State v. Bryant, 3690.

• Decision Date: 03 November 2003
• Docket Number: No. 3690.,3690.
• Citation: 589 S.E.2d 775,356 S.C. 485
• Parties: The STATE, Respondent, v. Thomas BRYANT, Appellant.
• Court: South Carolina Court of Appeals

356 S.C. 485

589 S.E.2d 775

The STATE, Respondent, v. Thomas BRYANT, Appellant.

No. 3690.

Court of Appeals of South Carolina.

Heard May 14, 2003.

Decided November 3, 2003.

Rehearing Denied December 18, 2003.

Assistant Appellate Defender Robert M. Dudek, of the SC Appellate Defense, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Derrick K. McFarland, all of Columbia; and Solicitor Warren Blair Giese, of Columbia, for respondent.

HOWARD, Judge:

Thomas Bryant was convicted of murder and unlawful possession of a firearm. The circuit court sentenced him to life imprisonment without parole for murder and five years for possession of the firearm, to run concurrently. Bryant appeals, arguing the circuit court erred by admitting evidence of his prior bad acts and convictions. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Bryant is a paraplegic who was staying at a Days Inn Hotel ("the Hotel") in Columbia, South Carolina. Bryant met Daniel Austin at a nearby nightclub.

At approximately 3:30 a.m. on July 23, 1999, Austin left the nightclub with Bryant. Nellie Connell, the front desk attendant at the Hotel, observed Austin and Bryant together at approximately 3:30 a.m., and Austin was pushing Bryant in his wheelchair. According to Connell, Austin subsequently came to the front desk and requested a key to Bryant's room. Connell gave Austin a key to Bryant's room.

Between 3:30 a.m. and 4:00 a.m., Kevin Hawkins, a guest at the Hotel, observed Bryant in the Hotel hallway. Bryant had a scrape on his nose and his pants were in his lap. Bryant told Hawkins he had been beaten and asked Hawkins to go to the front desk and ask for help. Hawkins went to the front desk and spoke to Connell, and Connell indicated she would call the authorities. As Connell was telephoning the police, she heard gunshots.

When the police arrived, Austin was lying in the breezeway bleeding from gunshot wounds, and Bryant was in his hotel room firing a gun through the door. After a standoff lasting approximately twenty minutes, officers heard one final shot. The officers entered Bryant's room and found Bryant on the floor with a self-inflicted gunshot wound to his stomach. Austin died from his gunshot wounds. Following a jury trial, Bryant was convicted for murdering Austin and for unlawfully possessing a firearm. He was sentenced to life imprisonment without parole for murder and five years for possession of the firearm, the sentences to run concurrently. Bryant appeals.

LAW/ANALYSIS

I. Prior Bad Acts

Bryant argues the circuit court erred in admitting testimony about Bryant's prior bad acts. We disagree.

"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). Furthermore, the admission of reply testimony is within the trial court's discretion, and a reviewing court will not find an abuse of discretion "if the testimony is arguably contradictory of and in reply to earlier testimony." State v. Todd, 290 S.C. 212, 214, 349 S.E.2d 339, 340 (1986).

During direct examination in the state's case, John Campbell testified he first encountered Bryant at the nightclub a few days before the night of Austin's murder. Campbell was the bouncer for the club, and he stated he kept a "close eye" on Bryant on the night of the murder.

Campbell's testimony indicated Austin was not combative toward Bryant on the evening of the murder. Campbell testified Bryant arrived at the nightclub on the night of the murder between 8:00 p.m. and 8:30 p.m. Somewhere around 11:00 p.m., Austin entered the nightclub, and shortly thereafter, Bryant and Austin were "very chummy, [and] real friendly toward each other." Between 3:15 a.m. and 3:30 a.m., Austin and Bryant attempted to leave the nightclub, whereupon Bryant fell out of his wheelchair and required assistance by both Campbell and Austin to get back in his chair. Bryant and Austin then left the nightclub.

