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State v. Foster6/12/2003
the forensic evidence were discussed at trial. The fingerprints from the gun were analyzed, but the test was inconclusive. Therefore, the SLED investigator could not say who handled the weapon. The gunshot residue tests conducted on Foster and Marilyn, however, revealed that both had gunshot residue on their hands. Marilyn had gunshot residue on the back of each of her hands, while Foster had residue on his left palm only. When Foster cross-examined the pathologist, he testified that the results of the gunshot residue tests "strongly suggest" that Marilyn's hands completely covered Foster's. Moreover, the pathologist could not say who had control over the gun when it was discharged. Foster presented his own forensic expert who opined there was most probably a struggle over the weapon and that Marilyn's hands were over Foster's hand.
As the only eyewitness, the testimony of Michelle was pivotal to the State's murder case. In its opening statement, the State told the jury: "the crux of the case is what you are going to hear from Michelle." On cross-examination, Foster's counsel questioned Michelle about a statement she made to police on April 28:
Q: Your statement which you gave them is more or less the version you have given us today; is that not right?
A: Yes.
Counsel then proceeded on a line of questioning regarding Michelle's prior inconsistent statements to others on the day of the killing. Specifically, Michelle was asked whether she had told some family friends on the morning of the incident that she thought it was an accident. Michelle insisted she had simply said she could not believe Foster "could do anything like that." On redirect, the State presented Michelle with her police statement and she read it to herself. The State asked whether the statement differed from her testimony, and Michelle replied in the negative.
After Michelle and two other witnesses testified, the State sought to admit into evidence Michelle's written statement to police. Foster objected. Initially, the objection was based on relevance. The State argued, inter alia, that Michelle's statement was admissible as a prior consistent statement. Foster's counsel further argued he did not "want to give more credibility to her statement than her verbal testimony." The trial court ruled the statement was not hearsay and allowed its admission.During Foster's defense, he presented two witnesses who both stated Michelle had said her mother's shooting was an "accident." Additionally, one of these witnesses testified Michelle had said Foster and Marilyn were fighting over the gun, and the other testified Michelle had said "it wasn't [Foster's] fault."
The jury convicted Foster of voluntary manslaughter and the weapon charge. On appeal, the Court of Appeals found the trial court erred in allowing Michelle's prior consistent statement. Finding that the error was not harmless, the Court of Appeals reversed Foster's convictions and remanded for a new trial.
ISSUE
Did the Court of Appeals correctly reverse Foster's convictions because of the improper admission of Michelle's prior consistent statement?
DISCUSSION
The State maintains that Foster's cross-examination question to Michelle about her prior consistent statement "opened the door" to its admission. Alternatively, the State contends that the Court of Appeals erred in finding the statement inadmissible under Rule 801(d)(1)(B), SCRE. We disagree.
The admission or exclusion of evidence is within the discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. State v. Saltz, 346 S.C. 114, 551 S.E.2d 240 (2001). A
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