State v. Anderson
| Citation | 304 S.C. 551,406 S.E.2d 152 |
| Decision Date | 06 December 1989 |
| Docket Number | No. 23400,23400 |
| Parties | The STATE, Respondent, v. Tony ANDERSON, Appellant. . Heard |
| Court | United States State Supreme Court of South Carolina |
Chief Atty. David I. Bruck, and Deputy Chief Atty. Elizabeth C. Fullwood, of South Carolina Office of Appellate Defense, Columbia, and Edmund H. Robinson, Charleston, for appellant.
Attorney Gen. T. Travis Medlock, Asst. Atty. Gen. Harold M. Coombs, Jr., Staff Atty., Miller W. Shealy, Jr., Columbia, and Sol. Charles M. Condon, Charleston, for respondent.
Appellant Tony Anderson was convicted of murder and sentenced to life imprisonment. We affirm.
On the night of February 20, 1980, Nathaniel Reed was found shot to death outside an apartment complex in Charleston. Approximately one month later a warrant was issued charging the appellant with Reed's murder, but he could not be located. Also arrested in connection with Reed's murder were Barbara Nesbitt, the victim's girlfriend, Donald Anderson, appellant's brother, Daniel Sumter Edwards and Vanessa White. Subsequently, the charges against Vanessa White were dropped. Daniel Sumter Edwards pleaded guilty to conspiracy to commit murder and accessory after the fact. Donald Anderson was charged with capital murder but pleaded guilty to non-capital murder pursuant to a plea bargain. Thereafter, at the 1980 trial of Barbara Nesbitt, Donald Anderson testified that he was hired by Nesbitt to murder Reed but that it was the appellant who shot and killed Reed.
Appellant's 1980 arrest warrant was executed in 1987 after he was arrested in New York for an unrelated offense. Subsequently, appellant was indicted for Reed's murder and tried in 1988. Prior to trial, the state moved to have Donald Anderson called as a court's witness during the trial of appellant's case, citing as grounds for its motion:
(1) that Donald Anderson a) is the appellant's brother; b) is presently serving a life sentence for his involvement in the offense for which the appellant has also been charged; and c) has previously provided sworn testimony concerning his as well as the appellant's involvement in the offense;
(2) that the state would not be willing to vouch for Donald Anderson's credibility in view of his actual and perceived bias and hostility; and
(3) that a material injustice would result if the evidence possessed by Donald Anderson were not presented at appellant's trial.
Prior to conclusion of the state's case, the court held a hearing outside the presence of the jury to consider the state's motion. After arguments from the prosecution and the defense, the court granted the motion and Donald Anderson testified.
Appellant first argues the trial judge erred and abused his discretion by permitting Donald Anderson to be called as a court's witness, asserting that the vouch rule 1 was impermissibly circumvented. We disagree.
The decision to call a court's witness is generally within the discretion of the trial court. State v. Tillman, 255 S.C. 528, 180 S.E.2d 209 (1971); Elletson v. Dixie Home Stores, 231 S.C. 565, 99 S.E.2d 384 (1957).
The power [of the Court] to call witnesses has perhaps most often been exercised when the prosecution expects that a necessary witness will be hostile and desires to escape the necessity of calling him and being cumbered by the traditional rule against impeaching one's own witness.
McCormick, Evidence, 3rd § 8, p. 816 (1984).
Cognizant of the potential for prejudice to an accused through undue and improper influence upon a jury by evidence adduced through an individual called as a court's witness, we promulgate the following prerequisites for a prospective court's witness.
(1) The prosecution must be unwilling to vouch for the veracity or integrity of the witness;
(2) a close relationship must exist between the accused and the potential
court's witness, i.e. accomplices, family members, etc.;
(3) there must be evidence that the prospective witness was an eyewitness to the transaction upon which the prosecution is based, gave a sworn statement concerning pertinent facts and the statement has been contradicted or it is probable that it will be contradicted; and
(4) the testimony the witness is to relate must be material, such that without the testimony a miscarriage of justice would likely result.
See Scarborough v. State, 50 Md.App. 276, 437 A.2d 672 (Md.App.1981).
Further, the trial judge should conduct a hearing outside the presence of the jury to determine the necessity of calling the witness. Both the prosecution and the defense must be allowed to cross examine and impeach the witness. 81 Am.Jur.2d, Witnesses § 3 (1976).
The record in the present case reflects 1) that the prosecution was unwilling to vouch for Donald Anderson's credibility; 2) that the prospective witness, Donald Anderson, and the accused, appellant Tony Anderson, were brothers and alleged accomplices...
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...material in explaining the inconsistency. Additionally, Kelsey failed to proffer any of the excluded testimony. See State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991) (where no proffer of excluded testimony is made, the Court is unable to determine whether the appellant was prejudiced b......
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