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2007-UP-551 - State v. Harris
PREHEARING REPORT

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.

Barrett Harris, Appellant.


Appeal From Spartanburg County
 Paul M. Burch, Circuit Court Judge


Unpublished Opinion No. 2007-UP-551
Submitted November 1, 2007 – Filed December 14, 2007


AFFIRMED


Deputy Chief Attorney for Capital Appeals Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Harold W. Gowdy, III, of Spartanburg; for Respondent.

PER CURIAM:  Barrett Harris (Harris) appeals his conviction for possession of crack cocaine with intent to distribute alleging the trial court committed reversible error by admitting a National Crime Information Center (NCIC) report into evidence.  We affirm.[1]

FACTS

On May 23, 2003, Officer Mixon Eldridge (Eldridge) drove his patrol vehicle to an apartment complex to investigate reports about illegal drug activity in the area.  Eldridge noticed an automobile parked in an area that was “not a normal parking space.”  He ran the license plate on the vehicle and it came back registered to Harris.  He also discovered that Harris had three active Greenville County warrants for failure to pay child support.

Eldridge then confronted Harris as he walked across the parking lot from the car.  Eldridge confirmed Harris’ identity and placed him under arrest pursuant to the outstanding family court warrants.

During this time another individual, Chris Bruton (Bruton), drove up and parked next to Eldridge’s vehicle.  Harris then asked if he could give Bruton some of his “items.”  Eldridge agreed to the transfer based upon his experience that it was not an unusual request when an arrest is made.  Eldridge then testified that Harris unzipped his pants, reached into his underwear, and handed Bruton a black object.  Eldridge further testified that he immediately grabbed Bruton’s hand and removed the object for his safety.   

The object was a film canister wrapped in black tape that contained twenty-eight rocks of crack cocaine weighing approximately four grams.  He also subsequently seized a police scanner and $329.67 in small denominations incident to arrest.    

STANDARD OF REVIEW

“In criminal cases, the appellate court sits to review errors of law only.” State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001); State v. Wood, 362 S.C. 520, 525, 608 S.E.2d 435, 438 (Ct. App. 2004). The admission or exclusion of evidence is left to the sound discretion of the trial judge. State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). A court's ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error, which results in prejudice to the defendant. State v. Edwards, 373 S.C. 230, 234, 644 S.E.2d 66, 68 (Ct. App. 2007). 

DISCUSSION

Harris alleges the trial court erred by allowing a paralegal from the solicitor’s office to “authenticate” a NCIC document purporting to show that the automobile Harris was driving, at the time of his arrest, was registered in his name consistent with officer Eldridge’s testimony.

Harris objected to the document on the ground that it was not properly authenticated because Regina Wray (Wray) “is not competent to attest to or authenticate this document.”  Rule 901(a), SCRE, requires that exhibits must be authenticated or identified as a condition precedent to admissibility.  This requirement is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims it to be.  Rule 901(b) (1), SCRE, also illustrates that testimony from a witness with knowledge can meet this threshold requirement.  Upon review of the record, we find that the document was properly authenticated.  Wray testified that she was “NCIC certified” and that state’s exhibit number 6 is the NCIC printout she pulled on her computer just 15 minutes prior to her testimony.  Accordingly, there was sufficient evidence to identify the document as being what the state purported it to be.

Aside from the issue of authentication, while not absolutely clear from the objection, an issue remains as to the hearsay nature of the information in an NCIC report.[2]  More specifically, this court has not addressed whether the exception to hearsay, Rule 803(6), SCRE, is inapplicable because the authenticating witness does not satisfy the “custodian or other qualified witness” requirement.  While there is no South Carolina jurisprudence specifically addressing the admissibility of NCIC reports, jurisdictions across the country have approached the topic with some degree of uniformity.  It is widely held that NCIC reports are hearsay.

