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2007-UP-540 - State v. Thompson

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.

Paul H. Thompson, Appellant.


Appeal From Union County
 Steven H. John, Circuit Court Judge


Unpublished Opinion No. 2007-UP-540
Submitted November 1, 2007 – Filed November 29, 2007


AFFIRMED


Appellate Defender Eleanor Duffy Cleary of the South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, of Columbia; and Solicitor Kevin S. Brackett, of York; for Respondent.

__________

PER CURIAM:  Appellant, Paul Thompson, was indicted for and convicted of intimidation of court officials, witnesses, or jurors in violation of South Carolina Code Ann. § 16-9-340.[1]  He appeals, asserting the trial court erred in admitting inadmissible hearsay evidence from one witness to bolster the testimony of another witness, which was the basis of the prosecution.  We affirm.[2]

FACTUAL/PROCEDURAL BACKGROUND

This case arose from a telephone conversation between Thompson and Chief Sam White, the Chief of Public Safety for the City of Union.  Chief White testified that around three-thirty in the afternoon on Tuesday, March 15, 2005, he returned to his office and found a voice mail message had been left for him by Thompson telling the Chief who he was and leaving a phone number.  Chief White had known Thompson about twenty-five years and recognized his voice on the message. 

Chief White called the number and spoke with Thompson, who asked if the Chief was aware of Thompson’s daughter’s situation.  The Chief told Thompson he knew Thompson’s daughter had been in court that day, but he was unaware of the sentence she received.  Thompson relayed he was upset because his daughter was just a drug user, not a seller, but that the people who were selling drugs never were caught.  Chief White talked with Thompson some about his daughter’s case, after which Thompson made the statement that he had been in the military for thirty-eight years, and told the Chief that he was trained as a sniper.  Thompson discussed that the police did not catch the pushers, but only the users of drugs, and that he knew where they were and he was going to take care of them.  Thompson brought up his military training and asked the Chief if he knew what it meant that people referred to him as “one-shot.”  Chief White told Thompson he could not take the law into his hands and shoot someone.  Thereafter, the focus of Thompson’s conversation changed from the drug dealers.  Thompson told Chief White that if they were having court the next day, “it would be best if [Chief White] didn’t go.”  The Chief asked Thompson what he was talking about and Thompson replied that “what happened in Atlanta will look like a picnic,” and he was “telling [Chief White] as a friend,” that if they were having court the next day it would be best if the Chief did not attend.  Chief White explained that several court personnel had been killed in an Atlanta courtroom that previous Friday.  Toward the end of the conversation, Thompson told the Chief, “I’m telling you as a friend, don’t go to court tomorrow if they have it,” and he then hung up the phone. 

Chief White testified Thompson sounded as if he had been drinking, and seemed irritated and upset.  Knowing that Thompson was a gun dealer, Chief White feared for the safety of people at the courthouse.  After dropping off some money at City Hall, the Chief went to the Sheriff’s Office and told Sheriff Howard Wells about the conversation he had with Thompson. 

Sheriff Wells testified that he is responsible for, among other things, security of the Union County Courthouse.  General Sessions Court was being held there the week of March 14, 2005, with Judge Westbrook presiding.  On Tuesday of that week, the court was taking guilty pleas and, after a break for lunch, bond hearings and more guilty pleas were scheduled.  Shortly after 4:00 p.m., as court was proceeding with these matters, Chief White came to Sheriff Wells’ office.  The Sheriff testified, “Around four, four ten on the afternoon of Tuesday, March the 15th, Sam White the Public Safety Chief came to my office and told me that he had had a disturbing telephone call --.”  Defense counsel then stated, “Objection, your Honor, as to hearsay.”  The trial court overruled the objection, stating simply, “I’m going to allow it.  Thank you very much.  Please proceed.”  Sheriff Wells then testified that Chief White came to his office around 4:10 p.m. and informed him he had received a call from Thompson, which Chief White returned.  Sheriff Wells stated, “The substance of that telephone conversation gave him some concern and he was relating to me what had been said.”  The solicitor then asked whether the “subject of the conversation was . . . reflected in the Chief’s testimony” that he had just heard.  The Sheriff responded, “That’s correct.” 

The Sheriff then went on to testify to the steps he took to ensure the security for the Courthouse Complex as a result of Chief White’s report.  Specifically, Sheriff Wells informed Judge Westbrook of the threat directed toward the court.  His office obtained a warrant against Thompson, and put a plan in action to neutralize the threat.  If Thompson could be located and taken into custody in time, court would proceed the next day.  If, however, they were unable to timely take Thompson into custody, he would notify Judge Westbrook and the courthouse would be shut down the following day. 

Thompson was subsequently located, taken into custody, and booked into the jail around 6:20 that evening.  However, the Sheriff testified they were still on heightened alert that next day, and because of Thompson’s actions, the court effectively shut down the afternoon of the phone call, with no other matters being handled by the court that day.  Further, because Judge Westbrook was the sentencing judge in the case of Thompson’s daughter, they provided security for the judge, and he and his law clerk did not leave Union County until Judge Westbrook was notified that Thompson was in custody. 

LAW/ANALYSIS

On appeal, Thompson contends the trial court erred in permitting inadmissible hearsay testimony by Sheriff Wells to bolster Chief White’s testimony about Thompson’s statements, these statements being the basis of Thompson’s prosecution.  Thompson argues the testimony by Sheriff Wells, that Chief White relayed the same information to him that Chief White testified to at trial, constituted an out-of-court statement offered to prove the truth of the matter asserted which is prohibited by Rule 801, SCRE.  Thompson further maintains these statements constituted a prior consistent statement which did not qualify as non-hearsay pursuant to Rule 801(d)(1)(B), SCRE.  Thompson asserts the admission of the improper bolstering testimony was prejudicial because it allowed the jury to hear two witnesses against him.

