THIS
OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Alti Monte Livingston
Haskell, Appellant.
Appeal From Abbeville County
Roger L. Couch, Circuit Court Judge
Unpublished Opinion No. 2009-UP-165
Heard November 6, 2008 Filed April 13,
2009
AFFIRMED
Appellate Defender Kathrine H. Hudgins, of the South Carolina
Commission on Indigent Defense, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior
Assistant Attorney General Harold M. Coombs, Jr., Office of the Attorney
General, all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for
Respondent.
WILLIAMS, J.: In this criminal case, Alti Monte
Livingston Haskell (Haskell) appeals the trial court's decision to admit evidence over an objection of hearsay and its
decision not to grant a mistrial. We affirm.
FACTS
Haskell and his co-defendant Clarence Harrison (Harrison) were
tried for the shooting of Roderick Gartrell (Victim). On February 10, 2004,
Torey Brown (Brown) picked up Victim in Georgia and drove him to Abbeville,
South Carolina. While in Abbeville, Brown and Victim visited Harrison and
Brown's girlfriend, Kytraundra Cole (Cole). Cole resided in the Hickory
Heights apartment complex, which is known as the Village.
Shortly after Brown and Victim arrived at Cole's apartment, Brown
left and went to the store while Victim walked through the Village. Along the
way, Victim encountered Harrison. According to Victim, Harrison suggested they
go to Cole's apartment and wait there for Brown to return from the store. As
Victim approached Cole's apartment, an individual wearing a white bandanna,
which covered the individual's face from the nose down, jumped from nearby
bushes and said, "Give it up." Victim was shot in the mouth before
he could respond.
Detective
John Smith (Detective Smith) began investigating Haskell based upon Brown's
statements that Victim
implicated Haskell as the shooter. Due to his apparent involvement in the
shooting, Haskell was indicted for assault and battery with intent to kill,
attempted armed robbery, and possession of a weapon during the commission of a
violent crime. Haskell and co-defendant
Harrison were tried together. Haskell was found guilty on all charges and sentenced to an aggregate term
of twenty years imprisonment. This appeal followed.
LAW/ANALYSIS
On
appeal, Haskell argues the trial court erred in the following ways: (1)
refusing to suppress Detective Smith's testimony that Brown stated Victim said
Haskell was the shooter; (2) failing to grant a mistrial when Victim testified
the co-defendant had just been released from jail; and (3) failing to grant a
mistrial when Cole testified the solicitor told her, prior to her testimony
before the jury, that she could not assert her Fifth Amendment[1] right against self-incrimination.
I. Detective Smith's
testimony
During Harrison's
cross-examination of Detective Smith, the latter testified that Brown stated
Victim said Haskell was the shooter. Haskell objected to this testimony on the
ground of hearsay. Harrison argued Detective Smith's testimony was not hearsay
because it was not being offered to prove the truth
of the matter asserted. Rather, Harrison contended, the testimony was
being offered to show Detective Smith began investigating Haskell based upon
Brown's statements. The trial court allowed the testimony.
An appellate court is bound by the trial court's factual findings
unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 5-6,
545 S.E.2d 827, 829 (2001). The
admission of evidence is within the sound discretion of the trial court. State
v. Pittman, 373 S.C. 527, 577, 647 S.E.2d 144, 170 (2007). To constitute
an abuse of discretion, the conclusions of the trial court must lack
evidentiary support or be controlled by an error of law. Id.
Additionally, improper admission of hearsay testimony constitutes
reversible error only when the admission causes prejudice. State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985).
Hearsay is an out of court statement offered to prove the
truth of the matter asserted in the statement. Rule 801(c), SCRE. The rule
against hearsay prohibits the admission of an out of court statement to prove
the truth of the matter asserted unless an exception applies. Rule 802, SCRE.
However, an out of court statement is not hearsay if it is offered to explain
why a government investigation was undertaken. State v. Brown, 317 S.C.
55, 63, 451 S.E.2d 888, 894 (1994).
In the present
case, Detective Smith's testimony regarding Brown's statements explained the
basis for Detective Smith's investigation of Haskell and Harrison.
