THE STATE OF SOUTH CAROLINA
                         In The Court of Appeals

             The State, Respondent,

             v.

             Mack Seal Washington, Appellant.

             Appellate Case No. 2017-001111



                         Appeal From Charleston County
                        Roger L. Couch, Circuit Court Judge


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                Withdrawn, Substituted and Refiled October 7, 2020


                         REVERSED AND REMANDED


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

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


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

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

Before trial, Washington objected to the admissibility of the audio recording of the
interview on three grounds: hearsay, improper bolstering of the State's fingerprint
expert's testimony, and that it contained improper opinion evidence. The trial court
excluded a few of McCauley's comments on bolstering grounds but admitted a
redacted version of the audio. Listening to this redacted version, the jury heard
McCauley make such comments to Washington as:
            "[C]an you explain why your fingerprints would have been
            inside the house?"
            "Were you on any kind of drugs or anything in any point
            of time back in the summer when you would have
            forgotten doing something? That might explain why you
            did it."
            "This is from the state law enforcement division where we
            send all our fingerprints . . . . It shows right here two
            fingerprints were taken. Identified as [Mack Seal]
            Washington with that specific state ID number which is
            assigned to you"
            "I'll call him [Washington's employer] up but how do you
            explain your fingerprints inside this man's house? . . .
            [T]here's no if, and, or buts about it"
             "[B]ut you can't be at work and your fingerprint be inside
            the house at the same time"
            "[T]hen how'd your fingerprint end up there?"
            "[Y]ou still have to explain why your fingerprints [are] in
            that man's house."
            "[W]ell then it still doesn't explain why your fingerprints
            are there and why you had a stolen gun, a stolen rifle.
            There was a second gun stolen, it was a pistol, which is
            why I think you're trying to put the story together of a
            person you ran into on Bees Ferry in the parking lot of
            Walmart. You're trying to put some story together to
            justify why you had access to those"
            "[Y]ou also pawned a weed eater . . . . I'm saying you
            pawned that same day, the same day you pawned that rifle
            at a different pawn shop which is what people do when
            they're trying to spread out stuff that's stolen."


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

Detective McCauley's interrogation method may have been a proper investigative
technique, but every word he uttered during the out of court interview was
inadmissible hearsay. Any doubt about its inadmissibility was removed by State v.
Brewer, 411 S.C. 401, 768 S.E.2d 656 (2015), decided more than two years before
Washington's trial, which held similar remarks made by a detective during an
interrogation to be "unmistakable hearsay." 411 S.C. at 406–07, 768 S.E.2d at 659.
While we acknowledge Brewer did not create a "categorical rule" that any statement
made by a police officer during an interrogation is inadmissible, we also
acknowledge such statements "will rarely be proper for a jury's consideration." Id.
For hearsay purposes, there is no daylight between the detective's remarks in Brewer
and McCauley's remarks here.
Washington's statements during the interview are not hearsay because they are
admissions of a party offered against that party. Rule 801(d)(2)(A), SCRE.
Therefore, when McCauley testified, the State could have admitted Washington's
statements by asking McCauley about them, avoiding the hearsay taint of
McCauley's statements in the recording.
At the trial, the assistant solicitor contended McCauley's statements were not hearsay
because they were not offered for their truth but to give Washington's answers
"context." There is no "context" exception to the hearsay rule. Brewer rejected this
same argument as "patently without merit," finding it had "no support in the law."
Id. Undeterred, the State recycles the argument before us, still unaccompanied by
any authority to support it. The statements were inadmissible hearsay, and we
reverse the trial court's ruling admitting them.
                             III.   BURDEN SHIFTING

As in Brewer, here there was no objection made to the recording on burden-shifting
grounds. Nevertheless, as in Brewer, Detective McCauley's repeated requests that
Washington explain why he was not guilty amounted to a "grave constitutional
error." Id. at 408, 768 S.E.2d at 659. As Justice Kittredge so well put it, "Law
enforcement's ad nauseam insistence that Brewer prove his innocence has no place
before the jury. It is chilling that we 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." Id.

We respect our good dissenting colleague's contention that Washington did not
adequately preserve his hearsay objection on appeal. We are convinced, though, that
Washington preserved the hearsay issue given his specific hearsay objection to the
trial court, and his extensive reliance on Brewer in his brief and at oral argument.
See Toal et al., Appellate Practice in South Carolina 75 (3d ed. 2016) ("[W]here an
issue is not specifically set out in the statement of issues, the appellate court may
nevertheless consider the issue if it is reasonably clear from appellant's arguments.").
While Washington may not have wrapped his issues up in a neat categorical box, we
do not believe he abandoned the hearsay argument on appeal or that we should not
address it. See Calhoun v. Calhoun, 339 S.C. 96, 105–06, 529 S.E.2d 14, 19–20
(2000) (holding a party did not limit claim by failing to use "transmutation" in her
statement of issues on appeal where her argument discussed and cited to authority
on transmutation); Eubank v. Eubank, 347 S.C. 367, 374 n.2, 555 S.E.2d 413, 417
(2001); cf. Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered
which is not set forth in the statement of the issues on appeal.") (emphasis added).

