State v. Kirby

• Decision Date: 23 December 1996
• Docket Number: No. 2609,2609
• Citation: 481 S.E.2d 150,325 S.C. 390
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Wayne Gary KIRBY, Appellant. Opinion

Page 150

481 S.E.2d 150

325 S.C. 390

The STATE, Respondent, v. Wayne Gary KIRBY, Appellant.

Opinion No. 2609.

Court of Appeals of South Carolina.

Submitted Dec. 3, 1996.

Decided Dec. 23, 1996.

Deputy Chief Attorney Joseph L. Savitz, III, of S.C. Office of Appellate Defense, Columbia, for Appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Columbia; and Solicitor Joseph J. Watson, Greenville, for Respondent.

ANDERSON, Judge:

Wayne Gary Kirby appeals his convictions for trafficking in heroin and possession of a firearm during the commission of a violent crime. Kirby contends the trial judge erred in allowing a police officer to testify, over counsel's hearsay objection, about a dispatcher's call, and in refusing to charge unlawful carrying of a pistol as a lesser included offense of possession of a weapon during the commission of a violent crime. We affirm. ¹

FACTS/PROCEDURAL BACKGROUND

On March 3, 1995, Greenville police officers received a radio message to be on the lookout for a Chrysler New Yorker with South Carolina tag number KBB 875, in The police followed the two vehicles; at one intersection, the Chrysler turned one direction while the red car tried to prevent the officers from following. When one of the officers drove around the red car and started following the Chrysler, the red car attempted to collide with the officer. The Chrysler continued to drive away, but was eventually stopped by other officers. As the police approached the stopped Chrysler, a passenger got out and ran away. Kirby, the driver, was removed from the vehicle. Officers stated Kirby appeared "very nervous" and he was "shaking pretty violently."

which several black males were purportedly traveling with a large quantity of drugs, as well as guns and ammunition. Approximately ten minutes after the alert was issued, the police located the Chrysler parked on the street. No one was in the car. The police immediately began surveillance and thereafter the officers observed several people come out of a house and quickly get into the Chrysler and a red car that was parked nearby.

During a pat-down search, the police found a semi-automatic handgun in Kirby's waistband and several clips loaded with ammunition in his back pocket. Kirby was arrested for unlawful possession of the gun. While searching the car, the police discovered a plastic bag containing 150 individual packages of heroin under the driver's seat. The total weight of the drugs was 7.75 grams.

A jury convicted Kirby of trafficking in heroin and possession of a firearm during the commission of a violent crime. He was sentenced to 25 years in prison and a fine of $100,000 for trafficking in heroin, and 5 years, concurrent, for possession of a firearm during the commission of a violent crime. Kirby appeals.

ISSUES

(1) Did the trial judge err by allowing a police officer to testify about information radioed by a dispatcher on the basis the testimony was hearsay?

(2) Did the trial judge err by refusing to instruct the jury on unlawful carrying of a pistol as a lesser included offense of possession of a firearm during the commission of a violent crime?

LAW/ANALYSIS

1. TESTIMONY BY POLICE OFFICER ABOUT DISPATCHER'S CALL.

Kirby contends the trial judge erred by allowing Lieutenant Gary S. McGlocklin of the Greenville Police Department to testify about information radioed to him by a police dispatcher. Kirby contends the testimony was inadmissible hearsay. We disagree.

On direct examination, Lt. McGlocklin stated he and another officer were in a parking lot on Church Street, across from the intersection of Judson and Springer Streets, when a police dispatcher notified him to be on the lookout for a particular vehicle in that area. The solicitor asked the officer what information did he receive regarding the vehicle, and defense counsel promptly objected on the basis of hearsay. The trial judge overruled the objection, and Lt. McGlocklin proceeded to testify as follows:

The information that ... came across the police radio was that a 1995 Chrysler New Yorker bearing a South Carolina tag KBB 875 was at the intersection of Judson and Springer and the intersection was across Church Street but it's down an embankment. You can't--it could just barely be seen from where we were and we had already pulled up Church Street aways [sic] and that vehicle was supposedly there, occupied by several black males. It was supposed to have a large amount of drugs in the car and firearms and clips of ammunitions [sic].

