State v. Williams

• Decision Date: 23 January 1985
• Docket Number: No. 0416,0416
• Citation: 331 S.E.2d 354,285 S.C. 544
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Lee M. WILLIAMS, Appellant. . Heard

Page 354

331 S.E.2d 354

285 S.C. 544

The STATE, Respondent, v. Lee M. WILLIAMS, Appellant.

No. 0416.

Court of Appeals of South Carolina.

Heard Jan. 23, 1985.

Decided March 12, 1985.

Deputy Appellate Defender William Isaac Diggs, of S.C. Com'n of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Carolyn M. Adams, Columbia, and Sol. William B. Traxler, Jr., Greenville, for respondent.

SANDERS, Chief Judge:

Appellant Lee M. Williams appeals his conviction for armed robbery, arguing that he is entitled to a new trial because the trial judge erred in allowing certain testimony. We reverse and remand.

I THE EVIDENCE

The evidence contained in the record before us can be summarized as follows:

A female employee of an apartment complex testified that a man wearing an "army coat" with a stocking cap over his face walked into the rental office of the complex and pointed a rifle at her. She went on to testify that the man threw a pink pocketbook on her desk and, in a soft, "feminine" voice with a "New York" accent, commanded her to put the office money in it. The employee said she put approximately $1,400 in the pocketbook, and the man fled with it. The employee further testified that the man's voice was familiar to her as that of a black man who had been in the office before, and she said she had told an investigating police officer "a name to place with the voice." She also said she had previously spoken to Williams in the office, but she did not say she told the police officer Williams' name. Finally, she identified a pocketbook and a rifle presented to her by the solicitor as being those used in the robbery.

A police officer testified that Williams had an army coat in his possession when he was arrested. The officer identified a coat as being the one Williams had at that time. He went on to testify that he had gone to the rental office following the robbery and was handed the pocketbook identified by the employee in her testimony. The officer further testified that he had gone to the place where Williams' wife was employed and had spoken to her. The solicitor then asked him these critical questions, receiving the answers indicated:

Q. And did you take that pocketbook with you to show to her?

A. Yes, I did.

Q. Could she identify that pocketbook?

At this point, Williams' lawyer objected to the question. After hearing arguments of counsel, the trial judge overruled the objection and the officer answered by saying:

A. Yes, she positively identified that pocketbook.

The State then closed its case, presenting no further evidence.

In our opinion, the admission of this testimony was in violation of the rule against hearsay and the Confrontation Clauses of both the United States and South Carolina Constitutions.

II THE RULE AGAINST HEARSAY

The rule against hearsay prohibits the admission of testimony (or written evidence) of a statement made out of court, offered in court to prove the truth of the matter asserted, unless an exception to the rule is applicable. Player v. Thompson, 259 S.C. 600, 193 S.E.2d 531 (1972), citing, C. McCormick, Law of Evidence § 225 (1954). The reasons for excluding hearsay are succinctly set out in Jones v. Charleston & W.C. Ry. Co., 144 S.C. 212, 142 S.E. 516 (1928). ¹

In our opinion, the testimony of the police officer was hearsay. Even if Mrs. Williams communicated her identification of the pocketbook to him in some way other than by actually saying she had some knowledge of it, her identification would nonetheless be a "statement" within the meaning of the term hearsay, and it does not matter that there was no direct quotation of any words used by her. Wordless conduct, such as a nod of the head or pointed finger, may be hearsay if it is intended as a communication. Where words are used, no direct quotation of the words is necessary. J. Dreher, A Guide to Evidence Law in South Carolina 63 (1967). Cf., State v. Corn, 215 S.C. 166, 54 S.E.2d 559 (1949); State v. Pollard, 260 S.C. 457, 196 S.E.2d 839 (1973) (cases hereafter discussed in greater detail involving unquoted general statements). Mrs. Williams' identification of the pocketbook was obviously made "out of court." It is equally obvious that the police officer's testimony of her identification was offered "in court."

