*1 296 agree Grooms, holding
We with the in Wade v. 37 N. App. C. 428, (2d) (1978), 246 E. 17 Appeals S. where the Court of police North Carolina determined that whether the officer’s requisite conduct satisfied standard of jury care is for the to decide.2 appellant pled contributory
Here the negligence. The re- spondent acting scope he asserted was within the and course police argued his appellant’s duties as officer and driving per reckless conduct in excess of 100 miles hour and failing stop light for a proximate blue was the cause of injuries. hold these properly We matters were submitted and affirm. only question brief,
This is argued appellant’s thus all other exceptions are to have judg- deemed been waived. ment of the lower court is affirmed.
Affirmed. Gregory J., Littlejohn, Lewis, JJ., C. Harwell, concur.
21656 STATE, Respondent, Angela STEWART, Appellant. v. Z. (295 (2d) 627) E.S. 2Moreover, jurisdictions considering upheld other similar have actions fleeing Green, liability inj police v. Rhea motorist’s ured officer. 29 Colo. App. 19, Lopez, (1970); (2d) (La. Brechtel (2d) 1962); 476 760 P. 140 So. Hall, (2d) 1968); MacDonald v. (Me. 244 A. 51 A. L. R. 1226. *2 Williams, B. H.
Marshall Charles Williams and Karen L. Williams, Williams, Henry all Williams & Orangeburg, and Bernstein, Hammer, appellant. of Hammer & Columbia, Atty. McLeod, Atty. Gen. Daniel R. Sr. Asst. Gen. Brian P. Atty. Lindy Funkhouser, Gibbes and Asst. Gen. P. Columbia, Fogle Joseph Sol. E. Assi. Sol. Mizzell, Norman P. Or- Leevy Johnson, I. S. respondent. angeburg, Colubmia,/or 3, 1982. March Associate Justice:
Littlejohn, Angela A guilty found defendant Z. Stewart husband, Stewart, murder of her A. Paul she was sen- imprisonment. appeals. tenced to life She April 13, 1980, On Paul A. Stewart was found dead in bed at Orangeburg five .38 residence with calibre bullets in his *3 body. house, including The bedroom, appeared entire un property reported No missing. However, disturbed. was there pane was a broken window in side lodged a door and rock was pane between the broken and the door curtain. The broken pane provided access to the inside door and lock. Fin knob gerprint smudges found on door knob were not identifiable. reported by
The was Mrs. death Stewart 12:00 mid- about night. pathologist performed autopsy body The on the who approx- deceased testified that the time of was death p.m. imately 8:00 20,1980, August charged
On Mrs. was with Stewart murder. given police night In her statement officer the trial, her killing testimony consistently and in at she main- was tained that not at home when her she husband was killed. generally Her account as follows: and her (1) daughter left the She residence a blue pickup p.m. Columbia, around 8:30 about miles away, repaired to retrieve a belonging motorbike to Mrs. son and to daughter apart- Stewart’s return the her Columbia; ment home, lying in bed they was Mr. Stewart
(2) When left television; watching midnight, dis- returning she home around
(3) Upon body immediately telephoned bleeding and covered his ambulance; and for an McDonald, a from Melvina
(4) for assistance She called by the residing nearby apartment owned in a tenant boy- Pinkston, Stewarts, McDonald’s and Lewis from nearby talking friend, of whom were outside both apartment. daughter boyfriend testified that the of Mrs. Stewart’s apartment
repaired was at Columbia and motorbike daughter 9:30and that Mrs. Stewart and her arrived between pickup. p.m. placed in the 10:00 the motorbike blue exclusively upon prosecution, In its State relied circum- evidence, parts being as the most crucial follows: stantial body from (1) The bullets removed the deceased’s her fired defendant from husband’s matched a bullet years backyard; in friend’s earlier pistol at a snake two Mr. Stewart died (2) pathologist testified that p.m.; around 8:00 from the bullet wounds blue (3) Pinkston testified the Stewart’s Lewis p.m., during from 10:00 pickup at the house 9:30until was driving it Mrs. Stewart states she which time Columbia; quarreled Mrs.
