State v. LaCoste, No. 3383.

• Court: Court of Appeals of South Carolina
• Writing for the Court: HUFF, J.
• Citation: 347 S.C. 153,553 S.E.2d 464
• Parties: The STATE, Respondent, v. Jon Pierre LaCOSTE, Appellant.
• Decision Date: 04 September 2001
• Docket Number: No. 3383.

347 S.C. 153
553 S.E.2d 464

The STATE, Respondent,
v.
Jon Pierre LaCOSTE, Appellant

No. 3383.

Court of Appeals of South Carolina.

Heard June 6, 2001.

Decided September 4, 2001.

Rehearing Denied October 17, 2001.

Certiorari Granted February 25, 2002.

347 S.C. 156

Assistant Appellate Defender Robert M. Pachak, of SC Office of Appellate Defense, of Columbia, for appellant

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, Senior Assistant Attorney General Charles H. Richardson; and Solicitor Thomas E. Pope, of York, for respondent.

HUFF, J.:

Jon Pierre LaCoste was convicted of resisting arrest, disorderly conduct, and assault. He appeals, arguing the trial court erred in (1) refusing to grant a directed verdict on each of his indicted charges, (2) excluding certain hearsay statements, (3) refusing to give a full and complete charge on the right to resist an illegal arrest, and (4) charging simple assault as a lesser included offense of criminal domestic violence. We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

LaCoste was indicted on charges of criminal domestic violence (CDV), resisting arrest, and disorderly conduct following an incident at The Galleria Mall in York County. At trial, Joyce Giles testified she visited the mall on the afternoon of July 14, 1998. As she was leaving in her car, she noticed a man and a woman "hitting at each other." The man, whom she identified as LaCoste, "grabbed at [the woman]," who "jerked away," and began striking him with her purse. She believed LaCoste was trying to rob the woman and that the woman was attempting to get away from him. She was also concerned because LaCoste was considerably larger than the woman. LaCoste slapped at the woman, making contact seven or eight times. As the pair moved about the parking lot exchanging blows, Giles called 9-1-1. During the four to five minutes before the police arrived, the two continued "pushing and shoving each other."

Officer Jeremy McCloud of the Rock Hill Police Department testified he arrived at the mall in response to a possible domestic disturbance dispatch. As he approached, he noticed the man and woman in a verbal altercation which he immediately

347 S.C. 157

recognized as a possible domestic situation. LaCoste was flailing his arms about in an angry, almost hostile manner, while the woman stood in a "normal, ... defensive-type posture." When McCloud exited his patrol car, the woman retreated to an area behind him while the man continued to advance. McCloud told LaCoste to stop, to which the man threw his arms up in a hostile manner and replied, "for what." McCloud told him to "stop right there" and the man again replied, "for what." The officer then told LaCoste to stop because he was under arrest for criminal domestic violence. According to McCloud, LaCoste began cursing at him and stated he would not follow the officer's commands. After a continued verbal exchange where McCloud ordered him to stop and the man continued to refuse, McCloud prepared to pepper spray LaCoste and threatened to do so if he did not comply. LaCoste cursed the officer and told him to put the spray away. When sprayed, he pushed the officer away. The officer sprayed him again, but it appeared to have little effect on him

By this time, Officer Jeffrey Cornwell of the York County Sheriff's Department arrived to assist McCloud. LaCoste continued to resist and was sprayed by Officer Cornwell, again to no avail. He held his arms straight to avoid being handcuffed. The two officers held LaCoste on the hood of the car until additional units arrived and only then were they able to physically overpower him and handcuff him. Because he had been in an altercation with LaCoste, Officer McCloud did not personally conduct any interviews.

Giles testified she approached the woman after officers placed LaCoste in a police car. The woman said LaCoste was her husband, he was a karate expert, and she was afraid of him.

LaCoste and his wife testified in his defense. The couple had separated approximately two or three weeks prior to the incident and remained separated at the time of trial. They both testified Mrs. LaCoste came to the mall looking for her husband to discuss finances. LaCoste was at the mall buying shoes. Mrs. LaCoste, who was already upset, became angry when she saw LaCoste's girlfriend, Angela Ervin, who was working at the mall. Ervin saw Mrs. LaCoste and smirked at

347 S.C. 158

her. When LaCoste tried to prevent his wife from following Ervin out of the mall, she punched him in the face and slapped him several times, before following Ervin

Once outside the mall, Mrs. LaCoste checked to see if Ervin was inside LaCoste's car. Ervin was not inside, but Mrs. LaCoste grabbed a shopping cart and banged it into the car's headlights. She then began scratching the car with her keys. LaCoste pleaded with her to stop, telling her someone was going to see her and she might get arrested. She then turned the keys on LaCoste, lunging at him with the keys in one hand while swinging her purse at him with her other hand. After a while, he grabbed the keys from her and threw them to the ground. Mrs. LaCoste testified her husband never hit her.

