State v. Black

• Decision Date: 03 October 2012
• Docket Number: No. 27176.,27176.
• Citation: 400 S.C. 10,732 S.E.2d 880
• Parties: The STATE, Respondent, v. Jason Ervin BLACK, Petitioner. Appellate Case No.2010–173048.
• Court: South Carolina Supreme Court

400 S.C. 10

732 S.E.2d 880

The STATE, Respondent,

v.Jason Ervin BLACK, Petitioner.

Appellate Case No.2010–173048.

No. 27176.

Supreme Court of South Carolina.

Heard June 7, 2012.

Decided Oct. 3, 2012.

Appellate Defender Breen Richard Stevens, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Deputy Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Robert Mills Ariail, of Greenville, Respondent.

Justice BEATTY.

Jason Ervin Black (Petitioner) appeals his convictions for criminal sexual conduct (CSC) with a minor in the first degree and committing a lewd act upon a minor. Petitioner contends the trial court committed reversible error in allowing the State to impeach his defense witness with two manslaughter convictions that were more than ten years old because their introduction violated Rules 404 and 609 of the South Carolina Rules of Evidence (SCRE), and the error was not harmless beyond a reasonable doubt. We affirm.

I. FACTS

Petitioner was charged with the above offenses as the result of an alleged encounter that occurred with A.T. (the Minor) at the home of Petitioner's friend and neighbor, Richard Bush, on May 6, 2006. Petitioner was then 26 and the Minor was 15.

At trial in June 2007, the Minor asserted that she went to Bush's one-bedroom trailer on the evening of May 6, 2006 and that she and Petitioner had consensual sex in the bedroom while Bush remained in the living room watching TV. Petitioner acknowledged that he and the Minor were at Bush's home on May 6, 2006, but he denied the Minor's allegations of sexual misconduct and maintained they had just watched TV together until she left later that evening with a friend. Bush corroborated Petitioner's version of events, stating all three of them had remained in the living room watching TV until the Minor left with a friend who came by and picked her up. Bush was the only witness for the defense other than Petitioner.

Prior to the State's cross examination of Bush, a bench conference was held regarding the State's request to use Bush's prior convictions for impeachment purposes. Bush was sentenced in Florida on March 12, 1987 to a total of twenty-two years in prison for two counts of manslaughter and one count of “shooting/throwing a deadly missile.” ¹ Bush was given concurrent prison sentences of fifteen years on each count of manslaughter and a consecutive seven years on shooting/throwing a deadly missile. He was released from confinement by Florida authorities on March 1, 1993, after serving approximately six years of his twenty-two year sentence.

The trial court ruled Bush's 1987 Florida convictions could be used for impeachment purposes. Thereafter, the State impeached Bush by asking about his prior convictions, which Bush acknowledged.

Petitioner was convicted of CSC with a minor in the first degree and committing a lewd act upon a minor, and he was given concurrent prison sentences of twenty years and fifteen years, respectively. The Court of Appeals affirmed pursuant to Rule 220, SCACR. State v. Black, Op. No.2010–UP–370 (S.C. Ct.App. filed July 19, 2010). This Court granted a petition for a writ of certiorari.

II. STANDARD OF REVIEW

In criminal cases, an appellate court sits to review only errors of law, and it is bound by the trial court's factual findings unless they are clearly erroneous. State v. Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006); State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001).

“The admission or exclusion of evidence is left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion.” State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001); see also State v. Dunlap, 346 S.C. 312, 324, 550 S.E.2d 889, 896 (Ct.App.2001) (“The admission of evidence concerning past convictions for impeachment purposes remains within the trial judge's discretion, provided the judge conducts the analysis mandated by the evidence rules and case law.”).

“An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support.” State v. Jennings, 394 S.C. 473, 477–78, 716 S.E.2d 91, 93 (2011) (citation omitted). To warrant reversal, an error must result in prejudiceto the appealing party. State v. Commander, 396 S.C. 254, 721 S.E.2d 413 (2011).

