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24857 - State v. Taylor

Davis Adv. Sh. No. 37
S.E. 2d





THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State Respondent,

v.

William David Taylor, Appellant.

Appeal From Dorchester County

Luke N. Brown, Jr., Circuit Court Judge

Opinion No. 24857

Heard October 6, 1998 - Filed November 23, 1998

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General John P. Riordan, all of

Columbia; and Solicitor Walter M. Bailey, Jr., of

Summerville, for respondent.







BURNETT, A.J.: Appellant was convicted of murder and

sentenced to life imprisonment. We affirm.





FACTS





At the beginning of trial, appellant stipulated he killed his

wife, Janet, by strangling her with a t-shirt; he denied the killing was

p.31


STATE v. TAYLOR





murder. The homicide occurred on August 31, 1994.







The following evidence was presented. Appellant and Janet

separated in June 1994. According to different witnesses, appellant

threatened to kill his wife on several occasions after their separation.

Specifically, appellant stated, referring to his wife: "if that bitch don't

come home, I'm going to kill her;" "either you are going to have sex with

me or I'll kill you;" "he should have killed her and [her daughter] a long

time ago . . . ;" and "if he had her right then, he'd ring her neck."





Appellant's neighbor saw a man at the Taylor's home after

Janet returned to the marital home.1 In early August, the neighbor had a

conversation with appellant. Appellant indicated he knew Janet was

seeing this man and stated, "I'm not going to let anyone sleep in my bed;

I'd kill her first." The neighbor replied, "I told [appellant] not to be

another O.J. Simpson."





According to appellant's brother, on the afternoon of August

31, appellant drove from Dorchester County to Orangeburg. Appellant told

his brother he thought he had killed Janet. The brother reported the

claim to the police. The Orangeburg police arrived and arrested appellant

without incident.





One of the arresting officers testified appellant had cut his

wrist with a box cutter in an apparent suicide attempt. Appellant

inquired if his wife was dead and, if so, "then that was good; that he had

wasted twenty-one years of his life." Two other officers testified appellant

repeatedly asked "is the bitch dead?" and stated "I hope she's dead

because she ruined [my] life."







Appellant's sister testified Janet began a relationship with

Richard Pritchard in May 1994. The sister testified, despite their

separation, appellant continued to give Janet money and, at times, the two

"acted like newlyweds."





The sister testified appellant called her on August 31 and

stated he thought he had killed Janet. The sister testified she thought

appellant then stated he was "just kidding." Appellant's sister stated he




1Appellant was living elsewhere.

p.32


STATE v. TAYLOR





"sounded kind of sad." The sister went to Janet's home; she gave the

deputies permission to break a window to enter the home.







Dorchester Deputy Sheriff Limehouse testified Sergeant Moore

broke a window pane, entered the home, and then unlocked the front door.

Janet's body was found in a bedroom, under blankets, clothes, and a

guitar case. Appellant stipulated he killed Janet in one part of the home

and dragged her to another.





The deputy sheriff testified it appeared there had been a

struggle in the home. A lamp was knocked over. A broken necklace and

torn watchband were on the floor.





Richard Pritchard, Janet's paramour, testified on appellant's behalf.

He stated he was engaged in an affair with Janet from May to

August 1994. Appellant was aware of the relationship in May and had no

animosity about Pritchard's relationship with Janet. Several weeks before

Janet's death, appellant shook Pritchard's hand and stated he was glad

Janet had met someone nice.





Appellant testified Janet left him in May 1994. He stated

Janet had told him Pritchard was a friend, but appellant suspected the

relationship was more. He testified he did not want to believe his wife

had a relationship with Pritchard; he wanted Janet back. Although they

were separated, on occasion, Janet led appellant to believe there was a

chance for their relationship.





Days before the homicide, appellant helped Janet with car

repairs. On the day of the killing, appellant bought her a car battery and

helped her pack her possessions. Her home was in foreclosure. She asked

appellant for money to rent an apartment. Appellant stated he thought

she was going to live with her parents.





