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The State, Respondent,

v.

Henry Antonio Fuller, Appellant.

ORDER

The Petition for Rehearing is granted. The opinion filed in this case on

June 28, 1999, is hereby withdrawn and the attached opinion is substituted

in its place.

C.J.

FOR T'HE COURT

Columbia, South Carolina

November 22, 1999

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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Henry Antonio Fuller, Appellant.

Appeal From Greenville County

Henry F. Floyd, Circuit Court Judge

Opinion No. 24961

Heard April 6, 1999 - Refiled November 22, 1999

REVERSED AND REMANDED

Deputy Chief Attorney Joseph L. Savitz, III, 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 Donald J. Zelenka, Assistant

Attorney General Derrick K. McFarland, of Columbia;

and Solicitor Robert M. Ariail, of Greenville, all for

respondent.

TOAL, A.J.: In this criminal matter, Henry Antonio Fuller was convicted

for the murder of George Lollis. We reverse and remand.

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FACTUAL/PROCEDURAL BACKGROUND

At approximately 3:00 a.m. on August 15, 1996, George Lollis received a

phone call from a security company indicating that the alarm at his convenience

store had sounded. Mr. Lollis armed himself with a handgun and traveled in

his truck to the store. His wife, Patricia Lollis, also armed with a gun,

remained at home.

After meeting officers at his store and determining there were no

problems, Mr. Lollis returned home at around 4:00 a.m. Approximately forty

five minutes later, Mr. Lollis received a second phone call indicating the store

alarm had again been tripped. Mr. Lollis exited his house to get in his truck.

He again armed himself with a handgun. Mrs. Lollis watched from the house

as her husband walked to the truck. Mrs. Lollis testified that she saw two

"black figures" running toward her husband. Mr. Lollis was ultimately shot and

killed by his attackers.

Henry Antonio Fuller ("Defendant") was arrested for the Lollis murder.

Defendant provided a handwritten statement to police. In the statement,

Defendant stated that he, Darrell Holmes, and Bernard Holmes had planned

to rob the Lollis' home. To perpetrate the robbery, Darrell Holmes went to the

Lollis' store to set off the alarm. Defendant and Bernard Holmes waited for Mr.

Lollis outside of his home. In their first attempt to rob Mr. Lollis, Defendant

and Bernard Holmes were unsuccessful in completing the crime. On their

second attempt, Defendant claimed that he attacked Mrs. Lollis and wrestled

the gun away from her. Defendant further stated that Bernard Holmes and Mr.

Lollis shot each other in an ensuing gun fight. Mr. Lollis died from his wounds.

Bernard Holmes was later killed while attempting another, unrelated burglary.

On November 18, 1997, a jury found Defendant guilty of murder and

conspiracy. The trial judge sentenced Defendant to life imprisonment without

parole for murder and five years, consecutive, for conspiracy. Defendant

appeals, raising the following issues:

(1) Did the trial court err in denying Defendant's motion to represent

himself at trial?

(2) Did the trial court err by letting a possible accomplice testify that

a deceased third-party (decedent) told him that the decedent,

Defendant, and another man had committed the murder?

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LAW/ANALYSIS

A. SELF-REPRESENTATION

Defendant argues that the trial court erred by denying his request to

represent himself at trial. We agree.

On November 12, 1997, five days before trial, Defendant's counsel made

a motion for a continuance. The trial court denied the motion and fined counsel

for being dilatory. On the morning of trial, November 17, 1997, the following

colloquy occurred between the trial court and Defendant:

Court: Mr. Fuller, is there any reason why you are not going to wear

civilian clothes?

Defendant: For the record?

Court: Yes, sir.

Defendant: I'm not happy with Mr. - Mr. - Mr. Allen as my legal counsel.

Court: Well, that's not the question I asked you right now. We're talking

about the clothing first. Why - It makes no difference to me, but I have

been where Mr. Allen is and it doesn't make an impression on the jury if

you are sitting in your jail suit. However, that's your call, and I just want

to make sure that that's your call.

Defendant: Your honor, I don't wish to continue with Mr. Allen as my

counsel because his services have been ineffective. He hasn't done

anything to prepare for this trial.

Court: Well, your motion to have him releaved [sic] is denied. We're

going to proceed with the trial and Mr. Allen is going to be your lawyer.

Now, the question is, do you want to stay dressed like that, or do you

want to get your clothes on and come out here and be presentable to the

jury? And I don't care. It's up to you.

Defendant: Your honor, if you're going to allow him to continue as my

counsel I'd rather - I'd rather represent myself.

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Court: I'm not going to let you do that. Now Mr. Allen is going to be

representing you in this case.

