THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
John Samuel Burdette, Appellant.
Appeal From Richland County
Thomas W. Cooper, Jr., Circuit Court Judge
Opinion No. 24929
Heard February 4, 1999 - Filed April 5, 1999
Assistant Appellate Defender Aileen P. Clare, of
South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, Assistant
Attorney General Caroline Callison Tiffin; and
Solicitor Warren B. Giese, all of Columbia, for
TOAL, A.J.: John Samuel Burdette ("Defendant") appeals his
convictions for assault and battery of a high and aggravated nature (ABHAN),
first degree burglary, and his mandatory life sentence without parole imposed
STATE v. BURDETTE
under S.C. Code Ann. � 17-25-45 (Supp. 1998). We affirm.
At approximately 7:00 p.m. on February 13, 1996, Defendant and his
accomplice Don Robinson entered the house of Nathan Tarte ("Victim"), age 95,
and Aida Tarte ("Victim's Wife"), age 85. At that time, Victim's Wife was on the
telephone with her daughter. Defendant and Robinson physically attacked
Victim and threw him to the ground. Robinson then took the portable phone
from Victim's Wife as she spoke to her daughter and used it to beat her about
the head and face. Robinson then left the house with the telephone and
Defendant followed shortly thereafter.
As Robinson stood in the front yard following the attack, his presence
caught the attention of a neighbor across the street. The neighbor testified that
Robinson waited in the front yard until Defendant came out of Victim's
residence and then the two of them left together. The neighbor heard screams
coming from Victim's house and went across the street to investigate. He found
Victim and Victim's Wife injured and the police were called immediately. Based
on a description given by the neighbor, the police apprehended Defendant and
Robinson in the neighborhood shortly after the attack.
The State indicted Defendant for burglary in the first degree and two
counts of ABHAN. A jury found him guilty on all counts and the trial court
sentenced Defendant pursuant to S.C. Code Ann. � 17-25-45 (Supp. 1998).1 Due
to Defendant's previous conviction for armed robbery in 1979, the conviction of
first degree burglary triggered section 17-25-45(A), and Defendant received a
mandatory life sentence without parole. Defendant appeals his convictions,
raising four issues:
1. Did Defendant receive adequate notice of the charges against
him under section 17-25-45?
2. Does S.C. Code Ann. � 17-25-45(G) violate the separation of
3. Were statements made by Victim to police officers following
the attack inadmissible hearsay or in violation of the Confrontation
1 This statute is also known as a "two strikes" or "recidivist" statute.
STATE v. BURDETTE
4. Should the trial court have granted Defendant a directed
verdict on the ABHAN charge for the attack on Victim's Wife?
I. ADEQUATE NOTICE OF CHARGES
Defendant argues that this Court should overturn his sentence because
the notice sent to him as required by section 17-25-45 failed to list the
indictment number for his first degree burglary charge.2 We disagree.
The State is required by law to inform a defendant that it plans to apply
the recidivist statute. Section (H) of the statute provides:
Where the solicitor is required to seek or determines to seek
sentencing of a defendant under this section, written notice must
be given by the solicitor to the defendant and defendant's counsel
not less than ten days before trial.
S.C. Code Ann. � 17-25-45(H). The statute, however, does not address the
content requirement of such notice.
Defendant's position is that S.C. Const. art. I, � 14's requirement that
"Any person charged with an offense shall enjoy the right . . . to be fully informed
of the nature and cause of the accusation" mandates that the notice include a
listing of the offenses which trigger the two strikes law, or else the notice is
constitutionally insufficient. Defendant claims that without a listing of the
charges triggering the recidivist statute's application, he could not be "fully
informed" of the nature of the charges against him.3 We disagree.
Historically, South Carolina has not required a defendant be informed,
even in the indictment, that he was eligible upon conviction to be punished
2 From the evidence in the record, it appears that the absence of the first
degree burglary indictment number is wholly a clerical mistake. Both ABHAN
indictment numbers appeared on the notice.
3 The notice did include Defendant's 1979 armed robbery conviction.
STATE v. BURDETTE
more severely on the basis of previous convictions in his record. See State v.
Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980)(holding that a defendant was not
entitled to notice prior to the application of a mandatory sentence under S.C.
Code Ann. � 17-25-40 (1976)(repealed), the predecessor statute to section 17-25
45); see also State v. Parris, 89 S.C. 140, 141, 71 S.E. 808, 809 (1911)("The
indictment need not state whether it is for the first or second offense, though
the second offense, in that case, was punishable with death, while the first
offense was punishable only with whipping.").4 Thus, under our constitution
there would be no duty to inform Defendant about seeking the statute's
application. The duty, if any, would have to be set forth in the notice provision
of the recidivist statute.
