Opposition Brief — Holmes v. South Carolina

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No. 04-1327

in The

Supreme Court of the United States

BOBBY LEE HOLMES,

Petitioner,

VS.

STATE OF SOUTH CAROLINA ,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court of South Carolina

Respondent’s Brief In Opposition

HENRY D. McMASTER

Attorney General of South Carolina

JOHN W. McINTOSH

Chief Deputy Attorney General

DONALD J. ZELENKA

Counsel of Record

Assistant Deputy Attorney General

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-6305

Attornevs for Respondents

Capital Case

PETITIONER’S QUESTIONS PRESENTED

In South Carolina, a criminal defendant’s evidence of third-

party guilt is inadmissible if, when comparing this evidence standing

alone against the prosecution’s evidence, the trial court finds that it

fails to create a reasonable inference of innocence. In making this

comparison, if the trial court finds the prosecution’s evidence - and

especially its forensic evidence - to be “strong”, third-party guilt

evidence is per se inadmissible because it is deemed, as a matter of law,

to be insufficient to “overcome” the prosecution’s evidence so as to

create a reasonable inference of innocence.

1. Whether South Carolina’s rule governing the admissibility of

third-party guilt evidence violates a criminal defendant’s

constitutional right to present a complete defense grounded in

the Due Process, Confrontation, and Compulsory Process

Clauses?

2. Whether a capital defendant is denied due process when a

prosecutor successfully moves for the exclusion of third-party

guilt evidence and then, in closing argument, urges the jury to

find the defendant guilty because of the absence of such

evidence?

RESPONDENTS COUNTER QUESTIONS ON CERTIORARI

1 Is Certiorari Permitted Under 28 U.S.C. Section 1257,

When The Federal Constitutional Claims Raised In The

Petition Were Never Presented To The South Carolina

Supreme Court On the Admissibility of Third Party

Culpability Evidence in the Guilt Phase of the Trial and the

Petitioner Asserted In That Court That The Gregory-Gay

Test Was Appropriate. .

