Hunter v. Staples

• Decision Date: 15 March 1999
• Docket Number: No. 2961.,2961.
• Citation: 335 S.C. 93,515 S.E.2d 261
• Court: South Carolina Court of Appeals
• Parties: Timothy L. HUNTER, Respondent, v. Julie A. STAPLES and South Carolina Department of Education, of Whom South Carolina Department of Education is, Appellant.

335 S.C. 93

515 S.E.2d 261

Timothy L. HUNTER, Respondent, v. Julie A. STAPLES and South Carolina Department of Education, of Whom South Carolina Department of Education is, Appellant.

No. 2961.

Court of Appeals of South Carolina.

Heard October 8, 1998.

Decided March 15, 1999.

Eugene P. Corrigan, III, of Grimball & Cabaniss, of Charleston, for appellant.

Forrest C. Wilkerson, Jr., of N. Charleston, for respondent. CONNOR, Judge:

South Carolina Department of Education appeals an evidentiary ruling of the trial court. The Department also appeals the denial of its motions for judgment notwithstanding the verdict, new trial, and remittitur. We affirm.

FACTS

Timothy L. Hunter was involved in an accident with a school bus driven by Julie A. Staples.¹ The accident occurred when Hunter's pickup truck collided with the school bus when it hydroplaned into the intersection rather than stopping. Although Hunter attempted to avoid the collision, he could not stop in time. Immediately after the accident, he was transported to the hospital and released the same day. The next day, he experienced pain in his neck, back, leg, and finger. A week later, he sought medical treatment for these injuries. This treatment continued for several months. He was released to return to work approximately six months after the accident. Hunter thereafter sued Staples and her employer, South Carolina Department of Education, to recover damages from the accident.

At trial, the Department moved in limine to impeach Hunter with his prior convictions. The court denied the motion. The jury returned a verdict in favor of Hunter for $86,627.61, finding him 5% negligent and Staples 95% negligent. Subsequently, the Department moved for a new trial on the ground the judge erred in excluding evidence of Hunter's criminal record. The Department also requested judgment notwithstanding the verdict or, in the alternative, a new trial or remittitur based on the failure of proof of damages. The court denied these motions as well. The Department appeals.

DISCUSSION

I. Impeachment

The Department argues the trial court erred in refusing to allow admission of Hunter's criminal convictions. It contends Hunter's recovery depended on his credibility. It submits Rules 608, 609, and 613, SCRE, constitute authority under which the convictions could have been admitted.²

A. Rule 608: Evidence of Character, Conduct and Bias of Witness

Rule 608, SCRE, is almost identical to the Federal Rule. Although the Department did not specify, we assume it relies on subsection (b) in making its argument. That section reads, in relevant part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. (Emphasis added.)

The Department's reliance on Hunter's previous convictions as a basis for impeachment is misplaced. Under the language emphasized above, the use of a conviction is specifically excluded from the purview of Rule 608. See United States v. Parker, 133 F.3d 322 (5th Cir.),cert. denied, ___ U.S.___, 118 S.Ct. 1851, 140 L.Ed.2d 1100 (1998) (prior bad acts that have not resulted in a conviction may be admissible under Fed.R.Evid. 608(b)); United States v. Sotelo, 97 F.3d 782 (5th Cir.),cert. denied, 519 U.S. 1045, 117 S.Ct. 620, 136 L.Ed.2d 543 (1996), and cert. denied, 519 U.S. 1135, 117 S.Ct. 1002, 136 L.Ed.2d 881, and cert. denied, 520 U.S. 1149, 117 S.Ct. 1324, 137 L.Ed.2d 486 (1997) (Rule 608(b) provides for impeachment on cross-examination with acts other than convictions); United States v. Smith, 80 F.3d 1188, 1193 (7th Cir.1996) ("the plain language of [Rule 608(b) ] allows for cross-examination of matters `other than conviction of crime'"). See also United States v. Turner, 104 F.3d 217 (8th Cir.1997) (when defendant was not convicted of the crime sought to be introduced, it was only admissible if probative of his truthfulness under Rule 608(b)). The Department cannot seek to have Hunter's convictions admitted under Rule 608(b).

B. Rule 613: Prior Statements of Witnesses

The Department maintains Hunter testified during his deposition that he only had three or four convictions on his record, when in fact he had eleven. The Department wanted to use Hunter's deposition statements to impeach his credibility by showing he had made a prior inconsistent statement.

Rule 613, SCRE, does not provide for the admission of prior statements, but rather sets forth the conditions under which such statements may be admitted. South Carolina has, however, always followed the traditional rule that inconsistent statements are admissible to impeach a witness' credibility. See State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 367, and cert. denied, 463 U.S. 1214, 103 S.Ct. 3553, 77 L.Ed.2d 1399 (1983).

To have an inconsistent statement, there must be a statement with which to compare it. The record before us contains only the Department's allegation that Hunter testified in his deposition he only had three or four convictions, when in fact he had eleven. However, there is no subsequent trial statement by Hunter that contradicts his deposition testimony. At trial, the Department did not proffer the deposition testimony, nor Hunter's trial testimony contradicting his deposition testimony. Moreover, the Department neglected to include the relevant deposition excerpts in the record it provided us. Therefore, this argument is not preserved for our review. See D.W. Flowe & Sons, Inc. v. Christopher Constr. Co., 326 S.C. 17, 482 S.E.2d 558 (1997); Rule 103(a)(2), SCRE.

C. Rule 609: Prior Convictions

The Department next alleges the court erred in refusing to allow Hunter to be cross-examined concerning his prior convictions under Rule 609. The Department wanted to question Hunter about his August 1987 burglary conviction and two criminal domestic violence convictions from 1993.³ The trial judge refused to admit both the burglary conviction and the domestic violence convictions. He refused to allow the admission of the domestic violence convictions because they did not carry a sentence of at least one year imprisonment. He appeared to base his decision to exclude the burglary conviction on Rule 403, SCRE analysis as applied through Rule 609(a)(1). He also held the conviction lacked relevance.

Rule 609 provides in pertinent part:

(a) General Rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

...

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

To determine if the trial court erred in excluding Hunter's convictions under Rule 609(a), we must first decide under which subsection the conviction falls. See United States v. Seamster, 568 F.2d 188 (10th Cir.1978) (when determining admissibility under Rule 609, the trial court must first determine whether the prior conviction was a general felony or involved dishonesty and false statements). The domestic violence convictions, however reprehensible, do not establish Hunter was deceitful or untruthful. Accordingly, these convictions would not be admissible under Rule 609(a)(2). They would also be excluded from the operation of Rule 609(a)(1) because they are not punishable by imprisonment in excess of one year. This leaves only the burglary conviction.

On three occasions the judge specifically stated he weighed competing considerations concerning probative value and prejudice. First, after the Department's motion in limine, he said, "I'm going to exclude his criminal record ... I think the prejudicial effect outweighs any probative value in this case."

Additionally, at the motions hearing at the conclusion of the testimony, the judge stated:

Both of those rules and the rules of evidence dealing with the criminal records—one of them talks about a witness that says subject to Rule 403. Then they talk about the accused. It says subject to probative value outweighing prejudicial effect. That's basically my ruling. That really didn't have anything to do with this case.

Moreover, when the Department made a motion for judgment notwithstanding the verdict, the judge ruled:

Okay. I excluded the evidence of his criminal record because both of—that rule says one of them is subject to Rule 403. Probative value outweighs prejudicial effect and that applies both to parties and witnesses. That's why I excluded it. I didn't think it had any relevance in this case.

The trial judge's continued reference to Rule 403 indicates he relied on Rule...