Courts in other jurisdictions have likewise concluded that, whether or not NCIC information fits within any exception to the hearsay rule, such information is hearsay. See, e.g., United States v. Davis, 568 F.2d 514 (6th Cir.1978); United States v. Johnson, 413 F.2d 1396 (11th Cir. 1969) (noting that NCIC information was double hearsay in that witness testified as to what he learned from NCIC and NCIC in turn gathered information from other police departments); State v. Broussard, 819 So.2d 1141 (La. Ct. App. 2002); Sanders v. State, 786 So.2d 1078 (Miss. Ct. App. 2001); Dillingham v. Commonwealth, 995 S.W.2d 377 (Ky. 1999), cert. denied 528 U.S. 1166, 120 S.Ct. 1186, 145 L.Ed.2d 1092 (2000); State v. Underwood, 286 N.J.Super. 129, 668 A.2d 447 (1995); Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995) (approving trial court's refusal to admit NCIC printout where proponent failed to establish proper basis for admitting such under the business records exception), cert. denied 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996); Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986) (NCIC printout admissible hearsay when it fit within business records exception to the hearsay rule); State v. Buck, 670 S.W.2d 600 (Tenn. 1984) (stating that information in NCIC reports is pure hearsay of a dubious degree of accuracy, prepared for purposes other than court use, contains information that is likely to be prejudicial under all circumstances, and is not the best evidence of matters that can be proven by reliable, documentary evidence).

Vlietstra v. State, 800 N.E.2d 972, 975 (Ind. Ct. App. 2003). 

We agree with those jurisdictions that find that upon laying of a proper foundation, NCIC records may be admitted under the business records exception to the hearsay rule.  Therefore, we must discern whether Wray is a “qualified witness” under Rule 803(6), SCRE, so as to satisfy the hearsay exception.

South Carolina adopted §19-5-510 of the South Carolina Code, the Uniform Business Record as Evidence Act, prior to the promulgation of the South Carolina Rules of Evidence. The statute provides:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

S.C. Code Ann. § 19-5-510 (1976).

“This section gives the trial court control to exclude or require additional proof if the authenticity or trustworthiness of the business record is suspect.”  State v. Rice, 375 S.C. 302, 652 S.E.2d 409, 423 (Ct. App. 2007) (citing Kershaw County Dep't of Soc. Servs. v. McCaskill, 276 S.C. 360, 362, 278 S.E.2d 771, 773 (1981).  Rule 803(6), SCRE, states that:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible. The term “business” as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

A business record without a foundation about the manner in which it is prepared or the source of its information does not meet the requirements in either §19-5-510 or Rule 803(6), SCRE. See State v. Sarvis, 317 S.C. 102, 107, 450 S.E.2d 606, 609 (Ct. App. 1994); see also Connelly v. Wometco Enterprises, Inc., 314 S.C. 188, 191, 442 S.E.2d 204, 206 (Ct. App. 1994) (holding employment file, although relevant and otherwise admissible, was properly excluded from evidence where the employer failed to offer the file through its custodian or another qualifiedwitness); State v. McFarlane, 279 S.C. 327, 330, 306 S.E.2d 611, 613 (1983) (finding trial court properly refused to admit medical report when no one could testify to the identity, mode of preparation, or whether report was made in the regular course of business at or near the time of the accident).

Moreover, Rule 803(6) does not require the testifying witness to have personally participated in the creation of the document or to know who actually recorded the information. Midfirst Bank, SSB v. C.W. Haynes & Co., Inc., 893 F.Supp. 1304, 1311 (D.S.C. 1994) (citing United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985)). “Obviously, such a requirement would eviscerate the business records exception, since no document could be admitted unless the preparer (and possibly others involved in the information-gathering process) personally testified as to its creation.” Keplinger, 776 F.2d at 694. Rather, the business records exception requires the witness to be familiar with the recordkeeping system. Id. see also United States v. Hathaway, 798 F.2d 902, 906 (6th Cir.1986). The phrase “other qualified witness” should be broadly interpreted. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence § 803(6)[2], 196 -198 (1994).

Upon full consideration of the record on appeal, we find that Wray was not a “qualified witness” despite that term’s broad interpretation.  The record is devoid of any evidence as to what exactly “NCIC certified” signifies, and the only evidence of Wray’s knowledge about the NCIC recordkeeping process was her ability to run reports from her computer and her “understanding” that the information on the NCIC report comes from the Department of Motor Vehicles.  At least based on this record she quite simply seemed to lack the required familiarity with the recordkeeping system to establish a proper foundation for the admission of the business record.

