S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State Respondent,
v.
William David Taylor, Appellant.
Appeal From Dorchester County
Luke N. Brown, Jr., Circuit Court Judge
Opinion No. 24857
Heard October 6, 1998 - Filed November 23, 1998
AFFIRMED
Assistant Appellate Defender Robert M. Dudek, of
South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General John P. Riordan, all of
Columbia; and Solicitor Walter M. Bailey, Jr., of
Summerville, for respondent.
BURNETT, A.J.: Appellant was convicted of murder and
sentenced to life imprisonment. We affirm.
FACTS
At the beginning of trial, appellant stipulated he killed his
wife, Janet, by strangling her with a t-shirt; he denied the killing was
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STATE v. TAYLOR
murder. The homicide occurred on August 31, 1994.
The following evidence was presented. Appellant and Janet
separated in June 1994. According to different witnesses, appellant
threatened to kill his wife on several occasions after their separation.
Specifically, appellant stated, referring to his wife: "if that bitch don't
come home, I'm going to kill her;" "either you are going to have sex with
me or I'll kill you;" "he should have killed her and [her daughter] a long
time ago . . . ;" and "if he had her right then, he'd ring her neck."
Appellant's neighbor saw a man at the Taylor's home after
Janet returned to the marital home.1 In early August, the neighbor had a
conversation with appellant. Appellant indicated he knew Janet was
seeing this man and stated, "I'm not going to let anyone sleep in my bed;
I'd kill her first." The neighbor replied, "I told [appellant] not to be
another O.J. Simpson."
According to appellant's brother, on the afternoon of August
31, appellant drove from Dorchester County to Orangeburg. Appellant told
his brother he thought he had killed Janet. The brother reported the
claim to the police. The Orangeburg police arrived and arrested appellant
without incident.
One of the arresting officers testified appellant had cut his
wrist with a box cutter in an apparent suicide attempt. Appellant
inquired if his wife was dead and, if so, "then that was good; that he had
wasted twenty-one years of his life." Two other officers testified appellant
repeatedly asked "is the bitch dead?" and stated "I hope she's dead
because she ruined [my] life."
Appellant's sister testified Janet began a relationship with
Richard Pritchard in May 1994. The sister testified, despite their
separation, appellant continued to give Janet money and, at times, the two
"acted like newlyweds."
The sister testified appellant called her on August 31 and
stated he thought he had killed Janet. The sister testified she thought
appellant then stated he was "just kidding." Appellant's sister stated he
1Appellant was living elsewhere.
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STATE v. TAYLOR
"sounded kind of sad." The sister went to Janet's home; she gave the
deputies permission to break a window to enter the home.
Dorchester Deputy Sheriff Limehouse testified Sergeant Moore
broke a window pane, entered the home, and then unlocked the front door.
Janet's body was found in a bedroom, under blankets, clothes, and a
guitar case. Appellant stipulated he killed Janet in one part of the home
and dragged her to another.
The deputy sheriff testified it appeared there had been a
struggle in the home. A lamp was knocked over. A broken necklace and
torn watchband were on the floor.
Richard Pritchard, Janet's paramour, testified on appellant's behalf.
He stated he was engaged in an affair with Janet from May to
August 1994. Appellant was aware of the relationship in May and had no
animosity about Pritchard's relationship with Janet. Several weeks before
Janet's death, appellant shook Pritchard's hand and stated he was glad
Janet had met someone nice.
Appellant testified Janet left him in May 1994. He stated
Janet had told him Pritchard was a friend, but appellant suspected the
relationship was more. He testified he did not want to believe his wife
had a relationship with Pritchard; he wanted Janet back. Although they
were separated, on occasion, Janet led appellant to believe there was a
chance for their relationship.
Days before the homicide, appellant helped Janet with car
repairs. On the day of the killing, appellant bought her a car battery and
helped her pack her possessions. Her home was in foreclosure. She asked
appellant for money to rent an apartment. Appellant stated he thought
she was going to live with her parents.