The indictment, along with the notice that the recidivist statute would
apply, satisfied the fully informed requirement of S.C. Const. article 1, sec. 14.
Once the indictment informs a defendant of the charges against him, section 17
25-45(H) only requires the solicitor to inform the defendant that the recidivist
sentencing statute will be applied upon conviction. Specifically listing the
triggering charge from the current case is unnecessary because Defendant has
been fully informed of the charges against him in the indictment, and he has
been informed that the State will apply the recidivist statute. Determining
which of the indicted offenses triggers the statute merely requires looking at the
list of offenses listed in section 17-25-45.
H. SEPARATION OF POWERS
Defendant argues that the mandatory nature of section 17-25-45(G)
renders it a violation of the separation of powers doctrine.5 We disagree.
4 The only time such information has been required to be included in the
indictment has been where the information is necessary to establish jurisdiction
of the court. See Tyler v. State, 247 S.C. 34, 145 S.E.2d 434 (1965) ("[T]he
allegation of the indictment that the crime charged was a second or subsequent
offense was necessary to show the jurisdiction of the court.").
5 "In the government of this State, the legislative, executive, and judicial
powers of the government shall be forever separate and distinct from each
other, and no person or persons exercising the functions of one of said
departments shall assume or discharge the duties of any other." S.C. Const. art.
L � 8.
STATE v. BURDETTE
Defendant cites State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994), for
the proposition that:
Under the separation of powers doctrine, which is the basis
for our form of government, the Executive Branch is vested with
the power to decide when and how to prosecute a case. Both the
South Carolina Constitution and South Carolina case law place the
unfettered discretion to prosecute solely in the prosecutor's hands.
The Attorney General as the State's chief prosecutor may decide
when and where to present an indictment, and may even decide
whether an indictment should be sought. Prosecutors may pursue
a case to trial, or they may plea bargain it down to a lesser offense,
or they can simply decide not to prosecute the offense in its
Id. at 291-92, 440 S.E.2d at 346-47. However, section 17-25-45 does not
interfere with any of the prosecutorial rights enumerated in Thrift. Under the
mandatory sentencing guidelines, the prosecutor can still choose not to pursue
the triggering offenses or to plea the charges down to non-triggering offenses.
Choosing which crime to charge a defendant with is the essence of prosecutorial
discretion, not choosing which sentence the court shall impose upon conviction.
See U.S. v. Washington, 109 F.3d 335, 338 (7 1h Cir. 1997) ("If one person shoots
and kills another, a prosecutor may charge anything between careless handling
of a weapon and capital murder.").
If a defendant is convicted of one of the triggering offenses, the matter of
sentencing becomes the province of the legislature. "We have held in the past
that the penalty assessed for a particular offense is, except in the rarest of
cases, 4purely a matter of legislative prerogative,'and the legislature's judgment
will not be disturbed." State v. De La Cruz, 302 S.C. 13, 15, 393 S.E.2d 184, 186
(1990); see also State v. Smith, 275 S.C. 164, 167, 268 S.E.2d 2762 277 (1980).
In the current case, the legislature has designated life in prison without parole
as the appropriate sentence for Defendant based on his criminal convictions.
The imposition of that sentence does not violate the separation of powers
III. TESTIMONY OF POLICE OFFICER/VICTIM'S STATEMENT TO THE POLICE
Defendant argues that Victim's statement to police officers constituted
inadmissible hearsay evidence. We disagree. Defendant further claims that
even if the statement was not inadmissible hearsay that it violated the
STATE v. BURDETTE
Confrontation Clause of the federal Constitution. We disagree.
The trial court found that Victim's statements to the police immediately
following the attack were allowable under either Rule 803(l), SCRE, as a
present sense impression or Rule 803(2), SCRE, as an excited utterance. We
agree that the statement qualifies as an excited utterance.
The hearsay exceptions of present sense impression and excited utterance
have replaced the res gestae hearsay exception in South Carolina law.6 In the
6 Our Court of Appeals recently summarized the status of the former
South Carolina res gestae exception to the hearsay prohibition. They explained:
Prior to the adoption of the Rules of Evidence, South Carolina
law provided for a res gestae exception to the hearsay rule. Under
this exception, a hearsay statement was admissible if the statement
was substantially contemporaneous with the litigated transaction
and was the spontaneous utterance of the mind while under the
active, immediate influence of the event. [Citations omitted]
However, there is no single res gestae exception included in
the South Carolina Rules of Evidence. Instead, the Rules establish
a "present sense impression" exception, which makes admissible a
hearsay "statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition, or
immediately thereafter," Rule 803(l), SCRE, and an "excited
utterance" exception, which makes admissible a hearsay "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), SCRE. These exceptions are identical to
those contained in the Federal Rules of Evidence. See Reporter's
Note, Rule 803, SCRE.
