                    THE STATE OF SOUTH CAROLINA 

                         In The Supreme Court 


            The State, Respondent,

            v.

            Jaquwn Brewer, Appellant.

            Appellate Case No. 2012-208487



                          Appeal from Beaufort County 

                    William H. Seals, Jr., Circuit Court Judge 



                               Opinion No. 27487 

                   Heard April 1, 2014 – Filed January 28, 2015 



             AFFIRMED IN PART, REVERSED IN PART, AND 

                           REMANDED 



            James A. Brown, Jr., of Beaufort, for Appellant.

            Attorney General Alan M. Wilson, Chief Deputy
            Attorney General John W. McIntosh, and Senior
            Assistant Deputy Attorney General Donald J. Zelenka, all
            of Columbia, and Solicitor Isaac McDuffie Stone, III, of
            Bluffton, Respondent.


JUSTICE KITTREDGE: Appellant Jaquwn Brewer was convicted of multiple
charges in connection with the shooting of two individuals at a nightclub. This
direct appeal concerns the admission of Brewer's unredacted audiotaped
interrogation by the police. The admission of Brewer's interrogation was error.
We nevertheless affirm Brewer's convictions for assault and battery with intent to
kill and possession of a weapon during the commission of a violent crime, for the
error was harmless with respect to these charges. We reverse the murder
conviction and remand for a new trial.

                                        I.

On May 23, 2009, a large group of people gathered at the Semper Fi Club (the
Club) in Beaufort County, South Carolina, for a party. After midnight, as the party
continued, law enforcement officers responded to a shooting at the Club. Two
individuals were shot, one fatally. The investigation revealed that the first
shooting occurred inside the Club and the second shooting occurred moments later
in the Club parking lot.

                                       A. 

                               The First Shooting 


Brewer and several of his companions were posing for photographs inside the
Club. The photographer, Gary Bright, and several other attendees noticed that
Brewer was posing with a handgun. A photograph introduced at trial confirmed
that Brewer had a handgun in the front waistband of his pants. One of the
organizers of the party, Deon Stevenson, was alerted, and he asked Brewer to take
the gun out of the Club. Brewer responded by pulling out the handgun and
pointing it at Stevenson's head, which others in the Club witnessed.

Immediately thereafter, Brewer shot his gun inside the Club, hitting Donald Parker,
who was standing near the photo booth. There were numerous witnesses to the
shooting of Parker. Parker survived the shooting. Brewer was charged with
assault and battery with intent to kill and possession of a weapon during the
commission of a violent crime as a result of shooting Parker.

                                      B. 

                              The Second Shooting 


Patrons, including Brewer, fled the Club after the first shooting. Moments later,
more shots were fired outside the Club in the parking lot by at least two
individuals, including Brewer and Dominique Middleton. Henry Jones was
standing in the entrance to the Club dialing 911 when a stray shot from the parking
lot struck and killed him. Brewer was charged with murder for the killing of Jones.
                                        C. 

                                 The Investigation 


Law enforcement recovered numerous shell casings. One was found on the floor
inside the Club, one directly outside the exit, one near the road, and eight on the
left side of the parking lot next to a red laser sight. The investigation revealed that
the laser sight was part of Middleton's gun. Trace metals and gunshot residue were
found on the pants Brewer was wearing. The physical evidence showed that the
bullets recovered from the victims were likely fired from a .45 caliber, semi-
automatic handgun. However, a comparison of the bullets was inconclusive, and
the SLED firearms examiner could not determine whether the bullets were fired
from the same handgun. Despite learning from many witnesses that there were at
least two shooters in the Club parking lot, investigators pursued Brewer as the only
suspect.1

In an interview at the Beaufort County Sheriff's Office, Brewer waived his
Miranda2 rights and agreed to speak with investigators. The recording of this
interview, including the interrogators' hearsay-laden questions and comments, was
played for the jury. The investigators informed Brewer that many witnesses
observed him shoot both victims, which was true only with respect to the shooting
of Parker inside the Club. Brewer denied involvement in either shooting, and
approximately twenty minutes into the interview, Brewer told investigators that he
wanted to end the interrogation. Yet the interrogation continued.3 The
investigators employed various tactics to extend the interrogation, including
bringing Brewer's mother into the room and repeatedly telling Brewer that he
should "prove himself innocent" by turning in his handgun, all of which was
audiotaped and played to the jury, over Brewer's objection.

