State v. Simmons

229 S.E.2d 597, 267 S.C. 479, 1976 S.C. LEXIS 265

• Court: Supreme Court of South Carolina
• Decided: October 27, 1976
• Docket: 20297
• Status: Published

Opinions

Gregory, Justice:

Appellant, Paul Simmons, was convicted of murder in connection with a death arising while he was operating a motor vehicle, and received a life sentence. In a prior appeal from a denial of an application for post conviction relief, the judgment was affirmed. Simmons v. State, 264 S. C. 417, 215 S. E. (2d) 883 (1975). He was subsequently-granted a direct appeal which is now before the Court posing the following questions:

(1) Whether it was prejudicial error for the trial judge to permit the solicitor to comment in argument about the failure of appellant to call his wife as a witness?

(2) Whether it was prejudicial error for the trial judge to rebuke defense counsel and threaten to place him in jail while making his closing argument, immediately after which he terminated his argument?

(3) Whether the failure of the trial judge to withdraw from the jury the issue of murder upon motion by defense counsel for a directed verdict as to this offense was error ?

(4) Whether the penalty of life imprisonment for conduct causing death by the reckless operation of an automobile constitutes cruel and unusual punishment ?

The solicitor during his argument to the jury commented on the failure of the appellant to produce his wife as a witness, from which it is conceded he drew an adverse inference against appellant as to his guilt. The appellant did not take the witness stand in his own behalf nor did he introduce any evidence at all. Appellant’s wife was not present at the trial and it appears from the record that she was out of the State. She was neither available nor accessible for compulsory service of process. Moreover, she was not a compellable witness.

Under these circumstances we hold that it was error for the trial judge to permit the adverse inference comment. Duckworth v. First National Bank, 254 S. C. 563, 176 S. E. (2d) 297 (1970). Even greater caution should be exercised by the courts in permitting an adverse inference comment in criminal proceedings than in civil proceedings. State v. Batson, 261 S. C. 128, 198 S. E. (2d) 517 (1973). Also see 29 Am. Jur. (2d) Evidence, Section 180 at page 227:

“The rule applicable to a party who fails to call witnesses exclusively in his control does not apply to a defendant who introduces no evidence at all . . .”

During the course of closing argument by appellant’s counsel the trial judge in the presence of the jury threatened defense counsel with a jail sentence, immediately after which he proceeded no further with the arguments. We hold that the remarks of the trial judge were improper and constituted manifest error. Crenshaw v. Southern Railway Company, 214 S. C. 553, 53 S. E. (2d) 789 (1949); State v. Pruitt, 187 S. C. 58, 61, 196 S. E. 371 (1938). As stated by Justice Brailsford, concurred in by Justice Bussey, in the dissenting opinion in State v. Mitchell, 261 S. C. 452, 200 S. E. (2d) 448 (1973):

“[t]he remarks of the court tended to impugn the credibility of counsel and to diminish him and his defense of appellant in the eyes of the jury. Counsel’s ability to furnish effective representation was to that effect impaired, perhaps to appellant’s serious prejudice.” p. 461, 200 S. E. (2d) p. 453.

We are convinced these errors were prejudicial and the judgment of conviction should be reversed and a new trial granted.

Pursuant to the provisions of Rule 8, Section 10, of the Rules of this Court, appellant was granted permission to attack or argue against the decisions in State v. Mouzon, 231 S. C. 655, 99 S. E. (2d) 672 (1957) and Simmons v. State, supra. Appellant’s arguments against these decisions, relating to questions three and four, raise constitutional issues which need not be considered, for in reversing for the reasons stated we follow the traditional practice of declining to decide constitutional questions when -the record' discloses other grounds of decision.

We reverse the judgment of conviction and remand for a new trial.

Ness and Rhodes, JJ., concur. Lewis, C. J., and Littlejohn, J., dissent.