State v. Bailey, No. 22989

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: TOAL; GREGORY
• Citation: 377 S.E.2d 581,298 S.C. 1
• Parties: The STATE, Respondent, v. Wayne Garvin BAILEY, Appellant. . Heard
• Decision Date: 19 April 1988
• Docket Number: No. 22989

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377 S.E.2d 581 298 S.C. 1 The STATE, Respondent,
v.
Wayne Garvin BAILEY, Appellant. No. 22989. Supreme Court of South Carolina. Heard April 19, 1988.
Decided March 13, 1989.

Page 582

[298 S.C. 2] Stephen John Henry, Greenville, for appellant.

Atty. Gen. T. Travis Medlock, Deputy Atty. Gen. William K. Moore, Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Sol. Joseph J. Watson, Greenville, for respondent.

TOAL, Justice:

Appellant was convicted of burglary in the first degree, discharging a firearm into a dwelling, grand larceny, and malicious injury to real property. Appellant was sentenced to ten years for burglary, and concurrent one year sentences for the other offenses. For the following reasons, we affirm the conviction.

[298 S.C. 3] This action involves a family dispute. The appellant, Wayne Bailey, is the brother of the victim, Rex Bailey. On the morning of April 17, 1986, Rex and the appellant had an argument at their parents' home. Later that day, Rex discovered that someone had "shot up" his house and pick-up truck. Additionally, Rex found at least one shotgun missing from his house. Rex gave

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a statement to the police implicating the appellant, his brother, in the crime.

The appellant first alleges that the trial court erred in allowing the State to impeach their own witness, Rex Bailey, by having the solicitor read the witness' prior inconsistent statement to the jury when the witness refused to testify consistently with the statement he gave to the police. Prior to the commencement of the trial, the appellant's counsel notified the solicitor by letter that Rex would not testify consistently with his statement. At trial, the State acknowledged that Rex planned to testify inconsistently with his statement, but decided nonetheless to call him as a witness in their case in chief. When Rex testified that he did not remember what happened on April 17th, the State handed the statement to the witness to "refresh" his memory. The solicitor requested that Rex read the statement to the jury. When Rex persistently interspersed additional testimony into the statement, the Court directed the solicitor to publish the statement. The solicitor then published the statement to the jury.

It is well established in South Carolina that the State may not impeach its own witness through a prior inconsistent statement. State v. Sloan, 278 S.C. 435, 298 S.E.2d 92 (1982); State v. Ellefson, 266 S.C. 494, 224 S.E.2d 666 (1976). The reasons underlying the rule are, first, that the party by calling the witness to testify vouches for the trustworthiness of the witness, and second, that the power to impeach is the power to coerce the witness to testify as desired, under the implied threat of blasting the character of the witness if the witness does not. McCormick on Evidence, § 38 (E. Cleary 3d Ed.1984).

The general prohibition against impeaching one's own witness is subject to an exception. The State may impeach its own witness when the witness proves hostile or recalcitrant. State v. Bendoly, 273 S.C. 47, 254 S.E.2d 287 (1979). In Bendoly, the Court concluded that a [298 S.C. 4] witness may not be declared hostile except upon a showing of both actual surprise and harm. 254 S.E.2d at 288.

Recently, in State v. Hamlet, 294 S.C. 77, 362 S.E.2d 644 (1987), this Court reversed the trial court, holding that absent a showing of surprise by the State, or finding of...