State v. Posey, 20525

Citation269 S.C. 500,238 S.E.2d 176
Decision Date11 October 1977
Docket NumberNo. 20525,20525
CourtUnited States State Supreme Court of South Carolina
PartiesThe STATE, Respondent, v. Leonard POSEY, Jr., Appellant.

Page 176

238 S.E.2d 176
269 S.C. 500
The STATE, Respondent,
Leonard POSEY, Jr., Appellant.
No. 20525.
Supreme Court of South Carolina.
Oct. 11, 1977.

[269 S.C. 501] 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.

[269 S.C. 502] LEWIS, Chief Justice:

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.

Page 177

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 [269 S.C. 503] 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...

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10 cases
  • State v. Taylor, 15322
    • United States
    • Supreme Court of Connecticut
    • 31 Diciembre 1996
    ...concern 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......
  • State v. Primus, 3214.
    • United States
    • Court of Appeals of South Carolina
    • 10 Julio 2000
    ...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, 3585.
    • United States
    • Court of Appeals of South Carolina
    • 6 Enero 2003
    ...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 The judge used the following language when defining reasonable doubt and the State's burden of proof: If ... upon the whole case yo......
  • State v. Creech, 2109
    • United States
    • Court of Appeals of South Carolina
    • 2 Noviembre 1993
    ...nature even though the person resisting arrest uses no deadly weapon or the officer suffers no actual bodily harm. Id. at 496, 238 S.E.2d at 176 (citations Besides Creech's statement, the State introduced the following testimony: (1) Officer Blackburn testified he saw Creech strike Officer ......
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