Appellant testified:



I had been drinking a little bit . . . I was sitting on the floor .

. . [Janet] got mad with me, and I just kind of laughed at her

a little bit. I rubbed her on the leg. I said, 'what are you

getting' -- because Janet didn't normally get upset like that . .

. But she got up and started pacing back and forth, and she

started telling me that Rick was her lover. And she told me

p.33


STATE v. TAYLOR







that Leonard Bogard, she had had sex with him while she was

still married to me . . . [Janet] was very angry at me . . . She

said, 'Bill, you're never going to change; you're sorry as hell.'

and she said, 'I have no intentions of going back to you.' She

plainly told me that she was only using me for my money . . .

At that time, I started to get up and she kicked me in the

groin . . . She went toward the television set on the end of the

couch . . . And somehow or another she came up to me. I don't

know if she had an object in her hand. I have no idea what it

was at the time. but I ended up with her shirt, her t-shirt,

from the back of her trying to hold her off of me, from hitting

me. She kept doing this (indicating). She had something in

her hand -- I don't know what it was -- and she was kicking

me also. And the next thing I know she stopped doing

everything, and she was down on the floor, and she was dead.



(emphasis added).





Appellant testified he tried to resuscitate Janet. He then

dragged her body to the back bedroom. He stated he did not mean to hurt

Janet and denied ever threatening to kill her.







Appellant testified he later discovered Janet had been holding

a box cutter. The box cutter had blood on it. Appellant took the box

cutter.





Appellant testified when Janet was coming towards him, he

reached behind her, grabbed her t-shirt at the neck, and squeezed the

shirt tightly. He did not know how long he held onto the shirt.

Appellant's sisters testified Janet had asthma.





Appellant explained Janet must have cut her left hand while

transferring the box cutter between her hands. Appellant denied slashing

Janet's hand with the box cutter. He further denied his wife smeared

blood on the front door while attempting to flee.





The pathologist testified the ' decedent died from asphyxia due

to ligature strangulation. She stated "it takes a good deal of pressure to

asphyxiate somebody by means of a t-shirt [pulled across the front of the

neck]... it takes a good deal of force to do that." The pathologist testified



p.34


STATE v. TAYLOR





it would take a "number of minutes" to asphyxiate someone with a t-shirt.2

She testified there were no indications the decedent had asthma.





The decedent had several scrapes on her back, bruises on the

back of her left arm, bruises on the inside of her thighs, a bruise on her

scalp, and bruises on her lower legs. The pathologist stated the bruises

probably occurred just before death.





The decedent had a two inch laceration on her left palm which

the pathologist stated could have been inflicted with a knife. The

pathologist described this wound as "defensive." Blood was also found on

the decedent's right hand. The pathologist agreed with the defense that

the location of the blood was consistent with the decedent holding

something in that hand.





The forensic serologist testified both the decedent and

appellant had the same blood type. She was unable to determine the

decedent's blood sub-type, but determined appellant's sub-type. Human

blood was found on the decedent's right hand and on scrapings from the

victim's fingernails, but no other identifiable characteristics were available.

Blood on the decedent's left hand and t-shirt was consistent with the

decedent's blood but inconsistent with appellant's blood. The blood stains

on appellant's shorts and shirt were consistent with his blood type (and

the decedent's). Human blood was identified on the box cutter taken from

appellant, on a box from the decedent's home, and on a swab taken from

the front door of the decedent's home, but no further identifying

information was available on these items.





Appellant maintains the essential jury issue was whether the

homicide was murder or voluntary manslaughter.3





ISSUES





Did the trial judge err by refusing to allow appellant to




2 The victim was 5'7" and weighed over 200 pounds.





3Appellant did not request a charge on self-defense. The jury was

not instructed on self-defense. The trial judge did instruct the jury on

involuntary manslaughter.

p.35


STATE v. TAYLOR





present the details of a prior difficulty with the decedent?





II. Did the trial judge err by allowing the solicitor to publish

Pritchard's entire statement to the jury?





