State v. Hawkins, 1899

• Decision Date: 14 September 1992
• Docket Number: No. 1899,1899
• Citation: 425 S.E.2d 50,310 S.C. 50
• Parties: The STATE, Respondent, v. Scott A. HAWKINS, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 50

425 S.E.2d 50

310 S.C. 50

The STATE, Respondent, v. Scott A. HAWKINS, Appellant.

No. 1899.

Court of Appeals of South Carolina.

Heard Sept. 14, 1992.

Decided Nov. 30, 1992.

Wm. Gary White, III and Kenneth W. Lobenstein, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr. and William Edgar Salter, III, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.

PER CURIAM:

The appellant, Scott Hawkins, was convicted of resisting arrest and assault and battery of a high and aggravated nature. Hawkins raises forty-three issues on appeal. These issues address pretrial rulings evidentiary rulings, jury argument, and jury instructions. We affirm.

Viewing the evidence in the light most favorable to the State, a Cayce police officer observed the appellant driving in an erratic manner late one Friday night. The appellant stopped in the parking lot of his apartment complex and the officer pulled in behind him. The appellant was uncooperative and verbally abusive to the officer. The officer smelled alcohol on the appellant and observed beer bottles in his car. The appellant refused to perform field sobriety tests. When the officer attempted to arrest the appellant for driving under the influence, the appellant shoved and punched the officer and tried to run into his apartment. The officer called for assistance. The appellant continued to fight and kick after a second officer arrived on the scene. During the altercation, the appellant bit the thumb of the second officer and repeatedly tried to kick the first officer in the groin. When the appellant bit the second officer, this officer hit the appellant in the head twice with his fist and twice with a blackjack in an effort to make the appellant release his thumb. Two other officers arrived and the appellant was handcuffed and taken to the city jail. A few hours later the appellant indicated his head hurt. He was transported to the hospital where he had several surgical staples placed in the back of his head. ¹

At trial, the officers testified about the arrest and the injuries they received in the fight. Hawkins and his witnesses asserted the arresting officer started the altercation and the officers used excessive force in making the arrest. Pictures were introduced by both the State and Hawkins showing various injuries to the individuals involved.

PRETRIAL RULINGS

Hawkins challenges several pretrial rulings. We find no merit to any of these issues.

I.

The first issue is the failure of the court to grant a continuance on the grounds of illness of co-counsel and the absence of a material witness. The granting of a motion for continuance is within the sound discretion of the trial court and may only be reversed upon a finding of an abuse of discretion. State v. Lytchfield, 230 S.C. 405, 95 S.E.2d 857 (1957); State v. Cox, 263 S.C. 221, 209 S.E.2d 432 (1974).

Hawkins was represented by two attorneys. One of his attorneys was ill the day the case was called for trial and cocounsel sought a continuance. Co-counsel indicated he was familiar with the facts of the case and had participated in the filing of pretrial motions. The court denied the motion for continuance. The other attorney later joined the trial and participated in questioning witnesses and presenting of legal arguments to the court. We find no abuse of discretion.

Hawkins also sought a continuance based upon the absence of a material witness. The witness was one of four people who had been with the appellant the night of the arrest and was an eyewitness to the incident involving the police. An attempt was made to subpoena her in South Carolina but apparently she was in Florida at the time of trial. We find no abuse of discretion in the refusal to grant the continuance. Counsel for appellant did not fully comply with the requirements of Rule 7(b), SCRCrimP, as his motion for continuance was not verified under oath. However, he did present the court with an affidavit from the witness which presumably outlined her testimony. A comparison of the affidavit with the testimony of other fact witnesses presented by the appellant indicates the testimony would have been cumulative. See Ward v. Epting, 290 S.C. 547, 351 S.E.2d 867 (Ct.App.1986) (exclusion of cumulative evidence no ground for reversal).

II.