ili

TABLE OF CONTENTS

Page

PETITIONER’S QUESTIONS PRESENTED ................ i

RESPONDENTS COUNTER QUESTIONS ON CERTIORARI .. i

tees toe reeescccceoceescoeees iii

En. cobs sec eegerceevoecceccoscces v

Tesh ceheeeeedece se ecesccccecococces l

Te tice SeSeeeSSesedceocccrcoccccccccces l

RESPONDENT’S STATEMENT OF THE CASE ............ l

REASONS WHY CERTIORARI SHOULD BE DENIED ....... 3

L. Since The Federal Constitutional Claims Raised In The

Petition Were Never Presented To The South Carolina

Supreme Court On the Admissibility of Third Party

Culpability Evidence in the Guilt Phase of the Trial and the

Petitioner Asserted In That Court That The Gregory-Gay

Test Was Appropriate, Certiorari Is Not Authorized Under

we eee eececcces 3

A. The Constitutional Issues Raised In The

Petition Are Not Preserved For This Court's

EEE 3

Il. The Court should not grant certiorari to fashion general

evidentiary rules on the admission of third party

culpability evidence under the guise of the federal

tt Diet ceensedgew secs edocececccceccss 6

Il. The South Carolina Supreme Court’s Application Of Its

State Evidentiary Standard In Denying the Admission of

Third Party Guilt Evidence Concerning Jimmy McCaw

White Was Appropriate Where The Evidence Did Not Rise

To The Level of Trustworthiness Necessary To Establish Its

Admissibility Where the Proffered Evidence Did Not Raise

A Reasonable Inference or Presumption As To His Own

EE. . cccccnvennsesésbeeeteteensesesenes 9

TV. Where the Petitioner Failed to timely object to the

prosecutor’s comments is not preserved for certiorari review

Ry Cele Camm. 2. ccc ccccccccccccccccccccccccces 24

l. The failure to timely object to the

challenged comment properly precluded

appellate review and further precludes

certiorari consideration. ............+++55: 26

2. The comments do not “so infect the trial

with unfairness as to make the resulting

conviction a denial of due process.”.......... 28

COPTER ATS cc ccccccnccveccecesescesccssesscesess 30

TABLE OF AUTHORITIES

FEDERAL CASES

Apprendi v. U.S., 530 U.S. 466 (2000 ........ 2.2.6... 22 eee 24

Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 73 ... 24

Re Se Se Ss SONNE od ove cedeiccctccccedoces 24

Adams v. Robertson, 520 U.S. 83 (1997) (per curiam) .......... 5

Blystone v. Pennsylvania, 494 U.S. 299, 309 (1990) ........... 8

Bowe v. Scott, 233 U.S. 658, 664-65 (1914) ...............45. 5

Chambers v. Mississippi, 410 U.S. 14, 19 (1973) ......... passim

Chambers v. Mississippi, 410 U.S. 284 (1973) .......... 3, 12-14

Coleman v. Thompson, 501 U.S. 722 (1991) ................ 27

Crane v. Kentucky, 476 U.S. 683 (1986) ...............4.. 3,11

Doyle v. Ohio, 426 U.S. 610 (1976) ............. 2. e eee 29

Griffin v. California, 380 U.S. 609 (1965) .................. 29

Harris v. Reed, 489 U.S. 55, 262 (1989) ...............0005. 27

Henry v. Mississippi, 379 U.S. 443 (1965) .................. 28

Herb v. Pitcairn, 324 U.S. 117 (1945) .................. 27, 28

Herndon v. Georgia, 285 U.S. 441 (1935) .................65. 5

Howell v. Mississippi, -- U.S. ——-, 125 S.Ct. 856, 160 L.Ed.2d 873

ee ee ee ebeansbken sabneas 5

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) .......... 28, 29

Marshall v. Lonberger, 459 U.S. 422 (1983) ...........00005: 8

Michigan v. Lucas, 500 U.S. 145, 149 (1991) .........+-+5+- 12

Montana v. Egelhoff, 518 U.S. 37 (1996) ..... 2... -.eeeeeees 14

New York Central R. Co. v. New York, 186 U.S. 269 (1902) .... 5

Oxley Stave Co. v. Butler County, 166 U.S. 648,655 .......... 6

Patterson v. New York, 432 U.S. 197 (1977) ..... 2.6... - eee 8

Payne v. Tennessee, 501 U.S. 808 (1991)... .. 6... eee eee eee 8

Rock v. Arkansas, 483 U.S. 44 (1987) .... 2... 6. ee eee ee eees 12

Romano v. Oklahoma , 512 U.S. 1 (1994) .. 2... 2.6... eee eees 8

Simmons v. South Carolina, 512 U.S. 154 (1994) ............ 28

Skipper v. South Carolina, 476 U.S. 1 (1986) ...........-+-- 28

Sochor v. Florida, 504 U.S. 527 (1992) .........- ee eee eeees 27

Spencer v. Texas, 385 U.S. 554 (1967) .... 6... cece cece eens 9

Taylor v. Illinois, 484 U.S. 400 (1988) ... 2... 6... eee ee ee eee 12

United States v. Mackey, 117 F.3d 24, 28-29 (Ist Cir. 1997).... 22

United States v. Salvador, 820 F.2d 558, 561 (2d Cir. 1987) .... 22

United States v. Scheffer, 523 U.S. 303) ..........6-5005: 12-15

Washington v. Texas, 388 U.S. 14(1967) .........55+-0005: 12

Webb v. Webb, 451 U.S. 493 (1981) 2.2.2... cece ee eens 5

vil

STATE CASES

Commonwealth v. Scott, 564 N.E.2d 370 (Mass. 1990) ......... 7

Douglas v. State, 332 S.C. 67, 504 S.E.2d 307 (1998) ......... 29

People v. Arline, 13 Cal. App. 3d 200, 203 (Cal. Ct. App. 1970) .. 7

People v. Conlogue, 474 A.2d 167, 172 (Me. 1984) ............ 7

People v. Hall, 718 P.2d 99, 104 (Cal. 1986) ................. 7

State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976) .......... 28

State v. Beckham, 334 S.C. 302, 513 S.E.2d 606 (1999) .... 15,23

State v. Black, 319 S.C. 515, 462 S.E.2d 311 (Ct-App.1995) .... 26

State v. Browning, 154 S.C. 97, 151 S.E. 233 (1930) .......... 29

State v. Caldwell, 300 S.C. 494, 388 S.E.2d 816 (1990) ........ 28

State v. Chaffee, 285 S.C. 1, 328 S.E.2d 464 (1984) ........... 28

State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999) .. 15,17, 21,

State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992) .... 15, 17, 22

State v. Forney, 321 S.C. 353, 468 S.E.2d 641 (1996) ...... 17, 22

State v. Franklin, 318 S.C. 47 (1995)

State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001)... 2, 4, 10, 16

State v. Giguere, 439 A.2d 1040, 1043 (Conn. 1981) ........... 7

State v. Gregory,198 S.C. 98, 16 S.E.2d 532, 534 (1941).........passim

Vill

State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994) ....... 26

State v. Holmes, 320 S.C. 259, 464 S.E.2d 334 (1995) ......... l

State v. Humphries, 325 S.C. 28, 479 S.E.2d 52 (1996) ..... 25, 27

State v. Kinloch, 338 S.C. 385, 526 S.E.2d 705, 706 (2000) . 16, 22

State v. Koedatich, 548 A.2d 939, 978- 79 (N.J. 1988) ......... 7

State v. McDonald, 343 S.E.2d 319 , 540 S.E.2d 464 (2000) ... 22

State v. Mansfield, 343 S.C. 66, 538 S.E.2d 257 (Ct. App. 2000)

PUTITTITITITI TTT TTT TTT Tete LL, 16

State v. Mclver, 238 S.C. 401, 120 S.E.2d 393 (1961) ......... 26

State v. Parker, 294 S.C. 465, 366 S.E.2d 10 (1988) ....... 15, 16

State v. Patterson, 324 S.C. 155, 169, 478 S.E.2d 260 (1997) ... 28

State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997) ......... 26

State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996) ........ 29

State v. Posey, 269 S.C. 500, 238 S.E.2d 176 (1977) .......... 29

State v. Primus, 341 S.C. 592 ......... cece cece eee e ee eeee 29

State v. Rabon, 275 S.C. 459, 272 S.E.2d 634 (1980) ......... 27

State v. Shackelford, 228 S.C. 9, 88 S.E.2d 778 (1955) ........ 29

State v. Wiggins, 330 S.C. 538, 500 S.E.2d 489 (1998) ........ 26

State v. Williams, 266 S.C. 325, 223 S.E.2d 38 (1976) ........ 26

Varnadore v. Nationwide Mut. Ins. Co., 289 S.C. 155, 345 S.E.2d

SEN dsvoducsacanudenndiesecessassmauenen 26

FEDERAL STATUTES

EES Ee ae oe eee ek. eee 5

IIT Re as Ue ed ee Ee

STATE RULES

I hee tg cn a 4

OTHER AUTHORITIES

Michael Everhart, Putting a Burden of Production on the

Defendant Before Admitting Evidence that Someone Else

Committed the Crime Charged: Is It Constitutional ?, 76 Neb. L.

IED 35 oe hn bb0t discus etek dbctes cede 8

Admissibility Of Evidence Offered By A Criminal Defendant To

ae That Someone Else Is Guilty, 63 Tenn. L.Rev. 917, 919-938

PERS GOSG0500606 60565006 5b6006 60500666406 sbccuuns 7

OPINIONS BELOW

The opinion of the South Carolina Supreme Court (Pet. App.

la-18a) is reported at 605 S.E.2d 19. The order of the South

Carolina Court of General Sessions (Pet. App. 19a-24a) is

unreported.

JURISDICTION

The South Carolina Supreme Court’s judgment was entered

on November |, 2004. A timely petition for rehearing was denied on

December 1, 2004 (Pet. App. 25a). The jurisdiction of this Court is

allegedly invoked under 28 U.S.C. § 1257(a). For reasons set forth

below, Respondents submit that this Court lacks jurisdiction in

portions of Question I and the all of Question II.

RESPONDENT’S STATEMENT OF THE CASE

1, The Trial and Prior Proceedings.

The Petitioner, Bobby Lee Holmes, is currently a safekeeper

in the South Carolina Department of Corrections pursuant to orders

of commitment from the Clerk of Court for York County. Holmes

was indicted at the February 26, 1990 and March 9, 1990 terms of

the Court of General Sessions for York County for the crimes of

murder, burglary in the first degree, criminal sexual conduct in the

first degree, and robbery involving the December 31, 1989 beating

of Ms. Mary Stewart resulting in her death on or about March 10,

1990. (90-GS-46-1 196-1198). The matter was initially called for

trial on April 13, 1993 The jury found the Petitioner guilty of all

charges on April 17, 1993. On April 19, 1993, the jury returned a

verdict finding the statutory aggravating circumstances and

recommended the death sentence. Holmes was sentenced to death.

The Supreme Court of South Carolina affirmed the convictions and

death sentence. State v. Holmes, 320 S.C. 259, 464 S.E.2d 334

(1995). Certiorari was denied by the United States Supreme Court.

Holmes v. State of South Carolina,, 517 U.S. 1248 (U.S. S.Ct. June

10, 1996).

State postconviction relief was subsequently granted

directing a new trial be held. Holmes v. Moore, 96-CP-46-966,

Order (January 15, 1998). in that proceeding, Holmes was

represented by John H. Blume, current counsel of record before this

court for Amicus Curiae “Certain Professors of Evidence Law.”

The matter was called for a new trial on March 12, 2001.

The jury found Holmes guilty of robbery, burglary in the first

degree, criminal sexual conduct in the first degree and murder. ROA

4350.

On March 28, 2001, the jury found the existence of three

aggravating circumstances: murder was committed while in the

commission of criminal sexual conduct, murder was committed

while in the commission of during the commission of burglary, and

murder was committed while in the commission of physical torture.

ROA 5737-38. The jury recommended the death sentence. ROA

5738. Holmes was sentenced to 15 years concurrent on robbery,

thirty years concurrent on criminal sexual conduct in the first degree,

life imprisonment concurrent for burglary in the first degree and

death penalty for murder. ROA 5749-5750.

