of Evidence);
State v. Hutto, 325 S.C. 221, 226 n.7, 481 S.E.2d 432, 434 n.7 (1997) (recognizing
The Supreme Court also has held that a hearsay statement may be
deemed sufficiently reliable to avoid violating the Confrontation Clause when it
is supported by a showing of particularized guarantees of trustworthiness. The
second method of determining reliability appears to be grounded, at least in
part,. in the residual or catchall hearsay exception found in Federal Rule of
Evidence 807 (formerly Rule 803(24), FRE) and in some states' rules of evidence.
See Lilly v. Virginia, 527 U.S. , 119 S.Ct. 1887, 1901-02, 144 L.Ed.2d 117,
136-38 (1999) (explaining that analysis Supreme Court uses today closely links
Confrontation Clause, which has ancient origins, to modern hearsay rules)
(Breyer, J., concurring); Idaho v. Wright, 497 U.S. at 816-27, 110 S.Ct. at 3147-
at 814-16, 110 S.Ct. at 3146-47, 111 L.Ed.2d at 652-53.
The Supreme Court has held that an excited utterance, or
spontaneous declaration, is one such firmly rooted exception to the hearsay rule,
and its admission does not violate the Confrontation Clause. White v. Illinois,
502 U.S. 346, 357, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 860 (1992). The excited
utterance exception has existed for at least two centuries. Id. at 355 n.8, 112
S.Ct. at 742 n.8, 116 L.Ed.2d at 859 n.8.
[T]he evidentiary rationale for permitting hearsay
testimony regarding spontaneous declarations . . . is
that such out-of-court declarations are made in contexts
that provide substantial guarantees of their
trustworthiness . . . . A statement that has been offered
in a moment of excitement - without the opportunity to
reflect on the consequences of one's exclamation - may
justifiably carry more weight with a trier of fact than a
similar statement offered in the relative calm of the
To exclude such probative statements under the
strictures of the Confrontation Clause would be the
height of wrongheadedness, given that the
Confrontation Clause has as a basic purpose the
53, 111 L.Ed.2d at 652-60 (affirming Idaho Supreme Court's decision that,
although a statement fell within Idaho's catchall hearsay exception, admitting
it would violate Confrontation Clause because it lacked sufficient particularized
guarantees of trustworthiness); Ohio v. Roberts, 448 U.S. at 66 & n.9, 100 S.Ct.
at 2539 & n.9, 65 L.Ed.2d at 608 & n.9 (describing the two methods of
determining the reliability of a statement, and noting complexity of reconciling
hearsay rules and Confrontation Clause).
Unlike the rules in the federal system and in other states, the South
Carolina Rules of Evidence do not contain the residual or catchall hearsay
exception. See Notes to Rule 803, SORE. We express no opinion on the second
method of determining reliability because it is not at issue in this case.
promotion of the integrity of the factfinding process ...
. [A] statement that qualifies for admission under a
firmly rooted hearsay exception is so trustworthy that
adversarial testing [by cross-examination] can be
expected to add little to its reliability.
Id. at 355-57, 112 S.Ct. at 742-43, 116 L.Ed.2d at 859-60 (internal quotes
Although White v. Illinois did not raise a Bruton issue because only
one defendant was on trial, we believe the principles and logic of the decision
apply with equal force in appellant's case. A federal appellate court concluded
the same in a case factually similar to appellant's seventeen years before the
Supreme Court decided White v. Illinois. In McLaughlin v. Vinzant, 522 F.2d
448 (1st Cir. 1975), the defendant and his female companion were tried jointly,
he for murder and she as an accessory. Three witnesses testified the female
companion ran back to an apartment the couple had left, about one minute after
the witnesses heard a gunshot, and said the defendant had just "shot someone."
The First Circuit upheld the admission of the excited utterance and found no
Bruton violation. Id. at 449-50; accord United States v. Vazquez, 857 F.2d 857,
864 (1st Cir. 1988) (finding no Bruton violation in the admission of a customs
official's testimony in a joint trial about a codefendant's excited utterance
implicating defendant, which was made when authorities detained the two men).
We hold that Otis's excited utterance, as repeated to the jury by
eyewitness Horlback, is not barred by the Confrontation Clause. Otis allegedly
made the statement one to two minutes after purportedly seeing his brother
fatally shoot an unarmed man. Its spontaneous nature ensures its reliability
without the need for cross-examination. An excited utterance differs markedly
from a statement or confession a codefendant makes to an investigator after
having had time to collect his or her thoughts, time enough perhaps to concoct
a story identifying an accomplice as the perpetrator. Otis's statement falls
within a firmly rooted exception to the hearsay rule and consequently does not
violate the Confrontation Clause. White v. Illinois, supra; accord State v.