Appellant testified:
I had been drinking a little bit . . . I was sitting on the floor .
. . [Janet] got mad with me, and I just kind of laughed at her
a little bit. I rubbed her on the leg. I said, 'what are you
getting' -- because Janet didn't normally get upset like that . .
. But she got up and started pacing back and forth, and she
started telling me that Rick was her lover. And she told me
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STATE v. TAYLOR
that Leonard Bogard, she had had sex with him while she was
still married to me . . . [Janet] was very angry at me . . . She
said, 'Bill, you're never going to change; you're sorry as hell.'
and she said, 'I have no intentions of going back to you.' She
plainly told me that she was only using me for my money . . .
At that time, I started to get up and she kicked me in the
groin . . . She went toward the television set on the end of the
couch . . . And somehow or another she came up to me. I don't
know if she had an object in her hand. I have no idea what it
was at the time. but I ended up with her shirt, her t-shirt,
from the back of her trying to hold her off of me, from hitting
me. She kept doing this (indicating). She had something in
her hand -- I don't know what it was -- and she was kicking
me also. And the next thing I know she stopped doing
everything, and she was down on the floor, and she was dead.
(emphasis added).
Appellant testified he tried to resuscitate Janet. He then
dragged her body to the back bedroom. He stated he did not mean to hurt
Janet and denied ever threatening to kill her.
Appellant testified he later discovered Janet had been holding
a box cutter. The box cutter had blood on it. Appellant took the box
cutter.
Appellant testified when Janet was coming towards him, he
reached behind her, grabbed her t-shirt at the neck, and squeezed the
shirt tightly. He did not know how long he held onto the shirt.
Appellant's sisters testified Janet had asthma.
Appellant explained Janet must have cut her left hand while
transferring the box cutter between her hands. Appellant denied slashing
Janet's hand with the box cutter. He further denied his wife smeared
blood on the front door while attempting to flee.
The pathologist testified the ' decedent died from asphyxia due
to ligature strangulation. She stated "it takes a good deal of pressure to
asphyxiate somebody by means of a t-shirt [pulled across the front of the
neck]... it takes a good deal of force to do that." The pathologist testified
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STATE v. TAYLOR
it would take a "number of minutes" to asphyxiate someone with a t-shirt.2
She testified there were no indications the decedent had asthma.
The decedent had several scrapes on her back, bruises on the
back of her left arm, bruises on the inside of her thighs, a bruise on her
scalp, and bruises on her lower legs. The pathologist stated the bruises
probably occurred just before death.
The decedent had a two inch laceration on her left palm which
the pathologist stated could have been inflicted with a knife. The
pathologist described this wound as "defensive." Blood was also found on
the decedent's right hand. The pathologist agreed with the defense that
the location of the blood was consistent with the decedent holding
something in that hand.
The forensic serologist testified both the decedent and
appellant had the same blood type. She was unable to determine the
decedent's blood sub-type, but determined appellant's sub-type. Human
blood was found on the decedent's right hand and on scrapings from the
victim's fingernails, but no other identifiable characteristics were available.
Blood on the decedent's left hand and t-shirt was consistent with the
decedent's blood but inconsistent with appellant's blood. The blood stains
on appellant's shorts and shirt were consistent with his blood type (and
the decedent's). Human blood was identified on the box cutter taken from
appellant, on a box from the decedent's home, and on a swab taken from
the front door of the decedent's home, but no further identifying
information was available on these items.
Appellant maintains the essential jury issue was whether the
homicide was murder or voluntary manslaughter.3
ISSUES
Did the trial judge err by refusing to allow appellant to
2 The victim was 5'7" and weighed over 200 pounds.
3Appellant did not request a charge on self-defense. The jury was
not instructed on self-defense. The trial judge did instruct the jury on
involuntary manslaughter.
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STATE v. TAYLOR
present the details of a prior difficulty with the decedent?
II. Did the trial judge err by allowing the solicitor to publish
Pritchard's entire statement to the jury?