During cross-examination, Bryant's counsel attacked Campbell's independent ability to remember the events of the night of the murder, implying his recollection had been supplemented by his pre-trial discussions with the solicitor. During re-direct examination, the solicitor sought to introduce testimony from Campbell that Bryant had threatened Campbell during their first encounter to explain why Campbell had maintained a close eye on Bryant on the night of the murder. Over Bryant's objection, the court allowed Campbell's testimony, ruling evidence that Bryant had previously threatened Campbell was relevant to establish Campbell's basis for focusing on Bryant on the night in question. In doing so, the court provided the following limiting charge to the jury: "Now, there was also testimony in the case about conduct of a defendant toward a witness in the case. That testimony was introduced in regard to the credibility of the witness who gave it and must not be considered against the character of the defendant."

Viewing the testimony in light of our standard of review, we conclude there was no abuse of discretion in the admission of this evidence. Bryant specifically attacked Campbell's credibility as to his observation of Bryant and Austin, implying Campbell's memory had been supplemented by the solicitor because he had no reason in a crowded bar to pay close attention to Bryant or Austin on the night of the murder. Campbell's redirect testimony was relevant on this credibility issue. The solicitor was entitled to introduce testimony "arguably contradictory of and in reply to earlier testimony" to strengthen Campbell's credibility once attacked. Todd, 290 S.C. at 214, 349 S.E.2d at 340. Therefore, Bryant's argument is without merit.

II. Prior Convictions

Bryant argues the circuit court erred by admitting impeachment evidence of his prior firearms convictions because the prejudicial effect of the convictions outweighed their probative value.

The admission of prior convictions to impeach the credibility of a defendant is a matter within the sound discretion of the trial court, and thus, its decision will not be reversed on appeal absent an abuse of discretion. Green v. State, 338 S.C. 428, 433, 527 S.E.2d 98, 101 (2000). An abuse of discretion occurs when the conclusions of the circuit court either lack evidentiary support or are controlled by an error of law. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001).

Rule 609(a)(1) provides prior convictions can be used to impeach the accused when: 1) the crime was punishable by death or imprisonment in excess of one year, and 2) the court determines the probative value of admitting the evidence outweighs its prejudicial effect. Rule 609(a)(1), SCRE.

In weighing the probative value of prior convictions, the circuit court should consider all relevant factors including but not limited to the following: "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." State v. Colf, 337 S.C. 622, 627, 525 S.E.2d 246, 248 (2000); Green, 338 S.C. at 433, 527 S.E.2d at 101.

Prior to Bryant's testimony, the solicitor indicated he intended to impeach Bryant with evidence of prior convictions including voluntary manslaughter in 1987, possession of a firearm in 1997, and pointing and presenting a firearm in 1998. The circuit court first analyzed whether to admit the voluntary manslaughter conviction using the Colf factors. The circuit court refused to admit the conviction, ruling the probative value of the conviction was outweighed by the prejudicial effect. In so ruling, the circuit court made the following analysis:

I think there is some substantial impeachment value to it... as ... almost every two years various things that have come up with the defendant. And of course, the point in time, obviously, still works against allowing it, that was 16 years ago. The third factor, the similarity between the two, is obviously significant ... [for probative value].... But it's also extremely significant for the value of prejudice that it brings into the issue. As far as the importance of the defendant's testimony ... it is important. [Bryant's defense witnesses] didn't help his case too much.... [Additionally,] the credibility issue is central.

(emphasis added).

However, the circuit court did admit Bryant's convictions for possession of an unlawful weapon in 1997 and pointing and presenting in 1998, ruling as follows:

[The other two convictions] are both over a year old, well within the 10-year period, and frankly, do indicate within themselves consistency as well as when considered with the manslaughter conviction .... And I realize certainly ... [the] prejudicial issue related to these, but frankly, I think under those circumstances the probative value does substantially outweigh the prejudice that could be directed from the toward the defendant from it.... [Furthermore,] the fact that he may tend to get in trouble from time to time, while it has a certain amount of prejudice in it, also, does include that issue of whether or not he's worthy of belief,

(emphasis added).

Bryant contends this analysis, combined with the statements made during the circuit court's voluntary manslaughter analysis, demonstrates the circuit court admitted the prior convictions based on the improvident belief the evidence was admissible to demonstrate propensity.

Although, viewed in isolation, the statements made by the circuit court could be construed to indicate the circuit court allowed the evidence to prove propensity, we must view the circuit court's...