State v. Ward

PER CURIAM:

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Maurice Ward,       
Appellant.

Appeal From Horry County

Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2003-UP-736

Submitted October 6, 2003 – Filed December 16, 2003

AFFIRMED

Chief Attorney Daniel T. Stacey, of Columbia, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
of Columbia; John Gregory Hembree, of Conway; for Respondent(s).

BEATTY, J.:       Maurice Ward appeals from
his conviction for second-degree burglary and possession of a stolen automobile.
He appeals the trial court’s denial of his motion for mistrial as the result
of the solicitor’s closing argument.  Additionally, he appeals the admission
of alleged hearsay testimony.  We affirm.

FACTS

William Anderson, a Havoline Fast Lube manager,
responded to an alarm notice from the shop’s security system in the early morning
hours of July 8, 2001.  Arriving at the shop, Anderson observed an unfamiliar
Dodge pickup truck in the parking lot.  Anderson also noticed a broken window
in the back door; heard the sound of glass breaking from inside the store; and
witnessed a black male standing inside.

The man was approximately five foot ten inches
tall and wore dark pants with a multi-colored shirt.  Anderson contacted the
police.  The black male exited the shop and disappeared into bushes near a grocery
store. 

Upon arriving at the scene, the responding police
officer consulted with Anderson and inspected the Dodge truck.  The officer
then walked towards the grocery store in the direction Anderson saw the suspect
flee.  While walking toward the vegetation, the officer observed an individual
matching the suspect’s description “laying down . . . attempting not to be seen.” 
Anderson heard the officer order the individual to “put his hands up.”  Anderson
later testified the same individual he earlier saw in the store then ran across
the road. 

The officer captured the individual, identified
as Ward, arrested and Mirandized him.  The officer testified Ward admitted
to breaking into the store to obtain money for drugs.  Ward also stated, according
to the police officer, that he borrowed the car from someone in Myrtle Beach. 

Ward did not testify at trial nor did he put up
a defense beyond cross-examining the State’s witnesses. 

During closing the Solicitor stated to the jury:

Now during the course of her
cross-examinition [the defense attorney] started talking about some stuff. 
She started asking about Police Officer Holt and she must have said Police Officer
Holt’s name six or seven times and he’s not here.  Well, although the Defendant
has no requirement – and I’m not suggesting otherwise to put up any proof –
certainly they can call witnesses the same as State.  They have the same powers
we do.

The defense objected, stating “[c]learly we have
no burden to call any people . . . ”  The judge sustained the objection and
assured Ward that he would “properly instruct the jury as to the law.” 

The court, in its jury charge, referenced Ward’s
constitutional right to remain silent.  It did not, however, advise the jury
that Ward was not obligated to call witnesses.  Following the judge’s instructions
to the jury, Ward’s counsel moved for a mistrial stating that the solicitor,
during closing remarks, improperly shifted the burden of proof to the defendant.
The court denied Ward’s motion for mistrial stating he had given proper instructions
to the jury and that he had properly counseled the solicitor about the comments. 

The jury found Ward guilty of 2nd degree
burglary.  Ward appeals.

ISSUES

1.                
Did the court err in denying Ward’s motion for mistrial and failing to issue
adequate curative instructions regarding the state’s closing argument?

2.                
Did the trial court err in permitting hearsay, which bolstered the victim’s
identification of Ward?

LAW/ANALYSIS

“The decision to grant or deny a motion for a mistrial
is within the sound discretion of the trial judge and will not be overturned
on appeal absent an abuse of discretion amounting to an error of law.”  State
v. Patterson, 337 S.C. 215, 226, 522 S.E.2d 845, 851 (Ct.App. 1999).  “A
mistrial should only be granted in cases of manifest necessity and with the
greatest caution for very plain and obvious reasons.”  Id. at 227, 522
S.E.2d at 851.  The moving party has the burden to show not only error, but
resulting prejudice.  Id.

A.              
  Solicitor’s Closing Comments

I.  Issue Preservation

The State argues the issue
of the propriety of the solicitor’s comments is not preserved for review because
Ward failed to make a contemporaneous motion for a mistrial.  We disagree.

Ward argues the trial court
erred by failing to grant a mistrial or issue a curative instruction specifically
tailored to the solicitor’s comment.  Additionally, Ward argues the trial court’s
failure to do so prejudiced him by impermissibly shifting the burden of proof. 
The State disagrees and initially attacks Ward’s position by arguing the issue
is not preserved for appellate review.

It is clear from the record
that defense counsel objected at the time of the solicitor’s comments.  The
court sustained the objection, counseled the solicitor not to make any comments
on impermissible subjects, and assured defense counsel that he would later properly
instruct the jury.

After charging the jury
on Ward’s right not to testify, defense counsel noted the court failed to instruct
the jury that Ward was not obligated to call witnesses on his behalf.  Counsel
then moved for a mistrial noting the burden shifting aspect of the solicitor’s
comments.  The court denied the motion.

Since “a trial court's curative instruction is
considered to cure any error regarding improper testimony, a party must contemporaneously
object to a curative instruction as insufficient or move for a mistrial to preserve
an issue for review.”  Patterson, 337 S.C. at 226, 522 S.E.2d at 850. 
Counsel’s motion for a mistrial following the court’s charging of the jury preserved
the issue of solicitor’s comments for our review.

II.  Mistrial Motion

Ward argues the trial judge should have granted
a mistrial as the solicitor’s closing argument shifted the burden of proof to
Ward.  The State does not assert the solicitor’s comments were permissible.
[1]   Instead, the State argues the trial court properly denied Ward’s motion
for a mistrial because the comments were not prejudicial.  We agree.

