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STATE v. EVANS10/3/1994
ing to vouch for the veracity of integrity of the witness, 2) there is a close relationship between the accused and the prospective Court's witness, 3) there is evidence that the proposed witness was an eyewitness to the act giving rise to the prosecution, 4) the witness gave a sworn statement concerning the relevant facts which have been or will probably be contradicted, and 5) the absence of the witness's testimony would likely result in a miscarriage of justice. See also Riddle v. State, ___ S.C. ___, 443 S.E.2d 557 (1994). Here, the proposed witness had not given a sworn statement. Therefore, the trial judge did not err in refusing to call him as a court's witness.
For the foregoing reasons, Evans' convictions are
Affirmed.
CHANDLER, Acting C.J., MOORE, J., and WILLIAM H. BALLANGER, Acting Associate Justice, concur.
I respectfully dissent from that part of the majority opinion which upholds the admission of the co-defendant's statement. In my opinion, the admission of Altman's statement, "I wasn't driving anyway" violated Evans' Confrontation Clause rights.
Evans was charged with driving the vehicle which killed the children: Altman merely with misprision of felony, that is, the failure to report Evans' crime. There was physical evidence placing Altman at the scene, and evidence that there were two people in the truck when the children were struck. The trial judge redacted the explicit reference in Altman's statement naming Evans as the driver, but refused to redact the statement that Altman was not the driver, an indisputable reference to the existence of an additional person. Although not named, that person could only be Evans.
A nontestifying codefendant's statement need not name the defendant in order to incriminate him. State v. Singleton, 303 S.C. 313, 400 S.E.2d 487 (1991) (redaction of appellant's name but not his general physical description violated appellant's Confrontation Clause rights); see also State v. LaBarge, 275 S.C. 168, 268 S.E.2d 278 (1980) [substitution of "Mr. X" for defendant's name would not satisfy Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)]. In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court held the redaction of any reference to the existence of another defendant satisfies the Confrontation Clause, even if other evidence links the defendant to the crime where a proper limiting instruction is given. Id. (emphasis added). Here, the redaction is incomplete and unequivocally indicates the presence of another, more culpable individual. Further, there was no contemporaneous limiting instruction. Under the circumstances of this case, Altman's statement, fairly understood, incriminates
I concur in the majority's conclusion that neither the admission of the Grandfather's post-hypnotic statement regarding the truck's color nor the admission of the "expert" testimony of intoxication require reversal, albeit for different reasons. I would hold that a statement obtained, as was the Grandfather's, in violation of every procedural safeguard outlined in State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), is per se inadmissible. The majority holds that a trial judge may admit such a statement if the determines that it is "more accurate", that is, that it better reflects the "true facts" in the case. Such a determination requires the trial judge to make an inappropriate intrusion into the jury's province to decide the facts. I would hold that the trial judge erred in admitting the Grandfather's post-hypnotic recollection of the truck's color because it was obtained without proper procedural safeguards, but that the admission was harmless error in light of E
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