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CITY OF CAYCE v. GRAVES3/31/1983
the testimony of a Highway Patrolman; (4) improper argument by counsel for the City of Cayce; (5) prejudicial comment by the City Recorder. Interwoven with the last three exceptions was a contention by respondent that cumulative references to his status as a legislator made a fair trial impossible.
The circuit court rejected the first and second exceptions, but granted relief based upon the last three. Respondent has here advanced the first two exceptions as additional sustaining grounds, but no argument is made in briefs regarding legislative immunity. I deem that issue abandoned.
I agree that the breathalyzer evidence was admissible and concur in the disposition of the issue in the majority opinion.
A State Highway Patrolman testified at trial that he was summoned to the Cayce City Police Department on the night
During closing argument, counsel for the City of Cayce invited the jury to reflect upon respondent's repeated claims during the trial that he did not want special treatment by reason of his legislative status and that he wanted to be judged simply as a fellow citizen. Counsel referred back to the Highway Patrolman's testimony and to the fact that the officer had been summoned to transport respondent to his apartment: "They come up here and they say, `we don't want special treatment.' You talk about special treatment. You get locked up tomorrow night and put in jail and see if the highway patrol will provide you taxi service home." Counsel for respondent objected to the statement, and counsel for Cayce rejoined, "That's the facts, Your Honor." The Recorder then stated, "Yes, sir," and overruled the objection. Motion for mistrial was made and denied.
There was no impropriety in the argument of the City attorney since his contention was based upon undisputed evidence. The fact was that an officer of the highway patrol did provide "taxi service home" for the respondent. In view of respondent's argument that he sought no special treatment, the argument of the City was clearly responsive to contentions made. I find no abuse of discretion in permitting the argument, in overruling the objection, or in denying the motion for mistrial. In like manner I cannot accept respondent's view that cumulative references to his legislative status made a fair trial impossible. Moreover, the evidence on its own amply supports the verdict. It was error for the circuit court to reverse the conviction on the ground of improper argument and cumulative prejudice.
Finally respondent excepts to the Recorder's utterance of the words, "Yes, Sir," immediately after the City Attorney exclaimed, "That's the facts, Your Honor." Respondent urges that these words amounted to comment upon the facts. There is no way upon the cold record to determine if the court meant an emphatic affirmation of counsel's statement or simply used this expression to acknowledge he had heard enough. We note from the record as a whole that the Recorder employed this phrase interchangeably with "All right, Sir," and "Thank you, Sir," and as frequently in response to arguments of the defendant as to arguments of the City. While other words might be used at such moments, I find no actual prejudice from this usage. In the final analysis, the City attorney was factually correct in asserting that the record supported his statement without dispute. If in fact the City Recorder was expressing his agreement, a finding which I do not expressly make, there could be no legal prejudice from the affirmation of uncontradicted evidence. Accordingly it was error to reverse the conviction upon the ground of comments by the trial court.
The order of the circuit court should be reversed and the verdict and judgm
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