State v. Skanes

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Andre D. Skanes,       
Appellant.

Appeal From Beaufort County

Jackson V. Gregory, Circuit Court Judge

Unpublished Opinion No. 2004-UP-236

Heard December 11, 2003 – Filed March
31, 2004

AFFIRMED

James Arthur Brown, of Beaufort, for Appellant.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney
General John W. McIntosh; Assistant Deputy Attorney General Charles H. Richardson;
Assistant Attorney General Deborah R. J. Shupe, of Columbia; and Solicitor Randolph
Murdaugh, III, of Hampton, for Respondent.

PER CURIAM:  Andre D. Skanes was
convicted of first-degree burglary and armed robbery and sentenced to eighteen
years imprisonment on each charge, the sentences to run concurrently.  Skanes
appeals, arguing the circuit court erred by admitting evidence in violation
of the hearsay rule.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On the night of June 4, 2000, two individuals forced
their way into the home of Oscar Lopez and Odis Javier Reyes.  Upon entry, the
intruders demanded money from the two victims at gunpoint. 

The following day, Sharon Bryan Evans was arrested in connection
with the crimes.  During questioning, Evans identified Skanes as an accomplice. 
As a result, Skanes was arrested and indicted for first-degree burglary and
armed robbery.   

At trial, the State called Evans to the stand, and
Evans identified Skanes as a participant in the robbery.  Subsequently, the
State called Officer Samuel Roser, who testified he had interviewed Evans following
her arrest.  Roser further testified that as a result of the interview, Skanes
was identified as Evans’ co-defendant.  Skanes did not object to this testimony.

Thereafter, the State asked Roser if Evans identified
Skanes during the interview.  Skanes objected, arguing the testimony was hearsay. 
The circuit court overruled the objection and allowed the testimony.

The State also presented the testimony of Reyes,
one of the two victims.  Lopez, the other victim, was unavailable for trial. 
Reyes testified in general about the events that took place the night of the
robbery.  During cross-examination of Reyes, Skanes admitted the police photographic
lineup into evidence in which his picture appeared with photographs of similar-looking
people.  Reyes’ signature appeared on the back of a picture of another person
in the lineup, indicating Reyes had identified someone other than Skanes as
the perpetrator.  Reyes’ misidentification was brought out through Skanes’
examination of Reyes and Officer Roser, who presented the lineup to Reyes. 
However, Lopez’s signature also appeared on the back of the photographic lineup,
but was on the photo of Skanes.

The State called Officer Robert Arbello, the police
officer who had presented the photographs to Lopez, to explain Lopez’s signature
on the back of the lineup.  Skanes objected, arguing the testimony would be
hearsay.   The State countered Skanes had opened the door to the explanation
of Lopez’s signature by admitting the photograph containing the signature into
evidence and publishing it to the jury.  The circuit court agreed and admitted
the testimony.  Arbello then testified that when he presented the lineup to
Lopez, Lopez identified Skanes as the perpetrator, thus explaining Lopez’s signature
on the back of Skanes’ photograph.

The jury found Skanes guilty of both charges, and
the circuit court sentenced Skanes to eighteen years imprisonment on each charge,
the sentences to run concurrently.  Skanes appeals.

LAW/ANALYSIS

I.       Pre-Trial Identification

Skanes argues the circuit court committed reversible
error by admitting Roser’s testimony, indicating Evans identified Skanes as
her accomplice following her arrest.  Skanes contends the trial court committed
reversible error by admitting this hearsay testimony in violation of Rule 802,
South Carolina Rules of Evidence.  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. Foster, 354 S.C. 614, 620-21,
582 S.E.2d 426, 429 (2003).  An abuse of discretion occurs when the circuit
court’s ruling is based on an error of law.  Id.

“‘Hearsay’ is a statement, other than one made
by the declarant, while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.”  Rule 801(c), SCRE; see State
v. Townsend, 321 S.C. 55, 59, 467 S.E.2d 138, 141 (Ct. App. 1996) (holding
hearsay is defined as an out of court statement offered to prove the truth of
the matter asserted). Furthermore, “[h]earsay is not admissible except as provided
by these rules or by other rules prescribed by the Supreme Court of this State
or by statute.”  Rule 802, SCRE.

