State v. Steadman, 19357

• Decision Date: 17 January 1972
• Docket Number: No. 19357,19357
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Cody R. STEADMAN, Jr., Appellant.

Page 712

186 S.E.2d 712

257 S.C. 528

The STATE, Respondent, v. Cody R. STEADMAN, Jr., Appellant.

No. 19357.

Supreme Court of South Carolina.

Jan. 17, 1972.

Wendell O. Adams, Walterboro, and Betty M. Sloan, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Clarence T. Goolsby, Jr., Columbia, and Sol. Marion H. Kinon, Dillon, for respondent.

LEWIS, Justice.

Appellant, Cody R. Steadman, Jr., has appealed from his conviction and sentence at the September 1970 term of the Court of General Sessions for Dillon County of (1) conspiracy to commit burglary and (2) accessory before the fact of burglary. He challenges the judgment of conviction on grounds, generally, that there was no evidence to sustain it and because of several alleged trial errors.

Appellant was jointly indicted, with five others, for his participation in the breaking and entering of South of the Border Motel, near Dillon, South Carolina. All were jointly indicted for conspiracy. Three of his codefendants, who actually broke and entered the motel, were additionally charged with burglary and assault with intent to kill. One of these plead guilty as charged, one was granted immunity and testified for the State, and the other has not been brought to trial. Appellant and the remaining two codefendants, who were not present at the time of the burglary, were charged, in addition to conspiracy, with the offense of accessory before the fact, and were convicted by the jury as charged, receiving consecutive sentences of five years for conspiracy and ten years on the charge of accessory. Appellant and a codefendant Greuling have prosecuted separate appeals, that of Greuling being disposed of in a separate opinion, filed herewith.

When the case was called for trial, appellant, along with his codefendants, jointly moved for a continuance and also for a change of venue, both of which were refused by the trial judge. It is charged that this was error. It is well settled that motions for a continuance and for a change of venue are addressed to the sound discretion of the trial judge and his disposition of such motions will not be reversed unless it is shown that there was an abuse of such discretion.

Appellant was arrested during the latter part of August 1970. Apparently counsel was immediately secured. A preliminary hearing was held on September 1, 1970 and the trial was begun on September 28, 1970. The motion for continuance was made upon the ground that counsel, during the one month interval between his employment and the trial, did not have sufficient time to adequately prepare appellant's defense. The factual basis for the motion is identical to that relied upon by his codefendant Greuling. Our holding in the Greuling appeal, filed this date, that there was no showing of an abuse of discretion in the denial of the motion, renders further discussion of this question unnecessary.

The motion for a change of venue was made upon the grounds that a fair and impartial trial could not be obtained in Dillon County because of the wealth, prominence and influence of the prosecuting witness and the pre-trial publicity in the local newspapers concerning the offense. The record is devoid of any factual support for the motion and it was therefore properly denied.

We find no abuse of discretion in the refusal of the trial judge to grant the motions for a continuance and change of venue.

Appellant next contends that the 'court erred in its judicial interference, participation and comments in the proceedings, all to the prejudice of the accused.' This question cannot be sustained for three reasons, each sufficient, namely: First, the exception forming the basis for the question is too general to be considered, Rule 4, Section 6, of the Rules of this Court; second, any right to object to the alleged prejudicial 'interference, participation, and comments' of the trial judge was waived by the failure to interpose timely objection during the trial, Parks v. Morris Homes Corporation, 245 S.C. 461, 141 S.E.2d 129; Lipscomb v. Poole, 247 S.C. 425, 147 S.E.2d 692; and third, the record fails to sustain the charges made.

The fourth and thirteenth exceptions argued in appellant's brief present one question, to wit: Did the court err in failing to charge the jury that it was their duty to consider hearsay evidence only as to the conspiracy charge, and that such evidence could not be considered in connection with the charge of accessory before the fact?

The foregoing instruction was not requested when the trial judge gave counsel the opportunity to call attention to any omission in the charge, and the failure to do so at that time constitutes a waiver of any right to complain on appeal of the alleged error. Section 17--513.1, 1962 Code of Laws; State v. Starnes, 213 S.C. 304, 49 S.E.2d 209.

Appellant has also filed exceptions charging that the lower court erred in refusing to grant his motion for a directed verdict as to the crime of conspiracy since the only testimony to prove the offense was that of an alleged coconspirator. The sole issue presented by this exception is whether the uncorroborated testimony of a coconspirator is sufficient to sustain a conviction for conspiracy. The exception is overruled.

In State v. Rutledge, 232 S.C. 223, 101 S.E.2d 289, a defendant was convicted of receiving stolen goods and conspiracy to commit the crime of robbery. The State relied largely, if not entirely, on the testimony of coconspirators. In disposing of the identical question here raised, the court held:

The first question raised is that a conviction cannot stand upon the uncorroborated testimony of an accomplice. Such is not the law in South Carolina. The weight to be given the testimony of an accomplice is for the fact finding body and if his uncorroborated evidence satisfies the jury of the defendant's guilt beyond a reasonable doubt, a conviction is warranted.

A codefendant and coconspirator, Johnny Strickland, plead guilty at the beginning of the trial to conspiracy, burglary, and assault with intent to kill. Sentence was deferred until after the trial and he testified as a witness for the defense. It is now contended that the delay in sentencing the codefendant Strickland denied appellant the right of compulsory process for obtaining the testimony of this witness for the defense. This is apparently based upon the contention that an alleged plea bargain with Strickland had the effect of inducing him to refrain from giving favorable testimony in behalf of the appellant.

The record is devoid of any factual support for the statement that the codefendant's plea was induced by a promise of leniency, or so-called plea bargain. The mere fact that the sentencing of the codefendant was deferred until after trial did not deprive appellant of any constitutional right of compulsory process to obtain the codefendant's testimony. A somewhat similar contention was made and rejected in State v. Avery, 255 S.C. 570, 180 S.E.2d 190.

Appellant also assigns error in the ruling of the trial judge with respect to the introduction in evidence of a written statement made by a witness Ware. This witness was an admitted participant in the crime and had been granted immunity by the State. While testifying as a witness for the State and during his cross-examination by counsel for the codefendant Greuling, it developed that Ware had given a written confession some time after his arrest. Ware had been given a copy of his statement in compliance with the provisions of Sections 1--65, 26--7.1, and 26--7.2 of the 1962 Code of Laws, but did not have it at the trial. However, a copy was furnished by the State to counsel for the defendants; and counsel for Greuling, during his cross-examination of Ware, had the copy marked for identification. He thereafter proceeded to cross-examine Ware relative to the contents of the statements in an attempt to show inconsistencies between it and Ware's trial testimony. Upon objection by the State, the court ruled that, if the witness was to be examined as to the contents of part of the statement, all of it must be introduced in evidence. The statement was then placed in evidence as an exhibit for the codefendant Greuling.

The basis of the exception is solely that the court erred in requiring defense counsel to put the statement in evidence for the purpose of cross-examination during the presentation of the State's case. In appellant's brief, it is argued, additionally, that the statement should have been excluded because the witness had not been given a copy thereof as required by Sections 1--65, 26--7.1, and 26--7.2, supra. As to the first contention, the record is devoid of any showing of prejudice from the ruling of the trial judge. As to the additional argument in the brief, there is a complete absence of any factual support for it in the record. On the contrary, the record shows that the...