About this time, Officer McCloud arrived. LaCoste testified he tried to explain the situation to the officer, but the officer would not listen. He testified that during the altercation with his wife, he asked a woman who was with a man in a military uniform to call the police and the woman then walked over to a telephone. He thus thought McCloud was there upon his request. LaCoste stated he did not comply with McCloud's requests that he put his arms behind his back to be handcuffed because he knew he had not done anything wrong.

The jury found LaCoste guilty on the indictments for resisting arrest and disorderly conduct. On the charge of criminal domestic violence, the jury found him guilty of simple assault, which the trial court submitted as a lesser included offense. The trial court sentenced him to one year imprisonment, suspended upon service of ninety days with one year of probation for resisting arrest, and thirty days imprisonment, suspended, with one year probation for the disorderly conduct and simple assault convictions. This appeal follows.

LAW/ANALYSIS

I. Statements of Unknown Declarants

LaCoste argues the trial court erred in refusing to admit certain hearsay statements made by two unknown bystanders, one male and one female, which corroborated his testimony. He contends the statements were admissible under the excited utterance exception. As to the male bystander, we agree.

347 S.C. 159

During cross-examination of Officer Cornwell, LaCoste asked about one male and one female bystander who were present during the arrest. Cornwell described the man as a white male wearing a Vietnam or V.F.W. hat. The man was "a little bit agitated," approached Cornwell, and tried to speak with him. When counsel asked Cornwell whether the man was trying to tell Cornwell what he had seen, the trial court sustained the State's hearsay objection. Cornwell did not take a statement from the man, but directed him to speak with the Rock Hill police officers. Cornwell then saw the man and woman walk over to a Rock Hill officer and speak with him.

The court held an in camera hearing upon LaCoste's request to determine the admissibility of any statements made by the unknown man and woman. During the hearing, Cornwell testified the man who approached him said LaCoste did not assault the lady (Mrs. LaCoste), he had done nothing wrong, and police should not be trying to handcuff him. He indicated LaCoste was in fact the victim of the woman's attack. Cornwell remembers the man was speaking and that he claimed to be a witness to the incident. However, Cornwell testified he did not know whether the man was in fact an eyewitness. About the woman, Cornwell testified he didn't recall her having much to say and stated, "I think she was there for the same purpose, but I didn't really get in a conversation with her." The trial court refused to admit the unknown man's statement because Cornwell was not able to verify the man was an eyewitness and, as such, the probative value of the statements was outweighed by the prejudice because the statements were unreliable. LaCoste was permitted, however, to elicit some testimony about the man and woman in the jury's presence. Cornwell testified he thought the man and woman were together, but he was not certain. Both were agitated and claimed to be witnesses, but the woman appeared less agitated than the man.

LaCoste also proffered the testimony of James Whiting, a mall security officer, concerning the two bystanders. Whiting testified he received a call that an officer needed help in the parking lot. When he reached the parking lot, he saw LaCoste in handcuffs and a number of police cars. He also saw an elderly man and lady who were "hollering," "He didn't do it. He didn't do it." The pair were upset, and said the

347 S.C. 160

woman (Mrs. LaCoste) was beating on the man (LaCoste). The court found the statements did fit within the excited utterance hearsay exception, but that they were unreliable in that Whiting could not testify that either or both of the declarants actually observed the events in question. Because the bystanders' identities and what they observed were unknown, the court held the probative value of the statements was outweighed by their prejudicial effect.

Rulings on the admissibility of evidence are within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of that discretion resulting in prejudice to the complaining party. State v. Hughey, 339 S.C. 439, 453, 529 S.E.2d 721, 728-29 (2000); State v. Varvil, 338 S.C. 335, 340, 526 S.E.2d 248, 251 (Ct.App.2000).

Hearsay is inadmissible except as provided by statute, the South Carolina Rules of...