THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Jimmy Gary Gilchrist,
Appeal From McCormick County
William P. Keesley, Circuit Court Judge
Opinion No. 25187
Heard June 21, 2000 - Filed August 21, 2000
Robert T. Williams, Sr., of Williams, Hendrix,
Steigner & Brink, P.A., of Lexington, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Salley W. Elliott, Assistant Attorney
General J. Benjamin Aplin, all of Columbia; and Solicitor
Donald V. Myers, of Lexington, for respondent.
JUSTICE MOORE: Appellant was convicted of voluntary
manslaughter and sentenced to seventeen years' imprisonment for the fatal
shooting of Thomas Wideman (Victim). We affirm.
Appellant admitted shooting Victim but claimed self-defense. The
shooting occurred inside a club in McCormick County after a verbal
confrontation in the parking lot. Several witnesses testified Victim was
sitting in a parked vehicle talking with two of his sisters and another friend
when appellant approached and asked Victim to move the car. When
Victim's sister responded, appellant called her "ignorant." Victim and
appellant then exchanged angry words. Victim and his party entered the
club and appellant drove away accompanied by Ben Robertson.
A short time later, appellant and Robertson returned to the club. As
last call was announced, appellant walked toward Victim and shot him.
Victim fell to the floor and appellant shot him two more times. Victim died
shortly thereafter. All of the State's witnesses testified Victim did not have a
gun when he was shot.
Appellant, on the other hand, testified he saw a gun in Victim's hand
during their verbal confrontation in the parking lot. Before going back
inside the club, appellant took his gun from his truck and put it in his pocket
for protection. In the club, appellant and Victim had another argument.
Victim continued staring at appellant across the room and showed his gun
while pointing at the door. When last call was announced, appellant
approached Victim intending to tell him "we need to stop before somebody
got hurt." As appellant walked toward Victim, Victim went for his gun and
appellant shot him.
Over appellant's objection, Sarah Cannady testified that five minutes
before the shooting, Ben Robertson told her appellant was going to kill
Victim, specifically that appellant was " fixing to shoot this nigger."
Was Ben Robertson's statement improperly admitted as the
statement of a co-conspirator?
Appellant objected on hearsay grounds to the admission of Ben
Robertson's statement. The State argued the statement was admissible as
the statement of a co-conspirator and handed the trial judge two recent
indictments against Robertson for criminal conspiracy and accessory. The
trial judge found Robertson's statement admissible under Rule 801(d)(2)(E),
SCRE. This was error.
Rule 801(d)(2)(E) provides that a statement by a co-conspirator during
the course and in furtherance of the conspiracy is not hearsay. Under the
Federal Rules of Evidence, this same rule has been interpreted to allow
admission of a co-conspirator's statement only where there is evidence of the
conspiracy independent of the statement sought to be admitted. See, e.g.,
United States v. Asibor, 109 F.3d 1023 (5th Cir. 1997); United States v. Clark,
18 F.3d 137 (6th Cir. 1994); United States v. Smith, 893 F.2d 1573 (9th Cir.
1989); United States v. Urbanik, 801 F.2d 692 (4th Cir. 1986). 1 Here, there is
no independent evidence of a conspiracy between Robertson and appellant.
The fact that Robertson was indicted for criminal conspiracy is not sufficient
in itself to establish a conspiracy since an indictment is not evidence of the
crime charged. 41 Am. Jur. 2d INDICTMENTS AND INFORMATIONS § 1.
Further, a statement by a co-conspirator must advance the conspiracy
to be admissible under Rule 801(d)(2)(E). State v. Anders, 331 S.C. 474, 503
S.E.2d 443 (1998) (admission to crime does not qualify as statement in furtherance of
conspiracy). 2 Robertson's statement did not further any
prima facia evidence of a conspiracy was required to support the admission
of a co-conspirator's statement. State v. Sullivan, 277 S.C. 35, 282 S.E.2d
2 As explained in United States v. Arias-Villanueva, 998 F.2d 1491,
1502 (9th Cir. 1993):
While mere conversation or narrative declarations are not
admissible under this rule, statements made to induce
enlistment, further participation, prompt further action, allay(2 continued...)
conspiracy and therefore was not admissible under Rule 801(d)(2)(E).
Although Robertson's statement was erroneously admitted, this error
is harmless in light of the fact that Sarah Cannady further testified that
appellant himself said, in reference to Victim, "If I don't kill this nigger
tonight he will be on my list." This statement was admitted without
objection 3 and, like Robertson's statement, is evidence of appellant's pre-
existing intent to kill Victim. Since Robertson's statement is merely
cumulative, its admission is not reversible error. State v. Williams, 321 S.C.
455, 469 S.E.2d 49 (1996). Accordingly, the judgment of the circuit court is
TOAL, C.J., WALLER, BURNETT and PLEICONES, JJ., concur.
activities are admissible.
3 This statement is admissible under Rule 801(d)(2)(A), SCRE, as an
admission by a party opponent.