Heard: June 4, 2014.
[Copyrighted Material Omitted]
Appeal From Orangeburg County. Appellate Case No. 2012-211961. Edgar W. Dickson, Circuit Court Judge.
Breen Richard Stevens, of Orangeburg, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General John Croom Colvin Hunter, both of Columbia, for Respondent.
HUFF, J. PIEPER, J., concurs in result only. HUFF, J. THOMAS, J. concurs in the result.
[409 S.C. 425] HUFF, J.
Henry Haygood was convicted of criminal domestic violence (CDV) in magistrate's court. Upon appeal to the circuit court, [409 S.C. 426] his conviction was affirmed. We reverse and remand for a new trial.
Haygood appeared before Magistrate Samuel A. Daily for a bench trial on the charge of CDV. The State presented Lieutenant Lacra Jenkins as its only witness, while Haygood presented no evidence at his trial. According to the magistrate's return, Lt. Jenkins " testified as to what took place during his initial investigation, after he responded to an alleged CDV call" on March 31, 2008. The return indicates the lieutenant testified as follows:
Upon arrival he stated that the victim[,] Towanna Haygood[,] was very upset. During his investigation he stated that the alleged victim, Towanna Haygood[,] stated to him that her husband beg[a]n fighting her in the bedroom and he stated to her that he was going to kill her. Lt. Jenkins then testified that Mrs. Haygood stated that Mr. Haygood went to the bedroom closet and retrieved a brown in color shotgun and that her 14 [year-old] son struggle[d] with him to take the shotgun away from him. Mrs. Haygood then told him that Mr. Haygood reached in his pants pocket where he keeps a small handgun at times. She then grabbed his pants pocket causing some small bullets to fall to the floor. She stated to him that Mr. Haygood then went outside the resident but came back and punch[ed] a hole in the bedroom closet. Lt. Jenkins stated that when he arrived on the scene he observed Mr. Haygood being highly intoxicated. When he tried talking to him[,] he beg[a]n using profanity, stating that this was his house and that he would do anything he wishes. Lt. Jenkins further testified that Henry and Towanna Haygood were married at the time of the incident and ha[d] a child in common.
As to objections and rulings during the trial, the return indicates trial counsel objected to the State's " introduction of verbal statements made by the alleged victim to the investigating [409 S.C. 427] officer" that were " pertaining to allegations of what [Haygood] did on the date [in] question." It additionally notes the State took the position that the officer's duty, after being dispatched to an alleged CDV, " was to do an investigation of the incident and be prepared to testify as to the facts (during his investigation) at trial," and that the testimony in question qualified as an excited utterance. The magistrate overruled Haygood's objection, " agree[ing] with the State that in some criminal domestic violence [cases] the investigating officer of the alleged incident should be allowed to testify as to the finding of facts during his investigation." The magistrate found Haygood guilty of CDV and sentenced him to thirty days in jail or a fine of $2,130.00, suspended upon completion of a batterer's intervention program.
Haygood appealed his conviction to the circuit court on the ground that the introduction of the alleged verbal statements violated his Sixth Amendment right to confront witnesses against him pursuant to Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), arguing the alleged victim was not unavailable for trial and the defense had no opportunity to cross examine the victim such that it was error to admit the testimonial statements. In argument before the circuit court, trial counsel noted she had objected on the basis of Crawford to the State's attempt to introduce oral statements given by the victim though the officer. Counsel further recounted for the circuit court that the State had argued the information in the oral statement by the victim was an excited utterance and she again had objected to admission of the evidence before the magistrate based on Crawford, noting hearsay was not the issue. Trial counsel reiterated to the circuit court that the magistrate ruled the testimony of the officer was admissible as an excited utterance, but that was not her objection. Rather, her argument was based on Crawford, as the officer was eliciting testimony on statements made by the alleged victim and the alleged victim was not present for her to have an opportunity to cross-examine. Counsel asserted that, pursuant to Crawford, the State had the burden of proving a victim was unavailable and that the defendant had a previous opportunity to cross-examine the witness.
The solicitor agreed that this case turned on whether or not the statements were " testimony." However, he maintained [409 S.C. 428] the State disagreed that Crawford provided that excited utterances no longer qualified as exceptions to the rule against hearsay. He argued the magistrate decided the issue " based on whether or not the testimony the officer was giving was that of the testimony of variety," and the magistrate used the correct application of law in deeming it to be an excited utterance exception to hearsay and " not testimony." The solicitor further distinguished the matter at hand from Crawford on the basis that Crawford involved a recorded statement made during a police interrogation, whereas the statement in the case at hand was made to an officer arriving at the scene and was nontestimonial and qualified as an excited utterance. The solicitor argued, in this case, the magistrate heard testimony that the officer arrived shortly after the incident, weapons were involved, and the victim's child was involved, showing the victim was in an excited state. Thus, the solicitor maintained, " because the statement was taken immediately after the start of the event while [the declarant] was still under stress from the start of the event," the testimony met every element of an excited utterance.
