State v. McCoy

• Decision Date: 19 December 1979
• Docket Number: No. 21099,21099
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Calvin L. McCOY, Appellant.

Page 159

261 S.E.2d 159

274 S.C. 70

The STATE, Respondent, v. Calvin L. McCOY, Appellant.

No. 21099.

Supreme Court of South Carolina.

Dec. 19, 1979.

D. M. McEachin, Jr., of Zeigler & McEachin, Florence, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Brian P. Gibbes and Russell D. Ghent, Columbia, and Sol. Dudley Saleeby, Jr., Florence, for respondent.

LITTLEJOHN, Justice:

The appellant, Calvin L. McCoy, was convicted of criminal sexual conduct in the first degree, and sentenced according to law. His defense was consent. His recitation of that which took place was more bizarre than credible, and all issues of fact were determined adversely to him by the jury. Criminal sexual conduct is proscribed by § 16-3-651, Et seq., Code of Laws of South Carolina (1976). These sections were enacted to replace the rape statutes.

In his appeal, there are asserted errors of law alleged to have occurred at the trial; in addition, it is submitted that the criminal sexual conduct act is unconstitutional.

Section 16-3-659.1, the shield statute under attack, reads as follows:

"Criminal sexual conduct: admissibility of evidence concerning victim's sexual conduct.

(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct and (2) If the defendant proposes to offer evidence described in subsection (1), the defendant, prior to presenting his defense shall file a written motion and offer of proof. The court shall order an in-camera hearing to determine whether the proposed evidence is admissable under subsection (1). If new evidence is discovered during the presentation of the defense that may make the evidence described in subsection (1) admissable, the judge may order an in-camera hearing to determine whether the proposed evidence is admissable under subsection (1)."

reputation evidence of the victim's sexual conduct shall not be admitted in prosecutions under §§ 16-3-652 to 16-3-656; Provided, however, that evidence of the victim's sexual conduct with the defendant, or evidence of specific instances of sexual activity with persons other than defendant introduced to show source or origin of semen, pregnancy or disease about which evidence has been previously introduced at trial shall be admissable if the judge finds that such evidence is relevant to a material fact and issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Provided, however, that evidence of specific instances of sexual activity which would constitute adultery and would be admissable under rules of evidence to impeach the creditability of the witness shall not be excluded.

At the beginning of the trial, counsel for the appellant moved " . . . to dismiss the indictment on the grounds that the statute under which it is brought is unconstitutional in that it unconstitutionally and impermissibly restricts the evidence and procedure in the case." The motion was overruled.

It is the contention of counsel for the appellant that the statute limits the right to confront witnesses and deprives the accused of a fair trial in violation of the sixth and fourteenth amendments of the Constitution of the United States and their South Carolina counterparts. The respondent argues that the statute is constitutional since it merely strikes a balance between minimally relevant evidence and the clear probability of undue prejudice.

We recognize that generally the right of counsel to cross-examine a prosecuting witness is of constitutional dimensions. Normally, cross-examination is essential to a fair trial as guaranteed by the sixth amendment and due process as required by the fourteenth amendment. The Supreme Court held in the case of Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 749-750, 19 L.Ed.2d 956 (1968):

"As the Court said in Pointer (V. State of Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923), 'It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.' 380 U.S., at 404, 85 S.Ct., at 1068. Even more recently we have repeated that '(a) denial of cross-examination without waiver * * * would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.' Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314."

In recent years there has been a great tendency by counsel for persons accused of rape or criminal sexual misconduct to try the prosecutrix instead of the defendant. No doubt the legislature has concluded that such tactics have a chilling effect on prosecutions, to the detriment of society, while providing minimal benefit to the accused person in his defense. The rationale of the judge-made rule that evidence of prior sexual conduct is relevant on the issue of consent was that sexual conduct with one person tends to prove consent to sexual conduct with another person. Such probative value as this evidence may have had is diminished in this modern era of more fluid morals.

The State has a legitimate interest in encouraging victims to report crimes and to present testimony against offenders. That interest is served by discouraging the oftentimes pointless and sometimes cruel treatment of victims who testify.

The statute does not prohibit all evidence of the victim's past sexual conduct. On the contrary, the statute reflects the legislature's view of relevant evidence in a criminal sexual conduct prosecution. A judicial safeguard is provided by the statute in that after the written offer of proof, an In-camera hearing is held to determine the admissibility of the proffered evidence. Such evidence is recorded and its exclusion may be reviewed upon appeal.

We are of the opinion that the shield statute does not unduly restrict the constitutional right to cross-examination and confrontation. The legislature, by a balancing process, has attempted to consider the interests of society and prosecuting witnesses, while protecting the defendants' constitutional rights.

It would appear that the Supreme Court of the United States has not ruled upon the constitutionality of shield statutes as relate to criminal sexual conduct cases, but...