III. LAW/ANALYSIS

On appeal, Petitioner contends the trial court erred in allowing the State to use the two Florida manslaughter convictions to impeach Bush, his only corroborating defense witness, because their admission violated Rules 404 and 609, SCRE. Petitioner asserts the convictions were presumptively inadmissible because they were more than ten years old and, thus, remote, and the State bore the burden of establishing facts and circumstances to substantially overcome that presumption, citing State v. Colf, 337 S.C. 622, 525 S.E.2d 246 (2000). Petitioner asserts the evidence that his corroborating witness had been convicted of manslaughter two decades earlier was not probative of truthfulness and, under Rule 609(b), the convictions were not properly admitted to impeach his witness's credibility. Petitioner further contends the error was not harmless beyond a reasonable doubt.² We agree that the admission of the manslaughter convictions was improper; however, for reasons to be discussed, we believe the error was harmless.

A. Impeachment of Witness with Prior Convictions

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Rule 404(b), SCRE. In contrast, the general rule on impeaching a witness's credibility is that a witness, other than the accused, may be impeached with a prior conviction that carries a sentence of more than one year.³SeeRule 609(a)(1), SCRE (stating “evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403,⁴ if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted”).

Rule 609(b), however, contains a time limit that establishes a presumption against the admissibility of remote convictions, i.e., those more than ten years old, for impeachment unless the trial court expressly finds the probative value of the conviction “substantially outweighs” its prejudicial effect. State v. Johnson, 363 S.C. 53, 609 S.E.2d 520 (2005). The rule provides in relevant part:

(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.

Rule 609(b), SCRE (emphasis added). The State bears the burden of establishing sufficient facts and circumstances to overcome the presumption against the admissibility of remote convictions. State v. Bryant, 369 S.C. 511, 633 S.E.2d 152 (2006); State v. Colf, 337 S.C. 622, 525 S.E.2d 246 (2000).

The standard in Rule 609(b) pertaining to remote convictions is higher than the standard of Rule 609(a)(1), by which certain convictions that are not more than ten years old are admissible if their probative value simply “outweighs,” rather than “substantially outweighs,” their prejudicial effect. CompareRule 609(a)(1)withRule 609(b); see also United States v. Cavender, 578 F.2d 528, 531 (4th Cir.1978) (observing this distinction). As is stated in the Senate Report on the Rules of Evidence, “It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.” Clay v. State, 290 Ga. 822, 725 S.E.2d 260, 273 (2012) (discussing the federal rule, upon which many state provisions are based) (quoting U.S. Code Cong. & Admin. News, 93d Cong., 2d Sess. at p. 7062 (1974)); see also Cavender, 578 F.2d at 532 n. 8 (noting the presence of the cautionary language in the Senate Report and observing that the trial court's discretionary balancing power should be exercised “in a very limited way” (citation omitted)).

This Court has stated that federal cases are persuasive since our rule is based on the federal rule, and we have noted that “[t]he Fourth Circuit has explicitly held that evidence of remote convictions should only be admitted for impeachment purposes ‘in exceptional circumstances.’ ” Colf, 337 S.C. at 626, 525 S.E.2d at 248 (quoting Cavender, 578 F.2d at 530).

In performing the balancing test required by Rule 609(b), the trial court shall determine whether the probative value of the conviction substantially outweighs the prejudice of its admission after carefully balancing the interests involved and articulating for the record the specific facts and circumstances supporting its decision. Colf, 337 S.C. at 629, 525 S.E.2d at 249. Thus, the trial court must state not only whether the probative value of the prior conviction substantially outweighs the prejudicial effect, but also why. Bryant, 369 S.C. at 516–17, 633 S.E.2d at 155.

This Court has enumerated at least five factors that a trial court should consider in determining, in the interests of justice, whether the probative value of a prior conviction substantially outweighs its prejudicial effect: (1) the impeachment value of the prior crime, (2) the point in time of the conviction and the witness's subsequent history, (3) the similarity between the past crime and the charged crime, (4) the importance of the defendant's testimony, and (5) the centrality of the credibility issue. Colf, 337 S.C. at 627, 525...