Opinion
Opinion No. 4768.
Heard June 16, 2010.
Filed December 17, 2010.
Appeal From Abbeville County, Alexander S. Macaulay, Circuit Court Judge.
AFFIRMEDAppellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for Respondent.
On Monday December 8, 2003, Rita Bixby's son Steven Bixby shot and killed Abbeville County Sheriff's Deputy Danny Wilson and South Carolina Magistrate's Constable Donnie Ouzts. Steven Bixby's conviction and death sentence for the two murders have been affirmed by the Supreme Court of South Carolina. State v. Steven Bixby, 388 S.C. 528, 698 S.E.2d 572 (2010). The State charged Rita Bixby with accessory before the fact and criminal conspiracy in connection with both murders. She was tried and convicted on all counts in October 2007. The trial judge sentenced her to life in prison for accessory before the murders and five years for criminal conspiracy. On appeal, she contends the trial court committed error in admitting out of court statements made by Steven Bixby. She contends some of the statements were inadmissible hearsay, others should have been excluded under Rule 403, SCRE, and each of the statements violated her right of confrontation. Finally, she contends the judge failed to give adequate instructions limiting the jury's use of the statements. We affirm.
The State initially sought the death penalty against Rita Bixby. However the trial judge granted her motion to dismiss the State's notice of intent to seek the death penalty, and the supreme court affirmed.State v. Rita Bixby, 373 S.C. 74, 76, 644 S.E.2d 54, 55 (2007).
I. Facts
The supreme court described the facts surrounding these murders in detail in its opinion affirming Steven Bixby's death sentence.See Steven Bixby, 388 S.C. at 535-40, 698 S.E.2d at 576-78. We include here only those facts helpful to understanding the issues Rita Bixby has raised in this appeal.
Rita Bixby and her husband Arthur Bixby owned property and a home adjacent to South Carolina Highway 72 in Abbeville County where the South Carolina Department of Transportation had begun work on a project to widen the roadway. On Thursday, December 4, 2003, Department superintendent Glen McCaffrey and two other Department employees had an encounter with Rita, Arthur and Steven Bixby in which the Bixbys used threats of violence to convey their opposition to anyone entering their property to do any work. McCaffrey testified:
I asked Rita Bixby, Steven Bixby, and Arthur their issue . . . and why they did not want . . . us to continue our work. . . . Rita Bixby said, repeated herself over Steven and Arthur that nobody was to come on their property and do any work. She was very aggravated, cursing. . . . Rita Bixby said that the [right of way] plans were lies; that she and her family had been waiting for this moment; that nobody was coming on their property, if they did there would be hell to pay.
McCaffrey further testified that Rita Bixby was aggravated and was pointing her finger at them. She "repeatedly" told McCaffrey and the other Department employees "there would be hell to pay" and they were "going to fight till the last breath." Department inspector Dale Williams corroborated McCaffrey's testimony about the Thursday encounter. He described the Bixbys' demeanor as "very hostile" with a "lot of cursing, loud, threatening" and testified they were "threatening to kill us for trespassing." He also testified Rita Bixby was "most definitely" in charge of the meeting. When Williams told her the Department would get the Sheriff involved, Rita and Steven Bixby "both said that they would be trespassing too and they would shoot them too." Williams testified Steven Bixby said in his mother's presence that he had "quite a few" weapons inside their house. Because McCaffrey and Williams felt threatened, they went to the sheriff's department to report the situation.
On Friday, December 5, McCaffrey called the Bixbys to inform them that the State had owned a legal right of way over their property since 1960. Rita Bixby answered the telephone and began cursing. She refused to let McCaffrey talk with Arthur Bixby and demanded that McCaffrey come to the Bixby property to show her the information "now." McCaffrey and two other Department employees went to the Bixby property. Williams refused to go because he felt threatened after listening on the speakerphone to McCaffrey's conversation with Rita Bixby. When they arrived, McCaffrey and the others had another "heated discussion" with all three Bixbys for "approximately 30 minutes to an hour in the rain." Rita Bixby again stated they had been "waiting for this moment for a long time" and the information demonstrating the existence of the right of way "is lies." She repeatedly said "there would be hell to pay" and that they "wanted this moment." McCaffrey testified the Bixbys were cursing and shouting and that Rita and Steven Bixby were pointing fingers "right up close to our faces." When McCaffrey told the Bixbys that he went to see the sheriff's department, Rita Bixby said "the sheriff's department has no authority over them," and she continued to exclaim there "would be hell to pay" and said "they would fight till their last breath."
