State v. Hill, 20400
| Decision Date | 13 April 1977 |
| Docket Number | No. 20400,20400 |
| Citation | 234 S.E.2d 219,268 S.C. 390 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Howard Lee HILL, Sr., Appellant. |
Jack H. Lynn, Greenville, for appellant.
Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Joseph R. Barker and Staff Atty. Sally G. Young, Columbia, and Sol. C. Victor Pyle, Greenville, for respondent.
Appellant was convicted of armed robbery and sentenced to twenty-five years imprisonment. We find no error in this trial and affirm.
Appellant contends his constitutional rights were violated because no preliminary hearing was held. It is conceded that the demand for a preliminary hearing was not made to the proper magistrate. Having failed to comply with § 43-232, Code of Laws, 1962, appellant waived his right to a preliminary hearing. State v. Taylor, 255 S.C. 268, 178 S.E.2d 244 (1970).
Appellant next asserts error in the refusal of the trial judge to grant writs of habeas corpus ad testificandum and his motion for a continuance. The former is without merit as the trial judge repeatedly agreed to sign the writs but they were never produced. We perceive no abuse of discretion in the denial of the motion for a continuance. State v. Marshall, 260 S.C. 323, 195 S.E.2d 709 (1973).
Appellant's discovery motion was refused because he would not comply with Standing Order 75-2 of the Greenville County Court which dictates reciprocal or mutual discovery. The appellant chose not to avail himself of the availability of mutual discovery under the County Court's Standing Order. There is no merit in his contention of "compelled self-incrimination" since participation in the procedure in the County Court is voluntary. The preliminary hearing statutes provide the only pre-trial discovery rights in criminal cases. State v. Flood, 257 S.C. 141, 184 S.E.2d 549 (1971).
Appellant additionally asserts the deprivation of exculpatory material obtainable by way of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "(T)he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). The record clearly indicates appellant was given copies of the statements of each witness for the State. Moreover, the trial judge specifically inquired and was assured that the State had withheld no statements which were favorable to the Appellant.
We overrule this exception as there has been no showing of the omission of any specific evidence which would constitute constitutional error. Although the appellant does not have to show, and indeed may be unable to show, that the evidence which he seeks to have produced would be admissible at the trial, he does have to show some better cause for inspection than a mere desire. This he has failed to establish. Therefore, it does not appear how further investigation could have aided the appellant.
During the cross-examination of one of the State's witnesses, the response "not an ex-felon" was interjected in reference to the Appellant, who had not testified or put his character in issue. Appellant's motion for a mistrial based on this incident was denied. However, the trial judge cured any possible prejudice by striking the question and the answer and instructing the jury to completely disregard the testimony. The denial of motion for a mistrial did not constitute an abuse of judicial discretion. State v. Arnold,266 S.C. 153, 221 S.E.2d 867 (1976).
Error is next asserted in the jury charge. After the main instructions, to which the Appellant neither objected nor requested additional charges, the jury returned for a clarification. At this point, Appellant for the first time requested additional charges which were rejected. By failing to object or requesting additional instructions to the main...
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