# Opposition Brief — Holmes v. South Carolina

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0083%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 319

## Text

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

i
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

iV

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

Vv
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

vi

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,
22

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

ix

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.

4

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

7

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,

9

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.

10

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.

11

—_—

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

12

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

13

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.

14

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

15

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

16

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

17

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.

18

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.

19

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

20

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

21

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).

22

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

23

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. ,

24

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.
See also, ROA p. 4252, 4258-59.

The trial court noted that there was no contemporaneous
objection to this statement for another challenge comment. ROA p.
4243, ll. 4-11. Counsel asserted he had failed to object, but it would
not have made any difference concerning a potential curative
instruction. ROA p. 4243.

25

The trial court held that the objection was not timely made
and was not properly before the court. ROA p. 4264, ll. 8-13. The
court further determined that the comment was made “in context of
the officer’s investigative work and matters dealing with looking at
the investigative work and the case worked up the state.” ROA p.
4264. He denied the motion for a mistrial. On appeal, applying state
procedural law which was well established, the South Carolina
Supreme Court similarly held this issue barred from consideration.

1. The failure to timely object to the challenged comment
properly precluded appellate review and further
precludes certiorari consideration.

The trial court found that it could not consider the matter
due to a failure of the defense to contemporaneously object to the
comment. The failure to timely object to comments made during the
argument precludes appellate review of the issue. State v. Wiggins,
330 S.C. 538, 500 S.E.2d 489 (1998); State v. Patterson, 324 S.C. 5,
482 S.E.2d 760 (1997); State v. Franklin, 318 S.C. 47 (1995). The
state trial court and appellate court correctly found this matter could
not be considered due to the failure to timely object during the
arguments as a matter of state procedure.

It is a fundamental principle that a contemporaneous
objection is required at trial to properly preserve an error for
appellate review in South Carolina . State v. Hoffman, 312 S.C. 386,
440 S.E.2d 869 (1994) (to preserve error for appellate review,
defendant must make contemporaneous objection on specific
ground); State v. Black, 319 S.C. 515, 462 S.E.2d 311
(Ct.App.1995). The proper course to be pursued when counsel

makes an improper argument is for opposing counsel to immediately
object and to have a record made of the statements or language

complained of and to ask the court for a distinct ruling thereon.
Varnadore v. Nationwide Mut. Ins. Co., 289 S.C. 155, 345 S.E.2d
711 (1986); State v. Williams, 266 S.C. 325, 223 S.E.2d 38 (1976).

In State v. McIver, 238 S.C. 401, 120 S.E.2d 393 (1961), the

court held that a defendant’s objection made for the first time after
the argument was completed and in a motion for a new trial was too

26

iate. In State v. Rabon, 275 S.C. 459, 272 S.E.2d 634 (1980), the
court held that a statement of prosecutor during closing argument to
jury did not warrant reversal where defendant waited until argument
had been completed to object to alleged impropriety. In then instant
case, the South Carolina Supreme Court relied upon State v.
Humphries, 325 S.C. 28, 479 S.E.2d 52 (1996), where the Court held
that the appellant’s failure to timely object during the argument to
the same claim raised in the appeal precluded consideration of the
claim. The Petitioner attempts to parse this procedural decision by
the final arbiter of state procedure - the South Carolina Supreme
Court - by alluding that the objection which came too late in Holmes
case could have been preserved because the trial court had time to

‘cure the error before the case was submitted to the jury. This,

however, is not South Carolina practice. The trial court and the
Supreme Court knew better about the demands of state practice.

Contrary to the claims of the Petitioner, a belated motion
and objection after the completion of the argument does not preserve
the issue. The late objection deprived the trial court of the
opportunity to address the issue while the argument was ongoing and
have the opportunity to address it in context. In depriving the court
of this opportunity, the matter was not preserved.

In Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct.
2546, 2553, 115 L.Ed.2d 640 (1991), the Court reaffirmed that it

"will not review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the
judgment.” See also Harris v. Reed, 489 U.S. 55, 262, 109 S.Ct.
1038, 1042-1043, 103 L.Ed.2d 308 (1989). The Court has stated that
it lacks jurisdiction to review such independently supported
judgments on direct appeal: Since the state-law determination is
sufficient to sustain the decree, any opinion of this Court on the
federal question would be purely advisory. Herb v. Pitcairn, 324
U.S. 117, 125-126, 65 S.Ct. 459, 462-464, 89 L.Ed. 789 (1945); see
also Sochor v. Florida, 504 U.S. 527, 533-534 (1992).

Since the matter was properly held to be barred as a matter
of state procedure, certiorari consideration of this closing argument

27

issue is precluded due to lack of jurisdiction. Here, the state
procedural bar is wholly independent of the federal ground. Henry v.

Mississippi, 379 U.S. 443 (1965); Herb v. Pitcairn, 324 U.S. 117,
125 (1945). On this issue, the writ must be denied.

