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State v. Kelsey6/8/1998
5, 6, and 7, nor was he unfairly prejudiced in any other way. At most, any prejudice was incidental and therefore insufficient to demonstrate an abuse of discretion on the part of the trial court in denying severance. See United States v. Martinez, 922 F.2d 914 (Ist Cir. 1991).
IX. PRIOR BAD ACTS
Kelsey argues that the trial court erred in denying his motion for a mistrial when Payne's attorney cross-examined him about prior bad acts that allegedly occurred in Georgia. We disagree.
On cross-examination, Payne's attorney asked Kelsey if he had had any legal problems or been arrested before July 12, 1994, in Georgia. Kelsey responded that he had not. Payne's attorney then asked Kelsey if he had had any legal problems after July 12, 1994. Before Kelsey could answer, Kelsey's attorney objected. Payne's attorney made an in camera proffer of the testimony. Kelsey was asked whether he had ever been charged with the crime of forgery. Kelsey responded that he was not aware of any such charges. Payne's attorney withdrew the question. Kelsey moved for a mistrial which the trial Judge denied. When the jury returned, the trial judge gave the following curative instruction: "I have stricken the last question. Let me be sure and remind you that an attorney's question is not evidence and I have stricken all that. So you will disregard that."
Under Rule 608(b), SCRE, specific instances of the conduct of a witness may be inquired into on cross-examination if probative of the witness's character for truthfulness or untruthfulness. South Carolina's Rule is identical to the Federal rule. The inquiry under Rule 608(b) is limited to those specific instances of misconduct which are clearly probative of truthfulness or untruthfulness such as forgery, bribery, false pretenses, and embezzlement. See Weinstein's Federal Evidence, Character and Conduct of Witness Section 608.12(4)(a-b) (1998). However, the cross-examiner may not go on a "fishing expedition" in the hopes of finding some misconduct. State v. McGuire, 272 S.C. 547, 253 S.E.2d 103 (1979).
In this case, Payne's attorney inquired into a prior act of forgery. When Kelsey stated he was not aware of any such charge, Payne's attorney properly withdrew the question. See Rule 609(b), SCRE (specific instances of conduct may not be -proved by extrinsic evidence). We hold that any prejudice to Kelsey was cured by the trial Judge's curative instruction to the jury. See State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (an instruction to disregard incompetent evidence usually is deemed to have cured the error in its admission unless on the facts of the particular case it is probable that notwithstanding such instruction or withdrawal the accused was prejudiced). Thus, the trial Judge did not abuse his discretion in denying the motion for mistrial. See State v. Crim, 327 S.C. 254, 489 S.E.2d 478 (decision to deny mistrial will not be overturned on appeal absent abuse of discretion).
X. DIAGRAM & PHOTOGRAPHS
Kelsey argues that the trial court erred in admitting State's exhibits 18 and 19 into evidence. We disagree.
Exhibits 18 and 19 consisted of a diagram of the crime scene and photographs of various bone and bomb fragments and clothing found at the scene. Kelsey notes that Richey's body was discovered some forty-six days after the crime was conunitted. Kelsey suggests that weather or local fauna could have altered the crime scene during this period. Thus, the State's depictions were inaccurate representations of the scene and therefore prejudicial to Kelsey. Kelsey also argues the evidence was cumulative.
The relevance, materiality, and admissibility of photographs are matters
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