State v. McFarlane, 21977

CourtUnited States State Supreme Court of South Carolina
Citation279 S.C. 327,306 S.E.2d 611
Decision Date16 August 1983
Docket NumberNo. 21977,21977
PartiesThe STATE, Respondent, v. Randy McFARLANE, Appellant.

S.C. Com'n of Appellate Defense, Columbia, and Keith A. Gatlin, of Hayes, Brunson & Gatlin, Rock Hill, for appellant.

Atty. Gen., T. Travis Medlock, Retired Atty. Gen., Daniel R. McLeod and Asst. Atty. Gen., Harold M. Coombs, Jr., Columbia, and Sol. William L. Ferguson, York, for respondent.

GREGORY, Justice:

Appellant Randy McFarlane was convicted of committing a lewd act upon a child under fourteen years of age, a violation of S.C.Code Ann. § 16-15-140 (1976), and sentenced to six years' imprisonment. We affirm.

On the morning of August 5, 1981, appellant was giving group swimming lessons at the P.T.L. Day Camp in York County. He offered individual lessons to a ten year old girl who was visiting the camp with her cousin. Allegedly, while supporting the ten year old girl with one hand under her stomach, appellant put his other hand inside the girl's bikini bottoms and fondled her private parts. The victim testified she tried to swim away but appellant pulled her back.

The victim did not tell anyone what happened to her until late afternoon of that day. She went to her cousin's home around 5:00 p.m. Upon arriving there, she related the incident to her cousin and soon after, to her aunt. When the victim's mother arrived to take her home, she related the incident to her mother.

Appellant was indicted for wilfully and lewdly committing a lewd and lascivious act upon a child under the age of fourteen years, found guilty by a jury, and sentenced to six years' imprisonment. He appeals, asserting five errors.

First, appellant argues the trial judge erred in refusing to subpoena an out-of-state witness. We disagree.

Section 19-9-70 of the Code clearly indicates it is within the trial judge's discretion whether to request the attendance of an out-of-state witness.

Appellant requested the trial judge to subpoena Dr. Frank Harrison to testify in this case on the basis that he was a material witness. Appellant contended Dr. Harrison's testimony would be that the victim suffered no physical injury such as bruises, tears, or abrasions, and such testimony would contradict the victim's testimony that appellant tried to "pull me apart." The State presented no testimony which would conflict with the testimony Dr. Harrison would offer. The victim did not testify that appellant physically injured her, and the State never contended she was physically injured. The indictment merely alleged appellant fondled the victim's private parts. The trial judge ruled the witness was not material and denied appellant's motion. We hold the trial judge did not abuse his discretion in refusing to subpoena Dr. Harrison.

Next, appellant argues the trial judge erred in refusing to allow the admission into evidence of Dr. Harrison's medical record of the victim. Again, we disagree.

Section 19-5-510 of the Code (Cum.Supp.1981) provides in pertinent part:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

Appellant contends a detective of the York County Sheriff's Department was qualified to authenticate the medical report merely because his office requested the report from Dr. Harrison and received the original in the mail. Clearly, this would not qualify the detective to testify to the identity and mode of preparation of the report or whether it was made in the regular course of business at or near the time of the accident. We hold the trial judge did not abuse his discretion in refusing to allow the admission into evidence of the medical report.

Third, appellant argues the trial judge erred in allowing the victim's mother and aunt to testify as to what the victim had related to them about the incident. Appellant asserts such testimony is inadmissible hearsay.

Immediately prior to the testimony of the victim's mother and aunt the victim's cousin testified without objection as to what the victim related to her about the incident. It is well settled that the admission of improper evidence is harmless where it is merely cumulative to other evidence. See cases collected in 4 West's South Carolina Digest, Appeal and Error, Key No. 1050(1). Thus, even if the evidence were inadmissible, admission thereof was harmless because it was cumulative to the testimony of the victim's cousin.

Next, appellant argues the trial judge erred in not allowing him to question the victim's mother about a contemplated lawsuit.

"Evidence of past or pending litigation between the witness and the party against whom the witness is testifying is thus commonly admissible to demonstrate bias." North Greenville College v. Sherman Construction Co., Inc., 270 S.C. 553, 243 S.E.2d 441, 442 (1978). Appellant asserts evidence of contemplated litigation should also be admissible to demonstrate bias.

Considerable latitude is allowed in the cross examination of an adverse witness to show bias. Id. Testimony that the witness is contemplating a lawsuit may indicate the witness is biased, and may be relevant and admissible. Annot., 98 A.L.R.2d 1060 (1980). Upon cross examination, the victim's mother testified her...

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32 cases
  • Martin v. State
    • United States
    • Maryland Court of Appeals
    • 9 Julio 2001
    ...F.2d at 261-62; People v. Morton, 213 Mich. App. 331, 539 N.W.2d 771, 773 (1995); Arlington, 875 P.2d at 315-16; State v. McFarlane, 279 S.C. 327, 306 S.E.2d 611, 613 (1983); Ferguson Seed Farms v. McMillan, 18 S.W.2d 595, 598-99 (Tex. Comm'n App.1929, holding approved).5 The question posed......
  • State v. Rice
    • United States
    • South Carolina Court of Appeals
    • 5 Octubre 2007
    ...from evidence where the employer failed to offer the file through its custodian or another qualified witness); State v. McFarlane 279 S.C. 327, 330, 306 S.E.2d 611, 613 (1983) (finding trial court properly refused to admit medical report when no one could testify to the identity, mode of pr......
  • State v. Black
    • United States
    • South Carolina Supreme Court
    • 3 Octubre 2012
    ...harmless in light of another unobjected-to impeachment, I do not find those circumstances present here. Compare e.g. State v. McFarlane, 279 S.C. 327, 306 S.E.2d 611 (1983)(in lewd act prosecution, defendant's erroneous impeachment with manslaughter harmless in light of proper impeachment w......
  • State v. Hartmann, 90-399
    • United States
    • Nebraska Supreme Court
    • 25 Octubre 1991
    ...State v. Teeter, 85 N.C.App. 624, 355 S.E.2d 804 (1987); State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985); State v. McFarlane, 279 S.C. 327, 306 S.E.2d 611 (1983); Arnold v. State, 163 Ga.App. 10, 293 S.E.2d 501 (1982); State v. Whitman, 429 A.2d 203 (Me.1981); Williams v. City of Tulsa, ......
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