State v. McGuire, 20911
| Decision Date | 13 March 1979 |
| Docket Number | No. 20911,20911 |
| Citation | 272 S.C. 547,253 S.E.2d 103 |
| Parties | The STATE, Respondent, v. Daniel L. McGUIRE, Appellant. |
| Court | South Carolina Supreme Court |
Kerry W. Koon and O. Grady Query, Charleston, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Brian P. Gibbes, Columbia, and Sol. Capers G. Barr, III, Charleston, for respondent.
Mr. and Mrs. Truman Glenn were robbed and beaten by three men armed with a pistol. Mr. Glenn died of injuries sustained.
Appellant Daniel L. McGuire was indicted, along with Wayne M. Crosby and Harold C. Ulrichsen, for armed robbery and the murder of Mr. Glenn. McGuire was brought to trial and convicted of both offenses. He has appealed, alleging prejudicial evidentiary errors and errors in instructions to the jury.
During trial, the State presented the testimony of Crosby. He had been granted immunity from prosecution in return for testifying. He had also been granted immunity on an unrelated charge of breaking and entering an automobile and larceny of a pistol. Subsequent to the immunity agreement, Crosby had admitted, at a suppression hearing before Circuit Judge Klyde Robinson, who was not the trial judge, that he had committed several crimes involving moral turpitude, stating that he had broken into Brown's Amusement, three service stations, two cafes, two houses and two cars; he also stated that he had cracked a safe, sold various drugs, and had once broken into his grandmother's house and stolen $2,500.00. Several of the places were broken into more than one time. These offenses occurred between 1971 and 1976. Apparently, he has not been prosecuted for these offenses.
In the trial, Crosby testified that he and McGuire and Ulrichsen robbed the Glenns and stated that he had decided to testify for the State in order to help set things straight. For the purpose of impeaching his credibility, defense counsel sought to cross-examine Crosby about his admissions before Judge Robinson, about crimes involving moral turpitude. His admissions at the suppression hearing were read into the record out of the presence of the jury. The trial judge refused the request of McGuire's counsel to cross-examine him about the admissions before the jury, basing his ruling on the witness's Fifth Amendment privilege against self-incrimination. He also noted that some of the crimes were admitted in a conclusory fashion.
Crosby also testified, in response to questions of the solicitor, that he had made an agreement with the police officer to take a polygraph examination concerning this case. He described the conversation with the officer in which the officer said to McGuire, concerning the polygraph examination, "well you are next." McGuire is purported to have replied that he had "nothing to hide." The officer later corroborated Crosby's agreement to take a polygraph examination and corroborated the claim that he had said McGuire would be next.
In speaking to the jury on the second day of the trial, over objection, the judge instructed it that discussion of the case in the jury room was all right, although it would be best if they did not discuss it until instructed to begin their deliberations. At the end of the second day of trial and throughout the remainder of the trial, the judge instructed the jury not to discuss the case among themselves at any time prior to final deliberation on the verdict.
Proper objection was made (1) to the exclusion of Crosby's admissions to prior crimes, (2) to reference to any polygraph examination, and (3) to the judge's instructions permitting the jury to discuss the case before all evidence had been submitted.
In refusing to permit counsel for McGuire to cross-examine Crosby concerning his admissions before Judge Robinson, we think the trial judge erred. That he made the statements admitting crimes involving moral turpitude was stipulated by the solicitor. Normally, the impeachment of a witness comes by way of introduction of a record of a conviction or of a guilty plea. When one is convicted or pleads guilty, the record speaks for itself, and the judgment of the court is conclusive. A witness may be impeached in other ways. There can be laid down no fixed rule as to what is admissible on cross-examination with respect to the past conduct of a witness who takes the stand. That is admissible which fairly tends to affect his credibility as a witness; that which does not is incompetent and may be prejudicial. The admissibility of evidence is...
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