The above colloquy occurred before the charges were read to Defendant and

before the jury was selected and sworn.

Under the Sixth Amendment, an accused may waive the right to counsel

and proceed pro se. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed.

2d 562 (1975); State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998). That right

must be preserved even if the court believes that the defendant will benefit from

the advice of counsel. United States v. Singleton, 107 F.3d 1091 (4 1h Cir. 1997).

Once the defendant has waived counsel, the trial judge has the responsibility

to ensure that the accused is informed of the dangers and disadvantages of self

representation, and makes a knowing and intelligent waiver of the right to

counsel. Reed, supra.

A defendant's right to waive the assistance of counsel is not unlimited.

The request to proceed pro se must be clearly asserted by the defendant prior

to trial. Reed, supra. If the request to proceed pro se is made after trial has

begun, the grant or denial of the right to proceed pro se rests within the sound

discretion of the trial judge. Singleton, supra; United States v. Lawrence, 605

F.2d 1321 (4 th Cir. 1979). In Lawrence, the Fourth Circuit held that the

defendant's request to proceed pro se was untimely because the trial

proceedings had already consumed one day during which counsel had conducted

their voir dire examination and the jury selected. The only remaining formality

was the swearing of the jury. Lawrence, supra; see also Robards v. Rees, 789

F.2d 379 (6 th Cir. 1986) (request for self-representation was properly denied

where the clerk had already called the roll of jurors).

The State argues that Defendant's request was untimely because it was

made the morning of trial. Defendant, on the other hand, contends the request

was timely because it was asserted before the commencement of trial

proceedings. We decline to hold that a motion to proceed pro se made on the

day of trial, but before the commencement of trial proceedings, is either timely

or untimely as a matter of law. See People v. Mogul, 812 P.2d 705 (Colo. Ct.

App. 1991). As noted in Mogul, there may be a variety of reasons which might

excuse a last minute request by a defendant to proceed pro se. Id. at 708.

Therefore, "it is incumbent upon the trial court to determine whether the

request is made for purposes of delay or to gain tactical advantage, and whether

the lateness of the request may hinder the administration of justice. " Id. at 709.

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In the instant case, Defendant's request to proceed pro se was made in an

atmosphere of his escalating dissatisfaction with big attorney. Several days

before trial, the trial court fined Defendant's attorney for being dilatory. On the

morning of trial, Defendant complained to the trial court that his counsel had

been ineffective in preparing for trial. This suggests that Defendant's purpose

in making the request was not to delay or stall the proceedings, but rather to

address his growing concerns about his attorney. More significantly, the trial

court failed to conduct an adequate hearing to fully assess the purpose behind

Defendant's request or to determine what effect granting the request would

have had on the proceedings. This omission by the trial court requires reversal.

B. HEARSAY TESTIMONY

Defendant argues that the trial court erred by letting a possible

accomplice, Bernard McKinney, testify that Bernard Holmes, a third-party now

deceased, had told the accomplice McKinney 1 that decedent, Defendant, and

Darrell Holmes had murdered Mr. Lollis. We agree.

Before trial, the State informed the trial court that it intended to call

Bernard McKinney to testify that decedent had told him that decedent, Darrell

Holmes, and Defendant were involved in Mr. Lollis's murder. The State argued

the statement was admissible as an exception to hearsay under Rule 804(b)(3),

SCRE 2 (statement against interest by unavailable declarant). Defendant moved

qualify him as a coconspirator such that his testimony would not be hearsay

under Rule 801(d)(2)(E).

2 Rule 804(b)(3), SCRE, provides:

(b) Hearsay Exceptions: The following are not excluded by the

hearsay rule if the declarant is unavailable as a witness:

(3) Statement Against Interest: A statement which was at the time

of its making so far contrary to the declarant's pecuniary or

proprietary interest, or so far tended to subject the declarant to civil

or criminal liability, or to render invalid a claim by the declarant

against another, that a reasonable person in the declarant's position

would not have made the statement unless believing it to be true.

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in limine to exclude the statement, arguing the statement was not reliable and

violated his right to confront and cross-examine the witness. Defendant argued

the statement was unreliable because McKinney was trying to exculpate

himself, since he was also charged with murder and conspiracy at that time.

The trial court ruled that the statement was admissible under Rule

804(b)(3), SCRE. The court also stated that the rule set forth in Bruton v.

United States, 391 U.S. 123) 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) 3 would not

be violated because Defendant and McKinney were not being tried together in

the same trial.