However, error in the admission of evidence, without more,
is insufficient to reverse a jury verdict, unless the additional element of
prejudice is demonstrated.  State v. Mitchell, 286 S.C. 572, 573, 336
S.E.2d 150, 151 (1985).  Whether improperly admitted evidence is prejudicial
must be determined from its relationship to the entire case.  Id.  Thus,
improperly admitted hearsay evidence is not prejudicial where it is merely cumulative
to other evidence.  State v. Blackburn, 271 S.C. 324, 329, 247 S.E.2d
334, 337 (1978); cf. State v. Saltz, 346 S.C. 114, 124,
551 S.E.2d 240, 246 (2001) (“Erroneously admitted corroboration testimony is
not harmless merely because it is cumulative. On the contrary, ‘it is precisely
this cumulative effect which enhances the devastating impact of improper corroboration.’”)
(internal citations omitted).

At trial, Evans identified Skanes as her accomplice in committing
the robbery.  Skanes did not object to her in-court identification.  Subsequently,
the State called Roser to the stand.  Roser testified he interviewed Evans,
and as a result of that interview, Skanes was identified as Evans’ co-defendant.  
Skanes did not object to this testimony. 

Thereafter, the State asked Roser if, during his interview
with Evans, she identified her accomplice in committing the robbery.  Skanes
objected, arguing the testimony would be hearsay, and the circuit court overruled
the objection.

Even assuming the evidence was hearsay, we conclude the evidence
was cumulative and thus not prejudical because the substance of Roser’s testimony
was already presented without objection through both his and Evans’ previous
testimony.  See State v. Crawley, 349 S.C. 459, 466, 562 S.E.2d
683, 687 (Ct. App. 2002) (holding the circuit court did not commit reversible
error by permitting alleged hearsay testimony, where substance of alleged hearsay
testimony was previously admitted without objection).  Thus, we hold the circuit
court did not commit reversible error.  

II.      Photographic
Lineup

Skanes argues the circuit court erred by permitting
the State to introduce testimony explaining Lopez’s signature on the back of
the lineup, especially where, as here, Lopez was unavailable and could not be
cross-examined.  Skanes contends this testimony was hearsay in violation of
Rule 802, South Carolina Rules of Evidence.  We disagree.

“[W]hen a party introduces evidence about a particular
matter, the other party is entitled to explain it or rebut it, even if the latter
evidence would have been incompetent or irrelevant had it been offered initially.” 
State v. Beam, 336 S.C. 45, 52, 518 S.E. 2d 297, 301 (Ct. App. 1999). 
Furthermore, “[a] party cannot complain of prejudice from the admission of evidence
if he opened the door to its admission.”  State v. Dunlop, 346 S.C. 312,
325-26, 550 S.E.2d 889, 897 (Ct. App. 2001); Beam, 336 S.C. at 53, 518
S.E.2d at 301 (“A party may not complain of error caused by his own conduct.”).

During Skanes’ cross-examination of Reyes, Skanes
admitted the photographic lineup into evidence, with Lopez’s signature on the
back.  The lineup was then published to the jury.  No evidence exists within
the record indicating Skanes attempted to redact Lopez’s name from the lineup
prior to its admission into evidence and publication to the jury. 

Subsequently, the State moved to reopen its case to explain
the presence of Lopez’s signature on the back of the admitted lineup.  Skanes
objected, arguing the testimony would be hearsay.  The circuit court overruled
his objection and admitted the testimony.  Thereafter, Arbello testified when
he showed the lineup to Lopez, Lopez identified Skanes as the perpetrator and
signed the back of the lineup.

We conclude the circuit court did not err by admitting Arbello’s
testimony.  Once Skanes admitted the lineup with Lopez’s signature on the back
into evidence, the door was opened allowing testimony to explain the signature’s
presence. 

CONCLUSION

For the foregoing reasons, Skanes’ convictions
are

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concur.