THE STATE OF
In The Court of Appeals
The State, Respondent,
Brian William Scott, Appellant.
�Edward W. Miller, Circuit Court Judge
Unpublished Opinion No. 2006-UP-336
Heard May 31, 2006 � Filed September 21, 2006
Mr. Brian W. Scott, of Pelzer, �for Appellant.
Attorney General Henry Dargan McMaster Chief Deputy Attorney General John W. McIntosh Assistant Deputy Attorney General Salley W. Elliott Senior Assistant Attorney General Harold M. Coombs, Jr., all of
Columbia; and Solicitor Robert M. Ariail, �of Greenville, for Respondent.
PER CURIAM: �Brian William Scott appeals the circuit court�s denial of his motion for a new trial, arguing the State violated his due process rights by failing to comply with Rule 5, SCRCrimP and the mandates of Brady v. Maryland, 373 U.S. 83 (1963).� We affirm.
In February 1997, a jury found Brian William Scott guilty of murder and sentenced him to life imprisonment.� At his trial, the State relied heavily on the testimony of James Johnson and Tyrone Adams, both present at the alleged murder of Tyrone Longino.
According to James Johnson�s trial testimony, he met Scott while working at a local restaurant a couple of weeks prior to the incident in question.� Johnson testified he left work around 10:30 p.m. on the night of February 14, 1992.� While walking to a friend�s house, Johnson ran into Scott, Adams, Longino, and another co-worker.� He was introduced to Adams and Longino for the first time.� The group then went to an apartment shared by Scott and Longino and proceeded to consume alcohol and smoke marijuana.� At some point, Johnson�s other co-worker left.� The remaining four then spent some time driving around in Longino�s car and making phone calls in an attempt to purchase drugs.
Following several failed attempts to secure a drug purchase, the group pulled into a gas station.�
According to Johnson, Scott then directed
On February 15,
The police then attempted to locate Longino at his apartment to confirm
At approximately 11:30 p.m. that night, the
Officers then interrogated
As previously stated, the State relied heavily on Johnson�s and
In 2000, Scott retained counsel and initiated a post conviction relief action (PCR).� Scott�s PCR counsel filed a Freedom of Information Act request with the 13th Circuit Solicitor�s Office seeking all information in any way related to the death of Longino.� After an extended, often heated, exchange of phone calls and letters with the solicitor�s office, the requested documents were eventually turned over to Scott�s counsel.
Included in these documents was a certified written statement signed by
3. Defendant [Adams] was, consistent with prior statement(s), talking on the telephone in the area of the crime having no knowledge of the act until he entered the vehicle in which he was a passenger, finding the body of the victim.
4. Relative to the actual perpetrator of the crime, Defendant could only speculate as to whom the actual perpetrator was as he (Defendant) did not witness the act.
. . . .
6. Defendant freely admits that he drove the car belonging to the victim, that he was merely present during the commission of the crime, with that presence being out of sight of the crime and without the knowledge of the act being in progress.
The signed �verification/certification of service� block to this document reads �I have placed the original and one copy of this document in the U.S. Mail at the Lee Correctional Institution at Bishopville, SC, addressed to the; CLERK OF COURT, GREENVILLE COUNTY COURT HOUSE, GREENVILLE, SC:� OFFICE OF THE SOLICITOR, GREENVILLE COUNTY, GREENVILLE, SC.� (emphasis in original)
This document was not provided to Scott pursuant to his Rule 5, SCRCrimP and Brady motions prior to his murder trial.� According to Scott�s former PCR counsel, the document was present in the
Scott filed a Rule 29(b), SCRCrimP, motion for a new trial in the circuit court, arguing that the State�s withholding of this document violated his due process rights by failing to comply with Rule 5, and the mandates of Brady v. Maryland, 373
Scott argues the circuit court erred in denying his Rule 29(b) motion for a new trial because the State�s failure to provide Adams� sworn statement to the defense violated his due process rights by failing to comply with Rule 5, and the mandates of Brady v. Maryland, 373
To prevail on a Rule 29(b) motion for a new trial based upon after discovered evidence, Scott must show the after discovered evidence: (1) is such that would probably change the result if a new trial were granted; (2) has been discovered since the trial; (3) could not in the exercise of due diligence have been discovered prior to the trial; (4) is material; and (5) is not merely cumulative or impeaching.� State v. Spann, 334 S.C. 618, 513 S.E.2d 98 (1999).
Further, Rule 5 provides in pertinent part that upon request of the defendant, the prosecution shall permit the defendant to inspect and copy documents, which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial.� Rule 5(C), SCRCrimP.
Finally, it is a violation of a defendant�s due process rights for the prosecution to withhold evidence favorable to the defendant where the evidence is material either to guilt or to punishment.� Brady, 373
The common theme in Rule 29(b), Rule 5, Brady, and its progeny is that relief will be granted only if the information withheld is material.� The United States Supreme Court delineated the standard for determining materiality in
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt.� Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt.� It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed.� This means that the omission must be evaluated in the context of the entire record.� If there is no reasonable doubt about guilt, whether or not the additional evidence is considered, there is no justification for a new trail.� On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
In the case at bar, the State relied on trial testimony of Adams as well as Johnson.� Arguably, Johnson�s testimony is the stronger of the two, considering that Johnson was in the car seated next to Scott during both the strangling and the stabbing.�
The document Scott complains the prosecution withheld does little to refute the trial testimony.� In the document,
The trial court denied Scott�s motion for a new trial based on after-discovered evidence, in part, because the document is merely cumulative and impeaching.� The trial court also found the document was not the nature of evidence which would result in a different outcome in a new trial.� The document Scott complains of was not material either to his guilt or punishment.� As such, the omission of this document did not impede Scott�s due process rights, nor did it deprive him of a fair trial.
Accordingly, the trial court�s decision is
KITTREDGE, SHORT, and WILLIAMS, JJ., concur.
 Scott also argues that these documents prove Adams was offered leniency in exchange for his testimony in Scott�s trial, an assertion which further belies