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2004-UP-236 - State v. Skanes

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Andre D. Skanes,        Appellant.


Appeal From Beaufort County
Jackson V. Gregory, Circuit Court Judge


Unpublished Opinion No. 2004-UP-236
Heard December 11, 2003 – Filed March 31, 2004


AFFIRMED


James Arthur Brown, of Beaufort, for Appellant.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Charles H. Richardson; Assistant Attorney General Deborah R. J. Shupe, of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for Respondent.

PER CURIAM:  Andre D. Skanes was convicted of first-degree burglary and armed robbery and sentenced to eighteen years imprisonment on each charge, the sentences to run concurrently.  Skanes appeals, arguing the circuit court erred by admitting evidence in violation of the hearsay rule.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On the night of June 4, 2000, two individuals forced their way into the home of Oscar Lopez and Odis Javier Reyes.  Upon entry, the intruders demanded money from the two victims at gunpoint. 

The following day, Sharon Bryan Evans was arrested in connection with the crimes.  During questioning, Evans identified Skanes as an accomplice.  As a result, Skanes was arrested and indicted for first-degree burglary and armed robbery.   

At trial, the State called Evans to the stand, and Evans identified Skanes as a participant in the robbery.  Subsequently, the State called Officer Samuel Roser, who testified he had interviewed Evans following her arrest.  Roser further testified that as a result of the interview, Skanes was identified as Evans’ co-defendant.  Skanes did not object to this testimony.

Thereafter, the State asked Roser if Evans identified Skanes during the interview.  Skanes objected, arguing the testimony was hearsay.  The circuit court overruled the objection and allowed the testimony.

The State also presented the testimony of Reyes, one of the two victims.  Lopez, the other victim, was unavailable for trial.  Reyes testified in general about the events that took place the night of the robbery.  During cross-examination of Reyes, Skanes admitted the police photographic lineup into evidence in which his picture appeared with photographs of similar-looking people.  Reyes’ signature appeared on the back of a picture of another person in the lineup, indicating Reyes had identified someone other than Skanes as the perpetrator.  Reyes’ misidentification was brought out through Skanes’ examination of Reyes and Officer Roser, who presented the lineup to Reyes.  However, Lopez’s signature also appeared on the back of the photographic lineup, but was on the photo of Skanes.

The State called Officer Robert Arbello, the police officer who had presented the photographs to Lopez, to explain Lopez’s signature on the back of the lineup.  Skanes objected, arguing the testimony would be hearsay.   The State countered Skanes had opened the door to the explanation of Lopez’s signature by admitting the photograph containing the signature into evidence and publishing it to the jury.  The circuit court agreed and admitted the testimony.  Arbello then testified that when he presented the lineup to Lopez, Lopez identified Skanes as the perpetrator, thus explaining Lopez’s signature on the back of Skanes’ photograph.

The jury found Skanes guilty of both charges, and the circuit court sentenced Skanes to eighteen years imprisonment on each charge, the sentences to run concurrently.  Skanes appeals.

LAW/ANALYSIS

I.       Pre-Trial Identification

Skanes argues the circuit court committed reversible error by admitting Roser’s testimony, indicating Evans identified Skanes as her accomplice following her arrest.  Skanes contends the trial court committed reversible error by admitting this hearsay testimony in violation of Rule 802, South Carolina Rules of Evidence.  We disagree.

“The admission or exclusion of evidence is within the discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion.” State v. Foster, 354 S.C. 614, 620-21, 582 S.E.2d 426, 429 (2003).  An abuse of discretion occurs when the circuit court’s ruling is based on an error of law.  Id.

“‘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), SCRE; see State v. Townsend, 321 S.C. 55, 59, 467 S.E.2d 138, 141 (Ct. App. 1996) (holding hearsay is defined as an out of court statement offered to prove the truth of the matter asserted). Furthermore, “[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court of this State or by statute.”  Rule 802, SCRE.

However, error in the admission of evidence, without more, is insufficient to reverse a jury verdict, unless the additional element of prejudice is demonstrated.  State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985).  Whether improperly admitted evidence is prejudicial must be determined from its relationship to the entire case.  Id.  Thus, improperly admitted hearsay evidence is not prejudicial where it is merely cumulative to other evidence.  State v. Blackburn, 271 S.C. 324, 329, 247 S.E.2d 334, 337 (1978); cf. State v. Saltz, 346 S.C. 114, 124, 551 S.E.2d 240, 246 (2001) (“Erroneously admitted corroboration testimony is not harmless merely because it is cumulative. On the contrary, ‘it is precisely this cumulative effect which enhances the devastating impact of improper corroboration.’”) (internal citations omitted).

At trial, Evans identified Skanes as her accomplice in committing the robbery.  Skanes did not object to her in-court identification.  Subsequently, the State called Roser to the stand.  Roser testified he interviewed Evans, and as a result of that interview, Skanes was identified as Evans’ co-defendant.   Skanes did not object to this testimony. 

Thereafter, the State asked Roser if, during his interview with Evans, she identified her accomplice in committing the robbery.  Skanes objected, arguing the testimony would be hearsay, and the circuit court overruled the objection.

Even assuming the evidence was hearsay, we conclude the evidence was cumulative and thus not prejudical because the substance of Roser’s testimony was already presented without objection through both his and Evans’ previous testimony.  See State v. Crawley, 349 S.C. 459, 466, 562 S.E.2d 683, 687 (Ct. App. 2002) (holding the circuit court did not commit reversible error by permitting alleged hearsay testimony, where substance of alleged hearsay testimony was previously admitted without objection).  Thus, we hold the circuit court did not commit reversible error.  

II.      Photographic Lineup

Skanes argues the circuit court erred by permitting the State to introduce testimony explaining Lopez’s signature on the back of the lineup, especially where, as here, Lopez was unavailable and could not be cross-examined.  Skanes contends this testimony was hearsay in violation of Rule 802, South Carolina Rules of Evidence.  We disagree.

“[W]hen a party introduces evidence about a particular matter, the other party is entitled to explain it or rebut it, even if the latter evidence would have been incompetent or irrelevant had it been offered initially.”  State v. Beam, 336 S.C. 45, 52, 518 S.E. 2d 297, 301 (Ct. App. 1999).  Furthermore, “[a] party cannot complain of prejudice from the admission of evidence if he opened the door to its admission.”  State v. Dunlop, 346 S.C. 312, 325-26, 550 S.E.2d 889, 897 (Ct. App. 2001); Beam, 336 S.C. at 53, 518 S.E.2d at 301 (“A party may not complain of error caused by his own conduct.”).

During Skanes’ cross-examination of Reyes, Skanes admitted the photographic lineup into evidence, with Lopez’s signature on the back.  The lineup was then published to the jury.  No evidence exists within the record indicating Skanes attempted to redact Lopez’s name from the lineup prior to its admission into evidence and publication to the jury. 

Subsequently, the State moved to reopen its case to explain the presence of Lopez’s signature on the back of the admitted lineup.  Skanes objected, arguing the testimony would be hearsay.  The circuit court overruled his objection and admitted the testimony.  Thereafter, Arbello testified when he showed the lineup to Lopez, Lopez identified Skanes as the perpetrator and signed the back of the lineup.

We conclude the circuit court did not err by admitting Arbello’s testimony.  Once Skanes admitted the lineup with Lopez’s signature on the back into evidence, the door was opened allowing testimony to explain the signature’s presence. 

CONCLUSION

For the foregoing reasons, Skanes’ convictions are

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concur.