The State v. Byers

• Decision Date: 23 May 2011
• Docket Number: No. 26976.,26976.
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent,v.Najjar De'Breece BYERS, Petitioner.

392 S.C. 438

710 S.E.2d 55

The STATE, Respondent,

v.Najjar De'Breece BYERS, Petitioner.

No. 26976.

Supreme Court of South Carolina.

Heard March 16, 2011.Decided May 23, 2011.

Robert A. Muckenfuss, of McGuire Woods, of Charlotte, for Petitioner.Attorney General Alan Wilson, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William Blitch, Jr., all of Columbia, and Solicitor Kevin Scott Brackett, of York, for Respondent.Chief Justice TOAL.

Najjar De‘Breece Byers (Petitioner) appeals the decision of the court of appeals upholding the circuit court's denial of Petitioner's motion to strike a witness's testimony. We reverse.

Facts/Procedural Background

On the evening of June 10, 2005, at approximately 10:10 p.m., the Fort Rock Bingo Hall, located in Rock Hill, South Carolina, was robbed at gunpoint. At approximately 11:15 p.m. that same evening, a Mecklenburg County police officer stopped a blue Nissan Altima in downtown Charlotte after noticing its occupants were not wearing seat belts. Petitioner was a passenger in this vehicle, along with William Crisco, Woodrow Thompson, and Jamie Harris. Thompson gave the officer consent to search the vehicle, and that search yielded a cash register till, two handguns, and two ski masks. The officer testified the local police department notified him that a police division near the South Carolina–North Carolina border was on the lookout for a blue vehicle occupied by four black males who committed an armed robbery where a cash till was taken. The officer arrested Petitioner, along with the other three passengers, in connection with the armed robbery reported in Rock Hill. According to the police report, Petitioner was the only sober passenger. Two of the passengers, Crisco and Thompson, pled guilty to the armed robbery charges. Thompson is Petitioner's cousin. Several witnesses testified that Petitioner did not know the other two passengers, Crisco and Harris.

The key issue in this case is whether or not Petitioner was a passenger in the vehicle at the time the robbery occurred. At trial, the State of South Carolina (State) presented the testimony of Crisco and Thompson. Crisco's testimony was somewhat contradictory. He testified he had been using cocaine and drinking alcohol since noon on the day of the robbery with Harris, so he had a foggy recollection of the events that occurred that day. In fact, Crisco was treated at the hospital for dehydration following his arrest. Crisco initially testified just he, Harris, and Thompson drove to Rock Hill and robbed the bingo hall. Shortly after making that statement, he testified that two people, whom he thought were Harris and Petitioner, stayed in the car while he and Thompson robbed the bingo hall; confirming there was “no question” there were four people in the car in Rock Hill. Defense counsel pointed out that on the night of his arrest Crisco told the investigator that only Harris and Thompson accompanied him to Rock Hill. When defense counsel pressed him about exactly who was in the car in Rock Hill, Crisco responded:

We all came, but the only ones that really had something to do with the robbery was me, Jamie, and Woodrow. We was the only ones that had something to do with the robbery, ‘cause Jamie knew about [the bingo hall], and me and Woodrow went in and done it.

When defense counsel asked Crisco whether he knew Petitioner, the following exchange took place:

Counsel: But you're testifying today after pleading guilty yesterday that that person was Najjar Byers?

Crisco: That's what they said in the motions that it was Najjar Byers.

Counsel: When you say that's what they said in the motions, what do you mean?

Crisco: In the motion of discovery. They had his name in it.

Counsel: Who had his name in it?

Crisco: The police and Woodrow Thompson. So I know [Woodrow] wasn't high on no drugs, so I know he know who he is.

Counsel: So what you're saying is the reason you think that was Najjar Byers is because that's what the police put in their report?

Crisco: Yes, sir; yes, sir.

Counsel: Your Honor, I would move to strike any of his testimony about Najjar Byers. He's been relying on the police report.

Court: Counsel, denied. That's not a proper motion. His testimony stands for itself.

Counsel: Okay. But you have no other independent recollection of Najjar Byers being in the car?

Crisco: No, sir.

The testimony of Thompson, Petitioner's cousin, was less than enlightening. Thompson refused to testify about any events that occurred in South Carolina. Thompson did state, however, that he drove around with his girlfriend in Charlotte earlier that day, but that Harris, Crisco, and Petitioner got in the car with him when it was getting dark. Thompson also confirmed he was arrested with the same people he had been riding with earlier that evening, and at the time the police officer stopped him, no one had gotten in or out of his car within at least the past fifteen minutes.

