South Carolina May 23, 2012 published opinions

Court of Appeals

Judy v Kennedy

Kennedy put a gate across a road which Judy used to access certain property and which he had an easement to use. Judy sued for removal of the gate. The trial judge found there was a need for the gate to protect Kennedy’s property and the gate was otherwise reasonable. The judge also found the easement had not been abandoned. The panel affirmed, but, modified judgment. It found that an incident involving an unauthorized child coming into Kennedy’s house demonstrated a need, but, ordered Kennedy to give Judy the numeric code for the gate as additional relief. The panel held the easement was not abandoned as nonuse alone is insufficient to prove abandonment particularly as the easement appeared on plats referenced in the deeds of transfer.

State v Miller

Miller was convicted of drug trafficking. After trial, the solicitor’s office informed Miller’s attorney that one of the jurors had been a persecution witness in a recent trial. The juror did not disclose that her mother had been a victim of crime or that the juror had been a witness. The trial judge denied a motion for a new trial finding the information as not material to exercising preemptory challenges. The panel, 2-1, reversed. The majority held that the mother’s victimhood and the juror’s role as witness were material to the preemptory challenge decision. The majority found that the trial court erred in not requiring the juror to testify as intentional withholding requires a subjective analysis of the juror’s motives for not answering. The dissent argued Miller bore eh burden of proof and failed to meet it. It also argued the question the juror did not answer was unintelligible to a person of average intelligence and thus cannot provide a basis for intentional withholding of information.

 

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