State v. Kahan, 20383

• Decision Date: 15 March 1977
• Docket Number: No. 20383,20383
• Citation: 268 S.C. 240,233 S.E.2d 293
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Lee M. KAHAN, Appellant.

Page 293

233 S.E.2d 293

268 S.C. 240

The STATE, Respondent, v. Lee M. KAHAN, Appellant.

No. 20383.

Supreme Court of South Carolina.

March 15, 1977.

James I. Redfearn, Chesterfield, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Joseph R. Barker and Robert N. Wells, Jr., Columbia, and Solicitor J. DuPre Miller, Bennettsville, for respondent.

GREGORY, Justice:

Lee M. Kahan was indicted for the murder of his wife and appeals from a conviction of voluntary manslaughter. Finding no error in the trial, we affirm.

There were no admitted eyewitnesses to the shooting. Kahan testified that he and his wife were alone in their house, when he heard a shot from her bedroom. He ran into the room and found her sitting on the bed with his .22 caliber pistol in her hand.

Kahan lists 13 exceptions, most of which center on the admissibility of testimony of the State's expert witness, Pattillo, a chemist employed by SLED. Pattillo testified about his examination of the nightgown Mrs. Kahan had been wearing at the time of her death. He found no gunpowder residue on the gown; he said, "this particular type of weapon (the .22 pistol) will tend to stop leaving gunpowder residue somewhere between the distance of approximately 18 and 24 inches away from the target."

Kahan contends that the chain of possession of the gown was not established and that Pattillo should not have been permitted to testify because the gown was not introduced as evidence. We find no merit to either of these contentions.

It is uncontroverted that Deputy Wilson personally received the gown in a plastic bag from the coroner at the hospital and delivered it to the Sheriff's office on December 24, 1974 and that he personally picked up the gown in a plastic bag from the Sheriff's office on January 2, 1975 for delivery to SLED and Agent Pattillo. He further testified that he believed the gown was kept in the evidence locker during this time span. While there was no testimony as to the care and handling of the plastic bag containing the gown during this time, such was not necessary to establish a chain of custody and would go only to the credibility of the evidence.

The testimony in regard to the chain of custody is clearly sufficient to meet the standards of Benton v. Pellum, 232 S.C. 26, 100 S.E.2d 534 (1957), which states:

"While proof need not negative all possibility of tampering, People v. Riser, 47 Cal.2d 566, 305 P.2d 1, it is generally held that the party offering such specimen is required to establish, at least as far as practicable, a complete chain of evidence, tracing possession from the time the specimen is taken from the human body to the final custodian by whom it is analyzed." 232 S.C. at 33, 100 S.E.2d at 537 (emphasis added).

See also State v. Pollard, 261 S.C. 389, 200 S.E.2d 233 (1973).

Agent Pattillo testified he performed the Walker residue test on the gown for the presence of gunpowder residue and none was found. The testimony of the coroner and Pattillo as to the presence of blood on the gown negates any possible prejudice to Kahan from Pattillo's testimony without the introduction of the gown as evidence.

Pattillo also conducted an out-of-court experiment during the course of the trial. He fired Kahan's pistol at various distances into a "test gown", made of similar material and of a similar weave pattern as the gown worn by the deceased. He found that the gun left a detectable gunpowder residue up to 24 inches, and that at 30 inches not a single particle of nitrite could be found. (He had first fired into both gowns to determine if the residue pattern on the test gown was approximately the same as that on the other gown.) Pattillo testified about his experiment.

Kahan asserts this testimony was inadmissible for the same reasons as he gives for the inadmissibility of the testimony on Mrs. Kahan's gown. We find no merit to these reasons. He further says that the conditions surrounding Pattillo's experiment were dissimilar to those existing at the time of Mrs. Kahan's death. However, this Court has not required that conditions of an experiment be identical to those existing at the time of the controverted event; only that there be substantial similarity. Weaks v. S. C. State Highway Department, 250 S.C. 535, 159 S.E.2d 234 (1968). Such similarity was present here.

Kahan also contends it was error to permit Pattillo "to testify regarding out of court experiments based on previous testimony of prior witness." However, that testimony related to the path of the bullet through the victim's body and was not relevant or material to the results of the test gown experiment. Further, Pattillo testified that the angle at which he fired the gun (the objected-to portion of the experiment)...