The circuit court took the matter under advisement and thereafter issued an order denying Haygood's appeal. In its decision, the circuit court noted Haygood's appeal was based on the magistrate's admission of a statement by the victim which was testified to by the responding officer. The court then stated, " [Haygood] claims that this statement should be excluded based on the fact that it is hearsay." After evaluating the statement under Rule 803(2), SCRE, the circuit court found the statement qualified as an excited utterance and found it admissible as an exception to the rule against hearsay. The circuit court additionally found the matter at hand distinguishable from Crawford on the basis that case dealt with a recorded statement taken in a custodial interrogation. Further, it determined the United States Supreme Court (USSC) deemed the statement in Crawford inadmissible, not because it fell within the excited utterance hearsay exception, but because it bore a particularized guarantee of trustworthiness. The circuit court then concluded the statements testified to by Lt. Jenkins were admissible under the excited utterance exception [409 S.C. 429] and, because the statements fell within a long established exception to the rule against hearsay, their admission did not violate the Confrontation Clause. This appeal follows.
Whether Haygood's Sixth Amendment right to confrontation was violated by the admission of testimonial hearsay under the excited utterance exception without an opportunity
of cross-examination by the defense.
STANDARD OF REVIEW
" The admission or exclusion of evidence is a matter addressed to the sound discretion of the trial court and its ruling will not be disturbed in the absence of a manifest abuse of discretion accompanied by probable prejudice." State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48 (2006). " An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law." Id. at 429-30, 632 S.E.2d at 848.
Haygood contends the circuit court violated his right to confrontation when it found testimonial hearsay admissible under the excited utterance exception to the rule against hearsay. Haygood first asserts the circuit court erred in finding the testimonial statements made by the alleged victim to the police did not violate the Confrontation Clause because the statements fell within the excited utterance exception to hearsay. He argues, under Crawford, the statements were testimonial in nature, and while the statements were arguably given in excited utterance, because they were testimonial in nature they required a Sixth Amendment confrontation by the defense. Haygood also argues the circuit court erred in distinguishing this case from Crawford on the bases that the statement in Crawford (1) was taken in a custodial interrogation and (2) was not an excited utterance. Lastly, in response to the State's assertion that the issue is not preserved for appellate review, Haygood contends trial counsel presented the arguments to both the magistrate and the circuit court, and both improperly conflated counsel's Sixth Amendment [409 S.C. 430] argument with the excited utterance hearsay exception. Based upon the improper admission of the testimonial statements, Haygood requests this court reverse his conviction and remand the matter for a new trial. We find the issue is properly preserved for our review, and agree with Haygood that admission of the statements in question violated his constitutional right to confrontation, requiring reversal of his conviction.
" It is axiomatic that an issue cannot be raised for the first time on appeal." State v. Cope, 405 S.C. 317, 338-39, 748 S.E.2d 194, 205 (2013) (quoting Herron v. Century BMW, 395 S.C. 461, 465, 719 S.E.2d 640, 642 (2012)). " For an issue to be properly preserved it has to be raised to and ruled on by the trial court." State v. Jennings, 394 S.C. 473, 481, 716 S.E.2d 91, 95 (2011). An argument advanced on appeal but not raised and ruled on below is not preserved. State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005).
" Issue preservation rules are designed to give the trial court a fair opportunity to rule on the issues, and thus provide us with a platform for meaningful appellate review." Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) (quoting Queen's Grant II Horizontal Prop. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d 902, 919 (Ct. App. 2006)). " [T]his is not a 'gotcha' game aimed at embarrassing attorneys or harming litigants, but rather is an adherence to settled principles that serve an important function." Id. at 329-30, 730 S.E.2d at 285. Though our appellate courts should follow longstanding precedent and resolve an issue on preservation grounds when it " clearly is unpreserved," it is " good practice for us to reach the merits of an issue when error preservation is doubtful." Id. at 330, 730 S.E.2d at 285.
Although the magistrate's return does not specifically mention Crawford or the Confrontation Clause, the return does indicate trial counsel objected to the State's " introduction of verbal statements made by the victim to the investigating officer" that " pertain[ed] to allegations of what [Haygood] did on the date [in] question." Additionally, the return indicates the magistrate overruled Haygood's objection, " agree[ing] [409 S.C. 431] with the State that in some criminal domestic violence [cases] the investigating officer of the alleged incident should be allowed to testify as to the finding of facts during his investigation."
Thus, a review of the return shows the issue of whether Haygood's Sixth Amendment right to confrontation was violated by the admission of testimonial hearsay under the excited utterance exception without an opportunity of cross-examination by the defense is not " clearly . . . unpreserved." Id. Further, the colloquy between trial counsel, counsel for the State, and the circuit court judge during Haygood's appeal to the circuit court indicates this issue was in fact argued before the magistrate. Trial counsel explicitly stated to the circuit court that she informed the magistrate her objection was based on Crawford. The fact that trial counsel noted to the circuit court that the magistrate ruled the testimony was admissible as an excited utterance, in spite of the fact that hearsay was not her objection, is an indication that the magistrate believed the excited utterance exception to the hearsay rule was dispositive of trial counsel's Crawford argument. We do not agree, as the State propounds, that the argument before the circuit court shows Haygood conceded the magistrate never ruled on the Crawford objection. Rather, it simply indicates the magistrate overruled the Crawford objection, finding the excited utterance exception to be controlling. Additionally, the solicitor stated to the circuit court, " I agree that this case turns on what [trial counsel] spoke of, and that's specifically whether or not this [statement is] testimony. That's what Crawford speaks to." The solicitor also recounted for the circuit court that the magistrate " decided this issue of evidence based on whether or not the testimony the officer was giving was that of the testimony of variety," and the magistrate correctly determined the testimony was admissible as a hearsay exception, " an ...