On Sunday, December 7, Steven Bixby stopped by a social gathering at the home of Alane Taylor. During separate conversations with Taylor and her daughter Dana Newton, Steven Bixby made numerous statements related to his family's property dispute with the Department. In addition to the two statements discussed in detail in Section II.A below, Steven Bixby's statements included the following:
• He "mentioned a dispute that had been going on between his parents and the Highway Department and Sheriff's Department over a problem they were having with land."
• He said he "was angry at law enforcement" and "something" about "shooting law enforcement."
• He said "there was supposed to be a meeting between Department of Transportation, the Sheriff's Department, and the Bixbys at the Bixby residence."
• He also said "tomorrow is the day," "we have the guns loaded," and "when the shooting starts I will come out alive."
Both Newton and Taylor called law enforcement after their respective conversations to report what Steven Bixby said.
On Monday, December 8, after meeting with McCaffrey, Williams and others, Deputy Wilson drove to the Bixbys' home. He parked in the Bixbys' front yard and walked to the front door. With no apparent warning, Steven Bixby shot him through the glass panes of the front door. Steven Bixby then dragged Deputy Wilson's dead body inside and waited for other officers to arrive. While he waited he called Rita Bixby, who was at Steven Bixby's apartment, to let her know the shooting had begun. According to their apparent plan, she then notified the Governor's and Attorney General's offices that "the trouble had started." When Constable Ouzts arrived a few minutes later, Steven Bixby shot him in the back and killed him. For twelve hours after the murders, Steven Bixby and his father remained in the house exchanging gunfire with officers. During this time, other officers arrested Rita Bixby. She refused to help diffuse the standoff at her home, saying: "Why would I want to help you? I wanted to be inside with them today."
II. Issue Preservation
A. Hearsay Objection to Steven Bixby's Oral Statements
Rita Bixby argues the trial court erred in admitting the testimony of Dana Newton and Alane Taylor. During a motion in limine hearing, Rita Bixby objected to their testimony on the basis of hearsay, challenging the admissibility of the statements made by Steven Bixby. After a lengthy hearing in which not one of Steven Bixby's individual statements was brought to the attention of the trial judge, the judge denied the motion. We find that her general hearsay objection failed to preserve the issue for appellate review.
When a party makes only a general objection to the entirety of a witness's testimony on the basis that the testimony will include hearsay, without specific objections to differentiate between those statements which are inadmissible and those which are admissible, the objection to the inadmissible statements is unpreserved for review if any of the statements are admissible. See Foster v. S.C. Dep't of Highways Pub. Transp., 306 S.C. 519, 523, 413 S.E.2d 31, 34 (1992) ("[W]here evidence is objected to in its entirety, some portion of which is admissible, such objection is not well taken, even though some portions of the evidence are in fact inadmissible."); see also 88 C.J.S.Trial § 229 (2001) ("A general objection to evidence . . . will not . . . avail if any part of the evidence objected to is admissible."). In this case, Rita Bixby's general hearsay challenge to the admissibility of Newton's and Taylor's testimony is not preserved because some of the specific statements they testified to were admissible, even though other statements might have been inadmissible.
Ordinarily, it would not be necessary to address the merits of an issue after finding the issue is unpreserved for review. In this case, however, the admissibility of some of the alleged hearsay is the circumstance that renders the issue unpreserved. Therefore, we must explain that at least some of Steven Bixby's statements were not hearsay. Rita Bixby's objection and argument focused the trial court's attention on whether the statements as a group were "Statements Which Are Not Hearsay" under Rule 801(d), SCRE. She argued that the statements were inadmissible hearsay because they did not meet the definition that "[a] statement is not hearsay if . . . [t]he statement is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" under Rule 801(d)(2)(E), SCRE. However, our examination of the testimony of these two witnesses reveals that at least two statements made by Steven Bixby were not hearsay for a different reason: they were not offered to prove the truth of the matter asserted. Therefore, regardless of whether they were statements by a coconspirator under Rule 801(d)(2)(E), they were admissible because they did not meet the definition of hearsay under Rule 801(c), SCRE: "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."
