THE STATE OF SOUTH CAROLINA In The Court of Appeals

The State, Respondent,

v.

Mack Seal Washington, Appellant.

Appellate Case No. 2017-001111

Appeal From Charleston County Roger L. Couch, Ci rcuit Court Judge

Opinion No. 5773 Heard September 16, 2019 – Filed September 16, 2020 Withdrawn, Subs tituted and Refiled October 7, 2020

REVERSED AND REMANDED

Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Jonathan Scott Matthews, both of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.

HILL, J.: Mack Seal Washington appeals his c onvictions for first-degree burglary, malicious injury to property, and obtaining goods by false pretenses, arguing the trial court erred in admitting an audio recordi ng of certain hearsay statements a police detective made while interrogating him. We agree this was error and reverse and remand for a new trial.I. FACTS

On August 21, 2015, someone broke into a Johns Island home and stole several items, including a rifle and a Husqvarna weed eater. Polic e began focusing on Washington as a suspect when his finge rprints matched a latent print found on a washing machine at the burgled home. They later discovered that on the day of the burglary, Washington pawned a Winchester rifle at a pawnshop in North Charleston and a Husqvarna weed eater at a differe nt branch of the same pawn shop. Washington was arrested on March 23, 2016, and Detective Timothy McCauley interviewed him the next day. After giving Washington Miranda warnings, McCauley began the interview, which larg ely consisted of McCauley asking Washington to explain how his fingerprint s ended up at the crime scene and whether he could prove his innocence.

Before trial, Washington objected to the admissibility of the audio recording of the interview on three grounds: hearsay, imprope r bolstering of the State's fingerprint expert's testimony, and that it contained im proper opinion evidence. The trial court excluded a few of McCauley's comments on bolstering grounds but admitted a redacted version of the audio. Listening to this redacted version, the jury heard McCauley make such comment s to Washington as: "[C]an you explain why your fingerprints would have been inside the house?" "Were you on any kind of drugs or anything in any point of time back in the su mmer when you would have forgotten doing something? That might explain why you did it."

"This is from the state law en forcement division where we send all our fingerprints . . . . It shows right here two fingerprints were taken. Identified as [Mack Seal] Washington with that specific state ID number which is assigned to you" "I'll call him [Washington's employer] up but how do you explain your fingerprints inside this man's house? . . . [T]here's no if, and, or buts about it""[B]ut you can't be at work and your fingerprint be inside the house at the same time" "[T]hen how'd your fingerp rint end up there?" "[Y]ou still have to explain wh y your fingerprints [are] in that man's house."
"[W]ell then it still doesn't e xplain why your fingerprints are there and why you had a stolen gun, a stolen rifle. There was a second gun stolen, it was a pistol, which is why I think you're trying to put the story together of a person you ran into on Bees Fe rry in the parking lot of Walmart. You're trying to put some story together to justify why you had access to those" "[Y]ou also pawned a weed eater . . . . I'm saying you pawned that same day, the sa me day you pawned that rifle at a different pawn shop wh ich is what people do when they're trying to spread out stuff that's stolen."

In addition to McCauley's testimony, the State's case included the testimony of the victims and the responding of ficer, the fingerprint evid ence, and evidence relating to pawn tickets. The jury convicted Washington on all counts.

II. HEARSAY

Detective McCauley's interr ogation method may have been a proper investigative technique, but every word he uttered during the out of court interview was inadmissible hearsay. Any doubt about its inadmissibility was removed by State v. Brewer , 411 S.C. 401, 768 S.E.2d 656 (2015), deci ded more than two years before Washington's trial, which held simila r remarks made by a detective during an interrogation to be "unmistakable hearsay." 411 S.C. at 406–07, 768 S.E.2d at 659. While we acknowledge Brewer did not create a "categorical rule" that any statement made by a police officer during an inte rrogation is inadmissible, we also acknowledge such statements "will rarely be proper for a jury's consideration." Id