2. The Instant Appeal

The Petitioner made an appeal to the South Carolina

Supreme Court from the second conviction. In this appeal, pertinent

to this appeal, he raised issues as to whether the circuit court had

erred in refusing to admit proffered evidence that the crimes were

committed by Jimmy McCaw White. See Final Brief of Appellant. p.

v. Statement of Issues on Appeal, II-VI. The South Carolina

Supreme Court affirmed the conviction and death sentence on

November |, 2004. State v. Holmes, 361 S.C. 333, 605 S.E.2d 19

(2004). On the issue of the admission o the evidence in the guilt

phase, the Court concluded that pursuant to the standards state

evidentiary law on the admission of evidence of third party guilt set

out in State v. Gregory, 198 S.C. 98, 104, 16 S.E.2d 532, 534 (1941)

and State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001) that evidence

of third party's guilt did not raise reasonable inference as to

defendant's innocence and thus was not admissible. On the issue

concerning the prosecutor’s guilt phase closing argument comments,

the South Carolina Supreme Court summarily held that the failure to

contemporaneously object at the time of the comments precluded

appellate consideration.

3. Statement of the State's Factual Case

; The South Carolina Supreme Court summarized the facts of

the crime. These are set out in the appendix to the petition at 2a-7a.

This portion of the opinion is incorporated herein by reference.

REASONS WHY CERTIORARI SHOULD BE DENIED

L. Since The Federal Constitutional Claims Raised

In The Petition Were Never Presented To The

South Carolina Supreme Court On the

Admissibility of Third Party Culpability

Evidence in the Guilt Phase of the Trial and the

Petitioner Asserted In That Court That The

Gregory-Gay Test Was Appropriate, Certiorari Is

Not Authorized Under 28 U.S.C. Section 1257.

Holmes initially contends that certiorari is warranted

because the treatment of rejecting the proffered third party guilt

evidence involving Jimmy White in the guilt phase as a matter of

state evidentiary law conflicts with the Court’s jurisprudence to

allow a defendant to present a complete defense, citing Crane v.

Kentucky, 476 U.S. 683 (1986) and Chambers v. Mississippi, 410

U.S. 14, 19 (1973). For the various reasons set forth below, we

submit that certiorari is not warranted.

A. The Constitutional Issues Raised In The Petition

Are Not Preserved For This Court’s Jurisdiction.

The Petitioner asserts, for the first time, that the state court

evidentiary standard of State v. Gregory, 198 S.C. 98, 165 S.E.2d

532 (1941) violates this Court’s mandates in Chambers v.

Mississippi, 410 U.S. 284 (1973) because it allegedly creates a per

se exclusion of 3" party guilt evidence where the prosecution case is

“strong.” This constitutional challenge to the existing state

evidentiary test was never raised in any challenge to the guilt phase

evidence before the Supreme Court of South Carolina. In fact,

Chambers and its progeny were never cited in the Final Brief of

Appellant on the guilt phase issues where they relied solely on

reference to state evidentiary law and rules to support the admission.

See Final Brief of Appellant, pp. 7-30, Final Reply Brief of

Appellant, pp. 5-19.' In fact, the Appellant claimed that State v.

Gregory was the appropriate test for the court to consider the

admission of this evidence. Final Brief of Appellant, pp. 9, 18, 30.

Final Reply Brief of Appellant, p. 10. Also, the Appellant cited the

decision of State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001) in

support of their position on admissibility. Final Brief of Appellant,

pp. 17, 19; Final Reply Brief of Appellant, pp. 9. Conclusively, in

the petition for rehearing before the Supreme Court, the petitioner

again stated that the evidence was admissible under “the Gregory

and Gay standard.” Petition for Rehearing, p. 2. No particular

reference was made to any federal constitutional violation

concerning the Gregory-Gay standard in the guilt phase

arguments in the appeal.

Since the Petitioner contended that the Gregory - Gay

analysis was the appropriate guilt phase evidentiary standard in the

state court, he has not preserved his right to assert these matters de

novo before this Court.’ These belated assertions by Petitioner

before this Court present new constitutional claims which were not

' The only guilt phase argument to any non-South Carolina

evidentiary cases was a passing reference to Chambers in a footnote in the

Reply Brief of Appellant, p. 10, n. 11. In that setting, it was being cited

which support for the corroboration requirement of SCACR Rule 804(b)(3),

not as a challenge to state standard.

* Remarkably, the Petitioner and the amicus curiae chastise the

Supreme Court of South Carolina for not citing Chambers in their guilt

phase evidence analysis. A review of the petitioner’s presentation on the

guilt phase issues to the South Carolina Supreme Court similarly reveals that

his entire argument was based upon a state law evidentiary analysis without

reference to the constitutional issues he now presents.

presented below. As revealed in the Final Brief of Appellant, the

guilt phase evidentiary issues raised were solely based upon state

evidentiary law and its applicability to the various offers of third

party guilt evidence suggested by Holmes. Now, for the first time, he

attempts to suggests that Chambers mandates and further

deprivations of his right to a jury trial and guilt beyond a reasonable

doubt is implicated by the failure to admit the evidence. He never

challenged the state standards for the admission of evidence of third

party guilt as he does before this Court. At that time, he was

asserting that he satisfied those standards, not that the standards

themselves violated the federal constitution. Since his assertions

raise new completely claims, never sought to be addressed in the

South Carolina Supreme Court, they must be barred from certiorari

consideration.

A mere conclusory reference in the Final Brief of Appellant

to the Constitution is insufficient to preserve jurisdiction for

certiorari in this Court. See, Final Brief of Appellant, pp. 19, 22, 26,

30, 36 . Herndon v. Georgia, 285 U.S. 441, 442-43 (1935); Bowe v.

Scott, 233 U.S. 658, 664-65 (1914) (“due process of law”

insufficient). In Howell v. Mississippi, --- U.S. ---, 125 S.Ct. 856,

160 L.Ed.2d 873 (2005) (per curiam), the Court concluded that

petitioner's federai constitutional claim was not properly raised

before the Mississippi Supreme Court for purposes of 28 U.S.C. §

1257 because “he did not cite the Constitution or even any cases

directly construing it, much less any of this Court's cases." Id. at 858.

28 U.S.C. Section 1257 requires that federal law challenges to state

law decisions be "addressed by or properly presented” to the state

court before the Supreme Court may hear the case. Id. at 860. See,

e.g., Adams v. Robertson, 520 U.S. 83, 89, n. 3, 117 S.Ct. 1028, 137

L.Ed.2d 203 (1997) (per curiam) (concluding that "passing

invocations of ‘due process' " that "fail to cite the Federal

Constitution or any cases relying on the Fourteenth Amendment" do

not "meet our minimal requirement that it must be clear that a

federal claim was presented"); Webb v. Webb, 451 U.S. 493, 496,

101 S.Ct. 1889, 68 L.Ed.2d 392 (1981) (finding a reference to "full

faith and credit" insufficient to raise a federal claim without a

reference to the U.S. Constitution or to any cases relying on it); New

York Central R. Co. v. New York, 186 U.S. 269, 273, 22 S.Ct. 916,

46 L.Ed. 1158 (1902) ("[I}t is well settled in this court that it must be

made to appear that some provision of the Federal, as distinguished

from the state, Constitution was relied upon, and that such provision

must be set forth"); Oxley Stave Co. v. Butler County, 166 U.S. 648,

655, 17 S.Ct. 709, 41 L.Ed. 1149 (1897) (a party's intent to invoke

the Federal Constitution must be "unmistakably" declared, and the

statutory requirement is not met if "the purpose of the party to assert

a Federal right is left to mere inference"). The similar failure to

meet these minimum standards by Holmes in the South

Carolina Supreme Court bars consideration of his question

presented here. °

Il. The Court should not grant certiorari to

fashion general evidentiary rules on the

admission of third party culpability evidence

under the guise of the federal constitution.

