State v. Plyler

• Decision Date: 08 September 1980
• Docket Number: No. 21297,21297
• Citation: 270 S.E.2d 126,275 S.C. 291
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Harry Allen PLYLER, Appellant.

Page 126

270 S.E.2d 126

275 S.C. 291

The STATE, Respondent, v. Harry Allen PLYLER, Appellant.

No. 21297.

Supreme Court of South Carolina.

Sept. 8, 1980.

G. Ross Anderson, Jr., of Anderson & Epps, Anderson, for appellant.

Asst. Attys. Gen. Brian P. Gibbes and Sally G. Young, Columbia, and Sol. L. Henry Raines, Anderson, for respondent.

LEWIS, Chief Justice:

The appellant was found guilty of murder and sentenced to life imprisonment. His appeal alleges numerous trial errors. We affirm. The facts are primarily undisputed.

On the night in question, appellant's ex-wife and the victim, her sister, left their mutual place of employment and by separate cars traveled to their mother's home. After a brief visit, the victim proceeded home, which was only a short distance away. The ex-wife then telephoned her sister. The victim was alone at the time of this conversation. During the conversation, the victim excused herself to answer a knock at the door. Because the receiver of the phone was placed on the couch approximately sixteen feet from the front door, the ex-wife overheard the resulting conversation and recognized the voice of her former husband. Several gunshots were heard. The ex-wife rushed to her sister's residence and found her sister unconscious and shot several times. The victim never regained consciousness. The gun was never found.

A neighbor from across the street indicated that she observed a car stop in front of the victim's house. The passenger, whom she could identify only as wearing pants, exited the car and the vehicle left. The passenger trotted up to the front door and shortly thereafter, shots were heard. She then observed the passenger run away.

Initially, the appellant argues that the trial judge erred in admission of the ex-wife's recount of the conversation she overheard by virtue of the phone, because it constituted hearsay. We disagree.

The challenged evidence does not appear to have been offered for the substantive truth of the matter asserted, but rather to place appellant at the scene of the crime.

Since an early period, witnesses' testimony of identification of a person by having heard his voice has been regarded as legitimate and competent to establish identity in criminal and civil cases. 20 Am.Jur., Evidence, Section 351; See 29 Am.Jur.2d, Evidence, Section 381.

As such, the evidence is not subject to hearsay objection. State v. Rivers, 186 S.C. 221, 196 S.E. 6. Sufficient testimony as to recognition of the voice was given to warrant its admission. Cohen v. Standard Accident Insurance Company, 194 S.C. 533, 9 S.E.2d 222.

Regardless, the evidence is admissible for substantive proof. The witness identified the voice of the accused as a participant in the conversation. Because of this identification, the conversation falls within an exception to the hearsay rule. As a general rule, statements of declarations made by one accused of a crime are admissible against him. State v. Pittman, 137 S.C. 75, 92, 134 S.E. 514; 29 Am.Jur.2d, Evidence, Section 611; People v. Goodman, 159 Cal.App.2d 54, 323 P.2d 536.

After hearing the conversation and the ensuing shots, the ex-wife dropped the phone and exclaimed: "Harry (meaning the appellant) just shot Linda." Over objection, the trial judge allowed the ex-wife to testify as to this previous out-of-court declaration. Despite the appellant's contention otherwise, the judge's actions were proper.

While it is true such an admission is technically in violation of the traditional hearsay rule, we hold such evidence admissible. Because the declarant of the out-of-court assertions testified, the truth of the statements were not dependent on the credibility of individuals not present in the courtroom. Since the declarant was subjected to cross-examination, which is the very objective of the hearsay rule, exclusion of relevant evidence serves no purpose. See Patterson v. State, 263 Ind. 55, 324 N.E.2d 482; State v. Huggins, S.C., 269 S.E.2d 334, 1980.

The appellant also challenges as hearsay the admission of testimony of another witness present at the time which corroborates the aforementioned exclamation, and the testimony of the investigating officer who testified that the ex-wife had told him of her previous exclamation. We need not consider this contention since the statement was otherwise properly before the jury.

The prosecution elicited testimony concerning a verbal altercation between the victim and the appellant three days prior to the killing. In a non-responsive answer, the witness additionally indicated that there had been prior bad blood between the two. Upon objection and motion from defense counsel for a mistrial, the trial judge ordered the remark concerning bad blood stricken from the record and instructed the jury to disregard the comment. The motion for a mistrial was denied. The appellant now asserts these rulings were trial error and entitled him to relief. We do not agree.

Evidence of previous difficulties or ill feelings between the accused and the victim and of facts showing the cause of such difficulties or ill will is admissible on the question of motives where there is some connection of cause and effect between the evidence and the crime. 40 C.J.S., Homicide, Section 228.

The challenged evidence tends to show motive on the part of the accused and is not so remote in time as to negate its probative value. As such, it is admissible as a circumstance bearing on the identity of the accused as the perpetrator of the crime. See State v. Thomas, 159 S.C. 76, 156 S.E. 169.

The defendant challenges the admission of testimony concerning a prior incident in which the defendant shot himself.

On direct examination, the appellant indicated that he did not have any pistols. After confirming his statement as to never having owned a pistol, the prosecution, in order to disprove the...