Specifically, Detective Smith was asked, "And [Brown's statements were] a
basis for you making the case?" Detective Smith replied, "That was
the first step." Detective Smith further testified he believed Brown when
Brown implicated Haskell. Thus, Detective Smith's testimony does not
constitute hearsay, and therefore, the trial court did not commit reversible
error by admitting it. See id. (holding police officers'
testimony regarding complaints they had received prior to establishing surveillance
of defendant's residence was nonhearsay because it was admitted to explain why
officers began their surveillance); see also Webb v. Elrod, 308
S.C. 445, 449, 418 S.E.2d 559, 562 (Ct. App. 1992) ("Proof of a statement
introduced for the purpose of showing a party relied and acted upon it is not
objectionable on the ground of hearsay.").
Furthermore, the statements relate to Haskell's character and do
not constitute hearsay. German v. State, 325 S.C. 25, 28, 478 S.E.2d
687, 688 (1996).[2]
In German, the petitioner had been convicted of a drug offense. Id.
at 27, 478 S.E.2d at 688. During the trial, an undercover agent testified he
received several tips that the petitioner was distributing or selling drugs. Id.
These statements specifically referred to the petitioner and not to drug
activity in general. Id. The South Carolina Supreme Court explicitly
stated that the statements were not objectionable as hearsay but were comments
on the petitioner's character. Id. at 28, 478 S.E.2d at 688. Likewise,
Detective Smith's testimony that Brown
stated Victim said Haskell was the shooter was not
objectionable on hearsay grounds. See also Rhodes v. State,
349 S.C. 25, 31, 561 S.E.2d 606, 609 (2002) (holding testimony from the
victim's friend that he gave the victim a yearbook with the defendant's picture
in it because the friend had heard rumors that the
defendant was involved in shooting "a guy and a girl" was not
objectionable on hearsay grounds but was
character evidence).
II. Mistrial based on Victim's
testimony
During cross-examination by the State, Victim was asked why he had
visited Abbeville. Victim responded, "Oh because . . . Brown, me and . .
. . [Harrison] were friends for a long time, and I think [Harrison] had just
got out of jail, or [Brown], or someone." Harrison made a motion for a
mistrial, and Haskell joined in the motion. The trial court denied this motion
but issued a curative instruction.
The decision to grant or deny a mistrial is within the sound discretion of the trial court. State v. White, 371
S.C. 439, 443-44, 639 S.E.2d 160, 162-63 (Ct. App. 2006). The trial court's
decision will not be overturned on appeal absent an abuse of discretion
amounting to an error of law. Id. South Carolina courts favor the
exercise of wide discretion of the trial
court in determining the merits of such a motion in each individual case. Id. It is only in cases in which there is an abuse of discretion resulting in
prejudice to the defendant that this Court will intervene and grant a new
trial. Id.
A manifest necessity must exist for the trial court to discharge
the jury and declare a mistrial. Id. However, the trial court is left
to determine, in its discretion, whether, under all the circumstances of each
case, such necessity exists. Id. The mistrial should be granted only
if there is a manifest necessity or the ends of public justice are served. Id. The trial court should first exhaust other methods to cure possible prejudice
before declaring a mistrial. Id.
In this case, even if it is assumed the trial court's
decision not to declare a mistrial was an abuse of discretion, Haskell cannot
show resulting prejudice. Victim testified that he thought Harrison, Brown, or
someone else was released from jail. Victim made no mention of Haskell. Thus,
the jury was not told Haskell was recently released from jail. Consequently,
assuming Victim's testimony did result in prejudice to Harrison or Brown by
painting them as criminals, this prejudice did not carry over to Haskell
because his name was never mentioned.
Additionally, the
trial court gave a curative instruction to the jury by striking Victim's answer
and ordering the jury not to consider it "in any fashion when reaching a
verdict . . . ." It is well established that a curative instruction to the jury to disregard incompetent evidence and not to
consider it during deliberation is deemed to cure any alleged error in its
admission, even in criminal cases. Id. at 445, 639 S.E.2d at 163.
In the present
case, the trial court's curative instruction was sufficient to cure Victim's
vague statement that he believed Harrison, Brown, or some other individual had
gotten out of jail. Thus, the trial court's decision not to declare a mistrial
was not reversible error.
III. Mistrial based on
Cole's Fifth Amendment right
Prior
to Cole's testimony, and while the trial court was in recess, Cole got the solicitor's
attention as the solicitor was walking into court. Cole informed the solicitor
she did not wish to testify and asked if it was possible for her not to
testify. In this context, Cole asked the solicitor whether she could invoke
her Fifth Amendment right against self-incrimination. Apparently, the
solicitor did not address Cole's question regarding her Fifth Amendment right
but told Cole she would be called to testify.[3]
These facts came to light after Cole had testified. Harrison moved for a mistrial,
and Haskell joined in the motion. The trial court denied this motion.