The Petitioner and the amicus curiae make a request for

this Court to make uniform evidentiary standards for the

admission of third party guilt evidence. They recognize that

* The Respondents acknowledge that Holmes did make reference

to Chambers in his presentation on the failure to admit the evidence in the

penalty phase. Final Brief of Respondents, pp. 38-43. However, a review of

the petition before this Court reveals the current issue is solely on the guilt

phase evidence issue, not the penalty phase.

Further, Respondents submit that this court must ignore thé’belated

attempt of the amicus curiae to reconstruct the issue to also argue the.

exclusion of the evidence in the penalty phase violates the Eighth

Amendment. See Brief of Amicus Curiae Certain Professors of Evidence, p.

2, n. 1. Contrary to the assertions of the amicus, there is no argument or

citation to the Eighth Amendment in the present petition for writ of

certiorari before this Court. Furthermore, in representing the opinion of the

Supreme Court in his Petition, Holmes makes no reference to the portion of

the opinion which addressed the penalty phase issue or the conclusions of

the South Carolina Supreme Court on that claim. See, Petition, p. 14-15,

citing Pet. App. at Ila-12a.

courts apply varying standards to admission of this evidence.

Some courts use the Federal Rule of Evidence Rule 401 or the

state equivalent and the principal of relevancy to determine

admissibility. Commonwealth v. Scott, 564 N.E.2d 370 (Mass.

1990)(upholding the exclusion of evidence that others

‘ committed the charged crime on relevancy grounds). Other use

a “connection” test. See, e.g., People v. Arline, 13 Cal. App. 3d

200, 203 (Cal. Ct. App. 1970)(stating that there were no facts

to "connect [the third party] with the crime"); State v. Giguere,

439 A.2d 1040, 1043 (Conn. 1981)("We have stated:

‘Ordinarily, evidence concerning a third party's involvement is

not admissible until there is some evidence which directly

connects that third party with the crime."’). See also State v.

Koedatich, 548 A.2d 939, 978- 79 (N.J. 1988)(collecting state

and federal cases admitting and excluding evidence based on

the existence or nonexistence of a "link" or "connection"

between the "third party and the victim or the crime"). Some

use Rule 403 (the prejudice rule) to exclude such evidence,

People v. Hall, 718 P.2d 99, 104 (Cal. 1986), while others use

the balancing test in conjunction with a “critical and reliable

conclusion. Others have adopted a “reasonable doubt test,

People v. Conlogue, 474 A.2d 167, 172 (Me. 1984)(evidence

tending to implicate another person, and deflect guilt from the

defendant, must be admitted if it is of sufficient probative value

to raise a reasonable doubt as to the defendant’s culpability”);

People v. Hall, 718 P.2d 99, 104 (Cal. 1986)("[T]hird party

evidence need not show ‘substantial proof of a probability’ that

the third person committed the act; it need only be capable of

raising a reasonable doubt of defendant's guilt."). while others

apply a combination of all three. State v. Caulk, 718 P.2d 99

(Cal. 1986). See generally David McCord, "But Perry Mason

Made It Look So Easy!": The Admissibility Of Evidence

Offered By A Criminal Defendant To Suggest That Someone

Else Is Guilty, 63 Tenn. L.Rev. 917, 919-938 (1996); Stephen

Michael Everhart, Putting a Burden of Production on the

Defendant Before Admitting Evidence that Someone Else

Committed the Crime Charged: Is It Constitutional? , 76 Neb.

L. Rev. 272, 293-94 (1997) . They contend that this variety of

tests breed confusion in the admission of the evidence,

particularly when the state courts regularly do not cite any

federal authority for their standards.

The argument, pared down, seems to be a request that

the Court fashion general evidentiary rules, under the guise of

interpreting the Due Process Clause, which would govern the

admissibility of evidence at state criminal trials. The Supreme

Court has :.0t done so in the past, however, and should not do

so today. The Federal Constitution does not establish a federal

code of evidence to supersede state evidentiary rules in state

court trials. Romano v. Oklahoma , 512 U.S. 1, 12 (1994) Cf.

Payne v. Tennessee, 501 U.S. 808, 824-825 (1991); Blystone v.

Pennsylvania, 494 U.S. 299, 309 (1990).

"[P]reventing and dealing with crime is much more the

business of the States than it is of the Federal Government, and

... we should not lightly construe the Constitution so as to

intrude upon the administration of justice by the individual

States. Among other things, it is normally ‘within the power of

the State to regulate procedures under which its laws are

carried out,’ ... and its decision in this regard is not subject to

proscription under the Due Process Clause unless ‘it offends

some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental.' "

Patterson v. New York, 432 U.S. 197, 201-202, 97 S.Ct. 2319,

2322, 53 L.Ed.2d 281 (1977) (("[W]e should not lightly

construe the Constitution so as to intrude upon the

administration of justice by the individual States”); Marshall v.

Lonberger, 459 U.S. 422, 438, n. 6, 103 S.Ct. 843, 853, 74

L.Ed.2d 646 (1983) ("[T]he Due Process Clause does not

permit the federal courts to engage in a finely tuned review of

the wisdom of state evidentiary rules"). "It has never been

thought that [decisions under the Due Process Clause] establish

this Court as a rule-making organ for the promulgation of state

rules of criminal procedure." Spencer v. Texas, 385 U.S. 554,

at 564 (1967).

Certiorari is not warranted to establish a uniform

federal standards for the admission of third party guilt evidence

in state court.

Ill. The South Carolina Supreme Court’s

Application Of Its State Evidentiary Standard In

Denying the Admission of Third Party Guilt

Evidence Concerning Jimmy McCaw White Was

Appropriate Where The Evidence Did Not Rise

To The Level of Trustworthiness Necessary 10

Establish Its Admissibility Where the Proffered

Evidence Did Not Raise A Reasonable Inference

or Presumption As To His Own Innocence.

In denying relief on this issue, the South Carolina Supreme

Court stated:

Appellant fails to meet the standard set out in

Gregory‘ and Gay’ due to the strong evidence of his

* In the opinion, the South Carolina Supreme Court stated the

following standard arises from its earlier holding in State v. Gregory, 198

S.C. 98, 104, 16 S.F.2d 532, 534 (1941) (citing 16 C.J. 560):

[T]he evidence offered by accused as to the commission

of the crime by another person must be limited to such

facts as are inconsistent with his own guilt, and to such

facts as raise a reasonable inference or presumption as to

his own innocence; evidence which can have (no) other

effect than to cast a bare suspicion upon another, or to

raise a conjectural inference as to the commission of the

crime by another, is not admissible. .. .

. . But before such testimony can be received,

there must be such proof of connection with it, such a

train of facts or circumstances, as tends clearly to point

out such other person as the guilty party. Remote acts,

guilt. He simply cannot overcome the forensic

evidence against him to raise a reasonable inference

of his own innocence. This evidence included: (1)

appellant's palm print was found just above the door

knob on the interior side of the front door of the

victim's house; (2) fibers consistent with a black

sweatshirt owned by appellant were found on the

victim's bed sheets; (3) matching blue fibers were

found on the victim's pink nightgown and on

appellant's blue jeans; (4) microscopically

consistent fibers were found on the pink nightgown

and on appellant's underwear; (5) appellant's

underwear contained a mixture of DNA from two

individuals, and 99.99% of the population other than

appellant and the victim were excluded as

contributors to that mixture; and (6) appellant's tank

top was found to contain a mixture of appellant's

blood and the victim's blood.. . .