III. Did the trial judge err by allowing the solicitor to impeach
appellant with a prior conviction for criminal domestic
violence?
IV. Did the trial judge err by denying appellant's motion for a
new trial based on after-discovered evidence and based on an
alleged Brady v. Maryland4 violation?
DISCUSSION
I.
The State presented appellant's brother as a witness. During
cross-examination, the following colloquy was exchanged:
Q. Okay. Do you recall an incident where Janet hit
[appellant] on the head with a beer bottle at your house?
A. Yes, sir.
Q. Can you tell the jury about that?
[Solicitor]: Your honor, I object to that . . . .
During a bench conference, appellant indicated he was trying
to establish Janet was the aggressor. He proffered the following
testimony:
Q. Could you tell us about the incident concerning the beer
bottle?
A. [Appellant] and Janet got in an argument, and they was
(sic) up at my house. They was (sic) both drunk. I was
4 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
p.36
STATE v. TAYLOR
drunk. And Janet hit him in the head with the bottle about
three times. It never broke, but she hit him pretty hard and
he staggered back, and she went and got in the car and left
him at my house in Orangeburg.
The trial judge sustained the solicitor's objection.
Appellant argues the trial judge erred by refusing to allow him
to question his brother concerning the specifics of the incident with the
beer bottle. He contends the testimony was relevant for the purpose of
establishing the decedent was the aggressor. We disagree.
In homicide cases, evidence that the accused and the decedent
had previous difficulty is admissible. The evidence is admissible to show
the animus of the parties and to aid the jury in deciding who was the
probable aggressor. The general details of the difficulty, however, are
inadmissible. State v. Atchison, 268 S.C. 588, 235 S.E.2d 294 (1977);
State v. Clinkscales, 231 S.C. 650, 99 S.E.2d 663 (1957); State v. Bush,
211 S.C. 455, 45 S.E.2d 847 (1948); State v. Evans, 112 S.C. 43, 99 S.E.
751 (1919); see also State v. Williams, 321 S.C. 327, 468 S.E.2d 626
(1996); State v. Graham, 161 S.C. 362, 159 S.E. 838 (1931).
Appellant's brother testified the decedent hit appellant on the
head with a bottle on a prior occasion. This testimony supported
appellant's contention the decedent was the aggressor at the time of her
death. The trial judge properly admitted this testimony and properly
excluded the specifics of the incident. State v. Clinkscales, supra (evidence
husband and wife had previous difficulties was admissible, however,
testimony husband shot wife in the back with a shotgun weeks before her
death was inadmissible).
Moreover, any error in refusing to admit the proffered
testimony was harmless. Appellant's brother had already testified the
decedent hit appellant in the head with a beer bottle. The proffered
testimony adds little favorable evidence for appellant. Gamble v.
International Paper Corp. of S.C., 323 S.C. 367, 474 S.E.2d 438
(1996)(where excluded testimony was merely cumulative, there was no
error); State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996), cert. denied
___U.S.___, 117 S.Ct. 695, 136 L.Ed.2d 618 (1997)(error without prejudice
does not warrant reversal).
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STATE v. TAYLOR
II
As noted above, appellant called Richard Pritchard, the
decedent's paramour, as a witness. On direct examination, Pritchard
admitted he had an affair with the decedent between May and August
1994.
On cross-examination, Pritchard testified he first met the
decedent in March 1994. He stated the decedent and appellant separated
two months later. At that time, Pritchard and the decedent began a
sexual relationship. Pritchard testified appellant became aware of his
relationship with the decedent in May or June of 1994.
On redirect, appellant questioned Pritchard concerning the
statement he had given law enforcement after the decedent's death.
Appellant showed the written statement to Pritchard and confirmed his
signature at the bottom of the statement. Appellant had Pritchard read
the following sentence from the statement: "I met Janet Taylor on May the
14th, 1994." Thereafter, appellant examined Pritchard as to the
inconsistencies in the date he met the decedent. Pritchard explained he
was nervous when he gave his statement and had in fact met the decedent
on March 14, 1994.