The State did not raise preservation in its brief. Although the issue was raised by
the panel at oral argument, the State spent considerable time in its brief and at oral
argument claiming the recording is not hearsay. While we may invoke preservation
rules on our own, we should not be quick to disturb the parties' silence. See Atlantic
Coast Builders and Contractors, LLC v. Lewis, 398 S.C. 323, 333, 730 S.E.2d 282,
287 (2012) ("When the opposing party does not raise a preservation issue on appeal,
courts are not precluded from finding the issue unpreserved if the error is clear.
However, the silence of an adversary should serve as an indication to the court of
the obscurity of the purported procedural flaw.") (Toal, C.J., concurring).

                             IV.    HARMLESS ERROR

The error was not harmless. State v. Young, 420 S.C. 608, 625, 803 S.E.2d 888, 897
(Ct. App. 2017) (providing improper admission of hearsay may be deemed harmless
if it appears beyond a reasonable doubt it did not contribute to the verdict). In
Brewer, the defendant was tried on charges related to two shootings occurring the
same night. A majority of the court found the error harmless as to the charges related
to the first shooting (which had numerous eyewitnesses to Brewer firing shots, a
photograph of Brewer at the scene with a gun, and evidence of there being only one
shooter), but not harmless as to the murder charge related to the second shooting (of
which there was only "thin, circumstantial" evidence against Brewer, and testimony
that at least two shooters were present). Brewer, 411 S.C. at 409–10, 768 S.E.2d at
660.
The prosecution's case against Washington was strong but circumstantial, led by the
fingerprint evidence. The State acknowledges fingerprint evidence alone is often
not enough to get a burglary case to a jury. See State v. Bennett, 415 S.C. 232, 781
S.E.2d 352 (2016); State v. Mitchell, 332 S.C. 619, 506 S.E.2d 523 (Ct. App. 1998).
In its brief, the State argues it was important to present the recording of McCauley's
interview of Washington because it allowed the State to bolster the fingerprint
evidence and attack Washington's alibi in detail. The State explained the recording
gave them the opportunity to do both, without which their case would have been, in
their words, "vulnerable to a directed verdict."
Washington told Detective McCauley he was working at the time of the burglary,
but the State called his employer, who testified they had no record of Washington's
attendance at work that day. The pawn tickets were incriminating, but there was
evidence the victim first described the missing rifle as a Savage, not a Winchester.
The weed eater was sold before the victim could verify its identity.
The State highlighted the recorded interview in its closing, and the jury later
interrupted its deliberations to ask for a transcript of the interview. The trial court
sent the seventeen-minute recording back to the jury room. Twenty minutes later,
the jury found Washington guilty. Under the circumstances, it appears to us that the
hearsay figured so prominently in Washington's trial that its "reverberating clang . . .
would drown all weaker sounds." Shepard v. United States, 290 U.S. 96, 104 (1933)
(Cardozo, J.). We are therefore sure erroneously admitted hearsay evidence
contributed to the jury verdict and was not harmless.
REVERSED AND REMANDED.
LOCKEMY, C.J., concurs.

KONDUROS, J., dissenting: I respectfully dissent from my learned colleagues'
opinion. While allowing Detective McCauley's statements made during his
interrogation of Washington to be presented to the jury may have constituted a
violation of State v. Brewer, 411 S.C. 401, 768 S.E.2d 656 (2015), by possibly
shifting the burden of proof, this issue is not preserved. As the majority
acknowledges, Washington's objection to the statements did not concern an alleged
burden shifting nor mention a Brewer violation. The majority points out the
objection to burden shifting in Brewer was not preserved. However, in Brewer, the
defendant objected at trial on the basis that the interrogator's statements were
hearsay and renewed this argument on appeal. Id. at 406, 768 S.E.2d at 658. The
supreme court found the "evidence was hearsay, offered for the sole purpose of
proving the truth of the matter asserted, establishing Brewer's guilt to all charges."
Id. at 406-07, 768 S.E.2d at 659.