Further, besides the forensic evidence, there was

evidence that appellant matched the description of

the perpetrator given by the victim and there was

evidence that appellant was fleeing from police

disconnected and outside the crime itself, cannot be

separately proved for such a purpose. An orderly and

unbiased judicial inquiry as to the guilt or innocence of a

defendant on trial does not contemplate that such

defendant be permitted, by way of defense, to indulge in

conjectural inferences that some other person might have

committed the offense for which he is on trial, or by

fanciful analogy to say to the jury that someone other than

he is more probably guilty.

> The Holmes Court also cited the holding in State vy. Gay, 343 S.C.

543, 541 S.E.2d 541 (2001), that where there is strong evidence of an

appellant's guilt, especially where there is strong forensic evidence, the

proffered evidence about a third party's alleged guilt does not raise a

reasonable inference as to the appellant's own innocence.

officers and was in the area of the victim's house

prior to the time she was attacked.

Regarding appellant's claim that he should have

been allowed to present evidence that Jimmy White

may have been the perpetrator of the crimes, the

State proffered the testimony of a Federal Bureau of

Investigations forensic examiner. This examiner

testified that, after testing Jimmy White's specimen,

i.e. a dried bloodstain, and comparing the specimen

to the clothing items that were tested as part of the

investigation, White was excluded.

Given the overwhelming evidence of appellant's

guilt, the circuit court did not err by excluding the

evidence of third party guilt.

State v. Holmes, supra. Respondents submit that this analysis did

not “infringe upon a weighty interest of the accused."® Certiorari is

not warranted.

"Whether rooted directly in the Due Process Clause of the

Fourteenth Amendment, or in the Compulsory Process or

Confrontation clauses of the Sixth Amendment, the Constitution

guarantees criminal defendants 'a meaningful opportunity to present

a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690, 106

S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta,

*The trial judge held that he was going to disallow the testimony

holding that it could not come in under SCRE Rule 803 (b)(3) and Rule

801(d)(1)(a). ROA 3655. Relying upon Gregory, the court held that the

statement lacked trustworthiness because there was no evidence that tends to

clearly point out that Mr. White was guilty of the crime. ROA 3655-56.In

his earlier written order on August 23, 2000, the court noted that although

he had presented some testimony that White was in the proximity of Mary

Stewart's apartment at a time when the victim was beaten, the engine that

“drives the train” under the Gregory standard of the White admissions fell

short of the indicia of trustworthiness lacking any details and no forensic

evidence links White to the crime. Supp. ROA p. 3-5.

—_—

467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)).A

defendant's right to present relevant evidence is not unlimited, but

rather is subject to reasonable restrictions. See Taylor v. Illinois, 484

U.S. 400, 410, 108 S.Ct. 646, 653- 654, 98 L.Ed.2d 798 (1988);

Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97

L.Ed.2d 37 (1987); Chambers v. Mississippi, 410 U.S. 284, 295, 93

S.Ct. 1038, 1045-1046, 35 L.Ed.2d 297 (1973). A defendant's

interest in presenting such evidence may thus " ‘bow to

accommodate other legitimate interests in the criminal trial process.’

" Rock, supra, at 55, 107 S.Ct., at 2711 (quoting Chambers, supra, at

295, 93 S.Ct., at 1046); accord, Michigan v. Lucas, 500 U.S. 145,

149, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991). However, that

right is not unlimited. "[S]tate and federal rulemakers have broad

latitude under the Constitution to establish rules excluding evidence

from criminal trials. Such rules do not abridge an accused's right to

present a defense so long as they are not ‘arbitrary’ or

‘disproportionate to the purposes they are designed to serve.

United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140

L.Ed.2d 413 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56, 107

S.Ct. 2704, 97 L.Ed.2d 37 (1987)) (emphasis added). "In these

circumstances, where constitutional rights directly affecting the

ascertainment of guilt are implicated, [evidentiary rules] may not be

applied mechanistically to defeat the ends of justice." Chambers,

410 U.S. at 302, 93 S.Ct. 1038. The Supreme Court has "found the

exclusion of evidence to be unconstitutionally arbitrary or

disproportionate only where it has infringed upon a weighty interest

of the accused." Scheffer, 523 U.S. at 308, 118 S.Ct. 1261. See

Rock, supra, at 58, 107 S.Ct., at 2712-2713; Chambers, supra, at

302, 93 S.Ct., at 1049; Washington v. Texas, 388 U.S. 14, 22-23, 87

S.Ct. 1920, 1924-1925, 18 L.Ed.2d 1019 (1967).

In Scheffer, the Court revisited the issue of balancing the

defendant's right to present a defense against the state's right to

prevent unreliable evidence. Scheffer held that a per se ban on

polygraph evidence did not constrain unconstitutionally a

defendant's right to present exculpatory evidence. 523 U.S. at 317,

118 S.Ct. 1261. Scheffer distinguished Washington and Rock. The

Court noted that the exclusions of evidence in those cases

"significantly undermined fundamental elements of the defendant's

defense." Id. at 315, 118 S.Ct. 1261. Specifically, Scheffer held that

varring the admission of an allegedly exculpatory polygraph test did

not do so, id. at 309, 118 S.Ct. 1261, and it contrasted the polygraph

limitation with the preclusions on the testimony of a percipient

witness and the testimony of the defendant, respectively, in

Washington and Rock, id. at 315-16, 118 S.Ct. 1261. The distinction

between Washington, Rock, and this case, on the one hand, and

Scheffer, on the other, is this: In the fornier, a trial court prohibited

presentation of the substantive content of a defendant's testimony or

a percipient witness’ testimony, id. at 315, 118 S.Ct. 1261, while in

the latter a trial court prohibited something much less direct, and

much more within the jury's province--third-party evidence of the

truthfulness of the substantive content of the defendant's testimony,

id. at 315-16, 118 S.Ct. 1261.

In Chambers v. Mississippi, 410 U.S. 284 (1973), the Court

was confronted with a defendant's inability to introduce evidence

that a third person had repeatedly confessed orally to committing the

murder with which the defendant was charged. When Chambers

was tried, the Mississippi Rules of Evidence did not recognize an

exception to the hearsay rule for declarations against penal interest

and adhered to the common law "voucher rule." The Supreme Court

held that the exclusion of the evidence constituted a violation of the

Due Process Clause of the Fourteenth Amendment. In Chambers, the

Court explicitly noted that the third party's confessions "were

originally made and subsequently offered at trial under

circumstances that provided considerable assurances of their

reliability." /d. at 300, 93 S.Ct. 1938. The third party confessed to

three different individuals. The confessions were made

spontaneously and to close acquaintances shortly after the murder

occurred. The confessions were corroborated by substantial

independent evidence. The declarant did not stand to benefit from

disclosing his role in the murder, and the declarant was present in

the courtroom and could have been cross-examined under oath. /d.

at 300-01..

The Court briefly noted that a rationale for the rule against

hearsay is to exclude untrustworthy testimony. /d. at 298, 93 S.Ct.

1038. Where the testimony bears persuasive assurances of

trustworthiness and the testimony is exculpatory in nature, the

hearsay rule should "not be applied mechanistically to defeat the

ends of justice." /d. at 302, 93 S.Ct. 1038. Accordingly, Chambers

effectively held that stringent application of the rule against hearsay

may violate fundamental standards of due process when the rule is

applied mechanistically and in a manner precluding introduction of

statements against penal interest that are both reliable and "directly

affecting the ascertainment of guilt." /d.