2. The comments do not “so infect the trial with unfairness
as to make the resulting conviction a denial of due
process.”

Alternately, assuming this matter is procedurally preserved,
this second issue does not demand certiorari where the comments
did not cause unfairness to make the conviction a “*nial of due

process. The Petitioner’s reliance upon Simmons v. South Carolina,
512 U.S. 154 (1994 ) and Skipper v. South Carolina, 476 U.S. |
(1986) is misplaced. In those cases, the Court found due process
violations where there was a deprivation of his right to a fair rebuttal
when he was barred from presenting competent and relevant
evidence to explain the comments. Contrary to those settings, the
failure to present competent and relevant evidence does not afford
the Petitioner the opportunity to present evidence that fails
evidentiary standards. Certiorari is not warranted here.

The general rule concerning closing arguments in South
Carolina is that a solicitor must confine his arguments to the record
and its reasonable inferences, State v. Caldwell, 300 S.C. 494, 388
S.E.2d 816 (1990), but the failure to do so will not automatically
result in a new trial. A new trial will only be granted where the
prosecutor's comments so infected the trial with unfairness as to
make the resulting conviction or sentence a denial of due process.
Johnson v. State, supra, Donnelly v. DeChristoforo, 416 U.S. 637
(1974), State v. Patterson, 324 S.C. 155, 169, 478 S.E.2d 260, 267
(1997). A "momentary lapse of good taste will rarely constitute
prejudicial error." State v. Chaffee, 285 S.C. 1, 328 S.E.2d 464
(1984). The Court has also held that a solicitor has the right to state
his version of the testimony and to comment on the weight to be
given such testimony. C Jdwell, supra, 300 S.C. at 504, 388 S.E.2d
at 822, State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976). "A
court should not lightly infer that a prosecutor intends an ambiguous
remark to have is most damaging meaning or that a jury, sitting

28

through lengthy exhortation will draw that meaning from the
plethora of less damaging interpretations." Donnelly, supra 416 U.S.
637, 646.

Where a defendant presents evidence at trial, the prosecutor
may comment on the defendant's failure to present the testimony of
seemingly accessible witnesses who are or should be aware of
relevant information. Douglas v. State, 332 S.C. 67, 504 S.E.2d 307
(1998); State v. Shackelford, 228 S.C. 9, 88 S.E.2d 778
(1955).However, where the defendant produces no evidence on his
behalf, it is improper for the prosecutor to comment on the
defendant's failure to call a particular witness. See State v.
Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996); State v. Posey, 269
S.C. 500, 238 S.E.2d 176 (1977). The jury should ordinarily be
instructed not to draw inferences from the neglect of a defendant to

call witnesses. Douglas, supra.; State v. Browning, 154 S.C. 97, 151
S.E. 233 (1930).

The Petitioner asserts this remark about who did it if not
Holmes and where is the person who killed the victim was a
comment in violation of the Petitioner’s right to require the state to
prove his guilt beyond a reasonable doubt. In the state court, he cited
Doyle v. Ohio, 426 U.S. 610 (1976) and Griffin v. California, 380
U.S. 609 (1965). This claim was not raised therein as a Due Process
claim under either the Simmons or Skipper analysis which he now
asserts for the first time.

As below, the Petitioner ignores the fact that he did, in fact
present evidence in his defense and did in fact testify in his defense.
ROA 3661-3708, 3751-4072. Therefore, his reliance upon these
cases do not apply to his claim. State v. Primus, 341 S.C. 592, 535
S.E.2d (2000). Simply put, there can be not Fifth Amendment error
nor is their an improper shift in the burden of proof by these
comments when the defense presented a defense to the action.

A prosecutor is allowed to state his version of the case. It is

clear that throughout his argument, the prosecution was anticipating
an argument that Holmes was “framed” or early on targeted as a

29

suspect. * It is also clear that he had failed to satisfy the
requirements to bring forth reliable evidence of third party guilt. The
question is not whether the Petitioner attempted to create such
evidence for purposes of a prosecution argument limited to the
record, the point of permissible argument is whether he was
argument the permissible inferences from the record introduced to
the jury. Solicitor Pope committed no error in his presentation. For
these alternate reasons, the matter is without merit.

Respondents respectfully submit that this claim is without
merit for certiorari. It must be dismissed for lack of jurisdiction
where the same claim was not timely presented to the state court.

CONCLUSION
For all the foregoing reasons, certiorari must be denied.

Respectfully submitted,
HENRY D. McMASTER
Attorney General

JOHN W. McINTOSH
Deputy Attorney General

*DONALD J. ZELENKA

Assistant Deputy Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
(803) 734-6305

ATTORNEYS FOR RESPONDENTS

*Counsel of Record By:

June 6, 2005

® See Testimony of Chief William Mobley where the prosecutor
questions him on whether he planted evidence or sought to frame Holmes.
ROA 2803-04.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0083%3A03. Public record. Not legal advice.