# The Supreme Court of South Carolina

The State, Petitioner,

v.

Henry Haygood, Respondent.

Appellate Case No. 2014-001985

ORDER

After careful consideration of the petition for rehearing, the Court is unable to discover that any material fact or princi ple of law has been either overlooked or disregarded, and hence, there is no basis fo r granting a rehearing. Accordingly, the petition for rehearing is denied. Howeve r, we hereby withdraw our original opinion in this matter and subs titute it with Opinion No. 27560.

s/ Jean H. Toal C.J.

s/ Costa M. Pleicones J.

s/ Donald W. Beatty J.

s/ John W. Kittredge J.

s/ Kaye G. Hearn J.

Columbia, South Carolina

August 12, 2015THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Petitioner,

v.

Henry Haygood, Respondent.

Appellate Case No. 2014-001985

ON WRI T OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Orangeburg County The Honorable Edgar W. Dick son, Circuit Court Judge

Opinion No. 27560 Submitted February 3, 2015 – Refiled August 12, 2015

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED

Attorney General Alan McCrory Wilson and Assistant Attorney General John Croom Hunter, both of Columbia, for Petitioner,

Assistant Public Defender Breen Richard Stevens, of Orangeburg, for Respondent.

PER CURIAM: The State seeks a writ of certio rari to review the Court of Appeals' opinion in State v. Haygood , 409 S.C. 420, 762 S. E.2d 69 (Ct. App.2014). We grant the petition, dispense with further briefing, a ffirm the Court of Appeals' opinion in part, vacate in part, and remand for a new trial.

The Court of Appeals found the circuit court erred in finding the testimonial statements made by the victim to the police did not violate the Confrontation

Clause of the Sixth Amendment because the statements fell within the excited utterance exception to hearsay. See Crawford v. Washington , 541 U.S. 36, 68 (2004) ("Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law

. . . . Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: una vailability and a prior opportunity for cross-examination.").

The Court of Appeals also found the admission of the victim's statements in this

case violated the Confrontation Clause because the victim's statements were testimonial, there was no evidence the victim was unavailabl e to testify, and there was no evidence respondent had the opportunity to cross-examine the victim. We find the Court of Appeals erred in addressing whether the facts of this case demonstrated respondent's rights under th e Confrontation Clau se were violated

because the record before the court lacked the facts necessary to make such a determination. For unexplained reasons, the recording of the proceeding before the magistrate's court was unavailable, and th e only facts available to the Court of Appeals were from the magist rate's summary of the responding officer's testimony during the State's case-in-chief. We find the information contained in the magistrate's summary is insufficient to conduct a Confrontation Clause analysis, especially where the magistrate did not hold a hearing to determine whether the officer's testimony would violate the Confrontation Clause.

Therefore, we vacate the Court of App eals' opinion to the extent it addresses

whether the victim's statements violated the Confrontation Clause. Moreover, because there is no record of the proceedi ngs before the magistrate's court to aid the magistrate in fully analyzing this i ssue were we to rema nd for a determination

of whether the statements were testimoni al, we find it necessary to remand for a new trial in accordance with this opinion.

AFFIRMED IN PART, VACATE D IN PART, AND REMANDED

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE, and HEARN, JJ.,

concur.