Although witness Larry Kinloch testified that he did not shoot the victim, since defendant did not lay the foundation required by Rule 613(b), SCRE, he could not put on another witness, Quinton Grant, to testify that Kinloch had told him (Grant) that Kinloch did shoot the victim. Without the required foundation, Grant’s hearsay testimony was not allowable as a prior inconsistent statement.
We affirm defendant’s conviction of voluntary manslaughter for the shooting death of the victim at the end of a fight outside a nightclub.
Prior Inconsistent Statement
We find problematic that the trial court, throughout the trial, indicated that it would not allow “speaking objections” and held numerous bench conferences off the record. Assuming defendant preserved for appeal the issue of Grant’s testimony – that Kinloch said he shot the victim – was admissible because Kinloch had made a prior inconsistent statement in his own testimony, the trial court did not abuse its discretion in excluding Grant’s testimony. Defendant failed to lay a proper foundation for such testimony.
Rule 613(b), SCRE, requires that the witness be advised of the substance of the statement, the time and place it was allegedly made, and the person to whom it was made, and be given the opportunity to explain or deny the statement before extrinsic evidence of a prior inconsistent statement may be admitted into evidence on this basis. During cross-examination of Kinloch, defense counsel asked him only if he shared with Grant that he “did the shooting,” whether he ran and Grant assisted him in getting away from the shooting, and whether he saw Grant “[a]fter the shooting that night.” These general questions are insufficient to lay the proper foundation.
Even if defense counsel’s question of whether Kinloch shared with Grant that he did the shooting was sufficient to advise Kinloch of the substance of the statement and provide him an opportunity to explain or deny the statement, counsel did not lay the foundation as to the time and place the statement was allegedly made.
Though defense counsel asked Kinloch if Grant assisted him in getting away after the shooting and whether he saw Grant that night, these questions did not reference his alleged statement to Grant and did not advise Kinloch of the time and place he allegedly made the statement to Grant. Additionally, Grant testified that the statement was not made to him at the nightclub, but was made at Kinloch’s home some 20 to 25 minutes after the shooting. Accordingly, while defendant argues the question concerning whether Grant assisted Kinloch in getting away from the shooting provided advisement concerning the place the statement was made, this is contrary to Grant’s testimony as to the place the statement was allegedly made.
Other Hearsay Exceptions
Considering that the alleged statement was made some 20 to 25 minutes after the event and after Kinloch had left the scene and gone home, there was time for reflection and the statement was not made within such time as to negate the likelihood of a deliberate misstatement. Thus, the alleged statement was not contemporaneous with the event and, therefore, does not qualify as a present sense impression exception to the rule against hearsay.
There is no evidence Kinloch made the alleged statement while under the stress of excitement. Further, there is no evidence Kinloch’s demeanor was such as to indicate the alleged statement was an excited utterance. Nor is there evidence that the shooting suspended Kinloch’s process of reflective thought, reducing the likelihood of fabrication.
Accordingly, we find no abuse of the trial court’s discretion in declining to find the statement fell within the excited utterance exception.
Although defense witness Kevin Watson apparently did not know about the trial court’s witness sequestration order, he was in court for precisely the evidence the court didn’t want defense witnesses to hear: the video of defendant’s interview with police. The trial court did not abuse its discretion in excluding Watson’s testimony.
In any event, Watson’s proffered testimony was, at best, cumulative to another witness’s testimony that defendant did not have a gun.
There was no evidence that (1) the victim ever struck defendant, (2) defendant believed he was in actual imminent danger of losing his life or sustaining serious bodily injury, or (3) a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and had to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life. Furthermore, the evidence shows that defendant had the opportunity to, and in fact did remove himself momentarily from the fight; thus, he could have retreated. Defendant was not entitled to a jury instruction on self-defense.
The trial court did not err in instructing the jury as to accomplice liability. There was evidence that defendant and Kinloch were together at the club the night of the shooting, that they followed the victim around in the club, and that they followed him as he walked out of the club. Although the trial court excluded Grant’s testimony that Kinloch said he shot the victim, there was evidence that Kinloch participated in the fight and that defendant did not have a gun. The evidence supported an instruction on accomplice liability.
Although an Allen charge tells the jury to confer together, and although the trial court gave the charge and then dismissed the jury for the night, since the court also instructed the jury to stop their deliberations at that point and not to consider any issue in the case until all 12 of them were back together, the trial court did not err in giving the Allen instruction at the end of the day rather than giving it the next morning, as requested by defendant.
State v. Washington (Lawyers Weekly No. 011-077-18, 35 pp.) (Thomas Huff, J.) (Stephanie McDonald, J., concurring in the result without separate opinion) Appealed from the Circuit Court in Berkeley County (Kristi Lea Harrington, J.) Katherine Carruth Goode and Jack Swerling for Appellant; Alan McCrory Wilson, David Spencer and Scarlett Anne Wilson for Respondent. S.C.App.