State v. Bixby

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Rita G. Bixby, Appellant.

Appeal From Abbeville County
Alexander S. Macaulay, Circuit Court Judge

Opinion No. 4768   
Heard December 17, 2010 – Refiled August 10, 2011

AFFIRMED

Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for Respondent.

THOMAS, J.:  Rita G. Bixby appeals her convictions of two counts of accessory before the fact and two counts of criminal conspiracy in connection with the murders of Abbeville County Sheriff's Deputy Danny Wilson and South Carolina Magistrate's Constable Donnie Ouzts.  She argues the trial court erroneously admitted certain evidence.  We affirm.

FACTS

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 (DOT) had begun work on a project to widen the roadway.  On December 4, 2003, DOT Superintendent Glen McCaffrey and two other DOT employees encountered Rita, Arthur, and their son, Steven Bixby.  During the encounter, Rita and the other Bixbys threatened that they would shoot anyone entering their property in the future to work on the project, including employees of the Sheriff's Department.  Superintendent McCaffrey and DOT Inspector Dale Williams subsequently reported the situation to the Sheriff's Department. 

The next day, December 5th, Superintendent McCaffrey phoned the Bixbys at their home to explain that the State owned a legal right of way over the property.  Rita answered the telephone and refused to let Superintendent McCaffrey talk with Arthur, demanding Superintendent McCaffrey show her the information in person.  Consequently, Superintendent McCaffrey and two other DOT employees went to the Bixby property, and when they arrived, they and the Bixbys engaged in a heated discussion for approximately thirty minutes.  Rita maintained the State lied about the right of way and the Sheriff's Department had "no authority" over the family.  She further exclaimed the Bixbys had been "waiting for this moment for a long time."

On December 7th, Steven attended a social gathering at the home of Alane Taylor.  During separate conversations with Taylor and her daughter, Dana Newton, Steven made numerous statements related to his family's property dispute with the DOT.  Specifically, he said he was angry and would shoot law enforcement.  He averred the Bixbys had scheduled a meeting with the DOT and the Sheriff's Department at the Bixby residence.  He also stated that "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 that night after their conversations with Steven.  Newton personally called her cousin, a sheriff's deputy, whom she told to contact Taylor.  Taylor personally called the home of the chief deputy and left a message with the chief deputy's family.  Taylor subsequently received a phone call from the sheriff's deputy whom Newton contacted.

The following day, Deputy Wilson drove to the Bixbys' home after meeting with Superintendent McCaffrey, Inspector Williams, and others from the DOT.  He parked in the front yard, and as he approached the house, Steven shot him through the glass panes of the front door.  Steven dragged Deputy Wilson into the house, read him Miranda[1] rights, and shackled him with his own handcuffs.  Steven then called Rita, who was waiting at Steven's apartment, to tell her the shooting had begun.  Rita called the offices of the Governor and the Attorney General to let them know "the trouble had started," and shortly thereafter, Constable Ouzts arrived at the Bixby house, where Steven shot him while he was in the front yard.  Responding officers were able to remove Constable Ouzts from the property, but he died of his injuries before he reached the hospital.  Deputy Wilson died from blood loss while handcuffed and laying face down in the Bixby house during the shootout.

For the following twelve hours, Steven and Arthur barricaded themselves in their home, exchanging gunfire with police officers.  Meanwhile, sheriff's deputies arrested Rita, who refused to help diffuse the situation.  

Steven eventually surrendered and was arrested, charged with murder, convicted, and sentenced to death.[2]  While in prison, he wrote thousands of pages of letters to Taylor.  The four letters relevant to this appeal detailed the shootout, admitting Steven handcuffed and Mirandized Deputy Wilson, explaining Steven's alleged reasons for shooting Deputy Wilson and Constable Ouzts, and referencing contemporaneous statements between Steven and Arthur.  The letters also alluded to previous conversations between Steven and Taylor.

