State v. Hamilton
| Decision Date | 31 March 1981 |
| Docket Number | No. 21421,21421 |
| Citation | 276 S.E.2d 784,276 S.C. 173 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Leroy HAMILTON, John Franklin Lyons and Bobby Eugene Paul, Appellants. |
J. P. Anderson, Jr., Mary G. Daniel and C. Rauch Wise, Greenwood, and Thomas E. Hite, Jr., Seneca, for appellants.
Atty. Gen. Daniel R. McLeod, Jr. and Asst. Attys. Gen. Kay G. Crowe and Lindy Pike Funkhouser, Columbia; and Sol. William T. Jones, Greenwood, for respondent.
Appellants Hamilton, Lyons, and Paul were convicted of criminal sexual conduct in the third degree. Hamilton and Paul received a sentence of nine (9) years and Lyons was sentenced as a youthful offender to a term not to exceed six (6) years. All have appealed, raising the same issues. We reverse on the ground that the trial judge erred in refusing to allow defense counsel to inspect, during cross-examination, notes of a witness, which the witness had reviewed prior to trial in preparation for his testimony. Other issues are determined because of their effect on a retrial.
By way of reply testimony, the State called officer Jones to testify. The State sought to show by the testimony of this witness, who had interviewed appellant Hamilton, that Hamilton had freely and voluntarily said during the interview that he and appellant Paul had "pulled the victim from the car"; and that the "victim began to struggle and tore the chain from around Bobby Paul's (appellant Paul's) neck." Timely objection of appellant's counsel to the testimony was overruled.
On cross-examination of officer Jones, it was revealed that the officer had made notes during the interview of appellant Hamilton and had reviewed these notes in preparation for his courtroom testimony. Appellants' counsel then requested to see the notes. The State opposed the request and asked the judge to review them. The judge did so and announced that he found two relevant sections of the notes which he offered to show appellants' counsel. The State objected and appellants' counsel was not permitted to see the notes. Later in the trial, the judge refused counsel's request that the officer's notes, admittedly used by him in his preparation to testify, "be placed in a sealed envelope and added to the transcript of record, or the exhibits in this case, for the purpose of possible review by the Supreme Court."
The question to be decided is whether it was error for the trial judge to refuse to permit appellants' counsel to have the notes of the witness Jones available to him for cross-examination. We conclude that it was. We stated the governing principle in State v. Tyner, 273 S.C. 646, 258 S.E.2d 559, as follows:
Where a document is used by a witness to refresh his recollection, the adverse party has a right to have the memorandum available to him for cross-examination. Citing McCormick on Evidence, Section 9, 2d Ed., page 17 (1972).
And, although the courts are divided on the subject, the reasons supporting the right to have the memorandum used by the witness in court are, as a general rule, equally applicable to writings used by the witness to refresh his memory before he testifies. McCormick on Evidence, Section 9, 2d Ed. page 17.
No sound reason appears to deny the application of the foregoing rule in this case. The notes in question were made by the witness and were used by him in preparation for his testimony. They were in court and available. It is undisputed that the trial judge found the notes relevant to the examination of the witness in at least two instances, but refused, upon objection by the State, to permit appellants' counsel to inspect them. There is no showing that the notes contained any confidential or privileged matters. Under these circumstances, it was error to refuse to permit their inspection by counsel for appellants and their use in cross-examination, where relevant.
In view of the remand of the case for a new trial it is necessary that we consider the challenge (1) to the constitutionality of Section 16-3-654 of the 1976 Code of Laws (Supp.), under which appellants were convicted, and (2) to the sufficiency of the evidence.
Appellants contend that Section 16-3-654 is unconstitutionally vague, ambiguous, and indefinite.
This section, in pertinent part, states:
Sec. 16-3-654. Criminal sexual conduct in the third degree. (1) A person is guilty of criminal sexual conduct in the third degree if the actor engages in sexual battery with the victim and if any one or more of the following circumstances are proven:
(a) The actor uses force or coercion to accomplish the sexual battery in the absence of aggravating circumstances.
Code Section 16-3-651(h) defines sexual battery as follows:
Sexual battery means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person's body, ... except when such intrusion is accomplished for medically recognized treatment or diagnostic purposes.
Section 16-3-651(i) defines victim as "the person alleging to have been subjected to criminal sexual conduct"; and Section 16-3-651(a) defines actor as "a person accused of criminal sexual conduct."
In the statutory scheme for dealing with criminal sexual conduct, the legislature defined "aggravated force" necessary to constitute first degree criminal sexual conduct and "aggravated coercion" in the second degree of the offense, but did not define ...
To continue reading
Request your trial
-
Freeman v.
...that an undefined term in a statute does not automatically render the statute unconstitutionally vague (citing State v. Hamilton,276 S.C. 173, 276 S.E.2d 784 (1981))).20 See Toth v. Square D Co.,298 S.C. 6, 8, 377 S.E.2d 584, 585 (1989)(“The general rule regarding retroactive application of......
-
Curtis v. State
...terms have common, ordinary meanings sufficient to proscribe conduct, and do not need to be specifically defined. See State v. Hamilton, 276 S.C. 173, 276 S.E.2d 784 (1981) (the fact that "force or coercion" was undefined by the statute did not render the statute vague or ambiguous because ......
-
State v. Richardson
...Court has found that "force" and "coercion" as used in section 16-3-654 have "basically the same meaning." State v. Hamilton, 276 S.C. 173, 178, 276 S.E.2d 784, 786 (1981). "They `mean to make a person ... follow a prescribed and dictated course; ... to inflict or impose: force one's will o......
-
State v. Adams
...to allow opposing counsel the opportunity to examine notes a witness uses to refresh his memory with prior to trial. State v. Hamilton, S.C., 276 S.E.2d 784 (1981). Counsel should have been allowed to inspect any of the notes that the witness actually referred Appellant Adams chose to take ......