The crux of Chambers is that a defendant has a fundamental

right to present reliable evidence of a third party's confession to a

crime for which the defendant is being tried. Evidence of a

spontaneous confession by a third party that is corroborated by

direct evidence satisfies a showing of "particularized guarantees of

trustworthiness" and is sufficiently reliable to be admissible as an

exception to the rule against hearsay.

The Petitioner maintains that he was denied the opportunity

to present a defense pursuant to Chambers because hearsay evidence

relating to an element of the State's case was excluded. The

Petitioner, however, fails to recognize the limited application of

Chambers articulated in subsequent Supreme Court decisions.

In Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135

L.Ed.2d 361 (1996), a plurality of the Court noted the limited

application of Chambers by stating:

the holding of Chambers-if one can be discerned

from such a fact-intensive case-is certainly not that a

defendant is denied "a fair opportunity to defend

against the State's accusations" whenever "critical

evidence" favorable to him is excluded, but rather

that erroneous evidentiary rulings can, in

combination, rise to a level of a due process

violation.

Id. at 53, 116 S.Ct. 2013. The limitation on Chambers was

subsequently confirmed by an eight-Justice majority, excluding

Justice Stevens, in United States v. Scheffer, 523 U.S. 303, 118 S.Ct.

1261, 140 L.Ed.2d 413 (1998). In Scheffer, eight Justices agreed

that "Chambers specifically confined its holding to the ‘facts and

circumstances’ presented in that case." 118 S.Ct. at 1268.

Because it is clear that the application of Chambers should

be limited to the facts of that case when applied to issues involving

hearsay evidence, this Court would have to examine the facts of

these cases. Chambers involved the impact of Mississippi's

voucher rule. Such a per se exclusionary standard is not involved in

this case where the reliability and corroboration of testimony was

the touchtone of the state court analysis Gregory analysis. In

Chambers , the Court went through numerous factors that supported

persuasive assurance of trustworthiness concerning the hearsay

statements. Similarly, where the South Carolina Supreme Court and

trial court analyzed the case and resolved it against the strong

evidence of guilt which the inadmissible evidence did not confront,

the testimony was unreliable. This reasoned analysis is consistent

with Chambers. The standard in South Carolina does not create a per

se exception to third party guilt evidence, only an exception to

unreliable evidence suggesting third party guilt. The failure to admit

was not constitutional error.

A review of the case below reveals that the Petitioner’s

federal constitutional rights were not violated by the exclusion of the

unreliable evidence.

ADMISSIBILITY OF EVIDENCE OF THIRD

PARTY GUILT IN SOUTH CAROLINA

Evidence offered by a defendant as to the commission of

the crime by another person is limited to facts which are inconsistent

with the defendant's guilt .State v. Gregory, 198 S.C. 98, 16 S.E.2d

532 (1941); State v. Beckham, 334 S.C. 302, 513 S.E.2d 606

(1999); State v. Parker, 294 S.C. 465, 366 S.E.2d 10 (1988). The

South Carolina Supreme Court has imp sed strict limits on the

admissibility of third party guilt. State v. Cooper, 334 S.C. 540, 514

S.E.2d 584 (1999); State v. Doctor, 306 S.C. 527, 413 S.E.2d 36

(1992). Before a statement against interest (offered to exculpate the

accused) can be received into evidence, there must be such proof of

connection with it, such a train of facts or circumstances, as tends

clearly to point out such person as the guilty party. State v.

Mansfield, 343 S.C. 66, 538 S.E.2d 257 (Ct. App. 2000); State v.

Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941). “The evidence offered

by accused as to the commission of the crime by another person

must be limited to such facts as are inconsistent with his own guilt,

and to such facts as raise a reasonable inference or presumption as to

his own innocence; evidence which can have (no) other effect than

to cast a bare suspicion upon another, or to raise a conjectural

inference as to the commission of the crime by another, is not

admissible.” “But before such testimony can be received, there must

be such proof of connection with it, such a train of facts or

circumstances as tends clearly to point out such other person as the

guilty party. Remote acts, disconnected and outside the crime

itself, cannot be separately proved for such a purpose. An orderly

and unbiased judicial inquiry as to the guilt or innocence of a

defendant on trial does not contemplate that such defendant be

permitted, by way of defense, to indulge in conjectural inferences

that some other person might have committed the offense for which

he is on trial, or by fanciful analogy to say to the jury that someone

other than he is probably more guilty.” Gregory, 198 S.C. at 104-05,

16 S.E.2d at 534-35 [emphasis added]; accord State v. Parker, 294

S.C. 465, 366 S.E.2d 10 (1988); State v. Kinloch, 338 S.C. 385, 526

S.E.2d 705, 706 (2000).

The Supreme Court of South Carolina has held that evidence

of a third party's motive and opportunity to kill the victim is properly

excluded where the appellant nonetheless fails to show that the

proffered evidence is inconsistent with his guilt. State v. Gay, 343

S.C. 543, 541 S.E.2d 541 (2001). In Gay, the State Supreme Court

further found that given the strong evidence of guilt of the defendant

- especially the forensic evidence - and the fact that the experts

found that the samples, like here, did not match the alleged third

party, the proffered evidence did not raise a “reasonable inference”

as to the appellant’s own innocence, citing Gregory , and simply was

not inconsistent with the defendant’s guilt.

Evidence of third party guilt may also be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confu. ‘on of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence. See SCRE Rule 403.

In State v. Gregory, supra, the South Carolina Supreme

Court sustained the exclusion of certain evidence of third party guilt,

saying it did not sufficiently link a third person with commission of

the crime involved, and because the collateral matter tended to

confuse the jury. See SCRE Rule 403 (which cites Gregory in the

annotations). See State v. Doctor, 306 S.C. 527, 413 S.E.2d 36

(1992) (out-of-court statements against penal interest made by an

unavailable declarant are admissible at trial, however, if offered to

exculpate the accused in a criminal trial, they are admissible only if

corroborating evidence clearly indicates the trustworthiness of the

statements). State v. Forney, 321 S.C. 353, 468 S.E.2d 641 (1996).

Rule 804(b)(3), SCRE, codified this exception to the hearsay rule.

State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999).(A statement

tending to expose the declarant to criminal liability and offered to

exculpate the accused is not admissible unless corroborating

circumstances clearly indicate the trustworthiness of the statement).

THE PROFFERED THIRD PARTY GUILT

EVIDENCE MERELY CONSISTS OF “REMOTE

ACTS, DISCONNECTED AND OUTSIDE THE

CRIME ITSELF”

The Petitioner asserts that the trial court should have

allowed certain evidence that Jimmy White (Jimmy McCaw White),

and not Bobby Lee Holmes, raped and murdered Mary Stewart. As

reviewed by the South Carolina Supreme Court, the proffered

evidence does not withstand close analysis where the forensic

evidence of his guilt does not raise a reasonable inference of his own

innocence to allow the admission of this evidence.’

7 It should be noted that there is extensive forensic evidence

linking Holmes to the crime scene and the victim. His palmprint was found

at the victim's home on the interior of the door at the victim’s apartment.

ROA 2870, 2876-2883. Also fibers consistent with the victims’ nightgown

was found on the defendant's blue jeans and fibers consistent with the

Holmes has assembled a collection of small, conjectural

inferences which attempt to bootstrap each other so as to create an

appearance of voluminous evidence of the third party’s guilt, thereby

giving credence to a series obviously untrustworthy statements

against interest purportedly made by Jimmy White.

