State v. Key

• Decision Date: 29 April 1971
• Docket Number: No. 19212,19212
• Citation: 180 S.E.2d 888,256 S.C. 90
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Atlas KEY and Robert Tobias Thomas, Appellants.

Page 888

180 S.E.2d 888

256 S.C. 90

The STATE, Respondent, v. Atlas KEY and Robert Tobias Thomas, Appellants.

No. 19212.

Supreme Court of South Carolina.

April 29, 1971.

David Lyle and Richard C. Lewis, Rock Hill, and Cleve A. Lytle, Fort Mill, for appellants.

Solicitor Mike S. Jolly, Union, for respondent.

LITTLEJOHN, Justice:

Atlas Key and Robert Tobias Thomas were convicted of armed robbery at the July 1969 term of the Court of General Sessions for York County. A motion for a new trial was overruled. They have appealed to this court alleging error on the part of the trial judge in denying the motion.

By appropriate exceptions the two appellants allege error on the part of the judge in admitting certain testimony of Alvin Dean Bennett concerning defendant Key's mother, in directing witness Bennett to repeat an answer 'slowly, clearly and distinctly', and in failing to exclude a portion of the solicitor's argument to the jury.

On April 9, 1967, in the nighttime, two men robbed the Handy Pantry Store of $313. Both were wearing stockings over the face and each had a pistol. In the store at the time were assistant manager Darrell Leon Walters, Alvin Dean Bennett and Mrs. Kay Kiker, all of whom testified for the State at the trial. The masked gunmen departed the store; there can be no question but that an armed robbery took place. The principal issue in the trial of the case was the matter of identity.

While Bennett was testifying on direct examination the solicitor asked about a conversation which he had with the mother of the defendant Key. Over objection of counsel he was permitted to testify that Key's mother told him that 'Atlas said he was going to take half of Rock Hill with him if he was sent off and it would be best for me to just leave town on Sunday.' The record reflects that the judge told the witness to repeat the answer 'slowly, and clearly and distinctly.' Bennett also testified that he had received some other telephone calls.

Both appellants argue prejudicial error by reason of the fact that the judge asked the witness to answer slowly, clearly and distinctly. At most the objections could relate only to the case against Key.

The next alleged error concerns jury argument. When he case was argued before the jury the exact words of the solicitor were not recorded, but the following is a part of the record:

'The Reporter: Argument of counsel was not taken down by me, however, Mr. Lytle objected during the Solicitor's argument to the jury concerning a statement made by the Solicitor to the effect that he wouldn't give a plug nickel for Bennett's life if the defendants were turned loose. The objection was overruled by the Court.'

We agree that the court erred in permitting Bennett to testify about his conversation with Key's mother, and in permitting the solicitor's argument to the jury. We are not convinced that the judge's direction to the witness to testify slowly, clearly and distinctly was error; but for all the record shows, his instructions may have been given because the witness was testifying rapidly and indistinctly.

We affirm because we are not convinced that the errors prejudiced the defendants. It is well settled in this State that 'where guilt is conclusively proven by competent evidence and no rational conclusion can be reached other than the defendants are guilty, judgment of conviction should not be set aside because of insubstantial errors not affecting the result. State v. Robinson, 238 S.C. 140, 119 S.E.2d 671.' State v. Harvey, 253 S.C. 328, 170 S.E.2d 657 (1969).

'Whether the error in a given case shall be regarded as harmless on appeal may often depend on the circumstances of the particular case rather than on any definite rules of law, the materiality and prejudicial character of the alleged error being determined in its relation to the entire case. Accordingly, the appellate courts are disposed to regard as harmless intervening errors where it appears from the record that the conviction is clearly correct on the merits; where it appears on the whole case that substantial justice has been done; where the record shows that accused had a fair trial; where the record conclusively shows that the alleged error could not have resulted in prejudice; where from the whole record the guilt of accused appears to be clearly established; where no other verdict could have been returned on the evidence, and where the conviction was just and would have been reached if the errors had not been committed. So, also, where it can be said from the record that the errors complained of could not reasonably have affected the result of the trial, they may be regarded as harmless, and this particularly where proof of accused's guilt is clear.' 24A C.J.S. Criminal Law § 1887 (1962).

The admissibility of evidence as well as the argument of counsel to the jury are largely within the discretion of the trial judge. While it would appear that the objection to the evidence and the objection to the argument should have been sustained, we must, as we consider the prejudice issue, bear in mind that this court did not hear what took place while the trial judge did. The trial judge sees what is done and hears what is said. He is cognizant of all the surrounding circumstances and is a better judge of the latitude that ought to be allowed counsel in the submission of evidence and in arguments to counsel in a particular case than is this court. It is only in cases of abuse of discretion which result in prejudice that this court will intervene and grant a new trial. State v. Thompson, N.C., 179 S.E.2d 315, and State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424.

We have held that where counsel wishes to object to argument of his adversary to the jury and preserve the objection for appeal, the proper procedure is to have the court reporter make a record of the matter objected to. It would be helpful if enough of the argument is recorded to indicate the context in which the contested statements are made. In this case we do not have before us the exact full statement of the solicitor, but the trial judge heard what was said and heard the argument which preceded the alleged impropriety and what followed it. He was in a better position to judge the prejudice or lack of it than is this court.

We now review the evidence for the purpose of determining whether guilt, and more specifically identity, was conclusively proved by competent evidence such as to eliminate the necessity of a new trial. The adequacy of the evidence to convict is not challenged. The defendants elected not to testify and did not submit any evidence. Our review is therefore of necessity confined to the evidence submitted by the State.

Witness Bennett was in the store when the robbery occurred. He had been acquainted with Key some ten or twelve years. He did not know the defendant Thomas, whom he described as being heavyset and short.

About a month after the holdup Bennett testified that he saw Key at the Dixie Tavern in Rock Hill. He quoted Key as asking 'wasn't you in the Handy Pantry here awhile back when it got robbed?' He replied, 'Yeah, and I believe I recognized you while you was in there--you were the one that had a big gun hiding your face.' He said that Key 'just laughed and told me not to tell nobody about it.'

Bennett further testified:

'Q. At that time, I'll ask you this, did you recognize Atlas Key as being one of the men you had seen in the Handy Pantry on the night alleged?

'A. Yes, sir.

'Q. And are you positive of your identification?

'A. Yes, sir.

'Q. Is there any doubt in your mind?

'A. No, sir.'

Bennett admitted that he had had some difficulty with Key previously. He testified that he 'realized that it was him when he kept hiding but I just didn't want to say nothing about it.' The night of the robbery he told police officers he did not know who it was. Apparently he did not want to get involved. When Bennett and Key were discussing the matter at the Dixie Tavern, Key did not admit participating in the robbery, but did not deny it.

Darrell Leon Walters was assistant manager in charge of the store. He testified...