The solicitor requested permission to publish all of Pritchard's
statement pursuant to Rule 106, SCRE. Appellant objected, arguing he
had not introduced the statement into evidence. The trial judge overruled
the objection. The solicitor published Pritchard's statement to the jury in
its entirety.
Appellant contends the following portion of the statement is
prejudicial:
When [appellant] learned of my presence in [decedent's] life, he
investigated me, found out my address, phone number, place of
employment; I'm not sure what else. Before I met [appellant]
he called me at my house and told me that [decedent] had
gone to a bar and brought a man home to spend the night. He
also told me that she was still having sex with him. I believe
this was an attempt to break us up.
Appellant contends because he did not introduce Pritchard's
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STATE v. TAYLOR
statement as an exhibit, the trial judge erred by allowing the solicitor to
publish all of Pritchard's statement.
Rule 1065, SCRE, provides:
When a writing, or recorded statement, or part thereof is
introduced by a party, an adverse party may require the
introduction at that time of any other part of any other writing
or recorded statement which ought in fairness to be considered
contemporaneously with it.
Rule 106, SCRE, has not been interpreted by this Court. The
text of Rule 106, SCRE, is substantially similar to Rule 106 of the Federal
Rules of Evidence.
Rule 106, Fed. R. Evid., is based on the "'rule of completeness'
and seeks to avoid the unfairness inherent in 'the misleading impression
created by taking matters out of context'." Rainey v. Beech Aircraft Corp.,
784 F.2d 1523, 1529 (11th Cir. 1986), citing Fed. R. Evid. 106 advisory
committee notes.5
Rule 106 [of the Federal Rules of Evidence] is a procedural
device governing the timing of completion evidence; the Rule is
'primarily designed to affect the order of proof.' It means that
the adverse party need not wait until cross-examination or
rebuttal. As such, the Rule reduces the risk that a writing or
recording will be taken out of context and that an initial
misleading impression will take hold in the mind of the jury.
S. Saltzburg, M. Martin, D. Capra, Federal Rules of Evidence Manual, pp.
98-99 (1998), citing, United States v. Walker, 652 F.2d 708, 713 (7th Cir.
1981); see also, M. Graham, Handbook of Federal Evidence, § 106 (1996);
J. Strong, McCormick on Evidence, § 56 (1992).
5 Before the adoption of Rule 106, SCRE, the law in South Carolina
had been that "when a part of a document or writing is introduced into
evidence, the remainder may be introduced by the other party. . .
However, the party seeking to bring out the remainder had to wait until
cross-examination or the presentation of that party's case to do so."
(internal citations omitted).
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STATE v. TAYLOR
Technically, Rule 106, Fed. R. Evid., applies in instances when
a party introduces a writing or recorded statement into evidence. Rainey
v. Beech Aircraft Corp)., supra. Given the purposes behind Rule 106,
fairness and completeness, it is also applied where a party's use of a
writing or recorded statement is "tantamount to the introduction of the
[document] into evidence." Id. at 1529; see also United States v. Rubin,
609 F.2d 51 (2nd Cir. 1979)(where defense counsel quoted extensively from
government agents' notes, notes were admissible under doctrine of
completeness); Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1262 (7th Cir.
1988)(where defendant neither introduced portions of document nor
questioned witness about it, plaintiffs were not allowed to impeach witness
with document pursuant to Rule 106, Fed. R. Evid.); United States v.
Pendas-Martinez, 845 F.2d 938 (11th Cir. 1988)(where defense counsel did
not extensively read from report to attack government witness' credibility
or to suggest his testimony was inconsistent, fairness did not require
admission of entire report).
Where Rule 106, SCRE, applies, it does not require all of the
document to be introduced, merely "any other part of any other writing or
recorded statement which ought in fairness to be considered
contemporaneously with it." (emphasis added). Only that portion of the
remainder of a statement which explains or clarifies the previously
admitted portion should be introduced. Federal Rules of Evidence Manual,
supra, at 99, see also State v. Kelsey , 331 S.C. 50, 71, 502 S.E.2d 63, 73-
74 (1998)("[g]enerally, where a portion of a witness's prior inconsistent
statement has been introduced to impeach that witness, the entire
statement is admissible in rebuttal to explain the inconsistency . . .
