State v. Colf, 2875.

• Citation: 504 S.E.2d 360,332 S.C. 313
• Decision Date: 27 July 1998
• Docket Number: No. 2875.,2875.
• Court: Court of Appeals of South Carolina
• Parties: The STATE, Respondent, v. Richard E. COLF, Appellant.

332 S.C. 313

504 S.E.2d 360

The STATE, Respondent, v. Richard E. COLF, Appellant.

No. 2875.

Court of Appeals of South Carolina.

Heard June 3, 1998.

Decided July 27, 1998.

Rehearing Denied September 17, 1998.

William B. Rogers, Jr., of Rogers & Munnerlyn, Bennettsville, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General

Charles H. Richardson, all of Columbia; and Solicitor Jay E. Hodge, Jr., Darlington, for respondent.

CURETON, Judge:

A grand jury indicted Richard Coif (Coif) for third degree burglary and larceny. At trial in August 1996, a jury convicted Colf of burglary, but not larceny. Colf now appeals and raises issues regarding the use of his prior convictions for larceny and breaking and entering to impeach him. We reverse and remand.

I. FACTS

A warehouse employee testified that on April 8, 1996, he arrived at work to discover a truck parked at the back between two locked warehouses. The employee identified Colf as the man he saw dragging a machine out of a warehouse unit. The machine, a pump, stood in the doorway, and Colf stood inside the door. The employee testified that the pump could only be moved in one direction and that the pump was "sticking out of [the] door ... as if it were coming out." The employee drove immediately to his employer's office, and the two returned to the warehouse. Colf was gone, but the men noticed that someone had broken into a number of warehouse units. The lock was broken on the door of the unit where the employee had observed Colf. As the two men inspected the area, Colf returned.

A deputy arrived shortly after Colf's return. The deputy testified Colf initially claimed he was scavenging food for his animals. After the deputy informed Colf scavenging food from the area was illegal, Colf changed his story and said he was picking up furniture discarded by renters of the warehouse units. The deputy saw only paper trash in the area, and Coif's truck contained only various tools, but no food or furniture.

Colf testified at trial that as a handyman and oddjobber, he often gathered and repaired discarded items from the trash. Colf stated he was in the warehouse area to load a discarded couch on his truck. He claimed he was merely moving the pump from the middle of the driveway so that he could get through. When he noticed signs of tampering with some of the warehouse doors, Colf said, he tried to wave down the employee. Colf said he went to the victim's office because the employee drove away. Colf returned to the scene when he learned the police had already been called. Colf said he could never have gotten the pump in his truck because he was under a doctor's care for a bad back. Colf told the court, "I can't pick the thing up ..."; "I wouldn't attempt to pick it up"; but also stated, "I showed them how I picked it up."

On cross-examination, the court permitted the State to ask Colf about his prior convictions for attempted breaking and entering, attempted larceny, breaking and entering, larceny, and larceny of a vehicle. The parties do not dispute that all of these convictions are more than ten years old. Colf admitted the convictions, but claimed it "doesn't mean I did all of that stuff."

Following his conviction for third degree burglary, the court sentenced Colf to five years, suspended upon service of two years, and three years probation.

II. IMPEACHMENT WITH PRIOR CRIMINAL COVICTIONS

Colf first asserts that the trial judge should not have allowed impeachment with his prior convictions, because they were more than ten years old and no "specific facts and circumstances" supported a finding that the probative value substantially outweighed the prejudicial effect. We agree.

Admission of evidence falls within the trial court's discretion and will not be disturbed on appeal absent abuse of that discretion. State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997). The scope of cross-examination is within the discretion of the trial judge, whose decision will not be reversed on appeal absent a showing of prejudice. State v. Sherard, 303 S.C. 172, 399 S.E.2d 595 (1991).

Rule 609(b), SCRE, governs the admissibility of over-age convictions. The relevant provision states:

(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.

