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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Jimmy Gary Gilchrist,

Sr., Appellant.

Appeal From McCormick County

William P. Keesley, Circuit Court Judge

Opinion No. 25187

Heard June 21, 2000 - Filed August 21, 2000

AFFIRMED

Robert T. Williams, Sr., of Williams, Hendrix,

Steigner & Brink, P.A., of Lexington, for appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Salley W. Elliott, Assistant Attorney

General J. Benjamin Aplin, all of Columbia; and Solicitor

Donald V. Myers, of Lexington, for respondent.

JUSTICE MOORE: Appellant was convicted of voluntary

p.518

manslaughter and sentenced to seventeen years' imprisonment for the fatal

shooting of Thomas Wideman (Victim). We affirm.

FACTS

Appellant admitted shooting Victim but claimed self-defense. The

shooting occurred inside a club in McCormick County after a verbal

confrontation in the parking lot. Several witnesses testified Victim was

sitting in a parked vehicle talking with two of his sisters and another friend

when appellant approached and asked Victim to move the car. When

Victim's sister responded, appellant called her "ignorant." Victim and

appellant then exchanged angry words. Victim and his party entered the

club and appellant drove away accompanied by Ben Robertson.

A short time later, appellant and Robertson returned to the club. As

last call was announced, appellant walked toward Victim and shot him.

Victim fell to the floor and appellant shot him two more times. Victim died

shortly thereafter. All of the State's witnesses testified Victim did not have a

gun when he was shot.

Appellant, on the other hand, testified he saw a gun in Victim's hand

during their verbal confrontation in the parking lot. Before going back

inside the club, appellant took his gun from his truck and put it in his pocket

for protection. In the club, appellant and Victim had another argument.

Victim continued staring at appellant across the room and showed his gun

while pointing at the door. When last call was announced, appellant

approached Victim intending to tell him "we need to stop before somebody

got hurt." As appellant walked toward Victim, Victim went for his gun and

appellant shot him.

Over appellant's objection, Sarah Cannady testified that five minutes

before the shooting, Ben Robertson told her appellant was going to kill

Victim, specifically that appellant was " fixing to shoot this nigger."

ISSUE

Was Ben Robertson's statement improperly admitted as the

statement of a co-conspirator?

p.519

DISCUSSION

Appellant objected on hearsay grounds to the admission of Ben

Robertson's statement. The State argued the statement was admissible as

the statement of a co-conspirator and handed the trial judge two recent

indictments against Robertson for criminal conspiracy and accessory. The

trial judge found Robertson's statement admissible under Rule 801(d)(2)(E),

SCRE. This was error.

Rule 801(d)(2)(E) provides that a statement by a co-conspirator during

the course and in furtherance of the conspiracy is not hearsay. Under the

Federal Rules of Evidence, this same rule has been interpreted to allow

admission of a co-conspirator's statement only where there is evidence of the

conspiracy independent of the statement sought to be admitted. See, e.g.,

United States v. Asibor, 109 F.3d 1023 (5th Cir. 1997); United States v. Clark,

18 F.3d 137 (6th Cir. 1994); United States v. Smith, 893 F.2d 1573 (9th Cir.

1989); United States v. Urbanik, 801 F.2d 692 (4th Cir. 1986). 1 Here, there is

no independent evidence of a conspiracy between Robertson and appellant.

The fact that Robertson was indicted for criminal conspiracy is not sufficient

in itself to establish a conspiracy since an indictment is not evidence of the

crime charged. 41 Am. Jur. 2d INDICTMENTS AND INFORMATIONS § 1.

Further, a statement by a co-conspirator must advance the conspiracy

to be admissible under Rule 801(d)(2)(E). State v. Anders, 331 S.C. 474, 503

S.E.2d 443 (1998) (admission to crime does not qualify as statement in furtherance of

conspiracy). 2 Robertson's statement did not further any

prima facia evidence of a conspiracy was required to support the admission

of a co-conspirator's statement. State v. Sullivan, 277 S.C. 35, 282 S.E.2d

838 (1981).

2 As explained in United States v. Arias-Villanueva, 998 F.2d 1491,

1502 (9th Cir. 1993):

While mere conversation or narrative declarations are not

admissible under this rule, statements made to induce

enlistment, further participation, prompt further action, allay(2 continued...)

p. 520

conspiracy and therefore was not admissible under Rule 801(d)(2)(E).

Although Robertson's statement was erroneously admitted, this error

is harmless in light of the fact that Sarah Cannady further testified that

appellant himself said, in reference to Victim, "If I don't kill this nigger

tonight he will be on my list." This statement was admitted without

objection 3 and, like Robertson's statement, is evidence of appellant's pre-

existing intent to kill Victim. Since Robertson's statement is merely

cumulative, its admission is not reversible error. State v. Williams, 321 S.C.

455, 469 S.E.2d 49 (1996). Accordingly, the judgment of the circuit court is

AFFIRMED.

TOAL, C.J., WALLER, BURNETT and PLEICONES, JJ., concur.

activities are admissible.

3 This statement is admissible under Rule 801(d)(2)(A), SCRE, as an

admission by a party opponent.

p.521