The investigator to the crime did not find any fingerprints linking Petitioner to the crime. The State presented three eye witnesses who worked at the bingo hall. Two of these witnesses were inside the bingo hall at the time of the robbery and both testified one man went behind the counter to take the cash till, while another man stood at the door. Neither witness could identify the men. The third witness testified he was outside the bingo hall parking cars and a man held a gun to his back and told him to get on his knees. Similarly, that witness could not identify the gunman.

Petitioner's mother (Ms. Johnson), father (Mr. Byers), and ex-girlfriend testified for Petitioner as alibi witnesses. Ms. Johnson stated she was at home with Petitioner until approximately 8:45 p.m. on the evening of his arrest when she left her home to visit her sister. She stated Petitioner and his girlfriend were at the house when she left. Ms. Johnson testified she spoke to Petitioner several times during the evening on his cell phone and, at approximately 9:30 p.m., Petitioner told her he was at his father's house. Petitioner's ex-girlfriend testified Petitioner left his home shortly after 9:00 p.m. She stated she did not know where he was going but he did not indicate he was going anywhere with Crisco, Harris, or Thompson. Mr. Byers testified he went to his girlfriend's house at approximately 9:45 that evening and Petitioner was waiting for him on the front porch. Mr. Byers testified he dropped Petitioner at a bar in downtown Charlotte around 10:00 p.m.

Defense counsel moved for a directed verdict after the State presented its case, and again after at the close of all the evidence. The circuit court judge denied both motions. The jury found Petitioner guilty of armed robbery and criminal conspiracy, but acquitted him on the charge of possession of a firearm during the commission of a violent crime. The circuit court judge sentenced Petitioner to concurrent terms of twelve years imprisonment for armed robbery and five years imprisonment for criminal conspiracy.

The court of appeals affirmed the circuit court in a Rule 220(b)(2), SCACR, per curiam opinion. This case is before the Court pursuant to Rule 242(a), SCACR.

Issues

I. Whether Petitioner's objection to the circuit court's admission of hearsay testimony was timely and specific.

II. Whether it was harmless error for the circuit court to admit certain hearsay testimony.

Standard of Review

“The admission or exclusion of evidence is left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion.” State v. Williams, 386 S.C. 503, 509, 690 S.E.2d 62, 65 (2010). “An abuse of discretion occurs when the trial court's ruling is based on an error of law.” State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000). To warrant reversal based on the wrongful admission of evidence, the complaining party must prove resulting prejudice. Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 480, 623 S.E.2d 373, 375 (2005). Prejudice occurs when there is reasonable probability the wrongly admitted evidence influenced the jury's verdict. Id.

Analysis

I. Whether Petitioner's Objection was Timely and Specific

Petitioner argues the motion to strike Crisco's hearsay testimony was timely and specific and therefore, preserved for review. We agree.

For an objection to be preserved for appellate review, the objection must be made at the time the evidence is presented, State v. Simpson, 325 S.C. 37, 42, 479 S.E.2d 57, 60 (1996), and with sufficient specificity to inform the circuit court judge of the point being urged by the objector, Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998). When a witness answers a question before an objection is made, the objecting party must make a motion to strike the answer to preserve the issue of that statement's admissibility. See State v. Saltz, 346 S.C. 114, 129, 551 S.E.2d 240, 248 (2001) (finding a motion to strike was unnecessary because the objection to the hearsay testimony had been overruled).

In this case, defense counsel motioned to strike Crisco's statement immediately after Crisco represented he was relying on a discovery motion to identify Petitioner. With the greatest respect for the learned opinion of the court of appeals, we do not understand the basis for its conclusion that counsel's motion to strike was not contemporaneously made.

In upholding the circuit court's decision to deny Petitioner's motion to strike, the court of appeals quoted the proposition from State v. Rice, “[u]nless an objection is made at the time the evidence is offered and a final ruling made, the issue is not preserved for review.” 375 S.C. 302, 322–23, 652 S.E.2d 409, 419 (App.2007). In that case, trial counsel motioned to strike certain testimony immediately after the witness made the alleged hearsay statement. Id. The court of appeals determined the objection was untimely by placing emphasis on the manner...