No South Carolina case to date has directly applied the balancing test of Rule 609(b), although numerous cases have discussed Rule 609(b) in addressing pre-Rules situations. Thus, federal cases construing the same rule provision are persuasive in our analysis. Roberts v. Peterson, 292 S.C. 149, 355 S.E.2d 280 (Ct.App.1987). To support his contention that the trial court abused its discretion and failed to make the necessary findings required by Rule 609(b) for impeachment, Coif cites United States v. Beahm, 664 F.2d 414 (4th Cir.1981). In discussing the use of an 11-year-old sodomy conviction, the Fourth Circuit stated in Beahm:

Any conviction at least ten years old presumptively prejudices a defendant ... and the government [must] meet the heavy burden of rebutting the presumption....

The presumption is certainly not rebutted by the fact that the conviction was for the same type offense for which the defendant [now stands] accused.....

Admission of evidence of a similar offense often does little to impeach the credibility of a testifying defendant while undoubtedly prejudicing him.

Since evidence of any similar offense should be admitted only rarely, a similar conviction already presumptively barred from admission by Rule 609(b) should be admitted more rarely.

In the present case, the trial court made the following statements during the discussion on the propriety of using Colf's prior convictions to impeach him:

[T]he [rule] says you can't [allow the evidence] after ten years unless the court determines in the interest of justice that the probative value of the convictions supported by specific facts and circumstances substantially outweigh[s] the prejudicial value.

Obviously, an admission of this is going to be highly prejudicial, but in the interest of justice, I may well decide to let it in....

....

If these prior convictions over ten years old were involving drugs, marijuana, peeping torn, anything other than the charge for which he's being tried, I would not let it in, but when somebody is being tried for grand larceny and he's got six different offenses for grand larceny, the interest of justice, in my view, compels me to let the jury have that testimony for such weight as they are entitled to receive.

The State argues that commission of larceny reflects directly on credibility. See State v. Vaughn, 268 S.C. 119, 232 S.E.2d 328 (1977)

. Cf. State v. Shaw, 328 S.C. 454, 492 S.E.2d 402 (Ct.App.1997) (shoplifting is a crime involving dishonesty for purposes of impeachment rule). It cites a number of cases in which courts have affirmed introduction of convictions over ten years old because the convictions directly reflected on credibility, and because the convictions were highly probative where the jury faced a choice between the State's and the defendant's opposing versions of the facts. See, e.g., United States v. Brown, 956 F.2d 782 (8th Cir.1992); United States v. Murray, 751 F.2d 1528 (9th Cir.1985); United States v. Brown, 603 F.2d 1022 (1st Cir.1979).

Although convictions for theft-related crimes are probative of credibility, and witness credibility is the ultimate issue for the jury when each side presents opposing views of the facts, we nonetheless agree with Colf that, under the facts of this case, the trial court abused its discretion by permitting cross-examination using the convictions.

Although the trial court clearly considered the rule and the ends of justice, the court's comments indicated a belief that the convictions were relevant because they related to the same or similar offenses as those with which Colf was currently charged, and a belief that this similarity heightened their probative value. Impeachment by prior convictions for the same or similar offenses is often prejudicial. See United States v. Cathey, 591 F.2d 268 (5th Cir.1979)

(despite limiting instruction, jury may use the similar prior conviction as evidence of guilt).

We therefore consider in more detail the probative value of these convictions, and whether this probative value "substantially outweighs" the prejudicial effect. In American Home Assurance Co. v. American President Lines, Ltd., 44 F.3d 774, 779 (9th Cir.1994), the court stated: [Appellant] argues that, in determining the probative value of [a] conviction, we should consider how critical [the witness's] credibility was to their case. This argument misconstrues the yardstick by which probative value is measured. Probative value is determined by how likely the evidence is to prove some fact, not how important proof of that fact is to the proponent's case. Accordingly, the probative value of [the witness's] credibility is measured by how well it demonstrates his lack of trustworthiness, not how badly [the Appellant] wishes to impeach him.

In Colf's case, we do not believe the convictions were sufficiently probative of truthfulness to substantially overcome their prejudicial effect. The Rule concludes that over-age convictions are not very probative of credibility. According to the Rule's policy, if a criminal has remained crime-free for ten years, an inference that he is more likely to lie is no longer appropriate. Cathey, 591 F.2d at 275-76 (noting that

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