The determination of whether an error is harmless
depends on the circumstances of the particular case.  State v. Reeves,
301 S.C. 191, 193, 391 S.E.2d 241, 243 (1990).  The materiality and prejudicial
character of the error must be determined from its relationship to the entire
case.  State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985).  

“[W]here a review of the entire record establishes
the error is harmless beyond a reasonable doubt, the conviction should not be
reversed.”  State v. Pickens, 320 S.C. 528, 531, 466 S.E.2d 364, 366
(1996).  An appellate court may consider a variety of factors to determine whether
a solicitor’s reference to a defendant’s failure to call witnesses on his behalf
is harmless.   These factors include:  1) whether the reference was one which
was not later repeated or alluded to; 2) whether the solicitor tied the defendant’s
silence directly to his exculpatory story; 3) whether defendant’s exculpatory
story was totally implausible; and 4) whether there was overwhelming evidence
of defendant’s guilt.  Id.

Here, the solicitor’s reference
was singular in nature and was neither repeated nor alluded to during the trial. 
Neither was the solicitor’s comments tied directly to Ward’s exculpatory story. 
The solicitor’s remarks related to defense counsel’s cross-examination questions
dealing with the State’s failure to call witnesses to link Ward to the crime
such as forensic or crime scene experts.

Ward’s theory of the case
was that his confession was not voluntary and that he was simply in the wrong
place at the wrong time.  Ward attempted to bolster this defense by questioning
the State’s failure to call witnesses to corroborate Anderson’s eyewitness description
with forensic evidence, such as fingerprints, to place him inside of the store.

We find harmless error based
on State v. Primus and State v. Pickens, supra.  In Primus,
our state Supreme Court did not conduct a review applying each specific Pickens
factor to determine whether any error was harmless.  Instead, the Court focused
exclusively on whether there was overwhelming evidence of guilt. 

As in Primus, this
case hinged on the identity of the perpetrator and whether the accused could
be linked directly to the crime.  Although the State did not present any physical
evidence placing Ward in the store, we believe there was an overwhelming amount
of evidence with which to convict him. 

Ward fit the general description
of the man Anderson saw inside of the store.  When Anderson saw a man fleeing
from the police who matched that description, Anderson testified he had no doubt
it was the same man he saw inside the store.  That man was Ward. 

Importantly Ward confessed
to the crime.  Although the defense attempted to discredit that confession as
involuntary there is nothing in the record to conclude the confession was not
voluntary. 

Ward’s attempt to discredit
the confession relies almost exclusively on the argument that the officer’s
testimony concerning the confession should not be trusted because it was not
audio or videotaped.  Neither failure, we believe, undermines the trustworthiness
of the confession.  Further, whether the officer’s testimony concerning the
confession was trustworthy is a jury question.

“The granting of the motion for a mistrial is an
extreme measure which should be taken only where an incident is so grievous
that prejudicial effect can be removed in no other way.”  Patterson,
337 S.C. at 227, 522 at 851.  After considering Pickens and Primus
we find no prejudice to Ward.  Therefore, the trial court did not err in denying
the mistrial motion. 

B.              
Hearsay

During the solicitor’s questioning of Officer Parker, the following

testimony was elicited:

Q:      Now do you recall Mr. Anderson making an indication relative to
your arrest of the defendant?

A:      Yes.  As we walked him back to the vehicle from the cut down area
Officer Olsen was in closer proximity and had relayed tome that Mr. Anderson
positively identified him.

Ward’s Attorney:      Objection, hearsay.

Court:    Yes, ma’am.  Solicitor, please rephrase your question, please.

Solicitor (continuing) Q:  To your knowledge was an identification made by
Mr. Anderson relative to the person you had arrested?

Ward’s Attorney:      Objection.

A:      Yes

Court:    Ma’am, grounds?

Ward’s Attorney:      Hearsay.

Court:    I’ll allow it, thank you.

Ward argues that the court erred in permitting Officer Parker’s

testimony as it amounts to bolstering hearsay.  We disagree. 

“Hearsay is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.”  State v. Johnson, 324 S.C. 38, 42, 476 S.E.2d 681, 682-683
(1996); Rule 801(c), SCRE.   “Evidence is not hearsay unless it is an out of
court statement offered to prove the truth of the matter asserted.”  State
v. Kirby, 325 S.C. 390, 394, 481 S.E.2d 150, 152 (Ct.App. 1996).

The question posed to Officer Parker was not objectionable
hearsay under our rules of evidence.  The officer answered, based on his own
personal knowledge, whether he knew Mr. Anderson had made an identification
relative to the person arrested.  Trial counsel did not query Mr. Anderson as
to the source of his information.  Anderson’s testimony was not hearsay as it
was not an out of court statement, other than one made by the declarant, offered
to prove the truth of any matter asserted.  Further, even if the testimony was
hearsay and its admission error, the error was clearly harmless as Ward admitted
to the arresting officer that he committed the crime for which he was charged.

For the foregoing reasons, the ruling of the trial
court is

AFFIRMED.

GOOLSBY and HUFF, JJ., concur.

[1]    “[W]hen the accused neither testifies nor offers
any witnesses, it is error for the solicitor to comment upon the defendant's
failure to call witnesses on his behalf.”  State v. Primus, 349 S.C.
576, 584, 564 S.E.2d 103, 107 (2002).