. For hearsay purposes, there is no daylig ht between the detective's remarks in Brewer and McCauley's remarks here. Washington's statements during the inte rview are not hearsay because they are admissions of a party offered against th at party. Rule 801(d)(2)(A), SCRE. Therefore, when McCauley testified, the State could have admitted Washington'sstatements by asking McCauley about them, avoiding the hearsay taint of McCauley's statements in the recording.
At the trial, the assistant solicitor contende d McCauley's statements were not hearsay because they were not offered for their truth but to give Washington's answers "context." There is no "context" exception to the hearsay rule. Brewer rejected this same argument as "patently without merit, " finding it had "no support in the law." Id . Undeterred, the State recycles the argument before us, still unaccompanied by any authority to support it. The statemen ts were inadmissible hearsay, and we reverse the trial court's ruling admitting them.

III. BURDEN SHIFTING

As in Brewer , here there was no objection made to the recording on burden-shifting grounds. Nevertheless, as in Brewer , Detective McCauley's repeated requests that Washington explain why he was not gui lty amounted to a "grave constitutional error." Id . at 408, 768 S.E.2d at 659. As Jus tice Kittredge so well put it, "Law enforcement's ad nauseam insistence that Brewer prove his innocence has no place before the jury. It is chilling that we ha ve to remind the State that an accused is presumed innocent and that the Stat e has the burden to prove guilt beyond a reasonable doubt." Id

. We respect our good dissenting colleague's contention that Washington did not adequately preserve his hearsay objection on appeal. We are convi nced, though, that Washington preserved the hearsay issue gi ven his specific hearsay objection to the trial court, and his extensive reliance on Brewer in his brief and at oral argument. See Toal et al., Appellate Practice in South Carolina 75 (3d ed. 2016) ("[W]here an issue is not specifically set out in the st atement of issues, the appellate court may nevertheless consider the issue if it is reas onably clear from appellant's arguments."). While Washington may not have wrapped his issues up in a neat categorical box, we do not believe he abandoned th e hearsay argument on appeal or that we should not address it. See Calhoun v. Calhoun , 339 S.C. 96, 105–06, 529 S.E.2d 14, 19–20 (2000) (holding a party did not limit claim by failing to use "transmutation" in her statement of issues on appeal where her argument discussed and cited to authority on transmutation); Eubank v. Eubank , 347 S.C. 367, 374 n. 2, 555 S.E.2d 413, 417 (2001); cf. Rule 208(b)(1)(B), SCACR (" Ordinarily , no point will be considered which is not set forth in the statement of the issues on appeal.") (emphasis added).
The State did not raise preservation in its brief. Although the issue was raised by the panel at oral argument, the State spent considerable time in its brief and at oral argument claiming the recording is not hear say. While we may invoke preservationrules on our own, we should not be quick to disturb the parties' silence. See Atlantic Coast Builders and Contra ctors, LLC v. Lewis , 398 S.C. 323, 333, 730 S.E.2d 282, 287 (2012) ("When the opposing party does not raise a preservation issue on appeal, courts are not precluded from finding the issue unpreserved if the error is clear. However, the silence of an adversary should serve as an indication to the court of the obscurity of the purported procedural flaw.") (Toal, C.J. , concurring).