1
 Investigators claimed they attempted to locate Middleton but were unsuccessful
and quickly abandoned their efforts. Middleton was never charged in connection
with the shootings.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
3
  The impropriety of law enforcement continuing a custodial interrogation
following the accused's exercise of his right to terminate the interrogation is not
before us.
We believe it is helpful to examine a sampling of the interrogation. Early on,
Brewer stated multiple times he was "ready to go." Brewer reminded the officers
that they said he could stop the questioning at any time. When Brewer continued
to ask that the interrogation stop, an investigator answered, "No." Brewer finally
stated, "Man, I don't wanna talk no more." The investigator responded that if
Brewer were innocent, he could prove his innocence by producing his gun. The
interrogation's mantra of demanding Brewer prove his innocence continued
unabated,4 even after Brewer repeatedly said, "I can't say no more."

Brewer moved, on the basis of hearsay, to have the investigators' statements
redacted from the audiotaped recording of his interrogation. The trial court denied
Brewer's request. Brewer was convicted on all charges. We certified his direct
appeal to this Court pursuant to Rule 204(b), SCACR.

                                          II.

"'The admission or exclusion of evidence is left to the sound discretion of the trial
judge, whose decision will not be reversed on appeal absent an abuse of
discretion.'" State v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012) (quoting
State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001)). Here, the
admission of the unredacted audiotaped interrogation was an abuse of discretion.

                                          A.

We acknowledge the propriety of law enforcement interrogation techniques,
including misrepresenting the existence and strength of the evidence against an

4
   Examples include statements to the effect that, "If you didn't do anything, that
gun will prove it," and "If that is not the gun that shot somebody, then we can
prove it," as well as "If you didn't do anything, you should have that gun. This is
it. Prove it. You can prove your innocence." Officers also stated, "Proving
yourself innocent should be, you know, that would be my first priority," and "If
you didn't shoot, that gun will prove it. That gun will absolutely, positively . . . I'm
saying that gun will prove you are absolutely innocent," along with "Help me
prove you innocent," and "You're the only one here that—and you just absolutely
don't want to prove yourself innocent." The final statement by an investigator was,
"The point of my story is you can help yourself. Why don't you?" As noted,
Brewer's objection to this evidence was overruled.
accused, as well as asking the accused to produce evidence voluntarily. See State
v. Von Dohlen, 322 S.C. 234, 244, 471 S.E.2d 689, 695 (1996) ("Both this Court
and the United States Supreme Court have recognized that misrepresentations of
evidence by police, although a relevant factor, do not render an otherwise
voluntary confession inadmissible." (citations omitted)). Such matters are typically
examined in camera when the trial court is making a preliminary determination as
to the admission of a confession. See Jackson v. Denno, 378 U.S. 368, 380 (1964)
("A defendant objecting to the admission of a confession is entitled to a fair
hearing in which both the underlying factual issues and the voluntariness of his
confession are actually and reliably determined."). But such evidence will rarely
be proper for a jury's consideration.

During the interrogation, investigators frequently referenced and quoted many
purported eyewitnesses to Brewer shooting both victims. This evidence was
hearsay, offered for the sole purpose of proving the truth of the matter asserted,
establishing Brewer's guilt to all charges. See State v. Jennings, 394 S.C. 473, 478,
716 S.E.2d 91, 93 (2011) ("Hearsay is defined as 'a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.'" (quoting Rule 801(c), SCRE)). The suggestion
that this evidence served a nonhearsay purpose is patently without merit. See Ezell
v. State, 345 S.C. 312, 315, 548 S.E.2d 852, 853 (2001) (finding out-of-court
statements on an audiotape identifying the defendant as a drug dealer were
inadmissible hearsay); see also Windhom v. State, 729 S.E.2d 25, 29 (Ga. Ct. App.
2012) (holding that an officer's statement during an interrogation that the victim
believed that Appellant had acted in concert with other criminals was inadmissible
hearsay); Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999) (rejecting the State's
argument that during an interrogation police questions and comments designed to
elicit responses from the defendant constituted nonhearsay).

Indeed, we find no support in the law for the State's argument that the
interrogators' statements were admissible for purposes of context or for the effect
the statements had on Brewer. See United States v. Silva, 380 F.3d 1018, 1020
(7th Cir. 2004) ("So to what issue other than truth might the testimony have been
relevant? . . . Allowing agents to narrate the course of their investigations, and thus
spread before juries damning information that is not subject to cross-examination,
would go far toward abrogating the defendant's rights under the [S]ixth
[A]mendment and the hearsay rule." (second emphasis added)). The only effect
these statements had on Brewer was to make him repeatedly deny shooting anyone.
The meaning of these repeated denials is obvious and requires no explanatory
context. The effort by the State to rescue the admission of this unmistakable
hearsay must be rejected.