As lengthy as the list may be, it does not come close to

meeting the requirements for introduction of evidence of third party

guilt. Individually or collectively, the items on Holmes’ list which he

asserts point to Jimmy White as Mary Stewart’s killer do not offer

facts inconsistent with Holmes’ guilt and do not clearly point to the

guilty of Jimmy White.

The State submits that the “train of facts” proffered by the

defense purportedly to clearly point out Jimmy White as the guilty

party constitute little more than “remote acts, disconnected and

outside the crime itself.”

Gilmore, Jamison, Brown and Boyd

Taking their testimony in the light most favorable to the

defense, three of these witnesses put Jimmy White in the California

Street/Pecan Circle area between 3:30 am and 5:30 am on the

morning of December 31, 1989. Meshelly Gilmore, contrary to the

defense’s assertion of 6:30 am, testified that she saw Jimmy White

between 3:30 am and 4:30 am in the Pecan Circle parking lot away

from Mrs. Stewart’s home. ROA p. 5925-5929. Frenetta Jamison

saw him on the hill on California Street between 4:30 am and 5:30

am after returning from approximately 7'4 hours of drinking at

victim’s bed clothing was found on his hooded jacket. ROA 2997. PCR

DNA testing also showed that the Petitioner’s underpants contained a

mixture of DNA consistent with both the Petitioner’s DNA and consistent

with the victim's DNA . ROA 3527. Also, the Petitioner’s shirt and a paper

towel from the crime scene contained mixtures that the defendant and the

victim could not be excluded from. ROA 3301-02, ROA 3526-30. It was

also reported that the further testing of the material from the crime scene,

the victim or the Petitioner excluded Jimmy White’s DNA as a contributor.

ROA 3306-07.

Clyde’s. ROA 5910. Deloris Brown looks briefly out of her

apartment window onto California Street between 4:00 am and 5:00

am and sees an individual she identifies as Jimmy White solely by

the way he walked. ROA 6163. Annie Boyd says she does not know

what time it was or who knocked and said “open the door Mama

Ann, it’s me Jimmy.” None of the witnesses were able to identify

the clothing of the individual. ROA 5984-88, 5990-91. Although

this testimony is certainly suspect for the variety of reasons

previously enumerated, even if completely credible as the court in its

Order recognized, it does little more than place Jimmy White in the

area prior to the crime. Such evidence is not inconsistent with

Holmes’ guilt in that none of this testimony precludes Holmes from

actually being in Mrs. Stewart’s home committing the assault while

Jimmy White was merely in the neighborhood. Therefore, such

evidence falls far short of raising a reasonable inference or

presumption of Holmes’ own innocence and would fall more closely

into the area of conjecture of fanciful analogy.

Joshua Lytle

Based on Mr. Lytle’s testimony, the defense attempts to

prove that Jimmy White lied regarding his whereabouts at the time

of the crime. However, Mr. Lytle believed that his April 7, 1990

statement was taken on December 31, 1989, the morning of the

incident. ROA p. 5949-50. His own recollection of the events of the

night vas inconsistent with his statement. ROA 5950-61.

Nonetheless, taking the defense’s view that Jimmy White

lied about his alibi still has no other effect than to cast a bare

suspicion on Jimmy White and even that is extremely tenuous.

Again, as the trial court recognized this testimony does little more

than support the proximity argument. Supp ROA 2-5.

Mrs. Stewart’s Description of the Assailant

The defense has consistently maintained that Jimmy White

fits the description better than Holmes based on hair length and age.

However, it is equally clear that Holmes better fits the description

when the criteria are skin tone, build and clothing description. Mrs.

Stewart described the assailant as “big and dark”, “chunky™hair

longer than most black people” wearing a dark “black or blue”

jacket, “black” “ a male in his late 20's. Such evidence provides no

connection for the defense’s “train of facts.” ROA 2150, 2167-68,

2182-83, 2219-20, 2235.

Jimmy White’s Alleged Confessions

When the defense’s “train of facts” is distilled to its “bare,”

“remote”, “conjectural”, “fanciful” essence all that is left is a series

of highly questionable quasi-confessions attributed to Jimmy White

by a number of suspect witnesses. Under Rule 804, SCRE, Holmes

cannot call these witnesses to testify concerning White’s statements

since White is available to testify. (See, also Cooper at 588).

However, Holmes’ reliance on Rule 613, SCRE is equally

misplaced. Calling Jimmy White as a defense witness for the sole

purpose of impeaching him through extrinsic proof of his prior

Statements is not appropriate under the holding in Cooper. Jimmy

White has no relevance to this case other than as a backdoor means

of interjecting third-party guilt. Therefore, any such testimony

would be improper as substantive evidence of third party guilt and

the Court properly excluded such evidence.

Holmes says Jimmy White “confessed” on a number of

occasions to various people. An examination of these for the

necessary Clear indications of trustworthiness that the statements

were actually said, and of the truth of the content (that Jimmy White

killed Mary Stewart, not Bobby Holmes), would show a serious lack

of credibility that they were actually spoken.

The witnesses Holmes has produced in support of the

alleged “confessions” by Jimmy White exhibited a variety of

characteristics which render their credibility extremely suspect.

These included: |.)denying statements made previously in sworn

affidavits; 2) statements in sworn affidavits of events and meetings

which were physically impossible; 3) deviations from earlier

statements; 4)inherent biases, such as familial or close personal

relationship with the defendant; 5)intoxication by the witness at the

pertinent time; and 6) witnesses from the very small community of

York coming forward now, years after the crime and an earlier

highly publicized trial, in such a way as to make their reliability

extremely suspect. Under South Carolina Rules of Evidence 403 and

804(b)(3), as well as the South Carolina Supreme Court’s holdings

in Kinloch, Forney, and Gregory, this evidence of third party guilt

was inadmissible.

On Stephan Westbrook, it was developed that the statements

he gave contained numerous inaccuracies and was not true in parts

and he even asserted at one point that he just signed the statement

and had not read it. ROA p. 6024-25, 6032 - 34, 6059-62, 6067-68. It

was developed that although he stated he knew Holmes “from

around” that his family connections were so close that Holmes had

put Westbrook’s brother on his visitor list. ROA 6024-25, 6067-68.

He acknowledged that in his statement and testimony he referred to

different times. ROA 6079, 6084-91. Some of the circumstances he

described were physically impossible since White was not in

custody at the stated time. ROA 6081-82.

Thomas Murray clarified that he never heard White admit to

the crime that Holmes was accused of. ROA p. 6397, 6399. He

denied ever stating what was in the affidavit that knowledge of

White committing the crime was widespread and puts him in trouble

with other inmates. ROA. 6399. Murray denied other portions of his

affidavit. He denied ever stating item 4 in the affidavit concerning

about White framing Holmes for a dispute in York, because he did

not know anything about it. ROA p. 6400-01. He also stated that he

had spoken with Pope’s office that and told them that no woman had

ever notarized his signature on a statement. ROA p. 6408-09.

Murray stated that White was just saying that he knew Bobby was

innocent, bu* he never said he did it. Id. ROA 6409.

Mattie Scott stated that White comes to her house .

intoxicated and everyone starts talking about raping and killing,

while they were “drinking and talking” among a group. ROA p.

6420.

