State v. Atchison, 20439

Citation268 S.C. 588,235 S.E.2d 294
Decision Date23 May 1977
Docket NumberNo. 20439,20439
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Sandra ATCHISON, Appellant.

James B. Stephen, George H. Thomason, and Danny R. Smith, Stephen & Cummings, Spartanburg, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Columbia, and Solicitor John H. Nolen, Spartanburg, for respondent.

RHODES, Justice.

Sandra Atchison, the appellant, was tried for the July 22, 1974 murder of Dwight Terrence Atchison, her husband, and found guilty of the lesser included offense of involuntary manslaughter. She was sentenced to a term of thirty (30) months, from which judgment and sentence she appeals to this Court seeking a new trial based on a number of alleged trial errors. We affirm the conviction.

The first question raised by the appellant is that the trial court erred in denying her motion to suppress as evidence the pair of scissors found in the trunk of the automobile in which the homicide occurred. The search of the automobile was made without a warrant and appellant's exception is grounded on Fourth Amendment rights. The appellant has ably briefed her position that the scissors were improperly admitted into evidence by the trial judge. However, in light of our finding that the admission of the pair of scissors, if error, was harmless, we do not consider the legality of the search. We are convinced that the scissors disclosed by the search did not contribute to appellant's conviction and that the admission of same was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). The test prescribed by these cited cases is to determine whether there was any reasonable possibility of the evidence having affected the verdict. It is in the light of this test that we find the admission of the scissors to be harmless error.

The appellant drove the decedent to a hospital where he was pronounced dead on arrival. Immediately thereafter she revealed to the police in a statement, which we hereafter find to be properly admitted, that her husband was unintentionally killed while they were scuffling over a sharp instrument. Thus, there was never any issue in this case as to the fact that a sharp instrument killed the decedent. In her testimony at trial, the appellant specifically identified the scissors that had been admitted into evidence as being those which she had placed in her purse before leaving work and as being the death weapon. In light of the evidence recounted above, we conclude that the admission of the scissors into evidence was harmless beyond a reasonable doubt.

In Question II of her brief, the appellant complains of the exclusion of certain evidence. Although the exceptions relating to this question lack specificity and are not in full compliance with the Rules of this Court, we have considered them to the extent possible in view of such deficiency.

The appellant contends that the trial judge erred in excluding testimony regarding difficulties between the appellant and the decedent and testimony of threats made by the decedent to the appellant. The rule in this area is expressed in the cases collected at 11 West's South Carolina Digest, "Homicide", k189. The rule is well-settled that in homicide cases, the defendant is permitted to introduce testimony concerning previous difficulties with the decedent. The rationale for allowing such evidence is that it is relevant to the issue of the animus of the parties as it relates to the demeanor each party had reason to expect from the other when they met at the time of the fatal difficulty. Threats of bodily harm by the decedent against the defendant are likewise admissible under the reasoning stated above. State v. Smith, 263 S.C. 150, 208 S.E.2d 533 (1974). It is equally well-settled that testimony as to the details of such difficulties is inadmissible. State v. Bush, 211 S.C. 455, 45 S.E.2d 847 (1948); State v. Kennedy, 143 S.C. 318, 141 S.E. 559 (1928).

An examination of the record discloses that all of the testimony offered by the appellant concerning prior difficulties was admitted into evidence except that of one Jerry Ellisor. Ellisor sought to testify concerning a conversation he had with the decedent. An objection was interposed by the State and was sustained. The witness never related the conversation. Although the ensuing colloquy between the court and counsel indicated that the conversation involved a threat by the decedent, there is nothing in the record to indicate the nature of the threat. There was no offer of proof of this witness's testimony and, absent such offer, this Court is unable to pass upon the ruling of the trial judge. The failure to make an offer of proof as to Ellisor's testimony or to place into the record the facts to be elicited from him precludes the appellant from objecting to its exclusion in this appeal. 23 C.J.S. Criminal Law § 1029(a) and (c).

The appellant also objects to the refusal of the trial judge to admit the testimony of one Benjamin Gibson, an Atlanta attorney, whom the appellant had consulted concerning instituting a divorce action against the decedent. Upon objection by the State, defense counsel stated to the court that the witness was offered to testify about the history of the appellant's relations with the decedent given him by the appellant at the time of such consultation. This testimony was properly excluded as being hearsay and self-serving. The case of State v. Bottoms, 260 S.C. 187, 195 S.E.2d 116 (1973), contains the following applicable statement: "In the case of State v. Adams, 68 S.C. 421, 447, 47 S.E. 676, 677, it was held, 'The rule is that a defendant cannot introduce in his defense his own statements made to others.' " However, it should be noted that the appellant subsequently testified that she had consulted Gibson in late 1973 about a divorce on the ground of physical cruelty. Moreover, she was permitted to testify concerning the incidents that gave rise to this alleged ground.

The next assignment of error concerns the refusal of the trial judge to admit certain evidence regarding the claim by the appellant that the decedent was a drug addict. The appellant, who interposed the defense of self-defense, argues in her brief that the purpose in offering such testimony was to show the decedent's life-style and propensity for violence with respect to who was the aggressor in the fatal incident. The appellant contends that an addict not under the influence of drugs is likely to be more violent than an addict who is under the influence. However, there is no proof in the record as to this latter assertion, and this is not a matter of which the Court can properly take notice.

The following evidence concerning the use of drugs was excluded: (1) the testimony of Azon Downs, a police officer, concerning Downs' discovery of the decedent in possession of a syringe in 1972; (2) the testimony of Pauline Gardner, Custodian of Records of Spartanburg General Hospital, concerning the decedent's hospitalization for hepatitis in 1971; (3) the testimony of Michael Reid Murphy, a private investigator, concerning certain drug paraphernalia found in the automobile in which the decedent was killed and in the decedent's home.

In People v. Moretti, 6 Ill.2d 494, 129 N.E.2d 709 (1955), cert. den. 356 U.S. 947, 78 S.Ct. 794, 2 L.Ed.2d 822, the defendant sought to introduce evidence to the effect that the victim had been addicted to drugs some fourteen (14) months before the date of the homicide. The trial court in Moretti analogized its facts involving drugs to the facts in State v. Ricks, 170 La. 507, 128 So. 293 (1930), which involved alcohol addiction. In Moretti, the following is quoted from Ricks : "Even if the habit of the deceased as to drinking and proof of specific acts were admissible, such evidence in the present case would be wholly irrelevant and immaterial, as there is no proof that deceased was intoxicated at the time of the homicide. His alleged turbulent and dangerous character, when under the influence of liquor on other occasions, is therefore beside the question." The appellate court gave as one of the reasons for the exclusion of the evidence in Moretti the fact that there was no proof that the decedent was under the influence of drugs at the time the homicide occurred. We note that in the instant case there is similarly no testimony or other proof that the decedent was under the influence of drugs at the time he was killed.

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