March 28, 2012 South CArolina Court of Appeals published opinions

State v McKerley

Defendant was charged with molesting his seven year old daughter. The state put a forensic investigator on the stand who related what she looked for to determine if the child is telling the truth. Defendant was convicted and sentence to 40 years. The panel reversed holding the investigator’s testimony could only be understood as vouching for the minor victim. It rejected the state’s argument that any error was harmless given the large number of comments which effectively vouched for the victim and the whole of the evidence undermined confidence that the improper testimony did not contribute to the jury’s verdict.

State v Jenkins

Defendant was arrested for rape. The police sought and obtained a warrant for blood and hair samples for DNA comparison. The trial court admitted the results of the test. The panel found the warrant should not have been issued as the supporting affidavit did not establish probable cause that defendant committed the crime, identify the source of the information, establish the reliability of the source of the information or prove the existence of DNA evidence to compare the samples to. However, the panel remanded for a determination whether the DNA evidence would have been inevitably discovered under a statute requiring all persons arrested for a felony to give DNA samples for inclusion in a state database.

Smith v Widener

Smith was a beneficiary of a deferred payment account. The personal representatives of her divorced husband asked that she waive her claim. A waiver was delivered to the company holding the account. Smith claimed her signature on the waiver was forged. Smith submitted a claim for the account. The company gave her the balance of the account and Smith withdrew some of the proceeds. After processing the waiver, the company stopped payment and demanded the return of the moneys withdrawn. Smith sued the personal representatives and company seeking the balance of the funds and punitive damages. The company settled. The settlement was characterized as being punitive damages. A jury awarded compensatory damages against the representatives. The representatives sought a set off for the amount of the settlement with the company. The trial court refused. The panel, 2-1, reversed holding that the claims for compensatory and punitive damages were for the same claim and set off was required as a matter of law. The dissent would have found the claims were different and argued settlements would now be more difficult as plaintiffs will not settle when a set off will be required.

Lucey v Meyer

Meyer joined a law firm. Her employment contract included an arbitration clause. She represented out of state clients and traveled out of state as part of her representation. After her employment terminated, Meyer sent a claim for the value of her time spent on one of the out of sate client cases. The firm filed suit to compel arbitration. The trial court denied the motion holding the contract did not involve interstate commerce and was unconscionable. The panel reversed holding the travel out of state brought the contract within the Federal Arbitration Act. It also found that Meyer had a meaningful choice in negotiation and signing the contract and the terms were not oppressive.

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