Ken Rhodes admitted being good friends with Bobby

Holmes since the mid eighties. ROA p. 6429, 6444. he stated that he

used to ride with Holmes. ROA p. 6445. He stated that he had also

met his mother and father. ROA 6445-46. He had also known White

his entire life. He stated that during the time with White alleged

comments Rhodes described his incarceration history since 1993.

ROA p. 6447-49. He stated the only person he had told was his wife.

ROA p. 6449. However, at some point he received a call from

Holmes lawyers. Id. However, there was never any testimony that

involved this particular crime, only that White ran with older

women. ROA 6454.

As stated previously, White denied ever admitting guilt to

Westbrook, Murray, or Bennett. ROA p. 6129-30.

The statements against penal interest by the third party,

Jimmy White, which Holmes is attempting to offer, lack the clear

indications of trustworthiness that they were actually spoken as

alleged. A determination of whether the trustworthiness of a

declaration against penal interest offered to exculpate the accused is

“clearly indicated” by corroborating circumstances includes not only

the trustworthiness that the declaration was actually spoken, but also

whether the trustworthiness of the content is clearly indicated. See

State v. Kinloch, supra (“As neither the making of the statement nor

its truth were clearly corroborated, we find no abuse of discretion in

exclusion of Robinson’s testimony.”); State v. Forney, supra; State

v. Doctor, supra. Compare, State v. McDonald, 343 S.E.2d 319,

540 S.E.2d 464 (2000) ( “...the corroboration requirement contained

in Rule 804(b)(3) goes not to the truth of the statement's contents,

but rather to the making of the statement. In many instances, it is not

possible to separate these two considerations in analyzing the matter

of corroboration...As a practical matter the two inquiries are related,

ordinarily requiring the trial court to examine the content of the

statements as part of its analysis of the totality of the

circumstances.””) See; United States v. Salvador, 820 F.2d 558, 561

(2d Cir. 1987) (corroborating circumstances must be strong, nor

merely allowable); United States v. Mackey, 117 F.3d 24, 28-29 (Ist

Cir. 1997) (corroborating circumstances requirement not

unrealistically severe, but goes “beyond minimal corroboration,” and

trial court has substantial discretion in finding on trustworthiness).

The South Carolina Supreme Court in State v. Beckham,

334 S.C. 302, 513 S.E.2d 606 (1999), upheld the denial of evidence

of third party guilt. In Beckham, a murder case, the victim was

killed on a roadway. The defendant attempted to introduce evidence

that two men were on the roadway at the time of the murder. The

Court said the evidence of the two men would not exculpate the

defendant, and the exclusion of the evidence was not error.

Beckham at 317.

Here, the trial court correctly found that the alleged

statements of White, particularly the comments by Westbrook lacked

the indicia of trustworthiness necessary to allow its admission as

third party guilt as reliable evidence. As in Gay, there is strong

evidence of guilt of the defendant - especially the forensic evidence -

and the fact that the experts found that the samples, like here, did not

match the alleged third party, the proffered evidence did not raise a

“reasonable inference” as to the Petitioner’s own innocence,

Gregory , and simply was not inconsistent with the defendant’s guilt.

None of the proffered testimony contains evidence, absent

the alleged comment to Westbrook itself, which would link Jimmy

McCaw White to the crime other than information that from all the

testimony appears to have been common knowledge, i.e. an “old

woman” had been beaten and raped in the early morning hours and

that Holmes had been tried, convicted and sentenced to death for the

crime. None of Jimmy McCaw White’s statement contain details of

the crime and no forensic evidence has been offered linking Jimmy

McCaw White to the crime. White’s alleged statements are general

in nature and his presence in the general area during the time period

in which the crime is alleged to have occurred, does not corroborate

his alleged “confessions.”

None of the alleged White statements given were presented

in a manner to suggest any reliability or corroboration that they even

occurred. The trial court did not abuse its discretion in disallowing

the comment to be introduced. Here, because White’s alleged

statements bore no indicia of reliability. In Chambers, the declarant's

statement was corroborated both by the circumstances of its making

and by other evidence. 410 U.S. at 300, 93 S.Ct. 1038, 35 L.Ed.2d

297; see, also, Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60

L.Ed.2d 738. In this case, Jimmy White’s alleged comment were

not corroborated at all by other evidence. The trial court did not err

in excluding this information from the penalty phase of Holmes

capital trial. The South Carolina Supreme Court’s acknowledgment

that Holmes failed to satisfy the Gay-Gregory standard due to the

strong evidence of guilt is plainly supported by the record.

Contrary to conclusory statements, the Petitioner ignores the

fact that the Gregory standard of admissibility test is not merely to

the strength of the state’s case, but to the showing of a “reasonable

inference or presumption of his own innocence.” In this setting, the

forensic evidence uniquely tied Holmes to the case, including the six

(6) factors specifically addressed in the opinion.

Holmes further contends that this soiaehow relieved the

state of its burden of proof beyond a reasonable doubt, citing In Re

Winship, 397 U.S. 358 (1970). Nothing in the standard for the

admission of third party guilt evidence relieves the state of its

burden of proof. To the contrary, it remains entirely on the state to

show guilt beyond a reasonable doubt. The mere fact that

incompetent evidence is not admitted by the defense does not

undermine this burden. The fact that there is a burden of production

placed upon the defendant for the admission of certain evidence

does not create the risks Petitioner now associates with this standard.

Further, equating this evidentiary standard with the deprivation of a

jury trial of the facts under Apprendi v. U.S., 530 U.S. 466 (2000), is

a remarkably stretch of the constitutional fabric. Nothing removes

any factual proof the state must show to convict Holmes. His

rhetorical suggestion otherwise must be rejected.

Certiorari must be denied for the various reasons set forth

above.

IV. Where the Petitioner Failed to timely object to the

prosecutor’s comments is not preserved for certiorari

review by this Court. ,

In his second argument, he asserts that the trial court erred in

denying a belated motion for a mistrial when the prosecutor in his

guilt phase closing arguinent commented , “if [Petitioner] didn’t

commit the crimes, that’s one explanation...[who did it.”, ROA

4215, ll. 8-9 and “if you are going to frame them and its going to be

Bobby Holmes, where is this raping, murdering , beating fellow that

actually did this thing?” ROA 4220, 4264. In summarily denying

relief, the Supreme Court of South Carolina concluded that:

“Appellant's remaining issues are without merit and we dispose of

them pursuant to Rule 220(b), SCACR ... Issue V1: State v.

Humphries, 325 S.C. 28, 479 S.E.2d 52 (1996), cert. denied, 520

U.S. 1268, 117 S.Ct. 2441, 138 L.Ed.2d 201 (1997)

(contemporaneous objection required to preserve issue for appellate

review).” State v. Holmes, supra., 361 S.C. 344, 605 S.E.2d 24-25.

In denying this issue on a well settled failure to timely object during

the argument, the procedural bar established in the state court

similarly precludes consideration in this Court.

How The Issue Was Untimely Raised In The State Court

Contrary to the assertions in the Petitioner’s brief, there

were no contemporaneous objections to the comments of the

prosecutor as required under state law to preserve the issue for

appellate review. It was only after the argument was completed that

the defense made its objection to the particular comments for the

first time that he had posed a question to the jury about third party

guilt.

The prosecution requested the court to take the whole

section in context. ROA p. 4240,1l 17-25. He asserted that it was a

comment-on the police work and whether they were attempting to

frame Holmes, not on the Jimmy White issue, when taken in context.