We emphasize that today's decision is not a categorical rule that any statement by
an investigator during an interrogation is inadmissible at trial. As recognized by
the North Carolina Court of Appeals, however, caution must be exercised in the
admission of such evidence to ensure that all out-of-court statements are either
"admissible for a valid nonhearsay purpose or as an exception to the hearsay rule in
order to safeguard against an end-run around the evidentiary and constitutional
proscriptions against the admission of hearsay." State v. Miller, 676 S.E.2d 546,
556 (N.C. Ct. App. 2009). To that end, "we would like to remind trial courts that
the questions police pose during suspect interviews may contain false accusations,
inherently unreliable, unconfirmed or false statements, and inflammatory remarks
that constitute legitimate points of inquiry during a police investigation, but that
would otherwise be inadmissible in open court." Id. (noting "the wholesale
publication of a recording of a police interview to the jury, especially law
enforcement's investigatory questions, might very well violate the proscriptions
against admitting hearsay or Rule 403" and cautioning trial courts to be vigilant in
redacting and excluding problematic portions of law enforcement's investigatory
questions (emphasis added)).

Beyond the hearsay error, we wish to briefly comment on the grave constitutional
error in the admission of the challenged evidence in this case. Law enforcement's
ad nauseam insistence that Brewer prove his innocence has no place before the
jury. It is chilling that we have to remind the State that an accused is presumed
innocent and that the State has the burden to prove guilt beyond a reasonable
doubt. See U.S. Const. amend. V ("No person . . . shall be compelled in any
criminal case to be a witness against himself . . . ."); Sandstrom v. Montana, 442
U.S. 510, 512 (1979) (noting that the Fourteenth Amendment requires that "the
State prove every element of a criminal offense beyond a reasonable doubt").

We now turn to the State's alternative argument that any error was harmless in
view of the overwhelming evidence of Brewer's guilt.

                                        B.

The "[i]mproper admission of hearsay testimony constitutes reversible error only
when the admission causes prejudice." Jennings, 394 S.C. at 478, 716 S.E.2d at 93
(citing State v. Garner, 389 S.C. 61, 67, 697 S.E.2d 615, 618 (Ct. App. 2010)).
"Such error is deemed harmless when it could not have reasonably affected the
result of trial, and an appellate court will not set aside a conviction for such
insubstantial errors." Id. "Whether an error is harmless depends on the
circumstances of the particular case. No definite rule of law governs this finding;
rather, the materiality and prejudicial character of the error must be determined
from its relationship to the entire case." State v. Mitchell, 286 S.C. 572, 573, 336
S.E.2d 150, 151 (1985). For example, "[i]mproperly admitted hearsay which is
merely cumulative to other evidence may be viewed as harmless." Jennings, 394
S.C. at 478, 716 S.E.2d at 93–94 (citing State v. Blackburn, 271 S.C. 324, 329, 247
S.E.2d 334, 337 (1978)). A careful review of the evidence convinces us the error
was harmless in connection with the first shooting inside the Club, but not
harmless concerning the second shooting in the parking lot of the Club.

The evidence of Brewer's guilt is overwhelming as to the shooting of Parker inside
the Club. The State introduced a photograph showing the gun in Brewer's
waistband. Corroboration is found in the testimony of the many witnesses who
were inside the Club. For example, Bright, the photographer, saw Brewer draw his
weapon and point it at Stevenson, one of the organizers of the party. Immediately
thereafter, Bright heard gunshots. Several witnesses saw Brewer shooting inside
the Club, all of whom testified and were subject to cross-examination. By all
accounts, there was only one shooter inside the Club—Brewer. Accordingly, we
find that the error in the admission of the interrogators' statements was harmless
beyond a reasonable doubt as it relates to the assault and battery with intent to kill
and weapon charges. See Mitchell, 286 S.C. at 573, 336 S.E.2d at 151 ("Error is
harmless when it 'could not reasonably have affected the result of the trial.'"
(quoting State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890 (1971))); State v.
Johnson, 298 S.C. 496, 499, 381 S.E.2d 732, 733 (1989) ("The admission of
improper evidence is harmless where it is merely cumulative to other evidence."
(citing Blackburn, 271 S.C. at 329, 247 S.E.2d at 337)).

The evidence regarding the second shooting stands in stark contrast, providing at
best only a thin, circumstantial case against Brewer for Jones's murder. The shot
that killed Jones came from the parking lot where Brewer and Middleton were both
shooting their guns. Despite acknowledging that Middleton was shooting a
handgun with a laser sight in the parking lot and that eight shell casings were
recovered next to the laser sight,5 the lead investigator testified that he "didn't

5
 Those shell casings were never tested for evidentiary value or sent to SLED for
analysis.
identify any other suspects" aside from Brewer. Given the presence of at least two
shooters in the parking lot, and the lack of direct evidence pointing conclusively to
Brewer as the one who fired the fatal shot, we hold that the admission of the
challenged statements cannot be deemed harmless.

                                          III.

We hold it was error to admit the challenged statements. We conclude, however,
that the error was harmless as it relates to the assault and battery with intent to kill
and gun charges. Regarding the murder charge, we reverse and remand for a new
trial.