In the present case, the majority finds, "The statements were inadmissible hearsay,
and we reverse the trial court's ruling admitting them." However, Washington's
sole issue on appeal is the inclusion of the statements shifted the burden of proof
and constituted improper opinion evidence. While the argument section of
Washington's brief includes a quote from Brewer that the statements in that case
were hearsay, the section does not include any argument that Detective McCauley's
statements constituted hearsay. The sole reference to the statements constituting
hearsay is in the facts section of Washington's brief, stating, "When the officer
discussed the pawn tickets, the officer's statements were hearsay and improperly
bolstered the testimony of the pawn shop dealers." Accordingly, I do not believe
Washington has sufficiently raised any argument regarding hearsay to this court.
See State v. Jones, 392 S.C. 647, 655, 709 S.E.2d 696, 700 (Ct. App. 2011)
("[S]hort, conclusory statements made without supporting authority are deemed
abandoned on appeal and therefore not presented for review." (quoting Glasscock,
Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App.
2001))); id. ("An issue is also deemed abandoned if the argument in the brief is
merely conclusory." (quoting State v. Colf, 332 S.C. 313, 322, 504 S.E.2d 360, 364
(Ct. App. 1998), aff'd as modified, 337 S.C. 622, 525 S.E.2d 246 (2000))).
Because Washington has not raised the issue of hearsay to this court, I believe it is
not properly before us and therefore, not appropriate for us to address on appeal.
"[A]ppellate courts in this state, like well-behaved children, do not speak unless
spoken to and do not answer questions they are not asked." State v. Austin, 306
S.C. 9, 19, 409 S.E.2d 811, 817 (Ct. App. 1991) (alteration by court) (quoting
Langley v. Boyter, 284 S.C. 162, 181, 325 S.E.2d 550, 561 (Ct. App. 1984), rev'd,
286 S.C. 85, 332 S.E.2d 100 (1985), but cited with approval in Nelson v. Concrete
Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991)). "The appellants have the
responsibility to identify errors on appeal, not the [c]ourt." Kennedy v. S.C. Ret.
Sys., 349 S.C. 531, 533, 564 S.E.2d 322, 323 (2001). Therefore, I disagree with
the majority's reversing Washington's convictions on this basis.

Likewise, Washington's burden shifting argument is not preserved for our
consideration. As previously discussed, Washington objected to the disputed
statements on the grounds of hearsay and improper bolstering. During the pretrial
hearing, Washington argued Detective McCauley "g[a]ve[] opinions as to the
strength of the evidence in t[he] case." Washington further argued Detective
McCauley repeatedly stated Washington's fingerprint was inside the home and
noted the defense disputed this assertion. Washington also argued the disputed
statements constituted hearsay and improper bolstering. In response, the State
argued Detective McCauley's questions were not hearsay because they were not
offered for the truth of the matter asserted and did not constitute bolstering but
instead would provide context for the responses Washington gave during the
interrogation. When the State moved at trial to admit the recording of
Washington's interrogation, Washington simply indicated he had the same
objection as he did pretrial. Washington never mentioned Brewer nor the more
general argument of burden shifting.1 Therefore, the issue was not raised to nor
ruled upon by the trial court.

"The general rule of issue preservation is if an issue was not raised to and ruled
upon by the trial court, it will not be considered for the first time on appeal." State
v. Porter, 389 S.C. 27, 37, 698 S.E.2d 237, 242 (Ct. App. 2010). "Imposing this
preservation requirement is meant to enable the trial court to rule properly after it
has considered all the relevant facts, law, and arguments." Id. at 38, 698 S.E.2d at
242. "The objection should be addressed to the trial court in a sufficiently specific


1
 The Brewer opinion was published January 28, 2015. Washington's trial took
place over two years later on April 17-18, 2017.
manner that brings attention to the exact error. If a party fails to properly object,
the party is procedurally barred from raising the issue on appeal." State v.
Johnson, 363 S.C. 53, 58-59, 609 S.E.2d 520, 523 (2005) (citation omitted). "A
party need not use the exact name of a legal doctrine in order to preserve it, but it
must be clear that the argument has been presented on that ground." State v.
Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003). Because Washington
never argued to the trial court that inclusion of the statements/questions by
Detective McCauley improperly shifted the burden, I would find this issue
unpreserved.

Even if the issues were preserved, I believe admission of Detective McCauley's
statements constitutes harmless error in light of the other overwhelming evidence
of Washington's guilt including the fingerprint evidence showing he had been
inside the dwelling, the pawn tickets showing he was in possession of the stolen
items on the day of the burglary, and his assertion of a spurious alibi. See Brewer,
411 S.C. at 408-09, 768 S.E.2d at 660 (holding the error in the admission of
evidence in regards to certain charges was harmless in view of the overwhelming
evidence of the defendant's guilt); State v. Johnson, 298 S.C. 496, 499, 381 S.E.2d
732, 733 (1989) ("The admission of improper evidence is harmless whe[n] it is
merely cumulative to other evidence."); State v. Mitchell, 286 S.C. 572, 573, 336
S.E.2d 150, 151 (1985) ("Error is 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))).

Further, in its opening and closing statements, the State acknowledged that it bore
the entire burden to prove Washington guilty. The trial court issued similar
admonishments in its jury charge.

Therefore, I would find the trial court did not abuse its discretion in admitting
Detective McCauley's statements and would affirm Washington's convictions.