Heard June 10, 2014.
This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.
Appeal From Sumter County. W. Jeffrey Young, Circuit Court Judge. Appellate Case No. 2011-199366.
Dayne C. Phillips, of Lexington, and Appellate Defender Carmen Vaughn Ganjehsani, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, and Senior Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Ernest Adolphus Finney, III, of Sumter, for Respondent.
FEW, C.J. SHORT, J., concurs. GEATHERS, J., concurring in a separate opinion.
[410 S.C. 587] FEW, C.J.:
Daniel D'Angelo Jackson appeals his convictions for murder and armed robbery. He argues he was denied his Sixth Amendment right of confrontation when the trial court admitted the redacted statements of his nontestifying codefendant Reginald Canty. We reverse.
I. Facts and Procedural History
On the night of January 12, 2008, William Flexon was shot twice and killed while delivering pizzas to lot seven in O.C. Mobile Home Park in the Cherryvale area of Sumter. Law enforcement officers found Canty walking nearby shortly after the shooting. Canty agreed to speak with the officers, and between January 13 and 25, he gave six statements.
In his statements, Canty described his and Jackson's role in the events leading up to Flexon's death. Canty stated he was at home in O.C. Mobile Home Park when Jackson asked him if he wanted to make some money by robbing a pizza delivery man. Canty wrote, " I said yes cause I didn't want the other guys to laugh and pick at me."  At Jackson's request, Canty's cousin Desmond took Jackson and Canty to Cherryvale Grocery. Canty saw Jackson use the pay phone outside the grocery store, and heard him call Sambino's Pizza Restaurant and order three large pizzas, requesting delivery to lot seven in O.C. Mobile Home Park. Canty stated he and Jackson then went inside the store, where Jackson purchased " a Debbie snack cake (donut sticks)." Canty and Jackson returned to the mobile home park and waited for the pizza delivery man to arrive. Canty reported he stayed at his house [410 S.C. 588] where he could see lot seven while Jackson hid behind some trailers. Canty watched the pizza delivery man arrive at lot seven, and saw him exit his vehicle. Canty stated the delivery man " went to the abandoned residence (Lt. 7) and saw the door open and then turn[ed] around [and] went back to his vehicle real fast." Canty then saw Jackson and at least one other person rob the delivery man. Canty reported Jackson shot the delivery man and ran away.
The State charged Jackson and Canty with murder and armed robbery and called them to trial together. Jackson filed a pretrial motion to sever the trials, arguing that if the State introduced Canty's statements at trial and Canty did not testify, the admission of the statements would violate Jackson's constitutional right to confront and cross-examine Canty. See Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476, 479 (1968) (holding the Confrontation Clause of the Sixth Amendment bars the admission of a nontestifying codefendant's confession that incriminates another defendant). The trial court denied the motion.
Jackson renewed his severance motion on the first day of trial. As an alternative to severance, Jackson requested the court " thoroughly redact" the statements, but argued, " I don't think that's going to protect us." The court denied Jackson's renewed severance motion and stated, " [W]e'll see where we are on redaction if any statements are proposed by the State."
The State presented testimony and evidence establishing that Jackson and Canty
acted together to lure a pizza delivery man to a vacant trailer at O.C. Mobile Home Park and rob him there. The owner of Sambino's Pizza Restaurant testified that on the night of January 12, a man called and ordered three large pizzas. The unnamed man told her he was calling from a pay phone, and he requested the pizzas be delivered to lot number seven in O.C. Mobile Home Park. A custodian of telephone records subsequently testified the call to Sambino's was made from the pay phone at Cherryvale Grocery.
Eugene Mackovitch testified he was working at Cherryvale Grocery the night of January 12. He recalled two African-American men--one darker-skinned and the other fairer-skinned--entered the store together, and he sold one of them a Little Debbie snack cake. During his testimony, the State [410 S.C. 589] played surveillance video showing Mackovitch and the two men inside the grocery store. Mackovitch explained the video showed him selling the Little Debbie snack cake to one of the men.