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TOAL, C.J., and HEARN, J., concur. PLEICONES, J., dissenting in a
separate opinion. BEATTY, J., concurring in part and dissenting in part in a
separate opinion.
JUSTICE PLEICONES: I respectfully dissent and would affirm both of
appellant's convictions. I emphasize that my dissent is confined to the sole
issue raised by appellant in his brief, which alleges error in the trial court's
admission of certain hearsay statements.


In brief, appellant contends that the trial judge erred in admitting eight
statements made by the detective during the course of appellant's more than
hour long interrogation.6 Appellant contends, and I agree, that these


6
 These are the eight statements, including the time during the interrogation at
which they were made, as reproduced in appellant's brief:

             4:00-4:30 	 "Word is you have been identified as somebody who did
                         some shooting yesterday." …. "There's a bunch of people
                         identified you…" ….

             5:25-5:39 	 "When we was at the Shriner's club on May 24, [witness
                         name] and my boyfriend [unknown name] was about to
                         take a picture and he [Appellant] was already taking his
                         picture with his gun up and we asked him what he was
                         doing with it in there and he pointed it at us and he
                         pointed it and he just started shooting everywhere."
                         (Investigator Fraser purportedly reading a statement
                         provided by a witness.)

             6:06-6:10 	 "There's a lot people that saw you do it."

             7:11-7:21 	 "Well there's too many people that saw you shoot it. …
                         Everybody's saying the same thing. They confronted you
                         about having the gun in that picture and you started
                         shooting."

             9:58-10:13 	 "I've got statements from people that identify you as the
                          shooter by name. … They called your name…They wrote
                          it in the statements, straight up."
statements should have been excluded since they contain inadmissible
hearsay. The vast majority of the eight objectionable statements relate to
what the majority refers to as "The First Shooting," and I agree with the
majority that the erroneous admission of these statements was harmless in
light of the overwhelming evidence of appellant's criminal responsibility for
the shooting of Donald Parker.


It appears the only portion of the eight passages that specifically relate to the
Second Shooting, which occurred outside the club, is found in the last
statement. That statement begins, "They're saying you came out of the club
shooting. … They're saying you were shooting in the air. That's what they
are saying. That's exactly what they are saying you did." The remainder of
this statement relates back to the Parker shooting. In my opinion, while this
statement should have been excluded, its admission was harmless since it
only accused appellant of shooting in the air once he left the club, and there is
no question that he did fire his gun in the parking lot.



            12:04-12:08 "But people saw you. They know you. They called your
                        name."

            49:29 	     "All I have to go on is what the witnesses there said.
                        That's it. I've got you with the gun. I've got them saying
                        you are the one that shot.

            53:10-55:18 "They're saying you came out of the club shooting. …
                        They're saying you were shooting in the air. That's what
                        they are saying. That's exactly what they are saying you
                        did. … They're saying they confronted you. They are
                        like 'What are you doing with the gun.' That's when you
                        pulled out the gun and started shooting. … That's exactly
                        what they are saying. … That's what they are saying. …
                        You're thinking that there's only one person saying you
                        did it. There's a bunch of people; they were there, they
                        saw you and they called your name … They saw you
                        with the gun."
Appellant seeks reversal solely on the basis of the trial court's refusal to strike
these eight statements from evidence. While I agree these statements were
inadmissible hearsay, I would affirm both of appellant's convictions as I find
the appellant failed to establish prejudice warranting reversal. State v.
Brockmeyer, 406 S.C. 324, 751 S.E.2d 645 (2013).
       JUSTICE BEATTY: I concur in part and dissent in part. I agree that
admission of Brewer's interrogation was error. I also agree that the murder
conviction should be reversed as a result of this error. However, I depart from the
majority's conclusion that admission of the interrogation was harmless as it relates
to the charges of ABWIK and possession of a firearm during the commission of a
violent crime.

       But for the solicitor's numerous instances of burden shifting, via the
interrogation tape, I would agree that the error was harmless as to the latter
charges. However, the jury was repeatedly bombarded with the unconstitutional
notion that Brewer had to prove that he was innocent. In my view, this created a
due process structural defect in the trial. Structural defects are not subject to a
harmless-error analysis regardless of the evidence presented. See State v. Rivera,
402 S.C. 225, 247, 741 S.E.2d 694, 705 (2013) ("[D]espite the strong interests
upon which the harmless-error doctrine is based, there are certain constitutional
rights which are so basic to a fair trial that their infraction can never be treated as
harmless error. These are structural defects in the constitution of the trial
mechanism, which defy analysis by harmless-error standards and which affect the
framework within which the trial proceeds, rather than simply an error in the trial
process itself." (internal quotations omitted) (citing Arizona v. Fulminante, 499
U.S. 279, 306-08 (1991)). Accordingly, I would reverse all of Brewer's
convictions and remand for a new trial.