Hawkins asserts the court erred in failing to grant his motion to quash the indictments because he did not receive a requested preliminary hearing. Under Rule 2, SCRCrimP, a defendant charged with a crime not triable by a magistrate may request a preliminary hearing. The hearing is to be held within ten days following the request but shall not be held "if the defendant is indicted by a grand jury ... before the preliminary hearing is held." Rule 2(b), SCRCrimP. Further, any delay in holding the preliminary hearing is not a ground for delay in prosecution of the case in the court of general sessions. Rule 2(e), SCRCrimP. The record is unclear about the timing of the request but the defendant was indicted by the grand jury before a preliminary hearing was held. There was no error by the trial court. ²

III.

The appellant asserts the court erred in failing to grant his motion to change venue. The motion was based upon appellant's filing of a civil action against the county. Appellant contended jurors from the county would have a monetary interest as taxpayers in the outcome of the civil case and would not be impartial in the criminal trial. Counsel for appellant did not support the motion with affidavits under S.C.Code Ann. § 17-21-80 (1985).

A motion for change of venue is addressed to the sound discretion of the trial court and the court's ruling will not be disturbed by an appellate court absent an abuse of discretion. State v. Owens, 293 S.C. 161, 359 S.E.2d 275 (1987). In this case the trial court conducted adequate voir dire of prospective jurors including questions propounded by the defendant to ensure the defendant received a fair trial. We find no error.

IV.

The trial judge refused to recuse himself upon motion by the appellant. The recusal motion was based upon the trial judge's residence within the county. Appellant argues the refusal to recuse was error because the trial judge would not be impartial due to his potential financial interest as a taxpayer in the defendant's civil suit against the county. We find no merit in this argument. There is no indication of actual bias or prejudice by the trial judge. The claim of appearance of impartiality based upon a potential financial interest has no foundation in the record. See Virginia Elec. & Power Co. v. Sun Shipbuilding and Dry Dock Co., 539 F.2d 357 (4th Cir.1976) (trial judge had no financial interest in case based upon remote future possibility he might share in utility refund).

The appellant also claims the trial judge erred in hearing the motion for recusal in front of the jury panel and thereby informing them of the civil suit. The record does not indicate the civil suit was mentioned during the motion. This issue has no merit.

V.

Hawkins contends the court erred in refusing to strike a juror for cause because the juror had spoken to one of the prosecution witnesses. During voir dire, the court inquired at defense counsel's request if any juror had spoken to a witness. One juror indicated she had spoken to a witness because they were former co-employees, however, she was not affected by the conversation. Defense counsel later asked the court to strike this juror for cause and the court refused.

There is no basis to indicate the juror was disqualified merely because she casually spoke to a witness. We further note the record does not indicate Hawkins exhausted his peremptory strikes and therefore he is prevented from raising this issue on appeal. State v. Elmore, 300 S.C. 130, 386 S.E.2d 769 (1989).

EVIDENTIARY RULINGS

Hawkins challenges numerous evidentiary rulings made by the court during the trial. We find no merit to any of these contentions.

I.

Hawkins asserts the court improperly limited his examination of the arresting officer by not allowing him to question the officer about the use of deadly force. The court inquired about the relevancy of the testimony but then stated "[go] right ahead" after counsel advised the court of his position. There was no limitation of examination and counsel apparently chose not to proceed. There is no merit to this issue.

II.

Hawkins next argues the court improperly limited his examination of the officers regarding the Cayce Police Department's policy for treatment of injuries sustained by individuals in custody. The court sustained a relevance objection by the State to this inquiry to the arresting officer. No proffer was made concerning the policy. During the examination of a second officer, an attempt was made to introduce a written policy but the witness could not identify it and an objection was sustained. The policy was not later authenticated and is not part of the record on appeal. Given the procedural posture, there is nothing for this court to review on appeal. See State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991) (reviewing court may not rule on alleged error in exclusion of testimony unless record on appeal shows fairly what the rejected testimony would have been). We note an officer later testified without objection it was the procedure of the Cayce Police Department to transport a prisoner for medical treatment if he complains of an injury. We find no error.

III.

Hawkins argues the court erred in refusing to admit photographs of a co-defendant, a videotape, and medical records from his hospital admission.

The co-defendant, Dennis Crabtree, was in the car with the appellant that night. ³ Counsel for Hawkins attempted to introduce pictures of Crabtree, presumably to show Crabtree's physical condition after his arrest. The court sustained an objection to the introduction and the pictures were marked for identification. T...