State v. Livingston, 24640

Decision Date02 April 1997
Docket NumberNo. 24640,24640
Citation327 S.C. 17,488 S.E.2d 313
PartiesThe STATE, Respondent, v. Aundray E. LIVINGSTON, Appellant. . Heard
CourtSouth Carolina Supreme Court

James H. Moss, of Moss & Kuhn, P.A., Beaufort, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General G. Robert Deloach, III, Columbia, and Solicitor Randolph Murdaugh, III, Hampton, for respondent.

MOORE, Justice.

Appellant was convicted of felony driving under the influence (DUI) and sentenced to twenty-five years imprisonment. We reverse.

FACTS

Appellant was driving in Beaufort County at 11:00 p.m. on July 31, 1995. He turned a corner at a high rate of speed onto a street and lost control of his car. He hit the victim's car, killing her instantly. Prior to being taken to the hospital, he emptied his pockets and gave the police a baggie of marijuana. At the hospital, police obtained a urine sample from appellant. This case does not involve alcohol.

The sample tested positively for marijuana. The chemist who analyzed the sample testified that, based upon the test result, appellant had smoked marijuana sometime during the day and a half prior to the sample being taken.

ISSUE

Did the trial judge err in allowing the victim's husband to testify and in admitting a photograph of the victim?

DISCUSSION

Appellant contends the trial judge erred by allowing the victim's husband to testify and admitting a photograph of the victim and her husband. We agree.

Immediately prior to resting its case, the State called the victim's husband to testify. Appellant objected stating the testimony was irrelevant and prejudicial. The trial judge allowed him to testify. The victim's husband testified that he and the victim had married in May, two months before the accident. He testified they then moved to Beaufort where she began work as a telecommunications operator on the 3-11 p.m. shift and he became a deputy sheriff. He also testified his wife was only 22 years old when she died. A photograph of the two of them was introduced. The testimony is not extensive, but it creates a poignant image, especially in light of the fact that the trial took place only three months after the incident.

The State contends the testimony was relevant. Rule 402, SCRE, provides that all relevant evidence is admissible. 1 Under Rule 401, SCRE, relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The State contends the testimony established the reason the victim was in Beaufort County, the time she normally left work, and the route she usually took home. Further, the State contends this evidence was relevant to establish the victim's identity. These facts are of no consequence to the determination of this action (whether appellant is guilty of felony DUI), since the victim's identity and the time and place of the accident were undisputed and these matters were not in issue.

The photograph of the victim taken shortly before her death also is of no consequence to the determination of this action. In addition, a photograph...

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16 cases
  • State v. Hawes
    • United States
    • Court of Appeals of South Carolina
    • March 14, 2018
    ...photograph was relevant to the issue of malice, Hawes cites State v.Langley , 334 S.C. 643, 515 S.E.2d 98 (1999), State v. Livingston , 327 S.C. 17, 488 S.E.2d 313 (1997), and State v. Johnson , 293 S.C. 321, 360 S.E.2d 317 (1987), for the proposition that "such photographs are irrelevant, ......
  • State v. Johnson
    • United States
    • United States State Supreme Court of South Carolina
    • January 10, 2000
    ...should have been excluded. Compare State v. Rosemond, 335 S.C. 593, 518 S.E.2d 588 (1999)(Finney, C.J., dissenting); State v. Livingston, 327 S.C. 17, 488 S.E.2d 313 (1997). Further, in my opinion, the trial judge abused his discretion in excluding the letter proffered by appellant to impea......
  • State v. Benjamin
    • United States
    • United States State Supreme Court of South Carolina
    • July 2, 2001
    ...334 S.C. 643, 515 S.E.2d 98 (1999) (where victim's identity not an issue, evidence not admissible for that purpose); State v. Livingston, 327 S.C. 17, 488 S.E.2d 313 (1997) (same). Moreover, we fail to see that McMillan's description of the robbers as "one short and one tall" is sufficient ......
  • State v. Elders
    • United States
    • Court of Appeals of South Carolina
    • January 28, 2010
    ...distinguishable from the two cases relied upon by Elders: State v. Langley, 334 S.C. 643, 515 S.E.2d 98 (1999) and State v. Livingston, 327 S.C. 17, 488 S.E.2d 313 (1997). In each of those two cases, the South Carolina Supreme Court ruled that the trial court erred by admitting a photograph......
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