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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

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

AFFIRMED

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

respondent.

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

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under S.C. Code Ann. § 17-25-45 (Supp. 1998). We affirm.

FACTUAL/PROCEDURAL BACKGROUND

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

powers doctrine?

3. Were statements made by Victim to police officers following

the attack inadmissible hearsay or in violation of the Confrontation

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Clause?

4. Should the trial court have granted Defendant a directed

verdict on the ABHAN charge for the attack on Victim's Wife?

LAW/ANALYSIS

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

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.

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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.

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.

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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

entirety.

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

doctrine.

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

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Confrontation Clause of the federal Constitution. We disagree.

A. Hearsay

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

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

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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]

exception. "7

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

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.

1997).

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.

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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

excited utterance.

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

disagree.

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

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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.

We disagree.

p.14

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.

CONCLUSION

Based on the foregoing analysis, the decisions of the trial court are

AFFIRMED.

FINNEY, C.J., MOORE, WALLER, and BURNETT, JJ., concur.

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