State v. Kelly, 22304
| Decision Date | 09 April 1985 |
| Docket Number | No. 22304,22304 |
| Citation | 285 S.C. 373,329 S.E.2d 442 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Ardis Baker KELLY, Appellant. . Heard |
Kenneth E. Gaines of Gaines & Wade, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Asst. Gen. Harold M. Coombs, Jr., Staff Atty. Amie L. Clifford, Columbia, and Sol. Donald V. Myers, Lexington, for respondent.
Ardis Baker Kelly was convicted in Magistrate's Court of violating S.C.Code Ann. § 56-5-2330 (Cum.Supp.1984) 1 arising out of a two-car automobile collision. The Circuit Court affirmed the conviction. We reverse and remand for a new trial.
Appellant first contends the lower court erred in failing to grant a motion for a new trial based on after-discovered evidence. The alleged new evidence was the testimony of an additional witness, who was the first person on the scene after the accident.
A requisite for the grant of a new trial based on after-discovered evidence is that the evidence could not have been discovered with due diligence before the first trial. State v. Irvin, 270 S.C. 539, 243 S.E.2d 195 (1978). Clearly, appellant has not made this showing. Prior to trial, appellant and her private investigator talked with the witness. The reason they did not get the information they sought was their failure to adequately question him. Therefore, they did not exercise due diligence in seeking the evidence, and the motion was properly denied.
Kelly also claims error in the admission of portions of the testimony of the arresting officer. After describing the accident scene, Officer McCarley, without being qualified as an expert, drew conclusions from his direct observations, and speculated as to the cause of the accident.
A police officer may not give his opinions as to the cause of an accident. He may only testify regarding his direct observations unless he is qualified as an expert. Thompson v. S.C. Highway Dept., 224 S.C. 338, 79 S.E.2d 160 (1953).
It is clear that Officer McCarley's testimony was an opinion. The testimony should have been excluded.
Respondent cites State v. McClinton, 265 S.C. 171, 217 S.E.2d 584 (1975) for the proposition that a police officer may give an opinion without being qualified as an expert. However, McClinton is distinguishable because it essentially involved a direct observation, the existence of a bite mark. On the other hand, Officer McCarley's testimony dealt with the ultimate issues at trial,...
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State v. Ostrowski
...are not permitted to offer opinions other than those that could otherwise be offered by lay witnesses. See State v. Kelly , 285 S.C. 373, 374–75, 329 S.E. 2d 442, 443 (1985) (finding a police officer "may only testify regarding his direct observations unless he is qualified as an expert.").......
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State v. Prince
...the employees at trial. Moreover, there is no showing that he adequately interrogated these employees prior to trial. State v. Kelly, 285 S.C. 373, 329 S.E.2d 442 (1985). Accordingly, we deny Prince's petition for a new trial based upon after-discovered evidence. The remaining issue is affi......
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Gulledge v. McLaughlin
...testimony was cumulative to other testimony that defendant's car was over the center line at impact). See also State v. Kelly, 285 S.C. 373, 374, 329 S.E.2d 442, 443 (1985) ("A police officer may not give his opinions as to the cause of an accident. He may only testify regarding his direct ......
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Hamrick v. State
...was not qualified to testify regarding the location and position of the victim's body based on crime scene reconstruction); Kelly , 285 S.C. at 374, 329 S.E.2d at 443 ("A police officer may not give his opinions as to the cause of an accident.").Because Officer Harris gave opinion testimony......