IV. HARMLESS ERROR

The error was not harmless. State v. Young , 420 S.C. 608, 625, 803 S.E.2d 888, 897 (Ct. App. 2017) (providing improper admission of hearsa y may be deem ed harmless if it appears beyond a reasonable doubt it did not contribute to the verdict). In Brewer , the defendant was tried on charges re lated to two shootings occurring the same night. A majority of th e court found the error harmless as to the charges related to the first shooting (which had numerous eyewitnesses to Brewer firing shots, a photograph of Brewer at the scene with a gun, and evidence of there being only one shooter), but not harmless as to the murder charge related to the second shooting (of which there was only "thin, circumstantial" evidence against Brewer, and testimony that at least two shooters were present). Brewer , 411 S.C. at 409–10, 768 S.E.2d at 660. The prosecution's case against Washington was strong but circumstantial, led by the fingerprint evidence. The State acknowledges fingerprint evidence alone is often not enough to get a burglary case to a jury. See State v. Bennett , 415 S.C. 232, 781 S.E.2d 352 (2016); State v. Mitchell , 332 S.C. 619, 506 S.E.2d 523 (Ct. App. 1998). In its brief, the State argues it was important to present the recording of McCauley's interview of Washington because it allowe d the State to bolster the fingerprint evidence and attack Washington's alibi in detail. The State ex plained the recording gave them the opportunity to do both, without which their case would have been, in their words, "vulnerable to a directed verdict." Washington told Detective McCauley he wa s working at the time of the burglary, but the State called his employer, who tes tified they had no record of Washington's attendance at work that day. The pawn tickets were in criminating, but there was evidence the victim first described the mi ssing rifle as a Savage, not a Winchester. The weed eater was sold before the victim could verify its identity. The State highlighted the recorded interv iew in its closing, and the jury later interrupted its deliberations to ask for a transcript of the interview. The trial court sent the seventeen-minute recording back to the jury room. Twenty minutes later, the jury found Washington guilty. Under the circumstances, it appears to us that the hearsay figured so prominently in Washington' s trial that its "reverberating clang .

. .would drown all weaker sounds." Shepard v. United States , 290 U.S. 96, 104 (1933) (Cardozo, J.). We are therefore sure erroneously admitted hearsay evidence contributed to the jury verd ict and was not harmless.

REVERSED AND REMANDED.
LOCKEMY, C.J., concurs.

KONDUROS, J., dissenting: I respectfully dissent from my learned colleagues ' opinion. While allowing Detective McCa uley's statements made during his interrogation of Washington to be presente d to the jury may have constituted a violation of State v. Brewer , 411 S.C. 401, 768 S.E.2d 656 (2015), by possibly shifting the burden of proof, this issue is not preserved. As the majority acknowledges, Washington's objection to the statements did not concern an alleged burden shifting nor mention a Brewer violation. The majority points out the objection to burden shifting in Brewer was not preserved. However, in Brewer , the defendant objected at trial on the basis th at the interrogator's statements were hearsay and renewed this argument on appeal

. Id. at 406, 768 S.E.2d at 658. The supreme court found the "evidence was h earsay, offered for the sole purpose of proving the truth of the matter asserted, establishing Brewer 's guilt to all charges." Id. at 406-07, 768 S.E.2d at 659.
In the present case, the majo rity finds, "The statements were inadmissible hearsay, and we reverse the trial court's ruling ad mitting them." However, Washington's sole issue on appeal is the inclusion of the statements shifted the burden of proof and constituted improper opinion eviden ce. While the argument section of Washington's brief includes a quote from Brewer that the statements in that case were hearsay, the section does not includ e any argument that Detective McCauley 's statements constituted hearsay. The sole reference to the statements constituting hearsay is in the facts section of Washin gton's brief, stating, "When the officer discussed the pawn tickets, the officer's statements were hearsay and improperly bolstered the testimony of the pawn shop dealers." Accordingly, I do not believe Washington has sufficiently raised any argum ent regarding hearsay to this court. See State v. Jones , 392 S.C. 647, 655, 709 S.E. 2d 696, 700 (Ct. App. 2011) ("[S]hort, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not presented for review." (quoting Glasscock, Inc. v. U.S. Fid. & Guar. Co. , 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001))); id. ("An issue is also deemed abandone d if the argument in the brief is merely conclusory." (quoting State v. Colf , 332 S.C. 313, 322, 504 S.E.2d 360, 364 (Ct. App. 1998), aff'd as modified , 337 S.C. 622, 525 S.E.2d 246 (2000))).Because Washington has not raised the issue of hearsay to this court, I believe it is not properly before us and therefore, not appropriate for us to address on appeal. "[A]ppellate courts in this state, like well-behaved children, do not speak unless spoken to and do not answer questions they are not asked." State v. Austin , 306 S.C. 9, 19, 409 S.E.2d 811, 817 (Ct. App. 1991) (alteration by court) (quoting Langley v. Boyter , 284 S.C. 162, 181, 325 S. E.2d 550, 561 (Ct. App. 1984), rev'd