The State does not argue that any exception to the rule against hearsay is applicable here. Instead, the State argues that the testimony as to Mrs. Williams' having identified the pocketbook was not hearsay because it "does not constitute a declaration offered to prove the truth of the matter asserted; rather it was admissible to show (she) made an utterance." In support of its argument, the State cites State v. Tabory, 260 S.C. 355, 196 S.E.2d 111 (1973), and Player v. Thompson, 193 S.E.2d 531. We reject this argument.

In Tabory, a defendant was convicted of possession of marijuana after having been arrested while a passenger in a truck containing a substantial quantity of the drug. There was evidence of his prior knowledge of the marijuana. At trial, a prosecution witness was allowed to testify that the driver of the truck had said, in the defendant's presence, that the van was empty. On appeal the defendant argued that admission of the testimony violated the rule against hearsay. The Supreme Court affirmed the defendant's conviction, holding that the testimony of what the driver had said was properly admitted, not to prove the truth of the matter asserted (i.e., that the truck was empty), but "as evidence of the utterance."

In Player, a passenger in an automobile sued three defendants for injuries received in an accident alleged to have been caused by the automobile having defective tires. There was evidence that the tires were defective when examined after the accident. The plaintiff further alleged that two of the defendants had knowledge of the defective tires before the accident occurred. Prior to suit, one of the defendants gave a sworn statement that she had overheard a conversation which had taken place before the accident between a filling station attendant and another defendant. In her statement, she said the filling station attendant had told the other defendant that the tires were defective. At trial, the plaintiff's lawyer attempted to examine the defendant about the conversation described in her statement, in an effort to show both she and the other defendant had notice of the defective tires before the accident. The trial judge sustained an objection on the ground of the rule against hearsay. The Supreme Court reversed a verdict for the defendants, holding that testimony of what the filling station attendant had said should have been admitted, not to prove the truth of the matter asserted (i.e., that the tires were defective), but as evidence that the two defendants had knowledge of the defective tires before the accident. ²

Unlike the testimony in Tabory and Player, the testimony in the instant case was offered to prove the truth of the matter asserted (i.e., that Mrs. Williams had some knowledge of the pocketbook). The solicitor, in arguing for the admissibility of her testimony, suggested no other purpose. It is of no consequence that Mrs. Williams is not quoted as saying exactly what her knowledge of the pocketbook was or how she came to have knowledge of it. While it is possible her knowledge of the pocketbook could have come from some source entirely unrelated to her husband (e.g., her having seen it in the possession of someone else), the testimony that she had identified it was obviously intended to imply he had some connection with it and, thus, the robbery. It is obvious that the testimony could not have been offered for any other purpose relevant to the case. The mere fact that Mrs. Williams made an "utterance" obviously had no relevance to any issue in the case. We therefore find the cases of Tabory and Player, cited by the State, distinguishable on their facts from the instant case.

On the other hand, we find factual situations analagous to this case in State v Corn, 54 S.E.2d 559, and State v. Pollard, 196 S.E.2d 839 (decided two months after Tabory ).

In Corn, the defendant was convicted of murder. There was evidence the murder victim had been shot and killed in the warehouse portion of his place of business and his body then carried some distance away and dumped in a creek, where it was later found floating. The trial judge allowed a policeman to testify he had fired a gun in the warehouse and thereafter could find no one in the neighborhood who had heard the shots. The purpose of the testimony was apparently to prove the shooting could have taken place in the warehouse without the neighbors' having heard it. The Supreme Court reversed the conviction, holding that the testimony violated the rule against hearsay. The Court reasoned that allowing the testimony was the equivalent of permitting the police officer to testify that people in the neighborhood had told him they did not hear the shots.

In Pollard, the defendant was convicted of armed robbery. The victim of the robbery identified the defendant in his testimony. The trial judge allowed a police officer to testify that he signed the warrant for the defendant's arrest "from information he received in the investigation (of the case)." The Supreme Court reversed the conviction, holding the testimony was "clearly hearsay."

Like the testimony in the instant case, the police officers' testimony in Corn and Pollard amounted to their saying what they had been told outside of court and, even though they did not testify as to exactly what had been said, their testimony had no purpose other than to prove the truth of the matters asserted.

The State argues further that, even if the testimony was hearsay, Williams was not prejudiced by it because "the record contains independent and overwhelming evidence of guilt." We also reject this argument.

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