(4) had with Stewart Mr. Stewart concerning days prior killing how daughter two her parked driveway; in the daughter that of testimony conflicted with (5) Lewis Pinkston’s occurring evening after events Mrs. Stewart help and his requested of Pinkston Mrs. Stewart girlfriend. accompanying testimony of Mrs. Stewart and
Besides *4 testimony attorney corroboration, presented by her defense friend with judge), a close (presently Brown circuit court Luke helped He in he testified that 1976 Mr. Mrs. Stewart. both and pistol for Mr. Stewart purchase a .38 calibre Stewart Mrs. Mr. his for a expressed to Brown desire Mr. had after Stewart reported Additionally, that Mr. Stewart handgun. he testified 300 gun
in nearby 1978 that the had been stolen from his car. A service they station owner and his wife testified that heard p.m., five shots around 10:30 discrediting thus the medical testimony placing shooting p.m. Though at 8:00 this infor- reported mation was investigating police to day officers the killing, after the it was by not revealed to the defense morning Solicitor’s Office until the sought of trial.1 Defense to suspicion upon cast Lewis questioning Pinkston night killing activities the of the pointing and out conflicts testimony between his girlfriend, and that of his Melvina McDonald, Finally, and of Mrs. Stewart. several witnesses testified enjoyed the Stewart’s apparent happy marriage. appeal, argues (1)
On the defendant judge the trial granting erred not her motion for directed mo- verdict or judgment tion for n.o.v. for evidence; (2) lack of sufficient atmosphere whole of the surrounding attending pervasive trial was and hostile to the defendant and denied her a fair process trial violation of rights; (3) due judge erred in granting request not defendant’s upon continuance suppression based exculpatory material (i.e., testimony of service wife); (4) station owner and his judge that the trial in failing give erred a curative instruc- disregard portion tion to the closing of the State’s argument.
Where the State exclusively upon relies circumstantial case, evidence a criminal motion for directed verdict light must be determined in of whether the evidence positive proof constitutes of facts and circumstances which reasonably prove guilt tends to accused, or from guilt may fairly which logically deduced, be to the exclu- any sion of hypothesis. other reasonable The evidence must be favorably viewed most Hudson, State. State v. 284 E.S. (2d) (S. 1981). C. directing verdict,
In the trial in effect tells the jury, “You must believe certain evidence because there (i.e., no reason to discredit no evidence Brady Maryland, 83, 1194, 10 As authorized in 373 U. S. 83 S. Ct. L.Ed. (1963), defense requesting counsel had earlier filed a motion any exculpatory Solicitor to disclose information. *5 jury the to determine whether was for it contrary).” Here or of the witness who testified to Mrs. Stewart testimony of her jury might have believed the contrary true. While so. of law to do required as a matter testimony, they were not denying judge defendant’s by trial find no error We judgment n.o.v. and for verdict of directed motions trial served to happenings that at next asserts Defendant inherently Among were an over- unfair. these render it an spectators and with outburst from courtroom crowded jury. spectator to the gesture from a improper filled the courtroom spectators that record shows against the walls. capacity and even stood seats to spectators were allowed overflow the fact While courtroom would not capacity and stand seating trial, practice the better grounds for a new is normally be who can be seated. An overcrowded to those limit the audience atmosphere improper and is not to create tends courtroom by jury. judge deliberations to calm conducive sitting from spectators refrain than once insisted more jury After several outbursts of box. next to the on the row judge the fol- spectators, the trial issued laughter from lowing admonition: spectacle show, public Now, not a it’s not a
... this is any kind laughter or exclamation any outbursts of observing these anyone who is the courtroom from completely absolutely out of order and proceedings So, please, permit I it. not have it and cannot we should regardless of what’s being or regardless of what’s asked any laughter. outbursts of being do not make answered funny This is a trying in this situation. Nobody is to be charges against the defen- and the serious situation most you respected by rights are to be defendant’s and the dant by everybody else. So we cannot have well as anymore. Do not do that. jury re- trial, forelady of the
During recess in the continually glared spectator judge that one ported to the trial person the same disgust” and that jury with “obvious at the overheard opinionated remarks made several had earlier had left the person prior being sworn. That jurors some upon Based complaint was made. when the courtroom report, mistrial, counsel for the defense arguing, moved for a .. duly unduly has been prejudiced and —and that we cannot receive fair trial.” The seriousness of the problem is indicated statement of the in overrul- ing the motion: *6 right. Well, course,
All of what I think was said to me morning by Agent the Sled was that the foreman did any particular not personal want to make charge out of against spectator, the matter spectator the whoever the might say with, have been. Let me this to start off direct- ing my your mistrial, attention to motion for a I have to I overrule that. But think it is a matter that should be up, I taken and think it’s a matter of considerable serious- this, matter,
ness because this is a serious I and talked to spectators in along the the yester- courtroom those lines day after several laughter outbursts of I which did not approve of I approve any do not of under circum- Forelady say stances. Foreman —the prior that —did jury being to the chosen it was someone who was a spectator who stated a voice that could be overheard many prospective jurors they before were chosen opinion concerning guilt the or innocence of the defen- jury disregard dant. I told the have that and I think they, they absolutely that bearing understand that has no anything they on that do this trial... if spectators