In order to explain that these two statements were not offered to prove their truth, and to give context to the evidentiary issues the trial judge faced, we summarize the law applicable to Rita Bixby's two charges: accessory before the fact of murder and criminal conspiracy. In order to convict Rita Bixby of accessory before the fact of murder, the State was required to prove (1) Rita Bixby advised, urged, or in some way aided Steven Bixby to commit the murders, (2) Rita Bixby was not present when the murders were committed, and (3) Steven Bixby committed the murders. Rita Bixby, 373 S.C. at 75 n. 2, 644 S.E.2d at 55 n. 2 (citing State v. Smith, 316 S.C. 53, 55, 447 S.E.2d 175, 176 (1993)). The third element required the State to prove Steven Bixby acted with malice. S.C. Code Ann. § 16-3-10 (2003) ("`Murder' is the killing of any person with malice aforethought. . . ."). In order to convict her of criminal conspiracy, the State was required to prove Rita Bixby had a mutual understanding, agreement, or common intention and plan with Steven Bixby for the purpose of committing the unlawful act of murder. See State v. Sims, 387 S.C. 557, 564, 694 S.E.2d 9, 13 (2010) (discussing the elements of criminal conspiracy). The trial judge charged the jury in accordance with these definitions of accessory before the fact and criminal conspiracy. Specifically as to criminal conspiracy, the judge's charge included the following language:
[T]here must be guilty knowledge and participation. . . . [I]t is not necessary that the agreement be a formal one . . . or that the agreement be stated in words between them. The agreement of a criminal conspiracy may come into being through an implied mutual understanding. . . . A conspiracy may be shown by circumstantial evidence in the conduct of the parties. . . . What is needed is proof that they intended to act together for their shared mutual benefit within the scope of the conspiracy. . . . There must be some evidence of aiding or encouragement. Additionally, conspirators are responsible for all incidental and consequential acts growing out of the general design. . . . [T]he jury must find the murder was a natural and probable consequence of the acts actually agreed upon by the defendant and any conspirators.
In this legal context, we find that Steven Bixby's statement to Dana Newton "yeah, it's that time of year to die" was not offered to prove the truth of the matter asserted, and therefore was not hearsay under Rule 801(c). Steven Bixby also told Newton "I will [shoot them] if they set one step on my parents' property, I'll blow their mother f****** heads off." This statement also was not offered to prove its truth. The fact that Steven Bixby made the statement showed his anger toward law enforcement, and therefore was evidence of malice regardless of whether it was a true statement. The State also offered the statement to prove Steven Bixby's state of mind during the timeframe when Rita Bixby was making statements in his presence such as "she and her family had been waiting for this moment; that nobody was coming on their property," and "there would be hell to pay" if anyone did. Thus, the State was also able to prove the first element of accessory before the fact, that she advised, urged, or in some way aided Steven Bixby to commit the murders. See Rita Bixby, 373 S.C. at 75 n. 2, 644 S.E.2d at 55 n. 2.
In order to properly analyze whether a statement is offered to prove the truth of the matter asserted, the court should first, to the extent possible, consider the words of the statement in order to determine what is asserted in the statement. The matter asserted in this statement is: early December is the time to die. Next, the court should determine whether the statement is offered "to prove the truth of the matter asserted." In this case, the State obviously had no reason to prove that the matter asserted in this rhetorical statement was true. Rather, the statement was offered simply to prove that Steven Bixby said it, because his doing so proved premeditation without regard to whether it was a true statement. Therefore, because the statement was not "offered in evidence to prove the truth of the matter asserted," it was not hearsay. Rule 801(c), SCRE.
Because these two statements were not offered to prove the truth of the matter asserted, they were not hearsay under Rule 801(c). Therefore, it did not matter whether those two statements met the definition of a "statement by a coconspirator" under Rule 801(d)(2)(E). Rita Bixby's failure to make specific objections to individual statements left the issue unpreserved because her general objection did not differentiate those statements which were admissible from those which might have been inadmissible.