III. Did the trial judge err by allowing the solicitor to impeach

appellant with a prior conviction for criminal domestic

violence?





IV. Did the trial judge err by denying appellant's motion for a

new trial based on after-discovered evidence and based on an

alleged Brady v. Maryland4 violation?





DISCUSSION



I.



The State presented appellant's brother as a witness. During

cross-examination, the following colloquy was exchanged:



Q. Okay. Do you recall an incident where Janet hit

[appellant] on the head with a beer bottle at your house?



A. Yes, sir.



Q. Can you tell the jury about that?



[Solicitor]: Your honor, I object to that . . . .





During a bench conference, appellant indicated he was trying

to establish Janet was the aggressor. He proffered the following

testimony:



Q. Could you tell us about the incident concerning the beer

bottle?

A. [Appellant] and Janet got in an argument, and they was

(sic) up at my house. They was (sic) both drunk. I was




4 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

p.36


STATE v. TAYLOR





drunk. And Janet hit him in the head with the bottle about

three times. It never broke, but she hit him pretty hard and

he staggered back, and she went and got in the car and left

him at my house in Orangeburg.





The trial judge sustained the solicitor's objection.





Appellant argues the trial judge erred by refusing to allow him

to question his brother concerning the specifics of the incident with the

beer bottle. He contends the testimony was relevant for the purpose of

establishing the decedent was the aggressor. We disagree.





In homicide cases, evidence that the accused and the decedent

had previous difficulty is admissible. The evidence is admissible to show

the animus of the parties and to aid the jury in deciding who was the

probable aggressor. The general details of the difficulty, however, are

inadmissible. State v. Atchison, 268 S.C. 588, 235 S.E.2d 294 (1977);

State v. Clinkscales, 231 S.C. 650, 99 S.E.2d 663 (1957); State v. Bush,

211 S.C. 455, 45 S.E.2d 847 (1948); State v. Evans, 112 S.C. 43, 99 S.E.

751 (1919); see also State v. Williams, 321 S.C. 327, 468 S.E.2d 626

(1996); State v. Graham, 161 S.C. 362, 159 S.E. 838 (1931).





Appellant's brother testified the decedent hit appellant on the

head with a bottle on a prior occasion. This testimony supported

appellant's contention the decedent was the aggressor at the time of her

death. The trial judge properly admitted this testimony and properly

excluded the specifics of the incident. State v. Clinkscales, supra (evidence

husband and wife had previous difficulties was admissible, however,

testimony husband shot wife in the back with a shotgun weeks before her

death was inadmissible).





Moreover, any error in refusing to admit the proffered

testimony was harmless. Appellant's brother had already testified the

decedent hit appellant in the head with a beer bottle. The proffered

testimony adds little favorable evidence for appellant. Gamble v.

International Paper Corp. of S.C., 323 S.C. 367, 474 S.E.2d 438

(1996)(where excluded testimony was merely cumulative, there was no

error); State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996), cert. denied

___U.S.___, 117 S.Ct. 695, 136 L.Ed.2d 618 (1997)(error without prejudice

does not warrant reversal).



p.37


STATE v. TAYLOR





II



As noted above, appellant called Richard Pritchard, the

decedent's paramour, as a witness. On direct examination, Pritchard

admitted he had an affair with the decedent between May and August

1994.





On cross-examination, Pritchard testified he first met the

decedent in March 1994. He stated the decedent and appellant separated

two months later. At that time, Pritchard and the decedent began a

sexual relationship. Pritchard testified appellant became aware of his

relationship with the decedent in May or June of 1994.





On redirect, appellant questioned Pritchard concerning the

statement he had given law enforcement after the decedent's death.

Appellant showed the written statement to Pritchard and confirmed his

signature at the bottom of the statement. Appellant had Pritchard read

the following sentence from the statement: "I met Janet Taylor on May the

14th, 1994." Thereafter, appellant examined Pritchard as to the

inconsistencies in the date he met the decedent. Pritchard explained he

was nervous when he gave his statement and had in fact met the decedent

on March 14, 1994.