Remaining portions which are not relevant or material in the explanation
of the inconsistency are not admissible. ")(internal citations omitted).
Appellant effectively placed a portion of Pritchard's statement
into evidence by having Pritchard read directly from the statement.
Accordingly, in the interest of fairness and completeness, it would have
been appropriate for the trial judge to require the introduction of any
other portion of Pritchard's statement which explained or clarified when he
met the decedent, the only issue encompassed by appellant's use of
Pritchard's statement. However, the remainder of Pritchard's statement
did not explain or clarify when he met the decedent. Accordingly, the trial
judge erred by allowing the solicitor to read the rest of Pritchard's
statement.
STATE v. TAYLOR
Nonetheless, in order for this Court to reverse a case based on
the erroneous admission or exclusion of evidence, prejudice must be shown.
State v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990). "Whether error is
harmless depends on the circumstances of the particular case. No definite
rule of law governs this finding; rather, the materiality and prejudicial
character of the error must be determined from its relationship to the
entire case. Error is harmless when it 'could not reasonably have affected
the result of the trial'." State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d
150, 151 (1985), citing State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890
(1971).
While the above-referenced portion of Pritchard's statement is
prejudicial, we conclude its admission could not reasonably have affected
the result of appellant's trial. The solicitor did not allude to this portion
of Pritchard's statement during his closing argument. Moreover, in light
of the other evidence of malice, the effect of the statement is negligible.
See Part IV. Review of the entire record indicates admission of the
statement was harmless beyond a reasonable doubt.
III.
Appellant testified at trial. During his direct examination,
defense counsel made a motion, unrelated to the present issue. While
outside the presence of the jury, the solicitor indicated he would mention
appellant's prior criminal domestic violence conviction if appellant tried to
"soft petal" (sic) the marital relationship. Appellant objected, stating he
had not placed his character into evidence and had limited his testimony
from the time of the separation to the homicide. The trial judge
instructed appellant to object at the appropriate time.
Appellant continued his direct examination. He stated "[J]ust
things had kind of gotten rough for us the last couple of years. . .".
On cross-examination, the following exchange occurred:
Q. You said to [defense counsel] that things were kind of
rough the last couple of years; is that right?
A. Yes, sir.
Q. In fact, they've been rough a whole lot longer than that,
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STATE v. TAYLOR
haven't they?
A. I didn't think so. We was (sic) doing good. I was a
supervisor out at work before we had the explosion that killed
nine people.
Q. Answer my question now. I don't care about work and
explosions. I'm talking about your relationship with your wife.
A. I thought everything was okay.
Q. Was it okay in 1986?
A. We had some problems. We both drink.
And you had problems in 1986, some marital problems,
didn't you?
A. Yes, sir
Q. What kind of problems did you have back then?
A. I was arrested for domestic violence.
Q. And that involved, in December of 1986, hitting your wife
over the head with a .22 rifle, didn't it?
A. No; I didn't do that. No, I did not. That was never proved
in court or nothing. Me and Janet both simply went to court
and I simply admitted - - I paid the fine. I never really
admitted to nothing.
Q. Okay. [Appellant], do you deny ---
A. I truly ---
Q. that--wait; let me ask my question ---
The Court: Wait a minute now. Listen to the question. Then
you can answer it.
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STATE v. TAYLOR
Q. Do you deny that on January the fifth, 1987, you were
found guilty ---
A. [Defense Counsel]: Your honor, I object at this point.
The Court: Over-ruled
Q. Do you deny that on January the fifth, 1987, you appeared
before Judge Miley and were found guilty of criminal domestic
violence in Berkeley County for hitting your wife over the head
with a .22 rifle?
A. No, I was -- yes; I was.
(emphasis added).
