State v. Cheatham, 3453.

• Decision Date: 25 February 2002
• Docket Number: No. 3453.,3453.
• Citation: 349 S.C. 101,561 S.E.2d 618
• Parties: The STATE, Respondent, v. Lionel CHEATHAM, Appellant.
• Court: South Carolina Court of Appeals

349 S.C. 101

561 S.E.2d 618

The STATE, Respondent, v. Lionel CHEATHAM, Appellant.

No. 3453.

Court of Appeals of South Carolina.

Heard February 6, 2002.

Decided February 25, 2002.

Rehearing Denied April 18, 2002.

Assistant Appellate Defender Katherine Carruth Link, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Assistant Attorney General

Christie Newman Barrett, all of Columbia; and Solicitor Ralph E. Hoisington, of North Charleston, for respondent.

ANDERSON, Judge:

Lionel Cheatham was convicted of first degree burglary and sentenced to twenty years imprisonment. He raises three issues on appeal. We remand, finding the trial court erred in refusing to conduct a pretrial hearing on identification matters.

FACTS/PROCEDURAL BACKGROUND

At approximately 7:30 p.m. on February 9, 1999, the victim, Kalpna Patel, and her infant were in their apartment. The sliding glass door on the patio was left slightly open to allow a breeze into the apartment. Patel heard a noise and saw a man enter her apartment through the sliding glass door. The man attempted to hide his face with a pillow. Patel fought with the man. During the struggle, Patel was able to see the intruder's face briefly. Patel recognized the man as someone who had previously come into her store. The intruder grabbed Patel's purse from her dining room table and ran away. The purse contained $500 in cash receipts from the business owned by Patel and her husband.

The intruder was described in the police report taken after the incident as a Hispanic male, six feet two inches tall, weighing approximately 190 pounds, with brown hair, a round face, and between 20 and 30 years old. The police report did not indicate whether the intruder had a mustache or the color of the intruder's eyes. Patel testified at trial she never described the intruder as Hispanic. According to Patel, she informed police that he was a tall, well-built, light-skinned man of both Caucasian and African American descent, aged in his late thirties to forties, with dark hair, a round face, a mustache, and brown eyes. No fingerprint evidence was recovered at the scene that linked Cheatham to the crime.

Patel's neighbor, Tim Nates, saw the intruder in the parking lot before the burglary and watched him run away from Patel's apartment clutching an object. Both Patel and Nates picked Cheatham's picture out of a photographic lineup. Cheatham did not dispute that Patel was robbed, but argued at trial he was not the perpetrator. Persephone Brown testified she was a former co-worker of Cheatham's wife, Cynthia, and attended church with Cynthia until Brown moved. Brown averred that on the evening of the burglary, she got off work at 8:00 p.m. and went to a Bi Lo grocery store to purchase a few items. As she exited the store at approximately 8:15 p.m., she encountered both Cheatham and Cynthia in the parking lot approaching the store. She spoke with Cynthia for approximately thirty minutes.

Cynthia also testified. She stated she had specific recollections of February 9, 1999, because she wrote a check to Cheatham's employer as a loan to help expand his catering business. Later that day, Cynthia came home from her job at 4:00 p.m. and relaxed with Cheatham. The couple then discussed dinner and decided Cynthia should make spaghetti. At 6:00 p.m., the couple went to a Blockbuster video store to return movies they had rented and then traveled to a Publix grocery store to buy the ingredients to make spaghetti. According to Cynthia, she and Cheatham then traveled across town to her mother's house to help tutor her nephew. After leaving Cynthia's mother's house, Cheatham and Cynthia decided they also wanted garlic bread to go with the spaghetti they were going to make for dinner. They went to the Bi Lo near Cynthia's mother's house, where they encountered Brown at approximately 8:15 p.m. Cynthia testified Cheatham was with her the entire evening.

ISSUES

I. Did the trial court err in admitting Cheatham's prior burglary and housebreaking convictions?

II. Did the trial judge err in refusing to recuse himself?

III. Did the trial court err in refusing Cheatham's motion for a pretrial hearing on matters of identification?

LAW/ANALYSIS

I. Admission of Prior Burglary Convictions

Cheatham argues the trial court erred in allowing the admission of his prior burglary and housebreaking convictions when he stipulated to one of the elements of first degree burglary. We disagree.