As explained above, the decision to grant or deny a mistrial is
within the sound discretion of the trial court, and it is only in cases in
which there is an abuse of discretion resulting in prejudice to the defendant
that this Court will intervene and grant a new trial. Id. at 443-44,
639 S.E.2d at 162-63.
Haskell argues the trial court should have granted his mistrial
motion because Cole erroneously believed she could not assert her Fifth
Amendment right. Haskell contends he was prejudiced because Cole had provided
a statement to an officer prior to her testimony and she was precluded from
providing truthful testimony at the trial, which may have contradicted her
earlier statement to the police, due to her belief that she could not assert
her Fifth Amendment right.
The Fifth Amendment protects an individual against being
involuntarily called as a witness against herself in a criminal prosecution. State
v. Hook, 348 S.C. 401, 415, 559 S.E.2d 856, 863 (Ct. App. 2001). The Fifth
Amendment also allows an individual to refuse to answer questions when the
answer will tend to subject the person to criminal responsibility. Id.
In the present case, Cole wished to exercise her Fifth Amendment
protection solely because she did not want to be involved in the trial. When
asked by the solicitor, "And at that time you communicated to me that you
didn't want to testify" outside the presence of the jury, Cole responded, "Yes."
The solicitor also posed the following question, "And you really never
have wanted anything to do with [the trial] have you?" Cole responded, "No
sir." Thus, the basis for Cole's hesitation to provide testimony at trial
was her desire not to take part in the trial.
The Fifth Amendment does not operate to provide blanket protection
to those individuals who would prefer not to participate in a case. See McCarthy v. Arnstein, 266 U.S. 34, 40 (1924) ("[T]he privilege
[against self-incrimination] . . . applies . . . wherever the answer might tend to
subject to criminal responsibility him
who gives it."). Additionally, if potential witnesses could claim Fifth
Amendment protection because of a desire to avoid testifying, it would be
tremendously difficult to conduct trials. The trial court's denial of the
motion for mistrial was proper.
CONCLUSION
Accordingly,
the trial court's decision is
AFFIRMED.
GEATHERS,
J., concurs in result only in a separate opinion.
PIEPER,
J., dissenting in a separate opinion.
GEATHERS,
J.: I concur in the result of the
instant case because I believe we are bound by the Supreme Court's decision in State
v. Brown, 317 S.C. 55, 63, 451 S.E.2d 888, 894 (1994) (out of court
statement is not hearsay if it is offered to explain why a government
investigation was undertaken).
PIEPER,
J.: I respectfully dissent. I
believe the statement at issue was inadmissible hearsay. In my opinion, the
offered explanation as to why the investigation was undertaken was not at issue
in this case and would improperly expand the use of this otherwise narrow
application of the law. Moreover, I do not find the evidence was character
evidence. Accordingly, because the evidence as to the identity of the shooter
was extremely weak, I would not find the error was harmless beyond a reasonable
doubt and would reverse.
[1] The Fifth Amendment to the United States Constitution
states in relevant part, "No person shall be .
. . compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend.
V.
[2] In German, our Supreme Court concluded it had
erroneously decided the case of State v. Pollard, 260 S.C. 457, 196
S.E.2d 839 (1973). In Pollard, a police officer was permitted to
testify regarding information he had received from other persons, which led to
the defendant's arrest. Pollard, 260 S.C. at 460, 196 S.E.2d 840. The
police officer testified, in effect, that he had "received information
from some other source or witnesses as the basis for his signing the warrant
[for the defendant]." Id. Our Supreme Court reversed the
conviction and ordered a new trial, holding: "The testimony of the
officer, that he signed the warrant upon the basis of information received from
witnesses who did not testify, was clearly hearsay and inadmissible." Id.
However, in German our Supreme Court held that Pollard was
incorrectly decided and the statements were not objectionable as hearsay but
were objectionable as improper comments on the defendant's character. German, 325 S.C. at 28
n.2, 478 S.E.2d at 688 n.2.
[3] According to Cole, the solicitor told her she could
not invoke the Fifth Amendment right against self-incrimination. According to
the solicitor, he did not address Cole's question regarding her Fifth Amendment
right. The trial court found the solicitor's testimony more credible than
Cole's testimony.