Appellant contends the trial judge erred by allowing the
solicitor to impeach him with a prior conviction for criminal domestic
violence. He contends by allowing the State to impeach him with the
former conviction, it was impermissibly allowed to attack his character
when he had not placed his character in issue. We disagree.
Initially, we note this issue is not preserved for appeal.
Appellant's general objection to the solicitor's question is insufficient to
preserve this issue for appeal. State v. Nichols, 325 S.C. 111, 481 S.E.2d
118 (1997). Appellant's earlier claim that he would object if the State
mentioned his prior conviction is also insufficient to preserve this issue for
appeal. See State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998)(pre-trial
evidentiary ruling is not final because subject to change based on
developments at trial).
In any event, this issue is without merit. In a criminal case,
the State may not attack the character of the accused unless he first
places his character in issue. State v. Nelson, 331 S.C. 1, 501 S.E.2d 716
(1998). However, "[w]here one party introduces evidence as to a particular
fact or transaction, the other party is entitled to introduce evidence in
explanation or rebuttal thereof, even though [the] latter evidence would be
incompetent or irrelevant had it been offered initially." State v. Stroman,
281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984). An "accused may be cross-
examined as to- all matters which he himself has brought up on direct
examination." 98 C.J.S. Witnesses § 515 at 439 (1957); State v. Allen, 266
p.43
STATE v. TAYLOR
S.C. 468, 224 S.E.2d 881 (1976)6 citing 98 C.J.S. Witnesses§ 378 at 134-
135 ("[a]s a general rule, any matter is proper subject of cross-examination
which is responsive to testimony given on direct examination, or which is
material or relevant thereto, and which tends to elucidate, modify, explain,
contradict or rebut testimony given in chief by the witness."). The cross-
examination of matters which were addressed in direct-examination is not
objectionable, even. if the answers affect a witness' credibility and
character. 98 C.J.S. Witnesses § 378.
On direct examination, appellant stated "things had kind of
gotten rough for us the last couple of years." This testimony implied
appellant and his wife had a good relationship until recent years, an issue
which was relevant to this case. We agree with appellant: this testimony
did not place appellant's character in issue.7 However, because appellant
"opened the door" about his relationship with his wife, the solicitor was
entitled to cross-examine him about the relationship, even if the responses
brought out appellant's prior criminal domestic violence conviction. State
v. Stroman, supra (since defendant questioned accomplice about his prior
robberies, the State was permitted to inquire into facts of prior robberies,
including whether defendant had participated in the robberies); State v.
Allen, supra (where defendant testified he had not previously harmed
anyone with a deadly weapon, prosecutor was permitted to inquire into
extent of previous assaults); see also State v. Faulkner, 274 S.C. 619, 621,
266 S.E.2d 420, 421 (1980)("[w]hile State may not attack a criminal
defendant's character unless he has placed it at issue, relevant evidence
admissible for other purposes need not be excluded merely because it
incidentally reflects upon the defendant's reputation. ")(internal citation
omitted).
6 Overruled on other grds. State v. Evans, 307 S.C. 477, 415 S.E.2d
816 (1992), and State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).
7State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990)(accused placed
character in issue by testifying he did not frequent bad neighborhood and
did not sell drugs); State v. Allen, supra (accused placed character in issue
by presenting character witnesses and testifying about his criminal past).
p.44
STATE v. TAYLOR
IV.
After his conviction, appellant moved for a new trial based on
after-discovered evidence and based on an alleged Brady violation. He
claimed the State failed to provide him with evidence that Sergeant Moore
had cut his hand while breaking a window to gain access to the decedent's
home. Appellant argues this evidence was material in that blood on the
inside of the front door could have been from the officer, rather than the
decedent. It is undisputed none of the police reports provided to appellant
before trial indicated an officer had cut his hand.