The solicitor requested permission to publish all of Pritchard's

statement pursuant to Rule 106, SCRE. Appellant objected, arguing he

had not introduced the statement into evidence. The trial judge overruled

the objection. The solicitor published Pritchard's statement to the jury in

its entirety.





Appellant contends the following portion of the statement is

prejudicial:



When [appellant] learned of my presence in [decedent's] life, he

investigated me, found out my address, phone number, place of

employment; I'm not sure what else. Before I met [appellant]

he called me at my house and told me that [decedent] had

gone to a bar and brought a man home to spend the night. He

also told me that she was still having sex with him. I believe

this was an attempt to break us up.





Appellant contends because he did not introduce Pritchard's



p.38


STATE v. TAYLOR







statement as an exhibit, the trial judge erred by allowing the solicitor to

publish all of Pritchard's statement.





Rule 1065, SCRE, provides:



When a writing, or recorded statement, or part thereof is

introduced by a party, an adverse party may require the

introduction at that time of any other part of any other writing

or recorded statement which ought in fairness to be considered

contemporaneously with it.





Rule 106, SCRE, has not been interpreted by this Court. The

text of Rule 106, SCRE, is substantially similar to Rule 106 of the Federal

Rules of Evidence.





Rule 106, Fed. R. Evid., is based on the "'rule of completeness'

and seeks to avoid the unfairness inherent in 'the misleading impression

created by taking matters out of context'." Rainey v. Beech Aircraft Corp.,

784 F.2d 1523, 1529 (11th Cir. 1986), citing Fed. R. Evid. 106 advisory

committee notes.5



Rule 106 [of the Federal Rules of Evidence] is a procedural

device governing the timing of completion evidence; the Rule is

'primarily designed to affect the order of proof.' It means that

the adverse party need not wait until cross-examination or

rebuttal. As such, the Rule reduces the risk that a writing or

recording will be taken out of context and that an initial

misleading impression will take hold in the mind of the jury.



S. Saltzburg, M. Martin, D. Capra, Federal Rules of Evidence Manual, pp.

98-99 (1998), citing, United States v. Walker, 652 F.2d 708, 713 (7th Cir.

1981); see also, M. Graham, Handbook of Federal Evidence, § 106 (1996);

J. Strong, McCormick on Evidence, § 56 (1992).




5 Before the adoption of Rule 106, SCRE, the law in South Carolina

had been that "when a part of a document or writing is introduced into

evidence, the remainder may be introduced by the other party. . .

However, the party seeking to bring out the remainder had to wait until

cross-examination or the presentation of that party's case to do so."

(internal citations omitted).



p.39


STATE v. TAYLOR





Technically, Rule 106, Fed. R. Evid., applies in instances when

a party introduces a writing or recorded statement into evidence. Rainey

v. Beech Aircraft Corp)., supra. Given the purposes behind Rule 106,

fairness and completeness, it is also applied where a party's use of a

writing or recorded statement is "tantamount to the introduction of the

[document] into evidence." Id. at 1529; see also United States v. Rubin,

609 F.2d 51 (2nd Cir. 1979)(where defense counsel quoted extensively from

government agents' notes, notes were admissible under doctrine of

completeness); Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1262 (7th Cir.

1988)(where defendant neither introduced portions of document nor

questioned witness about it, plaintiffs were not allowed to impeach witness

with document pursuant to Rule 106, Fed. R. Evid.); United States v.

Pendas-Martinez, 845 F.2d 938 (11th Cir. 1988)(where defense counsel did

not extensively read from report to attack government witness' credibility

or to suggest his testimony was inconsistent, fairness did not require

admission of entire report).





Where Rule 106, SCRE, applies, it does not require all of the

document to be introduced, merely "any other part of any other writing or

recorded statement which ought in fairness to be considered

contemporaneously with it." (emphasis added). Only that portion of the

remainder of a statement which explains or clarifies the previously

admitted portion should be introduced. Federal Rules of Evidence Manual,

supra, at 99, see also State v. Kelsey , 331 S.C. 50, 71, 502 S.E.2d 63, 73-

74 (1998)("[g]enerally, where a portion of a witness's prior inconsistent

statement has been introduced to impeach that witness, the entire

statement is admissible in rebuttal to explain the inconsistency . . .