At Rita's trial, the State offered Steven's letters and his December 7th conversations with Newton and Taylor as statements by a coconspirator.  Over Rita's objection, the trial court permitted testimony about both conversations, and Taylor read the letters into evidence.  The trial court also contemporaneously instructed the jury that the letters could only be considered as evidence of Steven's guilt as a principal in the murders of Deputy Wilson and Constable Ouzts.  Rita was subsequently convicted and sentenced to life without parole.  This appeal followed. 

ISSUES ON APPEAL

I. Did the trial court err in admitting Steven's December 7th conversations as statements by a coconspirator pursuant to Rule 801(d)(2)(E), SCRE, or holding the admission of such evidence did not violate Rita's Sixth Amendment Right to Confrontation?

II. Did the trial court err in holding the admission of the letters did not violate Rita's Sixth Amendment Right to Confrontation or admitting the jailhouse letters pursuant to Rule 403, SCRE?

III. Did the trial court fail to give adequate limiting instructions about how the jury could consider the conversations and the letters?

STANDARD OF REVIEW

"In criminal cases, an appellate court sits to review errors of law only."  State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).  "The admission of evidence is within the discretion of the [trial] court and will not be reversed absent an abuse of discretion."  State v. Latimore, 390 S.C. 88, 98-99, 700 S.E.2d 456, 462 (Ct. App. 2010).

LAW/ANALYSIS

I.  The December 7th Conversations with Newton and Taylor

a.  Statements by a Coconspirator

On appeal, Rita argues Steven's conversations with Taylor and Newton were inadmissible hearsay because they were not made in furtherance of the conspiracy to attack officials who entered the Bixby property.  Rita maintains those conversations merely "spilled the beans."  We disagree. 

At trial, Rita argued Newton's and Taylor's testimony regarding their conversations with Steven were inadmissible because those conversations were not statements of a coconspirator.  Generally, "[a] party need not use the exact name of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground."  State v. Geer, 391 S.C. 179, 191, 705 S.E.2d 441, 448 (Ct. App. 2010) (citation and internal quotation marks omitted).  Although Rita never explicitly claimed the conversations were "hearsay" when making her argument, her argument was sufficiently specific to raise a hearsay objection.  The trial court ruled on that objection, and accordingly, the issue is preserved for our review.

Generally, the South Carolina Rules of Evidence prohibit the admission of hearsay, except in specified circumstances.  See Rule 802, SCRE ("Hearsay is not admissible except as provided by these rules . . . .").  Hearsay is defined as "a statement, other than one made by the declarant while testifying . . . [,] offered in evidence to prove the truth of the matter asserted."  Rule 801(c), SCRE.  Coconspirator statements, however, are admissible because they are explicitly defined as "not hearsay."  See Rule 801(d)(2)(E), SCRE ("A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."); see also State v. Sims, 387 S.C. 557, 564, 694 S.E.2d 9, 13 (2010) ("While hearsay testimony generally is not admissible, an exception is allowed when a statement is offered against a party and is 'a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.'" (quoting Rule 801(d)(2)(E), SCRE)). 

For a coconspirator's statement to be defined as "not hearsay," the statement must be made during the conspiracy and operate to further the conspiracy.  Rule 801(d)(2)(E), SCRE.  Casual statements of culpability or "spilling the beans" do not further a conspiracy's purpose.  State v. Anders, 331 S.C. 474, 477, 503 S.E.2d 443, 444 (1998). 

The trial court ruled within its discretion that Steven Bixby's conversations with Taylor and Newton were made during and in furtherance of the conspiracy.  The Bixbys conspired to lay in wait to ambush unsuspecting officials, and considering the familiar relationships between Bixby, Newton, Taylor, and the law enforcement officers notified of the conversations, the conversations could be used to lure the police or other authorities to the Bixbys' trap.  Accordingly, the trial court did not abuse its discretion in holding the conversations were admissible as not hearsay.  

b.  Confrontation Clause

Next, Rita alleges the admission of the conversations violates the Confrontation Clause.  However, this argument is not preserved for review.  When the trial court asked Rita to clarify her basis for the objection, she simply said the statements "were not in furtherance of the conspiracy."  Although Rita mentioned State v. Davis, 371 S.C. 170, 638 S.E.2d 57 (2006), which admittedly discusses the Confrontation Clause, her arguments regarding the admissibility of the conversations addressed the coconspirator objection. 

