State v. Needs, 24856.

Citation508 S.E.2d 857,333 S.C. 134
Decision Date23 November 1998
Docket NumberNo. 24856.,24856.
PartiesThe STATE, Respondent, v. Scott A. NEEDS, Appellant.
CourtUnited States State Supreme Court of South Carolina

Assistant Appellate Defender Robert M. Dudek of the South Carolina Office of Appellate Defense, Columbia, and Joseph C. Smithdeal of Greenwood, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Lauri J. Soles, Assistant Attorney General S. Creighton Waters, all of Columbia, and Solicitor Holman C. Gossett of Spartanburg, for respondent. WALLER, Justice:

A jury convicted appellant of murder and first degree burglary. He was sentenced to life in prison on each conviction, to be served consecutively. We affirm the convictions.


Lawrence Warmoth died April 25, 1993, when he was shot three times in the head while lying alone in his own bed. Investigators discovered no murder weapon, no eyewitnesses, and no physical evidence linking appellant to the crime. The key evidence against appellant was the testimony of Nancy P. Smith, appellant's girlfriend at the time and the mother of appellant's young son.

Ms. Smith offered the following testimony: Appellant frequently said he hated Mr. Warmoth, his stepfather, and talked about killing him or having him killed. Appellant borrowed her car and left her apartment at 10:30 p.m. to go to work April 24, 1993. Upon his return a few hours later at 3:30 a.m., appellant told her that he "was taking care of some business, he was finally taking care of his family." Appellant later told her that he expected his mother, Sandra Needs Warmoth, to give him $100,000 in proceeds from his stepfather's life insurance policies to start a business.

Nearly two weeks after the murder, appellant confessed to Ms. Smith that he had killed his stepfather. Appellant described the shooting to her in detail, saying he walked in the house, down the hall, and asked his stepfather for money to go to the store. Appellant told her that his stepfather began to sit up in bed and said "Scott what?" just before appellant shot him three times in the head. Appellant told her that he used "exploding bullets," which police could not trace to him.

An investigator testified he interviewed appellant at his stepfather's house shortly after police were called to the scene. Appellant stated he was with Ms. Smith the night of the murder, except from 11 p.m. to 12:30 a.m. when he went to a fast food restaurant. He did not admit any involvement in the murder.

The State's theory of the case was that appellant killed his stepfather because he hated him and wanted a share of the life insurance proceeds. The defense's theory was that police did a sloppy investigation, and Ms. Smith implicated appellant because she was angry he planned to marry another woman.

1. Did the trial judge err in ruling Ms. Smith was competent to testify against appellant?
2. Did the trial judge err in denying appellant's motions to dismiss the charges based on prosecutorial misconduct or, in the alternative, to suppress Ms. Smith's testimony?
3. Did the trial judge err in allowing the State to impeach Ms. Smith under the new South Carolina Rules of Evidence after another judge had refused to qualify her as a court witness under prior case law?
4. Did the trial judge err in admitting evidence of insurance policies on the victim's life?
5. Did the trial judge's circumstantial evidence and reasonable doubt charges shift the burden of proof to defendant in violation of the constitution?
6. Did the trial judge err in denying appellant's motion for a new trial based on after discovered evidence?


Ms. Smith initially provided an alibi for appellant, at his urging, by telling police he was with her the night of the murder, except from 11:30 p.m. to 12:30 a.m. Ms. Smith told police about appellant's confession to her in August 1993, four months after the murder. She admitted lying in her initial statement. Ms. Smith changed her statement again in May 1994, giving police a similar statement which implicated appellant, but insisting appellant had couched his entire story in "hypothetical" terms. The State called the case for trial in June 1994.1 At a pretrial hearing, Ms. Smith recanted her statements about appellant's confession to her and testified appellant was with her when his stepfather was murdered. She also produced a diary describing that evening with appellant.

Ms. Smith testified against appellant as described above at the September 1995 trial. On cross examination, she admitted her testimony directly conflicted with the testimony she gave at the June 1994 pretrial hearing. The diary she testified about at the pretrial hearing was a fake, created at appellant's suggestion, Ms. Smith testified. She no longer was scared to testify against appellant because she had remarried, Ms. Smith told jurors. In short, Ms. Smith was first a potential witness for appellant, then a potential witness for the State, then a potential witness for appellant, and—finally—an actual witness for the State at trial.