Burdette, 335 S.C. at 44-45, 515 S.E.2d at 530-31 (holding that admission of an
excited utterance made by a victim to police did not violate the Confrontation
Clause because the excited utterance exception is a firmly rooted hearsay
exception) (citing White v. Illinois, supra).
Our holding is consistent with Lilly v. Virginia, 527 U.S. ___, 119
S.Ct. 1887, 144 L.Ed.2d 117 (1999), a recent case in which the Supreme Court
considered the Bruton doctrine, the Confrontation Clause, and firmly rooted
hearsay exceptions. In Lilly, a Virginia trial court admitted a nontestifying
codefendant's confession to police that implicated his defendant brother as
evidence against the defendant brother. The Virginia Supreme Court held that
the codefendant's custodial confession was a statement against his penal interest
and, because that qualifies as a firmly rooted hearsay exception under Virginia
law, admitting the codefendant's confession did not violate the defendant
brother's Confrontation Clause rights. Lilly, 527 U.S. at ___, 119 S.Ct. at 1893,
144 L.Ed.2d at 125.
A plurality of the Supreme Court reversed, holding that an
accomplice's custodial confession that inculpates a codefendant is not within a
firmly rooted hearsay exception. Id. at ___, 119 S.Ct. at 1898-99 & n.5, 144
L.Ed.2d at 133 & n.5. The dissenters found the plurality's analysis and holding
unnecessarily broad. The plurality, concurring, and dissenting justices,
however, all appear to support the continued vitality of the Bruton doctrine.
Furthermore, nothing in any of the opinions disturbs the principle that a
nontestifying codefendant's statement which is deemed reliable because it falls
within a firmly rooted hearsay exception may be admitted without violating the
We affirm the trial judge's denial of appellant's pretrial severance
motion and conclude the judge did not err in relying upon Zafiro v. United
States, supra. We affirm the denial of appellant's mistrial motion because the
admission of the excited utterance of a codefendant did not violate appellant's
rights under the Confrontation Clause and Bruton v. United States, supra.
Toal, Moore and Burnett, JJ., concur. Finney, C.J., dissenting
in a separate opinion.
method of determining the reliability of a statement, i.e., whether the statement
contains sufficient particularized guarantees of trustworthiness. Again, our
opinion does not address that method. See footnote 4.
FINNEY, C.J.: I respectfully dissent. The State chose to try
appellant and his brother jointly for the murder of Terrance Johnson, and
therefore elected to subject itself to the special evidentiary considerations
which arise in such situations. See State v. Singleton, 303 S.C. 313, 400
S.E.2d 488 (1991) (admonishing trial judges to exercise caution in joint
trials, especially to ensure protection of Confrontation Clause rights); State
v. Bellamy, 293 S.C. 103, 359 S.E.2d 63 (1987) (urging "state to carefully
consider all the available alternatives before deciding to try co-defendants
jointly . . . ."). In my opinion, the admission of Otis' statement to Horlback
that appellant shot Johnson is the quintessential Confrontation Clause
The majority holds that the brother's "excited utterance",
inculpating only the appellant, made only one to two minutes after the
shooting, and made to a witness who observed the brother leaving the scene
while attempting to secrete the murder weapon, is so inherently reliable that
its admission is constitutionally permissible. The suggestion that this
statement is reliable because the brother did not have time to concoct a
blame-shifting story is naive, as is any assertion that the context in which
the statement was made provides a substantial guarantee of its
trustworthiness. To characterize all 'excited utterances' as 'firmly rooted'
hearsay exceptions exempt from the strictures of the Confrontation Clause is
an oversimplification similar to that made by the Virginia Supreme Court
and criticized by the United States Supreme Court in Lilly v. Virginia, 119
S.Ct. 1887 (1999). In the Lilly plurality opinion, the Court explicitly
reiterated, "It is clear that our cases consistently have viewed an
accomplice's statements that shift or spread blame to a criminal defendant as
falling outside the realm of those 'hearsay exception [s] [that are] so
trustworthy that adversarial testing can be expected to add little to [the
statements'] reliability."' 119 S.Ct. at 1898 (internal citation omitted).
While the issue raised in this appeal was left open by the United
States Supreme Court in Bruton v. United States, 390 U.S. 123, 128 n. 3
(1968), nothing in subsequent decisions by that Court persuades me that the
type of statement at issue here would ever be deemed admissible in a joint
trial. I would reverse appellant's conviction.