, 286 S.C. 85, 332 S.E.2d 100 (1985), but cited with approval in Nelson v. Concrete Supply Co. , 303 S.C. 243, 399 S.E.2d 783 (1991)). "The appellants have the responsibility to identify errors on appeal, not the [c]ourt." Kennedy v. S.C. Ret. Sys. , 349 S.C. 531, 533, 564 S.E. 2d 322, 323 (2001). Therefore, I disagree with the majority's reversing Washingt on's convictions on this basis.
Likewise, Washington's burden shifti ng argument is not preserved for our consideration. As previously discussed, Washington objected to the disputed statements on the grounds of hearsay and improper bolstering. During the pretrial hearing, Washington argued Detective McCauley "g[a]ve[] opinions as to the strength of the evidence in t[he] case." Washington further argued Detective McCauley repeatedly stated Washington's fingerprint was inside the home and noted the defense disputed this asserti on. Washington also argued the disputed statements constituted hearsay and imprope r bolstering. In response, the State argued Detective McCauley's questions were not hearsay because they were not offered for the truth of the matter asse rted and did not constitute bolstering but instead would provide context for the responses Washington gave during the interrogation. When the State moved at trial to admit the recording of Washington's interrogation, Washington simply indicated he had the same objection as he did pretrial. Washington never mentioned Brewer nor the more general argument of burden shifting. 1 Therefore, the issue was not raised to nor ruled upon by the trial court.
"The general rule of issue preservation is if an issue was not raised to and ruled upon by the trial court, it will not be cons idered for the first time on appeal." State

v. Porter , 389 S.C. 27, 37, 698 S.E.2d 237, 242 (C t. App. 2010). "Imposing this preservation requirement is meant to enable the trial court to rule properly after it has considered all the relevant facts, law, and arguments." Id. at 38, 698 S.E.2d at 242. "The objection should be addressed to the trial court in a sufficiently specific

1 The Brewer opinion was published January 28, 2015. Washington's trial took place over two years late r on April 17-18, 2017.manner that brings attention to the exact error. If a party fails to properly object, the party is procedurally barred from raising the issue on appeal." State v. Johnson , 363 S.C. 53, 58-59, 609 S.E.2d 520, 523 (2005) (citation omitted). "A party need not use the exact name of a lega l doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground." State v. Dunbar , 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003). Because Washington never argued to the trial court that inclusion of the statements/questions by Detective McCauley improperly shifted the burden, I would find this issue unpreserved.
Even if the issues were preserved, I believe admission of Detective McCauley's statements constitutes harmless error in light of the other overwhelming evidence of Washington's guilt including the fingerprint evidence showing he had been inside the dwelling, the pawn tickets s howing he was in possession of the stolen items on the day of the burglary, and his assertion of a spurious alibi. See Brewer
, 411 S.C. at 408-09, 768 S.E.2d at 660 (holding the error in the admission of evidence in regards to certain charges wa s harmless in view of the overwhelming evidence of the defendant's guilt); State v. Johnson , 298 S.C. 496, 499, 381 S.E.2d 732, 733 (1989) ("The admission of improper evidence is harmless whe[n] it is merely cumulative to other evidence."); State v. Mitchell , 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) ("Error is harmle ss when it 'could not reasonably have affected the result of the trial.'" (quoting State v. Key , 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971))).
Further, in its opening and closing stat ements, the State acknowledged that it bore the entire burden to prove Washington gu ilty. The trial court issued similar admonishments in its jury charge.
Therefore, I would find the trial court did not abuse its discretion in admitting Detective McCauley's statements and w ould affirm Washington's convictions.