B. Rule 403 Objection to Steven Bixby's Written Statements
Rita Bixby contends the trial judge erred in not excluding letters Steven Bixby wrote to Alane Taylor while he was in jail awaiting trial, arguing they should have been excluded under Rule 403, SCRE. This objection also is not preserved for our review. At the beginning of the hearing on the motion in limine in which she challenged the admissibility of Steven Bixby's oral statements, counsel stated: "I think it's harmful and prejudicial and erroneous for them to attempt to introduce Steven Bixby's letters against Rita Bixby." That is not a sufficient objection. Rule 403 requires the judge to balance probative value against unfair prejudice. In order to preserve a Rule 403 objection for appellate review, the objecting party must bring to the trial judge's attention the party's position on probative value and unfair prejudice. See Broom v. Se. Highway Contracting Co., 291 S.C. 93, 105, 352 S.E.2d 302, 309 (Ct. App. 1986), abrogated on other grounds by Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 331 S.C. 71, 508 S.E.2d 565 (1998) (holding objection unpreserved where insufficient to "inform the trial court of the point being urged by the objector") (quoting 88 C.J.S.Trial § 124 (1955))). Here, Rita Bixby made no argument concerning probative value, nor any suggestion that the prejudice was unfair. The fact that the evidence is "harmful and prejudicial" is not dispositive of a Rule 403 analysis. Rather, in analyzing a Rule 403 objection, the trial judge must focus on "unfair" prejudice, which is defined as "an undue tendency to suggest decision on an improper basis." State v. Dickerson, 341 S.C. 391, 400, 535 S.E.2d 119, 123 (2000). By failing to articulate the "unfair" aspect of the alleged prejudice, Rita Bixby failed to "inform the trial court of the point being urged."Broom, 291 S.C. at 105, 352 S.E.2d at 309 (quoting 88 C.J.S.Trial § 124 (1955)). Moreover, the trial judge never ruled on any Rule 403 objection as to the letters. See State v. Russell, 345 S.C. 128, 133-34, 546 S.E.2d 202, 205 (Ct. App. 2001) (finding evidentiary argument was not preserved for review because the issue was never raised to or ruled upon by the trial judge).
See also Old Chief v. United States, 519 U.S. 172, 180 (1997) ("The term `unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.").
III. Right of Confrontation
As to all of Steven Bixby's statements, whether oral or written, Rita Bixby contends she was denied her right of confrontation under the Sixth Amendment to the United States Constitution. We disagree. None of the statements are testimonial. See State v. Ladner, 373 S.C. 103, 112-15, 644 S.E.2d 684, 688-90 (2007) (discussing and applying general definitions of "testimonial"). All of the statements were made to friends not associated with law enforcement and none of the statements were related to any police questioning. See State v. Davis, 371 S.C. 170, 178, 638 S.E.2d 57, 61 (2006) (holding statement made outside of investigatory or judicial context is nontestimonial). InLadner, our supreme court held that the admission of a nontestimonial statement is not a Confrontation Clause violation. 373 S.C. at 115, 644 S.E.2d at 690. Therefore, Rita Bixby was not denied her right of confrontation.
IV. Limiting Instructions
Rita Bixby also argues that the trial judge's limiting instruction concerning the letters written by Steven Bixby to Dana Newton was insufficient. Bixby requested that the judge charge:
[T]he letters by Steven Bixby can only be considered by the jury as evidence of Steven Bixby's guilt as a principal for murder of Officers Wilson and Ouzts and cannot be considered by the jurors in any way against Rita Bixby.
The judge charged the jury:
Subject to the Court's prior rulings, letters by Steven Bixby can only be considered as evidence of Steven Bixby's guilt as a principal . . . in the murder of Danny Wilson and Donnie Ouzts.
The charge Rita Bixby requested was incorrect because the letters could properly be considered against her in the limited capacity the judge's instruction described. The State was required to prove Steven Bixby's guilt in the murders as an element of the accessory before the fact of murder charge against Rita Bixby. Thus, the trial court's limiting instruction was a correct statement of the law. See generally State v. Mattison, 388 S.C. 469, 478, 697 S.E.2d 578, 583 (2010) (holding "jury charge that is substantially correct and covers the law does not require reversal").
V. Conclusion
Rita Bixby's hearsay objections to the oral statements of Steven Bixby and her Rule 403 objection to his letters are not preserved for our review. The trial judge properly overruled her objections based on the right of confrontation and committed no error in giving limiting instructions.
AFFIRMED.
THOMAS and PIEPER, JJ., concur.