Remaining portions which are not relevant or material in the explanation

of the inconsistency are not admissible. ")(internal citations omitted).





Appellant effectively placed a portion of Pritchard's statement

into evidence by having Pritchard read directly from the statement.

Accordingly, in the interest of fairness and completeness, it would have

been appropriate for the trial judge to require the introduction of any

other portion of Pritchard's statement which explained or clarified when he

met the decedent, the only issue encompassed by appellant's use of

Pritchard's statement. However, the remainder of Pritchard's statement

did not explain or clarify when he met the decedent. Accordingly, the trial

judge erred by allowing the solicitor to read the rest of Pritchard's

statement.




STATE v. TAYLOR





Nonetheless, in order for this Court to reverse a case based on

the erroneous admission or exclusion of evidence, prejudice must be shown.

State v. Bell, 302 S.C. 18, 393 S.E.2d 364 (1990). "Whether error is

harmless depends on the circumstances of the particular case. No definite

rule of law governs this finding; rather, the materiality and prejudicial

character of the error must be determined from its relationship to the

entire case. Error is harmless when it 'could not reasonably have affected

the result of the trial'." State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d

150, 151 (1985), citing State v. Key, 256 S.C. 90, 93, 180 S.E.2d 888, 890

(1971).





While the above-referenced portion of Pritchard's statement is

prejudicial, we conclude its admission could not reasonably have affected

the result of appellant's trial. The solicitor did not allude to this portion

of Pritchard's statement during his closing argument. Moreover, in light

of the other evidence of malice, the effect of the statement is negligible.

See Part IV. Review of the entire record indicates admission of the

statement was harmless beyond a reasonable doubt.





III.





Appellant testified at trial. During his direct examination,

defense counsel made a motion, unrelated to the present issue. While

outside the presence of the jury, the solicitor indicated he would mention

appellant's prior criminal domestic violence conviction if appellant tried to

"soft petal" (sic) the marital relationship. Appellant objected, stating he

had not placed his character into evidence and had limited his testimony

from the time of the separation to the homicide. The trial judge

instructed appellant to object at the appropriate time.





Appellant continued his direct examination. He stated "[J]ust

things had kind of gotten rough for us the last couple of years. . .".





On cross-examination, the following exchange occurred:



Q. You said to [defense counsel] that things were kind of

rough the last couple of years; is that right?



A. Yes, sir.



Q. In fact, they've been rough a whole lot longer than that,



p.41


STATE v. TAYLOR





haven't they?



A. I didn't think so. We was (sic) doing good. I was a

supervisor out at work before we had the explosion that killed

nine people.



Q. Answer my question now. I don't care about work and

explosions. I'm talking about your relationship with your wife.



A. I thought everything was okay.



Q. Was it okay in 1986?



A. We had some problems. We both drink.



And you had problems in 1986, some marital problems,

didn't you?



A. Yes, sir



Q. What kind of problems did you have back then?



A. I was arrested for domestic violence.



Q. And that involved, in December of 1986, hitting your wife

over the head with a .22 rifle, didn't it?



A. No; I didn't do that. No, I did not. That was never proved

in court or nothing. Me and Janet both simply went to court

and I simply admitted - - I paid the fine. I never really

admitted to nothing.



Q. Okay. [Appellant], do you deny ---



A. I truly ---

Q. that--wait; let me ask my question ---

The Court: Wait a minute now. Listen to the question. Then

you can answer it.

p.42


STATE v. TAYLOR





Q. Do you deny that on January the fifth, 1987, you were

found guilty ---



A. [Defense Counsel]: Your honor, I object at this point.



The Court: Over-ruled



Q. Do you deny that on January the fifth, 1987, you appeared

before Judge Miley and were found guilty of criminal domestic

violence in Berkeley County for hitting your wife over the head

with a .22 rifle?



