State v. Motes

• Decision Date: 05 May 1975
• Docket Number: No. 20005,20005
• Citation: 215 S.E.2d 190,264 S.C. 317
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. James D. MOTES, Appellant.

Page 190

215 S.E.2d 190

264 S.C. 317

The STATE, Respondent, v. James D. MOTES, Appellant.

No. 20005.

Supreme Court of South Carolina.

May 5, 1975.

Costa M. Pleicones and James C. Cordell, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Joseph R. Barker, Staff Atty. Brian P. Gibbes, and John W. Foard, Jr., Solicitor, Columbia, for respondent.

LEWIS, Justice:

The defendant, James David Motes, has appealed from his conviction and sentence for murder. He contends that he should be granted a new trial because of several alleged trial errors.

The first question concerns the alleged prejudicial effect of certain questions propounded to the defendant by the trial judge.

Defendant testified that he knew nothing of the killing of the deceased and that he was at home at the time of the occurrence. It developed, however, that defendant, against the advice of his attorney, had made a statement to the officers that he (defendant) had committed the crime. He stated that he made the confession in order to get the officers to release his wife who was also being held in jail in connection with the matter. After cross-examination by the Solicitor, the trial judge questioned the defendant concerning the statement, particularly with reference to the fact that defendant had made the statement after being advised not to do so by his attorney and also as to defendant's source of knowledge of certain facts of the crime, since his defense was that he was not present and knew nothing about how it occurred. It is contended that the questions asked by the trial judge were prejudicial and that defendant's motion for a mistrial on that ground should have been granted.

We fail to find the claimed prejudice in the examination of the witness by the court. The questions asked were relevant and not suggestive of any opinion of the trial judge. While the inquiries by the trial judge were upon a sensitive issue in the case and did not serve to improve defendant's claim of alibi, we think, under this record, the question may be properly placed within the category of inquiries made by the court in the performance of its duty to bring out the truth of the matters charged against the defendant. As such, no legal prejudice resulted.

It is next contended that the trial judge erred in allowing the wife of defendant to testify against him.

The State called the wife of defendant as a voluntary witness against him and, over defendant's objection, the wife was permitted to testify that she and the defendant went to a poolroom on the night in question where they had an altercation with the deceased, and then returned to their home where defendant procured a pistol, forcing her to drive him back to the poolroom where he shot the deceased. The wife testified that she was forced, under threats of death by the husband, to accompany him on the return trip to the poolroom and to accompany him after the shooting on a trip to Chicago, Texas, and finally Florida, where they were arrested. The lady who operated the poolroom testified that she also witnessed the shooting.

While South Carolina originally followed the common law rule that neither the husband nor wife was competent to testify for or against the other in a criminal case, the competency of a husband or wife as a witness is now determined in this State under the following provisions of Section 26--403 of the 1962 Code of Laws:

'In any trial or inquiry in any suit, action or proceeding in any court . . . the husband or wife of any party thereto or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness, on behalf of any party to such suit, action or proceeding. But no husband or wife shall be required to disclose any confidential or, In a criminal proceeding, any communication made by one to the other during their marriage.' (Emphasis added.)

This statute makes the husband or wife of any party 'competent and compellable to give evidence the same as any other witness,' except that 'no husband or wife shall be required to disclose any confidential communication or, in a criminal proceeding, any communication made by one to the other during their marriage.'

The effect of the quoted statute was to remove the absolute common law disqualification of a husband or wife to testify against the other, and to define the limits of the remaining privilege against being compelled to so testify. See: 2 Wigmore on Evidence, Section 600 et seq. and 8 Wigmore, Section 2227 et seq. Since this is the effect of the statute, we look solely to its terms to determine the conditions under which a husband or wife may be permitted to testify against the other.

Under our construction of the statute, the inquiry as to whether it was error to permit the wife to testify need proceed no further than a determination of who may exercise the privilege against disclosure, that is, whether the privilege is that of the witness spouse or whether the privilege is that of either spouse who chooses to claim it. The fact that the wife voluntarily testified is not questioned in this case. The privilege was sought to be exercised by the defendant husband. Therefore, if the privilege was personal to the witness spouse, the trial judge properly permitted the wife to testify.

We think that the statute makes the exemption against disclosure a privilege of the particular witness, unaffected by any objection of the other spouse. In view of the prior removal of the disqualification of the husband and wife as witnesses against each other and the injunction that they may be 'compellable' to give evidence as any other witness, the subsequent limitation that 'no husband or wife' could be required to disclose marital communications means that the privilege against disclosing such evidence must be claimed or asserted, otherwise the disclosure could be required. There is no statutory language to indicate a legislative intent that a witness spouse could not so testify unless the other spouse agreed. It is the particular witness (husband or wife, as the case may be) who cannot be compelled to disclose; and, in the absence of a contrary statutory direction, the right to exercise the privilege against disclosing marital communications is solely that of the witness spouse from whom the privileged information is being sought.

Error is next assigned in the refusal of the trial judge to permit the introduction of a prior written statement of the wife of defendant and the cross-examination of the witness therefrom.

The wife of defendant admitted in her testimony that she had made two prior statements concerning the crime, one written and a subsequent oral one, both made to the officers. She stated that the written statement was false but that the oral one, consistent with her in-court testimony, was true. It developed that, although she had signed the written statement, she was not given a copy thereof. Since she had not been given a copy of her written statement, the trial judge refused, under Code Sections 1--65, 26--7.1, and 26--7.2, to admit it into evidence and ruled that it could not be used in cross-examination.

These sections make it improper to admit into evidence in any criminal proceeding any written statement taken from a witness by a person employed by the State, county, or municipality, or reference thereto in such proceedings, unless an exact copy of the statement is given to the witness and a signed receipt taken therefor.

The written statement in question was taken by an officer, an employee of the county or State, and a copy thereof was not given to the witness. The trial judge, therefore, properly refused, under the foregoing statutes, to admit the statement in evidence and to permit its use in cross-examination of the witness.

Defendant contends, however, that the State first brought out, in the presence of the jury, the existence of a prior written statement by the witness, which she admitted was false in certain respects; and that, under those circumstances, even if the statement was properly excluded under the statutes, it was highly prejudicial to deny defendant the right to use it to cross-examine the witness as to any inconsistencies between it and her trial testimony. Although the statement was excluded, counsel for defendant was permitted, without objection, to ask the witness about certain inconsistencies between her trial testimony and the prior written statement; and she testified that there were no inconsistencies between the two, other than those testified to in answer to counsel's questions.

The prior written statement of the witness is not a part of the appeal record, and there is no showing that the inconsistencies between the trial testimony and the prior statement were not limited to those stated by the witness on cross-examination. Since the witness admitted that she had made false and inconsistent statements about the matter and defendant was permitted to examine her concerning these inconsistencies, defendant was not prejudiced by the refusal of the trial court to allow the prior statement to be further used in the trial.

It is also contended that the trial judge committed error in permitting the Solicitor to cross-examine the defendant from a written confession of the witness obtained before trial, alleging that the confession was not freely and voluntarily given.

The record shows that all requirements were met for an initial determination of the voluntariness of the confession by the court and the subsequent submission of that issue to the jury. The record abundantly sustains the conclusion of the trial judge that the statement of the defendant was freely and voluntarily made. State v. Patterson, 263 S.C. 176, 209 S.E.2d 39. In fact, the confession was made by defendant against the specific advice of his counse...