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Univ. of South Carolina School of Law

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Friday, December 7, 2007

Burning Down The House: South Carolina Court Finds Confession Letter Inadmissible Despite Rule 804(b)(3)

Jeremy Phillips is on trial, facing charges that he beat his neighbor, Juan Roman, and set fire to his mobile home, resulting in Roman's death in August 2006.  Based on testimony that has been given against him in his case, it looks likely that he will be convicted, although he was successful in having one key piece of evidence excluded.

Shannon Powell testified for the prosecution that after Roman's death, Phillips told her that he placed a PVC pipe in Roman's mouth, poured gasoline in the opening, and flipped a lighted object in, resulting in Roman being "lit up like a Roman candle."   This testimony was admissible becuase Phillips' alleged statements constituted admissions, which are non-hearsay under South Carolina Rule of Evidence 801(d)(1).

Also testifyng against Phillips was Nakia Moss Gosett, Phillips' girlfriend.  Gosett claimed that she was outside Roman's mobile home shortly before the fire started and that she saw Phillips and Jesse Willis inside.  She testified that she saw Phillips and Willis kicking and stomping Roman with their steel-toed work boots, leaving him in a pool of blood.  Willis and Gossett have also been charged in connection with Roman's death and await later trials.

When the prosecutor attempted to introduce a letter in which Willis admitted to setting the fire, however, the judge sustained defense counsel's objection that the letter was hearsay.  I'm not sure that the court's decision was correct.

The letter does meet the definition of hearsay under South Carolina Rule of Evidence 801(c): it is an out of court statement which was offered to prove the truth of the matter asserted in it.  At the same time, there is an exception to the rule against hearsay in South Carolina for statements against interest.  Under South Carolina Rule of Evidence 804(b)(3), "[a] statement which at the time of its making...so far tended to subject the declarant to civil or criminal liability...that a reasonable person in the declarant's position would not have made the statement unless believing it to be true" is admissible as an exception to the rule against hearsay.  Here, clearly WIllis letter exposed him to criminal liability in connection with Roman's death.

The problem, though, is that the hearsay exceptions contained in South Carolina Rule of Evidence 804 require that the declarant be "unavailable" to testify at trial.  Under South Carolina Rule of Evidence 804(a)(1), however, a declarant is "unavailable" when he is "exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement."  Here, presumably if the prosecutor called Willis as a witness, he would have claimed his Fifth Amendment right against self-incrimination, rendering him "unavailable" under South Carolina Rule of Evidence 804(a)(1).  Thus, my guess would be that either the prosecutor erred by failing to call Willis or by failing to argue South Carolina Rule of Evidence 804(b)(3) when trying to admit the letter, or that the court erred by holding the letter inadmissible.

-CM

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