Hayden v. State

299 S.E.2d 854, 278 S.C. 610, 1983 S.C. LEXIS 234

• Court: Supreme Court of South Carolina
• Decided: January 26, 1983
• Docket: 21861
• Status: Published

Opinions

Ness, Justice:

Respondent was convicted of possession of cocaine with intent to distribute and sentenced to ten years imprisonment. We affirmed the conviction on direct appeal in State v. Hayden, et al., 268 S. C. 214, 232 S. E. (2d) 889 (1977). This appeal is from an order granting respondent’s motion for post-conviction relief on the ground of after-discovered evidence. The State contends respondent failed to meet all the requirements for a new trial established in State v. Caskey, et al., 273 S. C. 325, 256 S. E. (2d) 737 (1979). We agree and reverse.

A party requesting a new trial based on after-discovered evidence must show that the evidence:

(1) Is such as would probably change the result if a new trial was had;

(2) Has been discovered since the trial;

(3) Could not by the exercise of due diligence have been discovered before the trial;

(4) Is material to the issue of guilt or innocence; and,

(5) Is not merely cumulative or impeaching.

State v. Caskey, supra.

The record reveals that Sheila Rotan, a SLED informant, met with respondent in his car under the supervision and surveillance of SLED agents. Upon receiving a prearranged signal from Rotan, the SLED agents arrested respondent and discovered cocaine in his automobile.

Respondent contended at trial he had been framed by Ro-tan, former SLED agent A1 Lawrence, and Leonard Horger. The State rebutted these allegations to the obvious satisfaction of the jury.

At his post-conviction relief hearing, the only evidence presented to support his contention of after-discovered evidence was the testimony of Leonard Horger, an admitted liar, thief, and drug dealer who was not present at respondent’s arrest. In exchange for immunity from Federal and State authorities, Horger testified he had conspired to frame respondent and that the SLED agents planted the drugs.

This hearsay testimony does not meet the Caskey requirements, as evidence of the alleged setup was clearly known by and available to respondent at trial. Respondent spoke of all three of the alleged conspirators several times during the trial. When the trial judge suggested Horger could have been subpoenaed, respondent contended that Rotan, and not Horger, was the important witness. The trial judge also offered to subpoena Rotan, yet no attempt was made by respondent to obtain her testimony. Neither was any attempt made to obtain Lawrence’s testimony, and no justification was offered for respondent’s failure to present either witness. We hold respondent failed to show that evidence of the alleged setup was discovered after the trial or could not by the exercise of due diligence have been discovered before trial.

Further, we doubt Horger’s testimony would change the outcome in a new trial. Horger’s testimony concerning the planting of the drugs could only be hearsay, as he was not present at the time of arrest. Additionally, Horger is an admitted liar, thief, and drug dealer, who by respondent’s own admission was not an important witness. We conclude respondent failed to meet the Caskey requirements, and reverse.

Reversed.

Lewis, C.J., and Littlejohn and Gregory, JJ., concur. Harwell, J., dissents.