A. No, I was -- yes; I was.





(emphasis added).





Appellant contends the trial judge erred by allowing the

solicitor to impeach him with a prior conviction for criminal domestic

violence. He contends by allowing the State to impeach him with the

former conviction, it was impermissibly allowed to attack his character

when he had not placed his character in issue. We disagree.





Initially, we note this issue is not preserved for appeal.

Appellant's general objection to the solicitor's question is insufficient to

preserve this issue for appeal. State v. Nichols, 325 S.C. 111, 481 S.E.2d

118 (1997). Appellant's earlier claim that he would object if the State

mentioned his prior conviction is also insufficient to preserve this issue for

appeal. See State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998)(pre-trial

evidentiary ruling is not final because subject to change based on

developments at trial).





In any event, this issue is without merit. In a criminal case,

the State may not attack the character of the accused unless he first

places his character in issue. State v. Nelson, 331 S.C. 1, 501 S.E.2d 716

(1998). However, "[w]here one party introduces evidence as to a particular

fact or transaction, the other party is entitled to introduce evidence in

explanation or rebuttal thereof, even though [the] latter evidence would be

incompetent or irrelevant had it been offered initially." State v. Stroman,

281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984). An "accused may be cross-

examined as to- all matters which he himself has brought up on direct

examination." 98 C.J.S. Witnesses § 515 at 439 (1957); State v. Allen, 266



p.43


STATE v. TAYLOR





S.C. 468, 224 S.E.2d 881 (1976)6 citing 98 C.J.S. Witnesses§ 378 at 134-

135 ("[a]s a general rule, any matter is proper subject of cross-examination

which is responsive to testimony given on direct examination, or which is

material or relevant thereto, and which tends to elucidate, modify, explain,

contradict or rebut testimony given in chief by the witness."). The cross-

examination of matters which were addressed in direct-examination is not

objectionable, even. if the answers affect a witness' credibility and

character. 98 C.J.S. Witnesses § 378.





On direct examination, appellant stated "things had kind of

gotten rough for us the last couple of years." This testimony implied

appellant and his wife had a good relationship until recent years, an issue

which was relevant to this case. We agree with appellant: this testimony

did not place appellant's character in issue.7 However, because appellant

"opened the door" about his relationship with his wife, the solicitor was

entitled to cross-examine him about the relationship, even if the responses

brought out appellant's prior criminal domestic violence conviction. State

v. Stroman, supra (since defendant questioned accomplice about his prior

robberies, the State was permitted to inquire into facts of prior robberies,

including whether defendant had participated in the robberies); State v.

Allen, supra (where defendant testified he had not previously harmed

anyone with a deadly weapon, prosecutor was permitted to inquire into

extent of previous assaults); see also State v. Faulkner, 274 S.C. 619, 621,

266 S.E.2d 420, 421 (1980)("[w]hile State may not attack a criminal

defendant's character unless he has placed it at issue, relevant evidence

admissible for other purposes need not be excluded merely because it

incidentally reflects upon the defendant's reputation. ")(internal citation

omitted).




6 Overruled on other grds. State v. Evans, 307 S.C. 477, 415 S.E.2d

816 (1992), and State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).





7State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990)(accused placed

character in issue by testifying he did not frequent bad neighborhood and

did not sell drugs); State v. Allen, supra (accused placed character in issue

by presenting character witnesses and testifying about his criminal past).

p.44


STATE v. TAYLOR





IV.





After his conviction, appellant moved for a new trial based on

after-discovered evidence and based on an alleged Brady violation. He

claimed the State failed to provide him with evidence that Sergeant Moore

had cut his hand while breaking a window to gain access to the decedent's

home. Appellant argues this evidence was material in that blood on the

inside of the front door could have been from the officer, rather than the

decedent. It is undisputed none of the police reports provided to appellant

before trial indicated an officer had cut his hand.