And it would be well the would understand they jury by are not to glaring that interfere with the at jury, glances anything or faces or I—I the else. don’t was, I know what it but don’t to have want to undertake to, discipline any spectator in a matter of this serious nature, disruptive procedure. because it is So I suggest spectators they would looking avoid at jury panel attorneys and look at the and the witnesses part because of course is main of the trial. judge We think it was an error for the trial to overrule the motion for a mistrial having explored without first improper spectator conduct of the without having first determined whether or prejudice. not there was Language Salters, 501, 257 in State found 273 S. C. E.S. (1979), rights potentially wherein the defendant’s were during by newspaper printed his prejudically articles affected trial, applies equally to this case. case, judge did not take the the trial
In the instant step ascertaining were whether articles initial effect, matter what prejudicial. In the court held that no they be, prejudicial may it was or the articles said how presume its instruc- had followed bound to case, the sole Under the of this tions. circumstances insuffi- was judge on admonition reliance trial... appellants fair cient assure brought to the that when the articles were We conclude attorneys, attention, by the as were court’s these to whether should have made a determination as court prejudical so to measure the information was in fact as infection”, and, [sic]____; we accord- the “extent of the where, here, contained ingly hold that the articles matter, imperative the trial prejudicial [sic] any jurors inquire had seen the as to whether *7 articles, they had, appropriate if invoke the cura- and Due to trial failure observe tive measures. court’s measures, compelled to re- precautionary we are these new trial. and remand this case for a verse jury right by impartial in a The to a fair trial an guaranteed by the Sixth prosecution criminal is I, by Article Amendment to the U. S. Constitution and 14, right re- does not § the S. C. Constitution. While this of trial, quire “perfect” very of a “fair trial” embod- heart disciplined fate is ies a courtroom wherein an accused’s informed solely through of calm and the exercise determined judgment. conditions, true, expected, not to be and it is are
Ideal appellate by for not aside an court verdicts should be set trial, is clear and unless the evidence misconduct convincing so interfered with influences that extraneous upon jury, trial, pressed as to or so the conduct of 29, Weldon, 91 S. C. factors the result. State become (1912). E. 43 74 S. integrity judge that the duty to see
It is the of the trial persons any person or is not obstructed of court 472, 126 E. DeShon, S. 240 S. C. Shearer v. whatsoever. (2d) (1974). § 40 His exercise (1962); Am. Jur. Trial absent an duty not disturbed abuse will be of this discretion. spec- judge trial admonished
The State admits occasions, that admonitions but contends tators on several routinely during typical of a trial. We made the course are occasionally judge must in- It that a trial disagree. is true expected proper conduct. bystanders as to struct courtroom involving however, are we faced with situations Rarely, noisy requiring admoni- courtroom several over-crowded and clearly with the conduct of interfered These tions. conditions the trial. reliance on his instructions sole spectator disregard improper conduct
and on his several admonitions to the courtroom general a fair trial. was insufficient to assure defendant right requires Denial of a new trial. necessity remaining new of a trial renders moot the two
exceptions [1] Brady violation and [2] improper closing argument). right
Having was denied her to a concluded that defendant trial, remand a new fair we reverse the verdict and trial. Reversed and Remanded. Gregory JJ., J., Harwell, C.
Lewis, concur. J., concurs dissents. Ness, dissenting); (concurring and Justice Associate Ness, prejudicial majority opinion that error was I in the concur I evidence insufficient to committed also believe the at trial. judgment I would reverse order a support the conviction. acquittal. presented by the motion for a directed The crucial issue *8 deceased, Stewart, is the Paul was shot and verdict whether evening It p.m. on the of the homicide. is un- killed at 8:00 wife, appellant, was disputed the at home at that time. solely on circumstantial
The State concedes its case rests evidence, crucially is disputed circumstance essential p.m. If this at whether the victim and killed 8:00 was shot competent it would be proof were established circumstance guilt jury. On appellant’s the issue of proper to submit surmise, conjecture hand, if was based on proof the other er- would be insufficient the evidence speculation, jury. submit case roneous to establish testimony relied on the State to primary testimony Dr. Sandra p.m. was the of death at 8:00 the time Conradi, pathologist. a forensic examination, examined Dr. testified she direct Conradi
On day following the body noon on the of the deceased at 12:00 between and estimated that death homicide, had occurred earlier, twenty-four as a with sixteen hours twelve and hours estimate, speculating at 8:00 good thus that the death occurred testimony was, (Tr. 13-25); ff. p.m. Her long how you your opinion in medical Q. And could tell us body had dead? been body dead twelve had been between A. I estimated good a estimate twenty-four hours with sixteen hours as my opinion length as to time. you body, you when from 12:00 o’clock examined the Q. So sixteen hours before that? said Yes, A. sir. examination, 15,Tr. Dr. Tr. 203f. Conradi testified:
On cross f. 4: Now, down, you said, you you have exam- Q. narrowed o’clock, that correct?
ined him at 12:00 is Yes, A. sir. following day?