Prior to being charged with burglary in the underlying case, Cheatham was convicted of housebreaking in 1978, second degree burglary in 1987, and second degree burglary in 1991. The indictment for first degree burglary in this action alleged Cheatham: (1) entered into Patel's dwelling in the nighttime; and (2) had a prior record of two or more convictions for housebreaking or burglary. Cheatham filed a motion in limine requesting the State be prohibited from introducing his prior convictions because it would be unfairly prejudicial and he would stipulate the burglary occurred in the nighttime. The State refused to stipulate the burglary occurred at the nighttime and the trial court denied the motion. The trial judge instructed the jury that the prior convictions must only be considered to determine whether an element of first degree burglary was satisfied and they could not consider the prior convictions as evidence that Cheatham committed the burglary of Patel's home.

The trial court has great discretion in ruling on the admissibility of evidence in a criminal case. State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000); State v. Hamilton, 344 S.C. 344, 543 S.E.2d 586 (Ct.App.2001). A trial judge's ruling on the admissibility of evidence will not be reversed on appeal absent a prejudicial abuse of discretion amounting to an error of law. Id.

The General Assembly has defined first degree burglary, in part, as follows:

(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:

....

(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or

(3) the entering ... occurs in the nighttime.

S.C.Code Ann. § 16-11-311 (Supp.2001).

Evidence of other crimes is admissible to establish a material fact or element of the crime charged. State v. Benton, 338 S.C. 151, 526 S.E.2d 228, cert. denied sub nom., Benton v. South Carolina, 530 U.S. 1209, 120 S.Ct. 2209, 147 L.Ed.2d 242 (2000); State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987).

Our courts have repeatedly considered the admission of prior burglary convictions to support an element of first degree burglary.

In State v. Hamilton, 327 S.C. 440, 486 S.E.2d 512 (Ct.App. 1997), this Court held that under § 16-11-311(A)(2), "prior burglary or housebreaking convictions are clearly an element of burglary in the first degree." Id. at 446, 486 S.E.2d at 515. As such, the prosecution in Hamilton was entitled to present evidence relevant and material to that element of the offense, despite our "well-established rule that evidence that an accused has committed other crimes is not admissible in the prosecution for the crime charged." Id. at 447, 486 S.E.2d at 515 (citation omitted). The Court reasoned that the prosecution could not be forced to stipulate generally to the prior offenses or to the fact that the defendant had the legal status to be charged with first degree burglary because such stipulation might cause a substantial gap in the evidence needed for the jury to find the defendant guilty of the offense. Id. at 446, 486 S.E.2d at 515.

The Hamilton Court analyzed the prejudicial impact of the evidence:

[H]ad the South Carolina General Assembly wished to use the prior convictions as merely a sentence enhancer rather than as an element of the crime, it could have done so.... Certainly, a cogent argument can be made that the statute contravenes the well-established rule that evidence that an accused has committed other crimes is not admissible in the prosecution for the crime charged. Rule 404(b), SCRE; State v. Gregory, 191 S.C. 212, 220, 4 S.E.2d 1, 4 (1939); State v. Williams, 31 S.C.L. (2 Rich.) 418, 421-22 (1846). It is not this court's province, however, to question the wisdom of a legislative enactment.

Finally, Appellant asserts it was error to allow proof of the prior burglary offenses because the evidence was not admissible under any of the exceptions recognized in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). Appellant's argument is misplaced, however, since the State did not offer proof of his prior burglary convictions to establish motive, intent, identity, or common scheme or plan. Here, Appellant's prior burglary convictions were presented solely to prove an element of the crime for which he was charged. Evidence which is logically relevant to a material element of the offense charged should not be excluded merely because it may also show guilt of another crime. See State v. Tillman, 304 S.C. 512, 518, 405 S.E.2d 607, 611 (Ct.App. [1991]), cert. denied, (Sept. 5, 1991).

Id. at 447, 486 S.E.2d at 515-16 (footnote omitted).

Our Supreme Court recently discussed this issue in State v. Benton, 338 S.C. 151, 526 S.E.2d 228 (2000). The Court rejected a claim that "`§ 16-11-311(A)(2), as interpreted in State v. Hamilton,'" unconstitutionally deprives defendants of due process of law "`because evidence required to prove the status element of prior convictions dilutes the State's burden of proof with respect to the remaining elements of the offense.'" Id. at 154, 526 S.E.2d at 229. In concluding the statute did not facially violate due process, the Court explained:

To deter repeat offenders, the General Assembly

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