State v. Harrison

Citation298 S.C. 333,380 S.E.2d 818
Decision Date01 May 1989
Docket NumberNo. 23025,23025
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Kyle Brett HARRISON, Appellant. . Heard
and F. Patrick Hubbard, Columbia, for appellant

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Norman Mark Rapoport, Columbia, and Solicitor W. Townes Jones, IV, Greenwood, for respondent.

HARWELL, Justice:

Appellant Kyle Brett Harrison was convicted of kidnapping and assault with intent to commit criminal sexual conduct in the first degree. He was sentenced to life for the kidnapping and a concurrent sentence of twenty years for the assault with intent to commit criminal sexual conduct. We reverse and remand for a new trial.

FACTS

In the early morning hours of Saturday, August 1, 1987, the prosecutrix in this case was walking home from a bar after an argument with her boyfriend when she was approached by a man she later identified as appellant. The prosecutrix testified that appellant started to say something to her, but that she told him she "didn't want to talk to him," and to "get out of [her] sight." She then continued walking down the road when someone "grabbed [her] from behind and started dragging [her] down the hill ... into a ditch," and attempted to rape her. The prosecutrix identified appellant as the assailant.

Appellant testified that he was being driven home by friends when they saw the prosecutrix walking alone. Appellant told the driver to stop to offer the prosecutrix a ride. The driver did not want to give the prosecutrix a ride, but stopped to let appellant out of the car. Appellant testified that he was only two blocks away from his home and could walk home. Appellant testified that the prosecutrix first told him to leave her alone, but called back to him as he was walking away. Appellant testified that he and the prosecutrix began to talk, and she told him she had had an argument with her boyfriend. The two walked along the road for a while; she became "friendlier", then told appellant she needed to go to the bathroom and the two went into the woods. Appellant testified that the prosecutrix then "propositioned him" but that when he attempted to have sex, she "freaked out" and "started crying" and saying "Don't rape me." Appellant then became alarmed and "ran home." He was arrested later that day and charged with kidnapping and criminal sexual conduct in the first degree. He was tried and convicted in October 1987.

DISCUSSION
I. PRIOR CONVICTIONS OF THE PROSECUTRIX

At trial, defense counsel sought to impeach the prosecutrix by questioning her regarding a previous guilty plea to three fraudulent check charges. The judge refused to allow appellant's attorney to cross-examine the prosecutrix on these charges, ruling that these were not crimes of moral turpitude. We disagree.

S.C.Code Ann. § 34-11-60 (1987) provides that it is unlawful to draw or utter a fraudulent check. An element of the crime is the "intent to defraud." Any crime in which fraud is an ingredient is a crime of moral turpitude. In re Sipes, 377 S.E.2d 574 (S.C.1989); State v. Horton, 271 S.C. 413, 414, 248 S.E.2d 263 (1970). A conviction for uttering a "fraudulent check" by its very terms recognizes that an element of fraud is involved. Accordingly, there is no question that a fraudulent check conviction is one for a crime of moral turpitude and is therefore proper impeachment material.

Further, refusal to allow impeachment on these charges was not harmless error. The appellant relied solely on the defense of consent. There was little physical evidence establishing that an attack had occurred; witness credibility was therefore a major factor. We hold that the judge erred in disallowing impeachment of the prosecutrix for her fraudulent check convictions.

II. HEARSAY TESTIMONY

At trial, the police dispatcher who spoke with the prosecutrix when she called to In order to qualify as part of the res gestae, a statement must be substantially contemporaneous with the litigated transaction and be the spontaneous utterance of the mind while under the active, immediate influence of the event. The rationale behind this exception lies in the special reliability accorded to a statement uttered in spontaneous excitement, which limits the declarant's powers of reflection and fabrication. State v. Long, 186 S.C. 439, 445, 195 S.E. 624, 626 (1938). There are no hard and fast rules as to when the res gestae ends. Wallace v. State, 151 Ga.App. 171, 259 S.E.2d 172, 173-174 (1979).

                report the alleged attack was allowed to testify regarding the contents of their conversation.   Further, police officers who spoke with the prosecutrix were also allowed to testify as to statements made during the course of the investigation.   Appellant objected on the basis of hearsay.   The judge allowed the testimony under the res gestae or "excited utterance" exception to the hearsay rule
                

Whether or not utterances are admissible under the res gestae exception depends upon the particular circumstances of each case and is left to the sound discretion of the trial judge, whose rulings will not be disturbed absent a showing of an abuse of discretion. Powers v. Temple, 250 S.C. 149, 162, 156 S.E.2d...

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15 cases
  • State v. Davis
    • United States
    • South Carolina Supreme Court
    • June 22, 2005
    ...263 S.C. 87, 97, 207 S.E.2d 814, 817 (1974). "There are no hard and fast rules as to when res gestae ends." State v. Harrison, 298 S.C. 333, 336, 380 S.E.2d 818, 820 (1989), superseded by rule as stated in Hill, 331 S.C. at 99, 501 S.E.2d at 125.1 Time is one factor to consider; "[o]ther fa......
  • State v. LaCoste
    • United States
    • South Carolina Court of Appeals
    • September 4, 2001
    ...event suspends the declarant's process of reflective thought, thus reducing the likelihood of fabrication. See State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989) (decided prior to the adoption of the Rules of Evidence but discussed the "excited utterance" exception in relation to res ge......
  • State v. Sims
    • United States
    • South Carolina Supreme Court
    • September 24, 1990
    ...him and made the statements was upset. Her statements were therefore a part of the res gestae and were admissible. State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989). Sims also objects to the introduction of this evidence because he was not represented by counsel when he pled guilty. In......
  • State v. McHoney
    • United States
    • South Carolina Supreme Court
    • March 19, 2001
    ...abdomen, in which he identified assailant, were admissible under excited utterance exception to the hearsay rule); State v. Harrison, 298 S.C. 333, 380 S.E.2d 818 (1989) (allowing as res gestae the statements of an attempted sexual assault victim to an officer at the hospital upon first opp......
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