TheQ. Yes,
A. sir. you said the death was between Q. And cause of somewhere twenty-four twelve and hours? Yes,
A. sir. you you taking say when because are Q. And sixteen average? middle? The sixteen, good Oh, my opinion be A. sixteen would time, little closer the twelve than estimate as to the twenty-four. vary it hours vary sixteen it much as—could Q. Could way? either may could, vary two hours either
A. It my opinion but added) way. (emphasis
306 testimony, the is obvious that a review of
From of by Dr. Conradi as to the time death reached conclusion surmise, conjecture speculation. This upon purely based the of death at 8:00 proof the State to establish time offered support p.m. to is insufficient the conviction. solely upon uniformly held the State relies
We have where conviction, as it does support to a circumstantial evidence here, proved be necessary every that circumstance be “it is they yond is not sufficient a reasonable doubt----It one,” and, though strong “on a motion probability, create a a judge ... not refuse for a verdict the trial should directed merely suspicion raises a grant the evidence the motion where Littlejohn, State 324, (2d) E. 924 v. guilt.” 228 S. C. 89 S. of Jones, 271, 128 (2d) (1962). 114 (1955); State v. 241 S. E. S. C. light in the Reviewing this most favorable to evidence the Bailey, State v. “any” rule, required by the evidence State as 204, 170 (2d) I the (1969), E. am convinced that 253 S. C. S. “any” appellant’s support is without evidence record conviction.
Moreover, the viewing in with the evidence accordance appellate by the United States review mandated standard of Virginia, 307, S. Ct. Jackson Supreme 443 U. 99 S. Court 2781, (1979), convincing even it is more 61 L.Ed. refusing for a directed appellant’s motion erred requires appellate of review us to This standard verdict. support “any” not there is evidence to consider whether conviction, light viewing the evidence most but whether prosecution, there sufficient evidence to favorable guilt beyond fact a justify a rational trier of to find reasonable doubt. j ustify
It trier of could is inconceivable that rational fact guilt beyond finding upon a reasonable doubt based of record, following: evidence of because speculative testimony 1. of Dr. nature Conradi’s relat- death; ing the crucial issue the time of as to testimony 2. relating pane window broken through anyone gain which could entrance into the home door; by unlocking the testimony witness, impartial Syphrett,
3. The gunshots p.m., conclusively he heard five at 10:15 rebut- ting speculative Dr. Conradi as to the conclusion death; time of witness, Pinkston,
4. The on strange activity of the State’s homicide, evening angry were remarks girlfriend by directed to Pinkston’s the deceased for *10 yard; messing up the testimony concerning slamming The in the
5. car doors yard p.m.; victim’s about 10:00 testimony The of three 6. uncontradicted witnesses appellant Columbia about time the gunshots heard; were testimony weapon by
7. The Judge of Brown that the used yard neighbor’s appellant to fire at a snake had years been lost the Stewarts for several before the homicide; any verify inability dug of
8. witness bullet up neighbor’s yard one was the same from fired snake; appellant at the testimony 9. that the bullets taken from victim’s body matching dug up neighbor’s and the bullet from yard Ruger have fired from a .357 could been either Escoden, .38 Security 6 or a Manuel well as a as caliber. judg- I would reverse and with to enter remand direction appellant. ment for McLEOD, Attorney Carolina ex relatione of Daniel R. General
STATE South Carolina, McINNIS, Plaintiff, F. of the South v. David as State of Appropriations Review member of Committee of Chairman and the Joint Lake, Assembly; Jr., the South Carolina General Robert C. as Vice- Appropriations Review Committee Chairman and member the Joint Drummond, Assembly; and John J. Verne the South Carolina General Leventis, Smith, Lindsay, Setzler, P. John C. Tom Nikki G. Phil G. Harris, Mangum, Edwards, Jr., Hodges E. B. Patrick Charles T. W. Appropriations Matthews, Jr., Review John W. members Joint Assembly, General Defendants. Committee of the South Carolina 633) (295 S. E.