State v. Miokovich, 19325
| Decision Date | 30 November 1971 |
| Docket Number | No. 19325,19325 |
| Citation | 185 S.E.2d 360,257 S.C. 225 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Gary Roy MIOKOVICH, Appellant. |
Kneece, Kneece & Brown, Columbia, for appellant.
Solicitor John W. Foard, Jr., Columbia, for respondent.
Appellant was convicted of assault and battery with intent to kill and received a sentence of twenty (20) years. He has appealed upon six exceptions which present the following questions for determination:
'(1) Was it error for the trial judge to refuse appellant's motion to sequester the witness?
'(2) Did the trial judge err in failing to, sua sponte, declare a mistrial when the solicitor offered a black sweater in evidence for the third time?
'(3) Did the trial judge err in refusing to permit the appellant to cross examine the State's witnesses as to whether the victim of the assault had been going out with other men on other occasions?'
Appellant's first question concerns the denial of his motion to sequester the witnesses. The motion was made after the examination of the second witness for the State had been partially completed. Upon inquiry by the court, appellant's counsel admitted that he had been furnished the prior written statements of the State's witnesses, which could be used in cross-examination for purposes of impeachment. Under these circumstances, the trial judge refused appellant's motion.
A motion to sequester witnesses is addressed to the discretion of the trial judge. While such motions are ordinarily granted, no abuse of discretion or prejudice has been shown from the denial of the motion in this instance. The exceptions charging error in this regard are accordingly overruled.
It is also contended that the trial judge committed error in failing on his own motion, to declare a mistrial when the solicitor offered a black sweater in evidence for the third time.
There was testimony that the appellant was seen wearing a black knit sweater at a night club prior to the alleged assault upon the prosecutrix. The son of the prosecutrix testified that he later saw appellant leaving the home, where the prosecutrix was found beaten and unconscious, and that appellant was wearing a black knit sweater at that time. A black sweater was subsequently taken from appellant's home. When the son testified, he was shown the sweater and asked to identify it. He stated that the sweater looked like the one worn by appellant on the night of the alleged crime. The sweater was then offered in evidence by the State. The court sustained an objection to its introduction, but, agreeably with appellant, the sweater was marked for identification.
The sweater was offered in evidence a second time, when a subsequent witness stated that it looked like the one appellant was wearing at the night club prior to the commission of the crime. Upon objection by appellant, its admission was again denied. Thereafter, the sweater was admitted in evidence upon being identified by an officer as the one taken from appellant's home. At the time of its admission, counsel for appellant stated: 'We have no objection.'
It appears that there were holes in the sweater where pieces of cloth had been cut out. Arrows had been placed on the garment pointing to the cut out places. In examining an officer about these marks, the solicitor asked what they indicated. In reply, the officer stated: 'The...
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