The State presented two witnesses who identified by name the two men shown in the video. Anitta Shannon, another employee of the grocery store, testified she personally knew Jackson and identified him as the individual buying the Little Debbie snack cake. Sergeant Robert Burnish of the Sumter County Sheriff's Office--the chief investigating officer on the case--identified both Jackson and Canty as the men in the video.
Later, the State sought to introduce Canty's statements. Jackson requested the trial court review the third, fourth, fifth, and sixth statements, and the court held a hearing outside the jury's presence. The State proposed to redact the four statements by replacing Jackson's name with " another person," and the court found this redaction satisfied the requirements of Bruton. Jackson objected on the basis that admitting the statements violated his right to confront and cross-examine Canty. He argued that even with the State's proposed redaction, the statements were " still going to lead to inferences . . . that it might be my client that he's referring to." The court overruled Jackson's objection.
Investigator Dominick West of the Sumter County Sheriff's Office then read the redacted versions of the four statements to the jury. He did not say Jackson's name, but instead said " another person" or " the other person" wherever Jackson's name appeared in the statements. Canty's redacted statements described how " another person" (1) asked Canty if he wanted to participate in robbing a pizza man; (2) told Canty to get Desmond to take them to Cherryvale Grocery ; (3) used the pay phone to call Sambino's and order three large pizzas, requesting delivery to lot seven in O.C. Mobile Home Park; (4) bought a " Debbie snack cake donut sticks" ; (5) returned to the mobile home park with Canty; (6) went behind the trailer on lot seven and waited for the pizza man to arrive; and (7) [410 S.C. 590] robbed and shot the pizza man, while Canty watched from his house.
Sergeant Burnish testified about his investigation of the crimes and read the original, unredacted versions of Canty's first and second statements to the jury. In the first statement, Canty reported, " The gun looked like a rifle and the person that was holding the gun had a hoodie, but I couldn't see his face." He next read the second statement, in which Canty named " the bad guy . . . James or J-Boy" as the person who shot the pizza man with a rifle and ran. Sergeant Burnish also read the same redacted version of the sixth statement that Investigator West read.
After Sergeant Burnish testified that Canty made his third statement on January 15, Sergeant Burnish explained:
Q: You were not there when Mr. Canty gave a statement on the 15th?
A: I was in the building; I was not present for that statement.
Q: Now, what happened and what did you do next in your investigation?
A: Based on the information that was received on that date is when we issued warrants for the arrest of Mr. Jackson.
At the close of the State's case, Jackson moved for a mistrial on the basis that admitting Canty's statements violated his right to confront and cross-examine Canty. The trial court denied Jackson's motion. Neither Canty nor Jackson testified. After Canty and Jackson presented their defenses, Jackson renewed his mistrial motion, which the court again denied.
The State presented no direct evidence of the events that occurred after Canty and Jackson left the grocery store, except Canty's statements. In particular, no eyewitnesses to the shooting testified. However, circumstantial evidence linked Jackson to the crimes. Both Investigator West and Sergeant Burnish testified they interviewed Jackson after his arrest, and Jackson " said how could I be charged with armed robbery if I didn't steal anything from the pizza man." Jackson [410 S.C. 591] also admitted he fled his aunt's house when he saw law enforcement officers coming. The State presented an officer who testified he recovered a Little Debbie donut sticks wrapper from " the side of the road near the entrance to . . . the mobile home park," 137 feet from Flexon's body. Canty called Latoya Rush, who testified she was Canty's neighbor when the crimes occurred. She recalled asking Canty that evening " to keep an eye on [her] house because [she] didn't want to lock [the] door" while she went to McDonald's. Rush stated that " a little while" before she left to go to McDonald's, Jackson was at her house and asked her if she had " any socks or gloves." Rush testified she went to McDonald's and was gone for " no more than ten minutes," and when she came back, she saw officers had arrived in her neighborhood because a " man was dead."
The State also presented Jackson's aunt, Andrea Russell, who testified Jackson " spent a few days" at her apartment in January 2008, although she could not recall exactly when. She later found underneath her couch a rifle that she remembered Jackson brought with him when he arrived. At trial, she identified it as the rifle the State introduced in evidence. The State's firearms expert, referring to the rifle Russell found in her apartment and a bullet fragment removed from Flexon's body, testified " this gun fired that bullet into William ...