However, even assuming the issue was properly preserved for appeal, the admission of the NCIC report was clearly cumulative and harmless.  Wray fully testified as to the contents of the printout before the motion was made to have it entered into evidence.  Specifically, she testified that it was a “tag check,” which she ran on license plate number 390-RFL that “came back to a 1983 BMW. . . . And it was registered to a Barrett Bernard Harris.”  Officer Eldridge also testified without objection that he ran a check of the plates on the BMW and the plates were registered to Harris, supplying the probable cause necessary for the original arrest.

Both Officer Eldridge and Wray testified as to the same information that was contained in the NCIC printout.  Moreover, there was never any contemporaneous objection made to Wray’s testimony.[3]  “[I]t is well settled that a contemporaneous objection must be made to preserve an argument for appellate review.”  Washington v. Whitaker, 317 S.C. 108, 114, 451 S.E.2d 894, 898 (1994). 

Accordingly, even if we were to determine that the trial court erred in allowing the printout to be admitted into evidence, such error would be harmless.  “Under settled principles, the admission of improper evidence is harmless where it is merely cumulative to other evidence.”  State v. Blackburn, 271 S.C. 324, 329, 247 S.E.2d 334, 337 (1978) (citing Long et al. v. Conroy et al., 246 S.C. 225, 143 S.E.2d 459 (1965); Marsh Plywood Corp. v. S. C. State Highway Dept. et al., 258 S.C. 119, 187 S.E.2d 515 (1972)).  The testimony of both officer Eldridge and Wray indicates that the vehicle was registered to Harris.  The  NCIC printout is merely cumulative.  The only evidence contrary to this position was offered by Harris’ mother Joanne Harris.  Ms. Harris testified that the vehicle was registered in her name, but that “he did most of the driving.”[4]  

Moreover, the issue to which the evidence was relevant was collateral in that it did not relate to one of the elements of the charge.  The document itself contained no new information that was not already admitted through witness testimony.  Any error in the admission of evidence which is cumulative to other evidence that was proffered without objection is harmless.  State v. Schumpert, 312 S.C. 502, 507, 435 S.E.2d 859, 862 (1993).  Error that is insubstantial and unlikely to affect the result of the trial is rarely sufficient to warrant reversal.  State v. Sherard, 303 S.C. 172, 176, 399 S.E.2d 595, 597 (1991).

CONCLUSION

After full consideration of the record on appeal, we find that any error by the trial court was harmless.  Accordingly, Harris’ conviction and sentence for possession of crack cocaine with intent to distribute is hereby

AFFIRMED.

HUFF and PIEPER, JJ., and GOOLSBY, A.J., concur


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

[2] While it is questionable whether Harris properly preserved the issue as it relates to the business records exception to hearsay, we nevertheless address the issue since we ultimately conclude that any error was harmless.  Generally, an objection must “be sufficiently specific to bring into focus the precise nature of the alleged error so that it can be reasonably understood by the trial judge.”  State v. Holliday, 333 S.C. 332, 338, 509 S.E.2d 280, 283 (Ct. App. 1998) (quoting McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 344, 479 S.E.2d 67, 75 (Ct. App. 1996)).

[3] While the record indicates a bench conference took place before the witness testified, the conference was not proffered for the record.  However, a complete reading of the record suggests that after the witness testified and the court was asked to admit the document, counsel indicated that it was subject to his earlier objection (which we assume occurred during the bench conference).  He offered an additional basis for the objection only after Wray testified; he asserted she was not qualified to attest to or authenticate the document.  Thus, the objection addressed only the document itself rather than the testimony.  That foundational objection should have been presented to the court prior to her testimony and was therefore untimely.

[4] At the conclusion of Wray’s testimony and following the admission of the NCIC report, the judge asked Ms. Harris why he should not hold her in contempt and send her to jail for lying about the name under which the car was registered.  Ms. Harris claimed that she did not deliberately mislead the court and that there was some confusion over whether her name was just on the insurance or was also on the car.  At sentencing, Mr. Harris told the judge “she didn’t own the car; it was the insurance.  The insurance was in her name, not the car.”  Her statement at trial was the only reason the NCIC report was offered into evidence and Mr. Harris claimed that she was just confused.  However, because Mr. Harris’ statement was made during the sentencing phase of his trial, it was not considered in addressing the merits of the issue before the court.