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STATE v. EVANS10/3/1994
whenever they finished five people share one half a gram of
crack cocaine. Smoked it. And then at approximately one thirty a.m.
again five people shared smoking a half a gram of cocaine. The
hypothetical person we are talking about would have had then
twelve beers and shared a half a gram with five people and a
half a gram with five people. Okay? The question then becomes
and can you tell me with a degree, a reasonable degree of
On cross-examination, the expert testified that his opinion was based on an average-sized individual consuming average-purity cocaine.
An expert may give an opinion based upon personal observations or in answer to a properly framed hypothetical question that is based on facts supported by the record. State v. Burton, 302 S.C. 494, 397 S.E.2d 90 (1990); State v. King, 222 S.C. 108, 71 S.E.2d 793 (1952). Although some of the details assumed in the hypothetical question may not have been specifically proven, there is no error in permitting an expert to give his opinion in response to the question if the material facts assumed were within the range of the evidence. See Ballew v. Liberty Life Ins. Co., 270 S.C. 301, 241 S.E.2d 907 (1978). We find no error in allowing the expert to render an opinion that Evans was under the influence at the time of the accident.
Hearsay
Evans next contends the trial judge erred in allowing a police investigator to testify that debris found at the scene came from a 1983 or 1984 Chevrolet pick-up. According to Evans, the investigator was relating only what he was told by employees of automobile dealerships and, therefore, admission of the investigator's testimony violated the Confrontation Clause. We disagree.
The investigator testified that he contacted local truck dealerships and with their assistance was able to develop an opinion that debris found at the scene came from a 1983 or 1984 Chevrolet truck. This conclusion, although facilitated by the investigator's contact with truck dealers and manufacturers, was based on personal observations made when comparing parts found at the scene with those found on many different trucks. Contrary to Evans' assertion, the record conclusively shows the investigator was not merely relating what he was told by others. Accordingly, we reject Evans' claim that the testimony was hearsay and find no violation of the Confrontation Clause.
Exculpatory Testimony
Evans finally contends that the trial judge erred in refusing to allow three prison inmates to testify that another inmate said he was the driver who hit the children. We disagree.
In State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992), we followed Federal Rules of Evidence Rule 804(b)(3) and held that out-of-court statements by an unavailable declarant offered to exculpate a criminal defendant are admissible only if corroborating evidence clearly indicates the trustworthiness of the statements. Here, Evans stipulated that he had no evidence to corroborate the declarant's statements and that the declarant would take the stand and deny committing the offenses. Therefore, because there was no evidence to corroborate the statement and the declarant was not unavailable, we find the trial judge correctly ruled that the witnesses' testimony was inadmissible.
Evans also contends that the trial judge erred in refusing to call the inmate who claimed to be the driver as a court's witness so he could be impeached with testimony that he had confessed to the crime. We disagree.
In State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991), we established the following prerequisites for a court's witness: 1) the prosecution is unwill
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