Even if the issue was preserved and the conversations constituted hearsay, Steven's conversations with Taylor and Newton were nontestimonial.  See Davis, 371 S.C. at 178, 638 S.E.2d at 61 (finding statements made outside the "investigatory or judicial context" to be nontestimonial).  Accordingly, admission of those conversations could not violate the Confrontation Clause.  See State v. Ladner, 373 S.C. 103, 115, 644 S.E.2d 684, 690 (2007) ("In sum, the victim's hearsay statement in the instant case was not admitted in violation of [the Confrontation Clause] because it is a nontestimonial statement."); see also Crawford v. Washington, 541 U.S. 36, 68 (2004) ("Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.").

II. The Jailhouse Letters

a.  Confrontation Clause

On appeal, Rita argues the admission of the four jailhouse letters relevant to this appeal violated her Sixth Amendment Right to Confrontation.  We disagree.  The letters are clearly nontestimonial, and the admission of nontestimonial hearsay does not violate the Confrontation Clause.  See Ladner, 373 S.C. at 115, 644 S.E.2d at 690 ("In sum, the victim's hearsay statement in the instant case was not admitted in violation of [the Confrontation Clause] because it is a nontestimonial statement."); see also Davis, 371 S.C. at 178, 638 S.E.2d at 61 (finding statements made outside the "investigatory or judicial context" to be nontestimonial).

b.  Rule 403

Rita also claims the trial court erred in admitting the entirety of the four letters relevant to this appeal because they were unduly prejudicial to her and confusing of the issues to the jury under Rule 403, SCRE ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues . . . .").  At trial, Rita moved in limine on Rule 403 grounds to suppress these letters in their entirety.  However, the trial court did not grant a preliminary ruling on the motion,[3] and Rita did not subsequently seek a ruling on the motion during the in limine hearing.  Moreover, although Rita raised a corresponding objection when the letters were introduced at trial, the trial court again failed to make a Rule 403 ruling as to the entirety of the letters.  Therefore, the issue is not preserved.  See Geer, 391 S.C. at 191, 705 S.E.2d at 448-49 ("[A]n issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review." (citation and internal quotation marks omitted)). 

Although Rita failed to preserve a Rule 403 issue as to the four letters' entirety, Rita did raise and receive a ruling on a Rule 403 issue regarding specific portions of these letters that state Steven handcuffed and Mirandized Deputy Wilson.  Therefore, we address this issue in turn.  See id. (stating an issue is preserved if it was raised to and ruled upon by the trial court). 

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues . . . ."  Rule 403, SCRE.  "Unfair prejudice means an undue tendency to suggest decision on an improper basis. . . .  [T]he determination of prejudice must be based on the entire record, and the result will generally turn on the facts of each case."  State v. Stokes, 381 S.C. 390, 404, 673 S.E.2d 434, 441 (2009) (citation and quotation marks omitted).  "A trial court's decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances."  State v. Caldwell, 378 S.C. 268, 287, 662 S.E.2d 474, 484 (Ct. App. 2008).

Rita argues the portions of the letters stating Steven handcuffed and Mirandized Deputy Wilson were not admissible under Rule 403 for two reasons.  First, she maintains the letters were not necessary to show Steven committed murder because Steven's guilt of the murders was not in question.  We disagree. 

