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2009-UP-165 - State v. Haskell
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Unpublished Opinion No.  2009-UP-165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.