In re Whetstone, 25641.

• Court: United States State Supreme Court of South Carolina
• Citation: 354 S.C. 213,580 S.E.2d 447
• Decision Date: 28 April 2003
• Docket Number: No. 25641.,25641.
• Parties: Ex parte Charles W. WHETSTONE, Jr., Appellant, In re Thomas IVEY, Applicant/Respondent, v. William D. CATOE, Director, South Carolina Department of Corrections, Respondent.

354 S.C. 213
580 S.E.2d 447

Ex parte Charles W. WHETSTONE, Jr., Appellant,
In re Thomas IVEY, Applicant/Respondent,
v.
William D. CATOE, Director, South Carolina Department of Corrections, Respondent

No. 25641.

Supreme Court of South Carolina.

Heard March 5, 2003.

Decided April 28, 2003.

Rehearing Denied May 29, 2003.

354 S.C. 214

Deputy Attorney General Treva G. Ashworth; Assistant Deputy Attorney General J. Emory Smith, Jr., both of Columbia, for Appellant

Assistant Deputy Attorney General Donald J. Zelenka, of Columbia, for Respondent William D. Catoe, Director, South Carolina Department of Corrections.

H. Wayne Floyd, of West Columbia, and Melissa Jane Reed Kimbrough, of Columbia, for Respondent Thomas Ivey.

Justice BURNETT:

Charles W. Whetstone, Jr., ("Whetstone"), a former circuit court judge, brings this action in our original jurisdiction through a common law writ of certiorari to quash a subpoena requiring him to testify in a Post Conviction Relief ("PCR") hearing for Thomas Ivey ("Ivey"). We reverse.

FACTS

Ivey filed a PCR petition alleging, inter alia, his trial counsel, Michael Culler ("Culler"), provided ineffective assistance of counsel. Ivey alleges Culler had a conflict of interest because of his friendship with Officer Thomas Harrison ("Officer Harrison"), a man for whose murder Ivey was convicted in an earlier trial.¹

354 S.C. 215

Buttressing Ivey's claim is a letter signed by Culler stating he could not represent Patricia Perkins ("Perkins"), an individual tangentially involved in the murder of Officer Harrison, because he was a friend of the slain officer. Culler does not deny signing the letter, but stated he was not aware why he did so because he only casually knew Officer Harrison, and would not consider him a close friend

The PCR judge denied Whetstone's Motion to Quash the Subpoena. The PCR judge's order allowed Ivey to question Whetstone on two grounds: 1) whether he ever had a conversation with Culler discussing his association with Officer Harrison; and 2) whether he ever saw the Perkins' letter in which Culler asked to be relieved as counsel in the related case. The order specifically precluded Ivey's asking Whetstone what he might have done had he known of a potential conflict of interest.

ISSUE

Did the PCR court err in allowing the questioning of a former circuit court judge who presided over the applicant's trial?

DISCUSSION

It is not disputed that a judge may testify on matters not touching upon his official duties. At issue is the extent to which a judge may be required to testify about a case over which he previously presided.

The South Carolina Code of Judicial Conduct provides little guidance by confining its directives only against judges serving as character witnesses. See Rule 501, Canon 2(B) cmt., SCACR. Our search of relevant South Carolina case law has produced only State v. Talbert, 41 S.C. 526, 19 S.E. 852 (1894).

In Talbert, the defense sought a judge's testimony concerning an arrest warrant issued against the defendant. The State's objection was sustained at trial.

The issue on appeal was whether the trial court should allow a judge to testify as a witness concerning actions taken in his official capacity. This Court affirmed, reasoning the defendant's position was "clearly untenable" because the warrant

354 S.C. 216

itself was the best evidence of the fact sought to be proved, not the testimony of the judge. The Court further found the judge's testimony irrelevant.²

This reasoning is echoed by the modern trend of courts not allowing a judge to testify regarding a case in which he previously presided unless the testimony is: 1) critical; and 2) can be obtained by no other means. See United States v. Dowdy, 440 F.Supp. 894 (W.D.Va.1977); Commonwealth v. Ellis, 10 Mass. L. Rptr. 333 (Mass.1999) available at 1999 WL 855196; ...