Comparing the exceptions under the Rules to the pre-Rules
res gestae exception, it is apparent that the former res gestae
exception largely combined the current requirements of subsections
(1) and (2). See Blackburn, 271 S.C. at 329, 247 S.E.2d at 337
("Under state practice, . . . the statement must be both an excited
utterance and a present sense impression to be admitted as a part
of the res gestae."). Thus, a statement that satisfied one subsection
STATE v. BURDETTE
current case, Victim's statement to the police immediately after the attack
qualifies under the excited utterance exception to the hearsay prohibition. "The
rationale for the [excited utterance] exception lies in the special reliability
accorded to a statement uttered in spontaneous excitement which suspends the
declarant's powers of reflection and fabrication." Blackburn, at 327, 247 S.E.2d
at 336. In Blackburn, this Court found that "to qualify as part of the res gestae,
the [excited] utterance need only be 'substantially contemporaneous' with the
transaction." Id., at 328, 247 S.E.2d at 336. In an analysis of the excited
utterance exception in Rule 803 of the Federal Rules of Evidence, the Blackburn
Court found the victim's statement given to police approximately one hour after
the event "would qualify as an excited utterance and be admissible under [that]
The record indicates that there could have been no more than one hour
between the attack on Victim and Victim's Wife and Victim's statement to the
testifying police officer. While "[t]here are no hard and fast rules as to when the
res gestae ends," State v. Harrison, 298 S.C. 333, 336, 380 S.E.2d 818, 820
(1989), this Court has generally allowed as excited utterances statements made
but not the other would not have been admissible under the former
res gestae exception, but is now admissible under the Rules. See
Reporter's Note, Rule' 803, SCRE (Rules 803(l) and 803(2)
if constitute a change in South Carolina law. Previously, a
statement had to meet the conditions of both subsections (1) and (2)
before it would be admissible under the res gestae exception to the
hearsay rule."). Nonetheless, given that the pre-Rules res gestae
cases contained the essential requirements of Rule 803(l) and Rule
803(2), those cases remain helpful when determining whether a
statement is admissible under the Rules.
State v. Burroughs, 328 S.C. 489, 498-99, 4192 S.E.2d,408, 412-414 (Ct. App.
7 In Blackburn, although the statement qualified as an excited utterance,
the court still excluded it. The Court found: "It is the very nature of [the
victim's] statement which renders it inadmissible under the res gestae
exception. The declarant was stating her opinion as to Why the assault
occurred rather than giving a factual account of How it occurred." Blackburn,
271 S.C. at 328, 247 S.E.2d at 337. In the present case, Victim clearly provided
a factual account of how the attack occurred.
STATE v. BURDETTE
by the victim to the police immediately following a physical attack. See State
v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991) (allowing statements made to
police under res gestae exception where the officer had proceeded directly to the
scene attack upon it being reported); State v. Harrison, 298 S.C. 333, 380 S.E.2d
818 (1989) (allowing as res gestae the statements of an alleged rape victim to an
officer at the hospital upon first opportunity to tell what had occurred to her);
State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978) (noting that a time
interval of over one hour, and up to eleven hours, did not necessarily eliminate
a statement as part of the res gestae); State v. Quillien, 263 S.C. 87, 207 S.E.2d
814 (1974) (concluding a rape victim's statements to police when she arrived at
the emergency room were admissible under the res gestae exception); State v.
Dennis, 321 S.C. 413,468 S.E.2d 674 (Ct. App. 1996) (allowing statements made
to the police and nurse where the record indicated there was no appreciable
time lapse between the attack and the statements); see also State v. Burroughs,
328 S.C. 489,492 S.E.2d 468 (Ct. App. 1997) (excluding statements made to the
investigating officer and a nurse where the statements were made
approximately ten hours after the incident and victim expressly acknowledged
she had time to reflect upon the events).
Whether a statement is admissible under the excited utterance exception
to the hearsay rule depends on the circumstances of each case and the
determination is generally left to the sound discretion of the trial court. See
State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989). In the current case,
Victim and his wife had recently suffered a physical attack and his statement
to the police fell within the time frame previously allowed in the case law. We
agree with the trial court's conclusion that Victim's statement qualified as an
B. Confrontation Clause
Defendant argues that even if the statement qualifies as an exception to
the hearsay prohibition, it was still impermissible because the testimony
violated the Confrontation Clause of the United States Constitution. We
Defendant is correct that the hearsay exceptions and the Confrontation
Clause of the United States Constitution are not identical in their application.
