State v. Hale

• Decision Date: 12 November 1984
• Docket Number: No. 0393,0393
• Citation: 326 S.E.2d 418,284 S.C. 348
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Herman Jim HALE, Appellant. . Heard

Page 418

326 S.E.2d 418

284 S.C. 348

The STATE, Respondent, v. Herman Jim HALE, Appellant.

No. 0393.

Court of Appeals of South Carolina.

Heard Nov. 12, 1984.

Decided Feb. 7, 1985.

Richard H. Rhodes of Burts, Turner, Hammet, Harrison & Rhodes, Spartanburg, for appellant.

T. Travis Medlock, Atty. Gen., Harold M. Coombs, Jr., Deputy Atty. Gen., Susan A. Lake and Norman Mark Rapoport, Staff Attys., Columbia, and Claude A. Taylor, Jr., Sol., Seventh Judicial Circuit, Spartanburg, for respondent.

BELL, Judge:

Herman Jim Hale was indicted on two counts of first degree criminal sexual conduct and two counts of committing a lewd act upon a child. After trial by jury, he was convicted on two counts of first degree criminal sexual conduct and sentenced to concurrent terms of eighteen and ten years imprisonment. From his convictions Hale appeals. We affirm.

The evidence at trial consisted primarily of the testimony of two prosecuting witnesses, a nine year old boy and an eight year old boy, and the testimony of the defendant Hale. The older boy testified that he visited Hale's home to play with his two dogs. He stated that while he was in the house, Hale took him to an upstairs bedroom where Hale dropped his own trousers and underpants to his ankles and pulled the boy's trousers and underpants down to his ankles. Hale then seated the boy on his lap and performed an act of anal sodomy by bouncing the boy up and down for about five minutes. The younger boy testified that he frequently visited Hale's home to play with the dogs and to drink Kool Aid. He related several incidents in which Hale fondled his male organ, one incident involving oral sodomy, and a separate incident of attempted anal sodomy. In his testimony, Hale denied all allegations of sexual misconduct with the two boys.

I.

Over Hale's continuing objection, the solicitor elicited testimony by leading questions during direct examination of the two boys. Hale argues that the trial judge erred in permitting the leading questions.

The law gives the trial judge wide discretion when ruling on an objection to a question on the ground that it is leading. State v. Goolsby, 275 S.C. 110, 268 S.E.2d 31, cert. denied, 449 U.S. 1037, 101 S.Ct. 616, 66 L.Ed.2d 500 (1980). A case will rarely be reversed on the ground that the trial judge permitted leading questions, and then only if there has been a clear abuse of discretion resulting in prejudice to the objecting party. Belue v. City of Greenville, 226 S.C. 192, 84 S.E.2d 631 (1954); State v. Lyles, 210 S.C. 87, 41 S.E.2d 625 (1947).

We find no abuse of discretion. Leading questions may be asked of a child, particularly when the enquiry is directed to delicate matters of a sexual nature. State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978); accord, Tanner v. State, 228 Ga. 829, 188 S.E.2d 512 (1972). In such circumstances, the opposing party is fully protected by his right to cross examine the witness. In this case, where the prosecuting witnesses were eight and nine years old, leading questions were properly permitted. There is no indication the trial judge restricted Hale's cross examination of the two boys.

II.

Hale also claims the trial judge erred in excluding testimony of one Jerry Donahue, which Hale argues bore on the credibility of one of the prosecuting witnesses.

Out of the presence of the jury, Donahue testified he kept his dog at his girlfriend's house. While the dog was there, the family of the prosecuting witness moved from the neighborhood. After they moved, Donahue brought the dog back to his own house. A day later, the dog was missing. Two days later, Donahue found the dog at the new house of the prosecuting witness's family, some ten or fifteen miles away.

There are three ways to impeach the credibility of a witness by collateral evidence. The first is by showing he has been convicted of a crime involving moral turpitude, not too remote in time. State v. Harvey, 275 S.C. 225, 268 S.E.2d 587 (1980). The second is by showing he has been guilty of bad conduct that was not the subject of a conviction. This inquiry into matters collateral to the case in chief is limited to cross examination of the witness sought to be impeached; if the witness denies the act, the inquiry ends. State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976) (dictum); People v. Zabrocky, 26 N.Y.2d 530, 311 N.Y.S.2d 892, 260 N.E.2d 529 (1970); C. McCormick, EVIDENCE, Section 42, at 92 (3d ed. 1984). Finally, testimony bearing on the witness's general reputation for truth and veracity may be introduced. In South Carolina this testimony must take a peculiar form first prescribed in 1826. Dollard v. Dollard's Executor, 16 S.C.L. (Harp.) 564 (1826). Its admissibility was last challenged nearly a century ago in State v. Murphy, 48 S.C. 1, 25 S.E. 43 (1896), and today its propriety is not questioned. See, e.g., State v. McClellan, 323 S.E.2d 772 (S.C.1984).

Donahue's testimony could not be used to attack the prosecuting witness's credibility under any of these methods. First, it does not show the witness was convicted of a crime of moral turpitude. Second, there is no allegation of any specific instance of the boy's bad conduct. Even if there were, since it was not elicited on cross examination of the prosecuting witness himself, it is inadmissible as evidence of a prior bad act. Finally, at no time did Donahue address the witness's general reputation for truthfulness. Since his testimony failed to meet any of the criteria for impeachment evidence it was properly excluded.

III.

Hale next takes exception to the trial judge's failure to exclude the testimony of Jennifer Wattenberger, an outpatient counsellor in the Children and Youth Division of the Spartanburg Area Mental Health Center. The State called Wattenberger to testify concerning her intake counselling interview with the two prosecuting witnesses. She testified one of the boys was "exceptionally bright" and the other was a "bit immature." She also stated the behavior of the boys was not abnormal and neither of them needed counselling. Hale argues that Wattenberger's testimony was irrelevant to the issues in the case and was introduced solely to enhance the credibility of the prosecuting witnesses in the eyes of the jury.

The trial judge is given wide discretion in ruling on questions of the relevancy of evidence and his decision will be reversed only for clear abuse of that discretion resulting in prejudice to the objecting party. State v. Gellis, 158 S.C. 471, 155 S.E. 849 (1930). While Wattenberger's testimony appears to be of marginal relevance, we cannot say the judge clearly abused his discretion in admitting it. At no time did Wattenberger comment on the truthfulness or good character of the prosecuting witnesses. Moreover, Hale has shown no prejudice from her testimony. If anything, her opinion that the boys were normal and needed no counselling appears to favor rather than harm the defense. We therefore find no error in admitting her testimony.

IV.

Hale next argues the trial court erred in refusing to grant a mistrial when the solicitor improperly commented on his refusal to make a statement to the police after he had been arrested.

During cross examination of Hale by the solicitor, the following colloquy occurred:

Q. And you didn't tell any police officer anything about this charge; did you?

A. They asked me whether I wanted to make a statement, and I said that I did not until after I had seen an attorney.

Q. And you never did; did you?

A. No, I did not.

Q. You never told anybody until today, you never told any police officer until today that--

MR. WHITE: Your Honor, I object. I don't think that's relevant to this case.

THE COURT: That would not be an issue. Objection sustained.

Out of the presence of the jury, Hale's counsel then moved for a mistrial on the ground that the solicitor had commented on the accused's exercise of his right to remain silent. The judge refused to grant a mistrial, but gave the jury the following curative instruction:

Ladies and gentlemen, a few minutes ago the question was asked about this defendant making a statement, and an objection was made. The objection was sustained, and I...