As noted above, at trial Deputy Sheriff Limehouse testified

Sergeant Moore broke a window pane at the decedent's residence in order

to enter the home. Sergeant Moore did not testify at trial. Human blood

was identified on the inside of the front door. The serologist could not

characterize or type the blood. Photographs show a large, although fairly

faint, smear of blood near the center of the door. State's Ex. 16 and 23





On two occasions during closing argument, the solicitor

suggested the blood on the front door indicated the decedent had tried to

escape appellant's attack with the box cutter by fleeing through the front

door. Appellant, however, grabbed her t-shirt and choked her to death.





At the new trial hearing, Sergeant Moore testified he cut his

index finger when he broke the window at the decedent's residence. He

described the laceration as "small." The finger did not bleed heavily; he

was able to control the bleeding with a handkerchief. He unlocked the

front door and the other officers entered. Thereafter, Sergeant Moore put

a latex glove on his hand. Blood appeared in the finger of the glove. As

to the amount of blood, Sergeant Moore testified ". . . if you've ever seen

somebody that (sic) blood in panty hose or hah (sic) latex glove a little by

(sic) of blood looks a lot."





To obtain a new trial based on after-discovered evidence, the

party must show that the evidence: 1) would probably change the result if

a new trial is had; 2) has been discovered since trial; 3) could not have

been discovered before trial; 4) is material to the issue of guilt or

innocence; and 5) is not merely cumulative or impeaching. Clark v. State,

315 S.C. 3S5, 434 S.E.2d 266 (1993); State v. Caskey, 273 S.C. 325, 256

S.E.2d 737 (1979). The denial of a motion for a new trial will not be

reversed absent an abuse of discretion. State v. South 310 S.C. 504 427



p.45


STATE v. TAYLOR





S.E.2d 666 (1993).





In Brady v. Maryland, supra, the Court held:



[S]uppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.



U.S. at 87, S.Ct. at 1196-97, L.Ed.2d at 218.







Brady only requires disclosure of evidence which is both

favorable to the accused and material to guilt or punishment. United

States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

"Evidence is material . . . 'only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A 'reasonable probability' is a

probability sufficient to undermine confidence in the outcome'." State v.

Cain, 297 S.C. 497, 503, 377 S.E.2d 556, 559 (1988), citing United States

v. Bagley , supra U.S. at 682, S.Ct. at 3383, L.Ed.2d at 494.





For Brady purposes, in determining the materiality of

nondisclosed evidence, an appellate court must consider the evidence in

the context of the entire record. United States v. Agurs , 427 U.S. 97, 96

S.Ct. 2392, 49 L.Ed.2d 342 (1976). However, the court should not consider

the sufficiency of the evidence. The court's function is to determine

whether the appellant's right to a fair trial has been impaired. State v.

Osborne, 291 S.C. 265, 353 S.E.2d 276 (1987); State v. Goodson, 276 S.C.

243, 277 S.E.2d 602 (1981).





Although the defense could have more readily responded to the

solicitor's argument that blood on the door belonged to the fleeing victim

had it known Sergeant Moore had cut his finger, the evidence is not

material for Brady purposes. Because the serologist could only identify

the blood on the door as human but could not characterize the blood

further, the solicitor still could have argued the blood came from the

decedent while attempting to escape. The fact that Sergeant Moore bled

would not have negated the State's theory of its case. Furthermore,

considering the strength of the State's case (appellant's numerous threats

to kill the decedent, the signs of struggle in the decedent's home, the

defensive wound on the decedent's palm and recent bruises on her body,

p.46


STATE v. TAYLOR





the fact that appellant hid the decedent's body in a back bedroom under

blankets and clothes, the length of time it would take to asphyxiate

someone with a t-shirt, and appellant's statements he was glad the

decedent was dead), the non-disclosure of Sergeant Moore's laceration did

not impair appellant's right to a fair trial. State v. Goodson, supra.





Similarly, with regard to the motion for a new trial based on

after-discovered evidence, the blood evidence was neither material nor

likely to change the result if a new trial was held. Accordingly, the trial

judge did not abuse his discretion in denying appellant a new trial based

on after-discovered evidence. State v. South, supra .







AFFIRMED.

FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.





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