See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); State
v. Hutto, 325 S.C. 221, 226 n.7, 481 S.E.2d 432, 434 n.7 (1997). Hearsay
statements are admissible under the Confrontation Clause where the statement
bears adequate "indicia of reliability." Idaho v. Wright, 497 U.S. 805, 813, 110
STATE v. BURDETTE
S. Ct. 3139, 3145, 111 L.Ed.2d 638, 651 (1990). Such reliability can be inferred
without more in a case where the evidence falls within a firmly rooted hearsay
exception. Id. at 814-16, 110 S.Ct. at 3146-47, 111 L.Ed.2d. 652-53. The
admissibility of Victim's statement to the police depends on whether his
statements, as excited utterances, bear adequate indicia of reliability.
The United States Supreme Court has held that the excited utterance
exception is a "firmly rooted" hearsay exception. See White v. Illinois, 502 U.S.
354, 355 n. 8, 112 S.Ct. 736, 742 n. 8 (1992) ("The exception for spontaneous
declarations is at least two centuries old, and may date to the late 17 1h
century."). The concept of res gestae has been an exception to the hearsay
prohibition in South Carolina for over 100 years. See State v. Talbert, 41 S.C.
526, 19 S.E. 852 (1894) (allowing hearsay statements made by deceased
immediately after he had been shot). Defendant argues that Rule 803, SCRE
dividing up the res gestae exception in 1995 into two distinct exceptions
undermined its status as "firmly rooted" in South Carolina law. Defendant
believes that since the excited utterance exception has stood on its own for only
a few years, that it does not bear the indicia of reliability necessary to satisfy
the Confrontation Clause. We disagree.
The reason excited utterances are allowed as an exception to the hearsay
prohibition is that they bear the indicia of reliability required by the second
element of the Confrontation Clause analysis. See State v. Hill, 331 S.C. 94,501
S.E.2d. 122 (1998) ("The rationale behind the excited utterance exception is that
the startling event suspends the declarant's process of reflective thought, thus
reducing the likelihood of fabrication."). Excited utterances would therefore
have the indicia of reliability no matter how long that exception has stood on its
own in South Carolina. Defendant offers no argument against the philosophy
or theoretical basis of the exception, only that it has not had enough time on its
own to become "firmly rooted." We disagree and find that the excited utterance
exception is firmly rooted in South Carolina law and satisfies the requirements
of the Confrontation Clause.
IV. DIRECTED VERDICT
Defendant argues that the trial court erred in not directing a verdict in
his favor on the ABHAN charge based on the attack against Victim's Wife. He
argues that because Victim's Wife told the police she was attacked by a black
man and Defendant is white, that there was no evidence to support the charge
against him and therefore the trial court should have granted a directed verdict.
STATE v. BURDETTE
There is evidence that Defendant and Robinson arrived together, entered
the house together, that Defendant attacked Victim while Robinson attacked
Victim's Wife, that the house was burglarized, and that Defendant and
Robinson left togther. "When two or more persons aid, abet and encourage each
other in the commission of a crime, all being present, each is guilty as a
principal." See Yates v. Aiken, 290 S.C. 231,236,349 S.E.2d 84,87 (1986), rev'd
on other grounds, 484 U.S. 211, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988). In the
present case, there is substantial evidence that Defendant was involved in the
overall commission of the crime. Therefore, Defendant is guilty as a principal
for the crimes committed by Robinson against Victim's Wife during their attack.
On a motion for a directed verdict in a criminal case, the trial court is
concerned with the existence or non-existence of evidence, not its weight. State
v. Morgan, 282 S.C. 409, 319 S.E.2d 335 (1984). If the State presents any
evidence which reasonably tends to prove defendant's guilt, or from which
defendant's guilt could be fairly and logically deduced, the case must go to the
jury. State v. Poindexter, 314 S.C. 490) 431 S.E.2d 254 (1993). On appeal from
the denial of a motion for directed verdict, this Court must view the evidence in
a light most favorable to the State. State v. Schrock, 283 S.C. 129, 322 S.E.2d
450 (1984). Viewing the testimony concerning Defendant's role in the burglary
and assaults in a light most favorable to the State, the trial court correctly
refused the directed verdict on this charge.
Based on the foregoing analysis, the decisions of the trial court are
FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.