The parties did not stipulate Steven was convicted of either murder.[4]  Therefore, evidence Steven murdered Deputy Wilson was necessary to prove Rita's charge of accessory before the fact for Deputy Wilson's murder.  See State v. Smith, 316 S.C. 53, 55, 447 S.E.2d 175, 176 (1993) ("Accessory before the fact of murder requires a showing that the accused: (1) either advised and agreed, urged, or in some way aided some other person to commit the offense; (2) was not present when the offense was committed; and (3) that some principal committed the crime.").  "South Carolina law defines murder as the killing of any person with malice aforethought, either express or implied."  State v. Zeigler, 364 S.C. 94, 103, 610 S.E.2d 859, 864 (Ct. App. 2005) (citation and internal quotation marks omitted).  "Malice is the wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong."  Id.  Here, the letters were key evidence explicitly establishing Steven shot Deputy Wilson.  Moreover, the letters' references to Steven handcuffing and Mirandizing Deputy Wilson are evidence Steven intended to kill Deputy Wilson when he was shot; Steven's conduct showed he intended to prevent Deputy Wilson from escaping to safety and medical relief while he was still alive.  Thus, these references are evidence of malice aforethought and are relevant to establish Steven murdered Deputy Wilson. 

Second, Rita contends the jury necessarily considered the letters for an improper purpose, i.e., as evidence Rita was involved in a conspiracy to commit murder.[5]  Again, we disagree. 

The trial court instructed the jury that the letters could be considered only for whether Steven in fact murdered Deputy Wilson and Constable Ouzts, and that question had a direct bearing upon whether Rita was an accessory before the fact.  Although a risk exists in every trial that the jury might consider evidence for an improper purpose, that risk does not require an appellate court to presume the jury disregarded limiting instructions addressing that evidence.  Cf. State v. Walker, 366 S.C. 643, 658, 623 S.E.2d 122, 129 (Ct. App. 2009) ("Generally, a curative instruction is deemed to have cured any alleged error.").  The facts of this case do not necessarily indicate the jury disregarded the trial court's instruction as to the letters in convicting Rita of conspiracy.  The record contains a bounty of evidence suggesting Rita was involved in a conspiracy to lay in wait and murder officials who entered the Bixby property.  Emphasizing our standard of review, therefore, we find the trial court did not abuse its discretion in admitting the portions of the letters in question under Rule 403. 

III.    Limiting Instructions

Finally, Rita argues the trial court erred in failing to give her requested limiting instructions as to the letters and the conversations with Newton and Taylor.  However, her argument is conclusory and fails to cite legal authority.  Therefore, she has abandoned this issue.  See King, 349 S.C. at 157, 561 S.E.2d at 648 (stating an argument is abandoned on appeal when conclusory and without supporting authority).

CONCLUSION

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

AFFIRMED.

FEW, C.J., and PIEPER, J., concur.

[1] Miranda v. Arizona, 384 U.S. 436 (1966).

[2] For the result of Steven's appeal to our supreme court, see State v. Bixby, 388 S.C. 528, 698 S.E.2d 572 (2010), cert. denied, Bixby v. South Carolina, 131 S. Ct. 2154 (2011).

[3] Rita also objected to the introduction of these letters on hearsay and Confrontation Clause grounds, and the trial court's ruling as to the letters addressed only these two objections.  We address the Confrontation Clause issue supra, but our preservation rules preclude us from addressing the hearsay argument.  Rita's appellate brief fails to raise this point in its issues on appeal, and the argument section does not cite any authority to support a hearsay argument.  See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("No point will be considered which is not set forth in the statement of issues on appeal."); State v. King, 349 S.C. 142, 157, 561 S.E.2d 640, 648 (Ct. App. 2002) (providing that an argument is abandoned on appeal when conclusory and without supporting authority).

[4] During opening argument, Rita stated, "We do not contest—we admit that Steven . . . and [Arthur] committed a murder."  However, counsel's opening arguments and statements regarding the facts of a case are not evidence.  Cf. State v. Charping, 333 S.C. 124, 133 n.7, 508 S.E.2d 851, 856 n.7 (1998) ("A solicitor's closing argument is not evidence."); see also Ex parte Morris, 367 S.C. 56, 64, 624 S.E.2d 649, 653 (2006) ("It is well established that counsel's statements regarding the facts of a case and counsel's arguments are not admissible evidence.").

[5] This argument is based upon the allegation the letters could not be used to show Rita was part of a criminal conspiracy because Steven wrote the letters after he was arrested and while in jail.