State v. Posey, 20525
| Citation | 269 S.C. 500,238 S.E.2d 176 |
| Decision Date | 11 October 1977 |
| Docket Number | No. 20525,20525 |
| Court | United States State Supreme Court of South Carolina |
| Parties | The STATE, Respondent, v. Leonard POSEY, Jr., Appellant. |
Page 176
v.
Leonard POSEY, Jr., Appellant.
[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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...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......
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