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State v. Kelsey6/8/1998
F.B.I. during its investigation of Richey's death. Payne's attorney objected, arguing Payne's credibility could not be impeached unless Payne took the stand. Kelsey's attorney responded, stating that the purpose of the testimony was to rebut Payne's theory that Kelsey had co-opted Payne's statement and made it his own. Kelsey made an in carnera proffer of the testimony. The proffer revealed that the interview did not contain any admission of guilt by Payne, but did discuss the sequence of events surrounding the crime. The trial Judge sustained the objection, stating that Payne might still present a defense.
Even if Payne's statements were relevant as rebuttal evidence, Kelsey was not prejudiced by the trial Judge's ruling. Lee had already testified that Payne fabricated his story and had instructed Lee to "Rip everything around" and tell the authorities that Kelsey killed Richey if questioned. Moreover, Lee's story at trial was more consistent with Kelsey's version of events than with Payne's. Thus, even if Payne's statements were relevant, they were, at best, needless presentation of cumulative evidence. See Rule 403, SCRE.
VII. CO-DEFENDANT'S PHYSICAL APPEARANCE
Kelsey argues that the trial court erred in not allowing him to present evidence concerning Payne's altered appearance at trial. We disagree.
At trial, Kelsey called Mae Guin, a guidance counselor from Payne's former high school. Kelsey's attorney attempted to question Guin about Payne's changed appearance since high school. Payne's attorney objected, arguing Payne's altered appearance was irrelevant. Kelsey argued that Payne's appearance at trial was an attempt to give the impression that he was something he was not. The trial Judge sustained Payne's objection and gave a curative instruction to the jury.
Evidence regarding the physical condition of a party is admissible if relevant to an issue in the case. 29 Am. Jur. 2d Evidence Section 560 at 627. The only ground offered by Kelsey to support the introduction of Guin's testimony was that Payne was trying be something he was not. Payne's appearance was in no other way relevant to the case. We hold that the prejudicial effect of such evidence substantially outweighed any probative value it may have had. See Rule 403, SCRE. Thus, it was properly excluded.
VIII. SEVERANCE
Kelsey argues that the trial court erred in denying his motion for severance in the case. We disagree.
Before trial, Payne's attorney moved to have separate trials. Kelsey did not join in the motion. The trial Judge denied Payne's motion. After the defense rested its case, Kelsey's attorney moved for a mistrial and argued that Kelsey was entitled to a severance. The trial Judge denied the motion.
In South Carolina, crirrlinal defendants who are jointly tried for murder are not entitled to separate trials as a matter of right. State v. Holland, 261 S.C. 488, 201 S.E.2d 118 (1973); State v. Crowe, 258 S.C. 258, 188 S.E.2d 379 (1972). Motions for a severance and separate trial are addressed to the discretion of the trial court. State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997); State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Absent a showing of an abuse of discretion, this Court will not disturb the trial court's ruling on appeal. State v. Thompson, 279 S.C. 405, 308 S.E.2d 364 (1983).
Kelsey argues that severance should have been granted based on the prejudice discussed in issues 5, 6, and 7 of this appeal. As discussed above, Kelsey was not unfairly prejudiced by any of the trial court's rulings discussed in issues
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