State v. Bolden, 23272
| Decision Date | 06 March 1990 |
| Docket Number | No. 23272,23272 |
| Citation | 398 S.E.2d 494,303 S.C. 41 |
| Parties | The STATE, Respondent, v. Kenneth BOLDEN, Appellant. . Heard |
| Court | South Carolina Supreme Court |
Richard A. Harpootlian, Columbia, for appellant.
Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Norman Mark Rapoport, Columbia; and Sol. Joseph J. Watson, Greenville, for respondent.
Appellant was convicted of armed robbery and possession of a weapon in the commission of a violent crime. He was sentenced respectively to concurrent terms of twenty years and five years. We reverse and remand.
On November 17, 1987, at approximately 6:10 a.m., the desk clerk at the La Quinta Inn in Greenville was robbed by a man carrying a pistol. The victim identified appellant as the perpetrator. Appellant admitted at trial that he checked into the motel with Lula Mae Gray sometime around midnight on November 16th for the purpose of having sexual relations with her. He claimed he left the premises and returned home before the time of the robbery.
Appellant contends the trial judge erred in allowing Lula Mae's testimony that she and appellant smoked crack cocaine in the room sometime during the night. We agree. This Court recently held in State v. Coleman, --- S.C. ----, 389 S.E.2d 659 (1990), that admission of evidence the defendant is a social user of crack cocaine is prejudicial error where its only function is to demonstrate the defendant's bad character. Here, there is nothing in the record to indicate a logical relevance between use of crack cocaine during the night before the robbery and the robbery which occurred at 6:10 a.m. the following day. Cf. State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979); see also State v. Bell, --- S.E.2d ----, 393 S.E.2d 364 (1990). Because the only function of this testimony was to demonstrate appellant's bad character, it should have been excluded.
We reject the State's contention that the testimony was relevant and admissible as part of the "res gestae" of the crimes for which appellant was charged. See United States v. Masters, 622 F.2d 83 (4th Cir.1980). 1 Evidence of appellant's cocaine use was not essential to a full presentation of the State's case, nor was it so intimately connected with the crimes charged that its introduction was appropriate to complete the story of the crime. Id. at 86. Moreover, even if the testimony were relevant, its probative value is clearly outweighed by its unfair prejudice. Id. at 87; see also State v. Bell, supra.
Further, we disagree with the State's argument that admission of the testimony was harmless beyond a reasonable doubt because the evidence was merely cumulative to appellant's own admission that he smoked marijuana in the motel room that night. This Court has recently held that simple possession of cocaine is a crime of moral turpitude, State v. Major, --- S.C. ----, 391 S.E.2d 235 (1990), whereas simple possession of marijuana is not. State v. harvey , 275 S.C. 225, 268 S.E.2d 587 (1980). Evidence of appellant's use of crack cocaine is not merely cumulative to his admission to marijuana use, a drug offense of lesser culpability. We find this error requires reversal.
We address the next issue in view of the likelihood it will be raised again on retrial. Appellant contends that under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), double jeopardy bars his punishment for both armed robbery and possession of a weapon during a violent crime. We disagree. The double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Matthews v. State, 300 S.C. 238, 387 S.E.2d 258 (1990). Blockburger is not controlling where legislative intent is clear from the face of the statute. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); Matthews, supra. Armed robbery is a violent crime under S.C.Code Ann. § 16-1-60 (Supp.1989). S.C.Code Ann. § 16-23-490 (Supp.1989) expressly provides additional punishment for possession of a weapon during commission of a violent crime as defined in § 16-1-60. It is clear from the face of the statute the legislature intended to allow cumulative punishment in this instance.
We need not address appellant's remaining exceptions. The judgment of the circuit court is reversed and the case is remanded for a new trial.
REVERSED and REMANDED.
TOAL, J., dissents in separate opinion.
It is my opinion that the evidence concerning Bolden's use of cocaine may be distinguished from State v. Coleman, --- S.C. ----, 389 S.E.2d 659 (1990) and therefore I would affirm.
On November 17, 1987, at approximately 6:10 a.m., the desk clerk of the LaQuinta Motor Inn in Greenville was robbed at gun point. The desk clerk later identified Bolden as the robber.
Ms. Lula Mae Gray testified in detail about the events which took place on the night preceding and the morning of the robbery. She stated that she and Bolden checked into the motel on the evening of November 16, 1987. When they first got into the room, Bolden went to get some ice and then to get Ms. Gray's cigarettes. After he returned to the room, they drank gin, smoked cocaine, and took a shower. At this time, Ms. Gray noticed that Bolden had a gun with him. Then they made love and she fell asleep. Bolden woke her up about 4:30 or 5:00 a.m. and told her he was leaving to take his daughter to the hospital.
As noted in the majority opinion, we held in State v. Coleman, supra, that admission of evidence the defendant is a social user of cocaine is prejudicial error where its only function is to demonstrate the defendant's bad character. The majority concludes that the only function of the introduction of the evidence in this case was to demonstrate Bolden's bad character. I disagree.
Evidence of other offenses may be offered for other purposes if the risk of undue prejudice is outweighed by its probative value. United States v. Tate, 715 F.2d 864 (4th Cir.1983). For example, such evidence may be an integral part of the crime with which the defendant is charged or may be needed to aid the fact finder in understanding the context in which the crime occurred. People v. Czemerynski, 786 P.2d 1100 (Colo.1990); Strickland v. State, 784 S.W.2d 549 (Tex.App.1990). "Criminal occurrences do not always take place on a sterile stage; and where, as here, the events leading up to the crime are a part of the scenario which explain the setting in which it occurred, no error is committed by permitting the jury to view the criminal episode in the context in which it happened." Czemerynski, at 1109 citing People v. Lobato, 187 Colo. 285, 530 P.2d 493, 496 (1975).
The res gestae theory and the reasoning underlying the theory were discussed in detail by the Fourth Circuit:
One of the accepted bases for the admissibility of evidence of other crimes arises when such evidence "furnishes part of the context of the crime" or is necessary to a "full presentation" of the case, or is so intimately connected with the explanation of the crime charged against the defendant and is so much a part of the setting of the case and its "environment" that its proof is appropriate in order ...
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