As noted above, at trial Deputy Sheriff Limehouse testified
Sergeant Moore broke a window pane at the decedent's residence in order
to enter the home. Sergeant Moore did not testify at trial. Human blood
was identified on the inside of the front door. The serologist could not
characterize or type the blood. Photographs show a large, although fairly
faint, smear of blood near the center of the door. State's Ex. 16 and 23
On two occasions during closing argument, the solicitor
suggested the blood on the front door indicated the decedent had tried to
escape appellant's attack with the box cutter by fleeing through the front
door. Appellant, however, grabbed her t-shirt and choked her to death.
At the new trial hearing, Sergeant Moore testified he cut his
index finger when he broke the window at the decedent's residence. He
described the laceration as "small." The finger did not bleed heavily; he
was able to control the bleeding with a handkerchief. He unlocked the
front door and the other officers entered. Thereafter, Sergeant Moore put
a latex glove on his hand. Blood appeared in the finger of the glove. As
to the amount of blood, Sergeant Moore testified ". . . if you've ever seen
somebody that (sic) blood in panty hose or hah (sic) latex glove a little by
(sic) of blood looks a lot."
To obtain a new trial based on after-discovered evidence, the
party must show that the evidence: 1) would probably change the result if
a new trial is had; 2) has been discovered since trial; 3) could not have
been discovered before trial; 4) is material to the issue of guilt or
innocence; and 5) is not merely cumulative or impeaching. Clark v. State,
315 S.C. 3S5, 434 S.E.2d 266 (1993); State v. Caskey, 273 S.C. 325, 256
S.E.2d 737 (1979). The denial of a motion for a new trial will not be
reversed absent an abuse of discretion. State v. South 310 S.C. 504 427
p.45
STATE v. TAYLOR
S.E.2d 666 (1993).
In Brady v. Maryland, supra, the Court held:
[S]uppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.
U.S. at 87, S.Ct. at 1196-97, L.Ed.2d at 218.
Brady only requires disclosure of evidence which is both
favorable to the accused and material to guilt or punishment. United
States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
"Evidence is material . . . 'only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A 'reasonable probability' is a
probability sufficient to undermine confidence in the outcome'." State v.
Cain, 297 S.C. 497, 503, 377 S.E.2d 556, 559 (1988), citing United States
v. Bagley , supra U.S. at 682, S.Ct. at 3383, L.Ed.2d at 494.
For Brady purposes, in determining the materiality of
nondisclosed evidence, an appellate court must consider the evidence in
the context of the entire record. United States v. Agurs , 427 U.S. 97, 96
S.Ct. 2392, 49 L.Ed.2d 342 (1976). However, the court should not consider
the sufficiency of the evidence. The court's function is to determine
whether the appellant's right to a fair trial has been impaired. State v.
Osborne, 291 S.C. 265, 353 S.E.2d 276 (1987); State v. Goodson, 276 S.C.
243, 277 S.E.2d 602 (1981).
Although the defense could have more readily responded to the
solicitor's argument that blood on the door belonged to the fleeing victim
had it known Sergeant Moore had cut his finger, the evidence is not
material for Brady purposes. Because the serologist could only identify
the blood on the door as human but could not characterize the blood
further, the solicitor still could have argued the blood came from the
decedent while attempting to escape. The fact that Sergeant Moore bled
would not have negated the State's theory of its case. Furthermore,
considering the strength of the State's case (appellant's numerous threats
to kill the decedent, the signs of struggle in the decedent's home, the
defensive wound on the decedent's palm and recent bruises on her body,
p.46
STATE v. TAYLOR
the fact that appellant hid the decedent's body in a back bedroom under
blankets and clothes, the length of time it would take to asphyxiate
someone with a t-shirt, and appellant's statements he was glad the
decedent was dead), the non-disclosure of Sergeant Moore's laceration did
not impair appellant's right to a fair trial. State v. Goodson, supra.
Similarly, with regard to the motion for a new trial based on
after-discovered evidence, the blood evidence was neither material nor
likely to change the result if a new trial was held. Accordingly, the trial
judge did not abuse his discretion in denying appellant a new trial based
on after-discovered evidence. State v. South, supra .
AFFIRMED.
FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.
p.47