State v. Posey, 20525
| Decision Date | 11 October 1977 |
| Docket Number | No. 20525,20525 |
| Citation | 269 S.C. 500,238 S.E.2d 176 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Leonard POSEY, Jr., Appellant. |
Kenneth E. Sowell, Greenville, for appellant.
Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Brian P. Gibbes and Edward B. Latimer, Columbia, and Sol. William W. Wilkins, Jr., Greenville, for respondent.
Appellant was convicted of murder and sentenced to life imprisonment. He contends in this appeal that he should be granted a new trial because of alleged prejudicial argument of the solicitor. The material facts are brief and undisputed.
Upon his trial, appellant did not testify and presented no witnesses in his behalf. Thereafter, the solicitor, in his closing argument, was permitted, over objection, to comment upon the failure of appellant to call an eyewitness to the crime to testify and was allowed to argue that an inference adverse to appellant could be drawn therefrom. Appellant contends that this argument was prejudicial in that it deprived him of the presumption of innocence and his right to rely upon the failure of the State's evidence to prove his guilt beyond a reasonable doubt.
While of no significance in the determination of the present issue, it appears that the eyewitness and appellant were married after the commission of the crime, thus the eyewitness was appellant's wife at the time of trial. She was present in the courtroom during the trial under subpoena by appellant. We assume, without deciding, that the witness in question was exclusively within the control of appellant.
The question than to be decided is whether it was prejudicial error to permit the solicitor to comment, in argument to the jury, upon the failure of appellant to call an eyewitness within his control to testify, where appellant had presented no evidence during the trial. We reverse upon the authority of State v. Simmons, 267 S.C. 479, 229 S.E.2d 597.
In Simmons, the defendant did not testify nor present any evidence and the trial judge permitted the solicitor to comment in argument upon the failure of the defendant to produce his wife as a witness. In reversing, this Court pointed out that, while the wife in that case was not an available or compellable witness, the rule, which permitted an adverse inference comment upon the failure of a party to produce a witness exclusively in his control, did not apply to a criminal defendant who introduces no evidence at all, citing 29 Am.Jur.2d, Evidence, Section 180 at page 227.
There is sound basis for the foregoing rule. It...
To continue reading
Request your trial
-
State v. Taylor
...about the jury's possible mistaken belief that a defendant has a duty to prove his innocence is well taken"); State v. Posey, 269 S.C. 500, 503, 238 S.E.2d 176 (1977) ("An accused has the right to rely entirely upon [the] presumption of innocence and the weakness in the State's case against......
-
State v. Primus
...on the defendant's failure to call a particular witness. See State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996); State v. Posey, 269 S.C. 500, 238 S.E.2d 176 (1977). The jury should ordinarily be instructed not to draw inferences from the neglect of a defendant to call witnesses. Douglas......
-
State v. Adkins
...on the weakness of the State's case since the State has the burden of proving guilt beyond a reasonable doubt. See State v. Posey, 269 S.C. 500, 238 S.E.2d 176 (1977). The judge used the following language when defining reasonable doubt and the State's burden of If ... upon the whole case y......
- State v. Creech
-
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
...507, 725 S.E.2d 676, 681 (2012). Arrest "Prior to conviction, a defendant is presumed innocent in the eyes of the law. See State v. Posey, 269 S.C. 500, 503, 238 S.E.2d 176, 177 (1977) (declaring such a statement "elementary"). Thus, a mere arrest warrant in no way proved Thomas in fact com......
-
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
...507, 725 S.E.2d 676, 681 (2012). Arrest "Prior to conviction, a defendant is presumed innocent in the eyes of the law. See State v. Posey, 269 S.C. 500, 503, 238 S.E.2d 176, 177 (1977) (declaring such a statement "elementary"). Thus, a mere arrest warrant in no way proved Thomas in fact com......
-
B. Assault and Battery
...S.C. 314, 320, 157 S.E.2d 637, 640 (1967). Accord State v. Brown, 269 S.C. 491, 238 S.E.2d 174 (1977). The statement in Brown, at 496, 238 S.E.2d at 176, that "neither serious bodily harm, . . . nor the use of a deadly weapon . . . is an essential element of the offense of aggravated assaul......
-
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
...507, 725 S.E.2d 676, 681 (2012). Arrest "Prior to conviction, a defendant is presumed innocent in the eyes of the law. See State v. Posey, 269 S.C. 500, 503, 238 S.E.2d 176, 177 (1977) (declaring such a statement "elementary"). Thus, a mere arrest warrant in no way proved Thomas in fact com......