We first note that Thompson never raised below the specific arguments he makes on appeal.  He never argued to the trial court that Sheriff Wells’ testimony bolstered Chief White’s testimony, nor did he assert that the testimony of Sheriff Wells constituted a prior consistent statement that was inadmissible under the rules.  Thus, these arguments are not preserved for review.  See State v. Johnson, 363 S.C. 53, 58-59, 609 S.E.2d 520, 523 (2005) (To preserve an issue for appellate review there must be a contemporaneous objection that is ruled upon by the trial court and the objection should be addressed to the trial court in a sufficiently specific manner that brings attention to the exact error.  If a party fails to properly object, he is procedurally barred from raising the issue on appeal.); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) (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.).

Turning to the specific objection Thompson did make, which was the simple statement of “hearsay,” it is notable that the objection was made prior to Sheriff Wells’ testimony regarding the content of Chief White’s statement.  The Sheriff testified Chief White reported to him “He had a disturbing telephone call,” at which point defense counsel objected and the court overruled the objection.  When the Sheriff continued his answer, he explained that the telephone conversation was with Thompson, the substance of the conversation gave Chief White some concern and that the Chief related to the Sheriff what had been said.  Sheriff Wells did not, at that point, testify as to what exactly Chief White relayed to him.  It is this testimony, along with the Sheriff’s response to the question asked of whether the subject of Thompson’s conversation with the Chief was reflected in Chief White’s testimony, that Thompson apparently complains of on appeal.  However, Thompson made no objection to these questions or responses at trial.

At any rate, assuming that Thompson’s single “hearsay” objection was sufficient to constitute an objection to the line of questioning regarding what Chief White relayed to Sheriff Wells, we find no error.  First, Sheriff Wells did not testify, as Thompson maintains, that “Chief White relayed to him the same information to which he had testified at trial.”  Sheriff Wells merely stated the Chief “relat[ed] to [him] what had been said” and that the subject of the conversation was reflected in Chief White’s testimony.  Rule 801(c), SCRE, provides, “‘Hearsay’ is 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.” A statement is defined as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.”  Rule 801(a), SCRE.  There was no oral or written assertion or nonverbal conduct testified to by the Sheriff and therefore the testimony complained of does not qualify as a statement under the rule. 

Further, even if the complained of testimony did amount to a statement, it was not a statement used to prove the truth of the matter asserted.  See State v. Weaver, 361 S.C. 73, 86-87, 602 S.E.2d 786, 792-93 (Ct. App. 2004), aff’d as modified, 374 S.C. 313, 649 S.E.2d 479 (2007) (finding no error in the admission of evidence because testimony did not constitute hearsay where officer never repeated statements made to him by individuals at the crime scene, but testified only to the conclusions he made based on what his investigation had revealed and testimony was offered to explain part of his investigation); State v. Thompson, 352 S.C. 552, 558, 559, 575 S.E.2d 77, 81 (Ct. App. 2003) (finding testimony concerning a statement from a bystander to the police was not hearsay because it was not offered to prove the truth of the matter asserted but rather to explain and outline the investigation and the officer’s reason for going to the defendant’s home); State v. Kirby, 325 S.C. 390, 396, 481 S.E.2d 150, 153 (Ct. App. 1996) (concluding testimony by police officer about dispatcher’s call informing of drugs and firearms in a car was not hearsay where offered to explain the reason for the initiation of police surveillance of the vehicle in question); State v. Brown, 317 S.C. 55, 63, 451 S.E.2d 888, 894 (1994) (holding an out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken).  Here, the testimony was offered to explain the reason behind the actions Sheriff Wells was required to take.  Accordingly, we conclude this testimony was not hearsay and was properly admitted to explain the necessity of the actions Sheriff Wells took to secure the safety of Judge Westbrook and the courthouse.

Finally, even if the Sheriff’s testimony constituted inadmissible hearsay, the admission was harmless.  Chief White testified as to the conversation he had with Thompson and that he reported this conversation to Sheriff Wells.  Thus, the Sheriff’s testimony that Chief White related what had been said in his conversation with Thompson and that the subject of Chief White’s conversation with Sheriff Wells was reflected in the Chief’s testimony is merely cumulative to Chief White’s testimony.  See State v. Haselden, 353 S.C. 190, 197, 577 S.E.2d 445, 448-49 (2003) (any error in admission of evidence cumulative to other unobjected-to evidence is harmless); State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (improper admission of hearsay evidence is reversible error only when the admission causes prejudice).

For the foregoing reasons, Thompson’s conviction is

AFFIRMED.

HUFF and PIEPER, JJ., and GOOLSBY, AJ., concur.


[1]This code section provides in pertinent part:

(A) It is unlawful for a person by threat or force to:

(1) intimidate or impede a judge, magistrate, juror, witness, or potential juror or witness, arbiter, commissioner, or member of any commission of this State or any other official of any court, in the discharge of his duty as such;  or

(2) destroy, impede, or attempt to obstruct or impede the administration of justice in any court.

S.C. Code Ann. § 16-9-340 (2003).

[2]We decide this case without oral argument pursuant to Rule 215, SCACR.