State v. Love, 21229

Decision Date13 May 1980
Docket NumberNo. 21229,21229
Citation275 S.C. 55,271 S.E.2d 110
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Kenneth E. LOVE, Appellant.

Robert L. Hallman, Columbia, for appellant.

Atty. Gen., Daniel R. McLeod and Asst. Attys. Gen., Brian P. Gibbes and Andrew Savage, Columbia, for respondent.

LEWIS, Chief Justice:

Defendant (appellant), a former magistrate for Richland County, South Carolina, was convicted and sentenced on two counts of obstruction of justice, two counts of obtaining goods under false pretenses, and one count of conspiracy. He has appealed challenging (1) the sufficiency of the indictments to allege, and the evidence to establish, the claims of obstruction of justice and obtaining goods under false pretenses; (2) the refusal of the trial judge to exclude the testimony of the attorney witness Corley as violative of an attorney-client relationship, (3) the denial of appellant's demand that the State elect between or, in the alternative, grant separate trials on the charges laid in two of the indictments; and (4) the charge to the jury on the offense of obtaining money or goods by false pretenses. We affirm.

The charges against appellant were contained in three indictments-the first (# 1771) and the second (# 1772) each contained two counts, one count charging obstruction of justice and the other other obtaining goods or money by false pretenses. The third indictment charged conspiracy.

Since it materially affects the sufficiency of the evidence to convict, we first dispose of appellant's challenge to the admissibility of the testimony of James W. Corley, Esquire, in which he related conversations between him and appellant. Appellant contends that these conversations should have been excluded on privileged communications between attorney and client.

We have long recognized the attorney-client privilege against disclosure of confidential communications by a client to his attorney. In the case of South Carolina State Highway Department v. Booker, 260 S.C. 245, 195 S.E.2d 615, in discussing the privilege, we stated:

This privilege is based upon a wise public policy that considers that the interests of society are best promoted by inviting the utmost confidence on the part of the client in disclosing his secrets to his professional advisor, under the pledge of the law that such confidence should not be abused by permitting disclosure of such communications.

This privilege belongs to the client and not the attorney, and may be waived by the client. 81 Am. Jur. 2d, Witnesses, Section 223; South Carolina State Highway Department v. Booker, supra.

In order to establish the privilege, it must be shown that the relationship between the parties was that of attorney and client and that the communications were of a confidential nature. In general, the burden of establishing the privilege rests upon the party asserting it. 81 Am. Jur. 2 d, Witnesses, Section 221.

Whether a communication is privileged is for the trial judge to decide in the light of a preliminary inquiry into all of the facts and circumstances; and this determination by the trial judge is conclusive in the absence of an abuse of discretion. 81 Am. Jur. 2d, Witnesses, Section 222.

The conviction of appellant was based upon charges that he accepted the sum of $5500 from one William Dennis, Jr., in consideration of appellant's promise and subsequent attempts to illegally prevent a prosecution against Dennis for driving under the influence, fourth offense, and to illegally obtain a driver's license for Dennis by using a part of the money to pay off certain public officials or employees who had the authority to return his license. Appellant contends that Corley represented and advised him in these matters and that any communications were made to Corley during the course of this representation.

Corley denies that he represented appellant or Dennis. He testified that appellant apparently had told or given Dennis the impression that he (Corley) was involved in appellant's illegal activities on behalf of Dennis. Upon learning of appellant's illegal activities and his effort to implicate him, Corley went to law enforcement officials, reported his information, and agreed to assist in the apprehension of appellant. As a result, Corley agreed to allow himself to be wired with a surveillance microphone to transmit and record conversations with appellant and Dennis. This was done and a series of interviews and recorded conversations were held between Corley, appellant, and Dennis. The testimony of Corley and the tapes of these conversations were admitted into evidence over appellant's objection. We think that they were properly admitted.

Based upon the testimony of attorney Corley, his voluntary cooperation with law enforcement officers in the apprehension of appellant, and other circumstances of the case, the trial judge stated that he was convinced beyond a reasonable doubt that attorney Corley never acted as an attorney for appellant in this matter. The record amply sustains this factual finding of the trial judge and clearly renders the testimony admissible, without the necessity of pursuing other, perhaps, equally tenable grounds.

The next questions concern the sufficiency of the indictments and proof to make out the offenses of obstruction of justice and obtaining goods under false pretenses. Appellant moved to quash the indictments on the ground that there was no allegation of any act constituting either of these offenses; and later moved for a directed verdict of not guilty because of the alleged failure of proof. These motions were denied and are the basis of exceptions on appeal.

We treat first the questions relating to the offense of obstruction of justice. In discussing the offense in the recent cases of State v. Cogdell, S.C., 257 S.E.2d 748, we stated:

At common law it is an offense to do any act which prevents, obstructs, impedes or hinders the administration of justice.

In the application of the foregoing principle in Cogdell, we held that the failure to perform the duty of reporting convictions of traffic violations, as required by statute, constituted the common law offense of obstruction of justice.

Indictment No. 1771 alleges that appellant, for the sum of $500.00, promised to obtain for William Dennis, Jr., a valid driver's license and that appellant did deliver to Dennis a driver's license that purported to be valid but...

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  • Floyd v. Floyd
    • United States
    • South Carolina Supreme Court
    • June 13, 2005
    ...absent an abuse of discretion. Ross v. Med. Univ. of South Carolina, 317 S.C. 377, 453 S.E.2d 880 (1994) (citing State v. Love, 275 S.C. 55, 271 S.E.2d 110 (1980)). B. Law/Analysis 1. Not Offered for the Truth of the Matter Asserted Rule 801, SCRE, defines hearsay as "a statement, other tha......
  • Wellin v. Wellin, s. 2:13-cv-1831-DCN
    • United States
    • U.S. District Court — District of South Carolina
    • September 30, 2016
    ..., 284 S.E.2d at 219–20 ). "In general, the burden of establishing the privilege rests upon the party asserting it." State v. Love , 275 S.C. 55, 271 S.E.2d 110, 112 (1980). The work-product doctrine protects an attorney's "mental processes..., providing a privileged area within which he can......
  • Chandler v. Denton
    • United States
    • Oklahoma Supreme Court
    • May 12, 1987
    ...149, 154 [N.D.1972].25 People v. Duarte, 79 Ill.App.3d 110, 34 Ill.Dec. 657, 669, 398 N.E.2d 332, 344 [Ill.1977] and State v. Love, 275 S.C. 55, 271 S.E.2d 110, 112 [1980], cert. denied, 101 S.Ct. 272.26 Fox v. Forty-Four Cigar Co., 101 A.2d 184 [N.J.1923] and Re Young's Estate, 59 Or. 348,......
  • In re Mt. Hawley Insurance Company
    • United States
    • South Carolina Supreme Court
    • June 12, 2019
    ...has the burden of establishing the confidential nature of the communication, including the absence of waiver. State v. Love , 275 S.C. 55, 59, 271 S.E.2d 110, 112 (1980). There is, however, considerable authority for a burden-shifting analysis.3 We hold that the party asserting the privileg......
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