In United States v. Love, 767 F.2d 1052 (4th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 849, 88 L.Ed.2d 890 (1986), the Fourth Circuit rejected the argument that a DEA agent's testimony about the circumstances leading up to an investigation was hearsay, stating:

In this case, [the agent's] testimony was offered not for its truth but only to explain why the officers and agents made the preparations that they did in anticipation of the appellants' arrest. As such, it was Id. at 1063-64.

not inadmissible hearsay. See United States v. Mancillas, 580 F.2d 1301 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978) ("Whether or not the ... statement was true, the fact that it was made would surely explain the flurry of investigative activity in three states the jury was soon to hear about. For this purpose, outlining the background of the investigation with the evidence not being offered to prove its truth, it could be said not to be nonadmissible as hearsay." (citations omitted)).

In State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994), our Supreme Court considered Brown's allegation that testimony by two police officers about receiving information before establishing a surveillance, receiving complaints while in the neighborhood, and being "familiar with" the neighborhood was inadmissible hearsay. The Court examined the applicability of the hearsay rule to testimony concerning police investigations in light of United States v. Love, supra:

Evidence is not hearsay unless it is an out of court statement offered to prove the truth of the matter asserted. State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991), cert. denied, 502 U.S. 1103, 112 S.Ct. 1193, 117 L.Ed.2d 434 (1992). Additionally, an out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken. United States v. Love, 767 F.2d 1052 (1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 849, 88 L.Ed.2d 890 (1986). Here, these statements were not entered for their truth but rather to explain why the officers began their surveillance. These statements are not hearsay and, therefore, the trial judge committed no error in allowing these statements into evidence.

Id. at 63, 451 S.E.2d at 894.

In several recent cases, we have held testimony concerning why an investigation or surveillance was undertaken was admissible. See, e.g., State v. Green, 318 S.C. 426, 458 S.E.2d 73 (Ct.App.1995) (in drug prosecution, testimony that officers were in the neighborhood where defendant was found because the officers had received complaints from residents concerning drug activity was not hearsay; the complaints were offered to explain why the officers were in the area stopping individuals and asking them for identification, not for the truth of the matter asserted). In State v. Johnson, 318 S.C. 194, 456 S.E.2d 442 (Ct.App.1995), we held that testimony referring to the area where the defendant's alleged drug transaction took place as a "high drug traffic area" was admissible as relevant evidence explaining why law enforcement was in that particular area, despite counsel's objection that the State was using the prior crimes of others to imply the defendant must also be a drug dealer. We stated:

Evidence explaining why law enforcement is in a particular area has been held to be relevant information for the jury to consider. State v. Davis, 309 S.C. 56, 419 S.E.2d 820 (Ct.App.1992). In a recent case challenging similar testimony on the grounds of hearsay, our Supreme Court held that such testimony was "not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken." State v. Brown, , 451 S.E.2d 888 (1994) (citing United States v. Love, 767 F.2d 1052 (4th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 890 (1986)). Inferentially, the court recognized such testimony as relevant and admissible.

Id. at 197, 456 S.E.2d at 444.

In State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991), cert. denied, 502 U.S. 1103, 112 S.Ct. 1193, 117 L.Ed.2d 434 (1992), our Supreme Court considered Sims's argument that the arresting officer's testimony should have been excluded as hearsay. The arresting officer testified that when he arrived at the scene, a woman met him and said, "He has a gun," and "He's going to kill my sister," speaking of Sims. The officer further testified that as he approached Sims, Sims reached toward his pocket, and the officer had to forcibly restrain Sims's hand while he retrieved a gun from Sims's pocket. The Court there stated:

Here, the officer's testimony was not hearsay as it was not offered to prove that Sims intended to kill the woman in question.

Rather, the evidence was offered to explain the officer's actions in restraining Sims when he reached towards his pocket. The evidence was not hearsay and was properly admissible.

Id. at 420, 405 S.E.2d at 383.

Kirby argues the testimony in his case is similar to that found objectionable in State v. Pollard, 260 S.C. 457, 196 S.E.2d 839 (1973) in which an officer testified, over objection, that he signed an arrest warrant for Pollard and several other persons based on "information received in the investigation" of the case. The Court ruled the testimony was...