When McKinney was finally called to the stand to testify, he stated that

he, decedent, and Darrell Holmes had planned to rob the Lollis' weeks before

the murder. In fact, McKinney and the Holmes' had made two attempts to rob

Mr. Lollis prior to the murder. McKinney testified that the plan was for Darrell

Holmes to trip the alarm at the Lollis' store, while McKinney and decedent

waited for Mr. Lollis outside of his residence. McKinney claimed that on the

night of the murder, he was at a friend's house and did not participate in the

crime. McKinney further claimed that three to four days after the murder,

decedent told him that decedent, Darrell Holmes, and Defendant had gone to

the Lollis'home on the night of the murder and attempted to rob Mr. Lollis.

The decedent further told McKinney that Mr. Lollis shot him, and if

"[Defendant] wouldn't have been there he probably would have got shot in the

back."

The hearsay statements recounted by McKinney essentially amounted to

statements by a deceased third-party that inculpated Defendant and subjected

the declarant to criminal liability. Thus, the issue before this Court is whether

and offered to exculpate the accused is not admissible unless

corroborating circumstances clearly indicate the trustworthiness of

the statement.

3 Bruton held that where a confession by a codefendant, who did not

testify, was admitted in evidence at a joint trial, a defendant was denied his

constitutional right of confrontation, even though the jury was instructed that

the codefendant's confession must be disregarded in determining the

defendant's guilt or innocence. See State v. Miller, 266 S.C. 409, 223 S.E.2d 774

(1978).

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a non-self-inculpatory statement, which is collateral to a self-inculpatory

statement, may nonetheless come in under Rule 804(b)(3), SCRE, as a

statement made by an unavailable declarant against his penal interest.

conclude that such statements are inadmissible.

The U.S. Supreme Court has held that third-party statements such as the

one involved in this case are inherently unreliable. See Lilly v. Virginia, 527

U.S. 119S.Ct.1887,144L.Ed.2dll7(1999). In Lilly, a plurality of justices

found accomplices' confessions that inculpate a criminal defendant do not fall

within a firmly rooted hearsay exception. Id. 527 U.S. at _, 119 S. Ct. at

1898-99. The Court, however, went on to conclude that such hearsay

statements can be admissible where they are supported by a showing of

"particularized guarantees of trustworthiness." Id. 527 U.S. at 1 119 S. Ct

at 1899-1900. The Court based the admittance of such statements in part on

the residual or catchall hearsay exception found in Federal Rule of Evidence

807 (formerly Rule 803(24), FRE). Unlike the Federal Rules of Evidence, South

Carolina has expressly chosen not to adopt such a catchall exception. See Notes

to Rule 803, SCRE. Since our rules of evidence do not contain a catchall

hearsay exception, our courts do not undertake such an analysis when

determining admissibility.

Our holding on this issue is in accord with the United States Supreme

Court's interpretation of federal Rule 804(b)(3), which is identical to Rule

804(b)(3), SCRE. In Williamson v. United States, 512 U.S. 594, 114 S. Ct. 243 1,

129 L. Ed. 2d 476 (1994), the United States Supreme Court clarified the scope

of Rule 804(b)(3), FRE, with regard to statements that inculpate the defendant

as well as subject the declarant to criminal liability. The Court stated: "the fact

that a statement is collateral to a self-inculpatory statement says nothing at all

about the collateral statement's reliability." Williamson, 512 U.S. at 600, 114

S. Ct. at 2435, 129 L. Ed. 2d at 483. The Court further held:

In our view, the most faithful reading of Rule 804(b)(3) is that it

does not allow admission of non-self-inculpatory statements, even

if they are made within a broader narrative that is generally self

inculpatory. The district court may not just assume for purposes of

Rule 804(b)(3) that a statement is self-inculpatory because it is part

of a fuller confession, and this is especially true when the statement

implicates someone else.

Id. at 600-01, 114 S. Ct. at 2435, 129 L. Ed. 2d at 483. However, as noted in

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Williamson, it may very well be that a statement which qualifies under Rule

804(b)(3) may also be used against a criminal defendant. For example, an

accomplice's self-inculpatory statement combined with other independent

evidence can inculpate a criminal defendant: "'I was robbing the bank on Friday

morning' coupled with someone's testimony that the declarant and the

defendant drove off together Friday morning, is evidence that the defendant

also participated in the robbery." Id. at 603, 114 S. Ct. at 2436, 129 L. Ed. 2d

at 485. Moreover, a statement is not per se inadmissible simply because the

declarant names another person. Nevertheless, such statements must meet the

strict requirements of Rule 804(b)(3).

CONCLUSION

Based on the foregoing, we REVERSE the trial court and REMAND for

a new trial.

Finney, CA, Moore, Waller and Burnett, JJ., concur.

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