Appellant contends the trial judge erred in denying his motion to prevent Ms. Smith from testifying because she was not competent under Rule 601(b)(2), SCRE. Her conflicting statements to police and admissions of perjury made her incompetent because she did not understand the duty of a witness to tell the truth. The Court should not uphold a conviction based solely on the testimony of a "pathological liar," appellant asserts. We disagree.

"Every person is competent to be a witness except as otherwise provided by statute or these rules." Rule 601(a), SCRE. Courts presume a witness to be competent because bias or other defects in a witness's testimony—revealed primarily through cross examination—affect a witness's credibility and may be weighed by the factfinder. See State v. Smith, 199 S.C. 279, 282, 19 S.E.2d 224, 225 (1942) ("the established practice [is] to allow a rather full and thorough cross-examination of the witnesses for both the State and the defendant in the criminal Courts by way of questions tending to test memory, veracity or credibility"); accord Mueller and Kirkpatrick, Modern Evidence, § 6.1 (1995); 98 C.J.S. Witnesses § 458 (1957).

A witness must have personal knowledge of the matter and must swear or affirm to tell the truth. Rules 602 and 603, SCRE. "A person is disqualified to be a witness if the court determines that ... the proposed witness is incapable of understanding the duty of a witness to tell the truth." Rule 601(b)(2), SCRE.2 The purpose of Rule 601(b) is to provide a minimum standard for the competency of a witness. Notes to Rule 601, SCRE. Even a convicted perjurer may testify as long as he or she meets the minimum standard. See State v. Merriman, 287 S.C. 74, 337 S.E.2d 218 (Ct.App.1985)

(explaining the abolition of the prohibition against testimony by a convicted perjurer).

A proposed witness understands the duty to tell the truth when he states that he knows that it is right to tell the truth and wrong to lie, that he will tell the truth if permitted to testify, and that he fears punishment if he does he, even if that fear is motivated solely by the perjury statute. State v. Green, 267 S.C. 599, 606, 230 S.E.2d 618, 621 (1976). As succinctly explained by the Pennsylvania Supreme Court, in order to be competent to testify, a witness must have the ability (1) to perceive the event with a substantial degree of accuracy, (2) remember it, (3) communicate about it intelligibly, and (4) be mindful of the duty to tell the truth under oath. Commonwealth of Pennsylvania v. Goldblum, 498 Pa. 455, 447 A.2d 234, 239 (Pa.1982).

The party opposing the witness has the burden of proving a witness is incompetent. Pennsylvania v. Goldblum, supra. The determination of a witness's competency to testify is a question for the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. State v. Camele, 293 S.C. 302, 360 S.E.2d 307 (1987); State v. Green, supra.

In this case, Ms. Smith swore to tell the truth and had personal knowledge of the matter. The trial judge stated he believed, based upon Ms. Smith's in camera testimony, that she understood her duty to tell the truth. When questioned by the judge, Ms. Smith stated outside the jury's presence that she understood her duty to tell the truth, and that she would face perjury charges if she lied in court. The trial judge did not abuse his discretion in ruling that Ms. Smith was competent to testify under Rule 601(b)(2), SCRE.

After the trial court properly has determined a witness is competent, the resolution of the credibility of the witness is within the province of the jury. See State v. Patterson, 324 S.C. 5, 16, 482 S.E.2d 760, 765

("inquiry as to the weight a juror would give one kind of witness over another invades the jury's province to determine credibility"), cert. denied, ___ U.S. ___, 118 S.Ct. 146, 139 L.Ed.2d 92 (1997); State v. Ingram, 266 S.C. 462, 468, 224 S.E.2d 711, 713 (1976) ("resolution of the credibility of witnesses is within the province of the jury"), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). "[T]his Court has more than once held that the jury is the judge of which contradictory statement of the witness is the truth." Soulios v. Mills Novelty Co., 198 S.C. 355, 364, 17 S.E.2d 869, 874 (1941).

The prosecutor and appellant questioned Ms. Smith extensively about her conflicting statements. Ms. Smith testified she lied in her initial statement to police; she lied when she modified her August 1993 statement to say appellant had been speaking "hypothetically"; and her testimony at trial directly conflicted with her testimony at the June 1994 pretrial hearing. She told jurors she was testifying truthfully at the trial. While Ms. Smith's credibility conceivably...

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