State v. Joseph
| Decision Date | 17 July 1998 |
| Docket Number | No. 2711,2711 |
| Citation | 328 S.C. 352,491 S.E.2d 275 |
| Parties | The STATE, Respondent, v. Marcus JOSEPH, Appellant. |
| Court | South Carolina Court of Appeals |
Assistant Appellant Defender Robert M. Dudek, of the South Carolina Office of Appellate Defense, Columbia, for appellant.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport; and Solicitor Warren B. Giese, Columbia, for respondent.
Marcus Joseph, an inmate at Kirkland Correctional Institute, was convicted of possession of contraband and sentenced to three years imprisonment, consecutive to his current life sentence. Joseph appeals, asserting that the trial court committed reversible error in connection with several evidentiary rulings. We affirm in part, reverse in part, and remand for a new trial.
At approximately 12:30 p.m. on July 19, 1993, Kirkland Correctional officers Donald Ruger and Keith Hardy were making security checks of the prison yard when they observed inmates approaching Joseph and lingering for short periods of time and Joseph reaching in and out of his pocket. According to the officers, Joseph appeared to be looking out for the correctional officers and was acting "strange, you know, jittery, nervous." Based on these observations, the officers took Joseph to an officers' rest room for a routine shakedown. The officers performed a strip search of Joseph, but found nothing. However, as Joseph was dressing, Ruger noticed a piece of cellophane sticking out of one of the dreadlocks in Joseph's hair. After searching Joseph's cell for contraband, the officers then informed Joseph that they were going to search his hair. Joseph objected, stating that searching his hair violated his religious beliefs.
Officers Ruger and Hardy took Joseph to the "shakedown room" so that the search could be done in the presence of their supervisor, Sergeant McKinzie. Ruger and Hardy began searching Joseph's hair, and Ruger removed two cellophane packages, one containing separate packets of a green leafy substance, and the other containing separate packets of a beige rock-like substance. Ruger filled out a chain of custody form and turned the packages over to Investigator Davis, Kirkland's contraband officer. Davis immediately field tested the substances in the packages, which tested positive for crack cocaine and marijuana. He found weights of 0.07 grams of crack cocaine and 0.54 grams of marijuana. Davis sealed the evidence in a plastic bag and personally delivered the bag to SLED on August 27, 1993, placing the evidence in the drug box. On April 18, 1994, Davis received the evidence back from SLED. He stored the evidence in a locked file cabinet in his contraband office from that time until January 5, 1995, at which point he delivered the evidence back to SLED for retesting.
On September 1, 1993, Susan Kilmer, a SLED chemist, retrieved the evidence from the drop box. Between September 25 and October 4, 1993, she analyzed the evidence, finding 0.43 grams of marijuana and 0.07 grams of crack cocaine. She then secured the evidence in her locker at SLED until March 24, 1994, when she turned it over to Susan Wilson, an evidence control employee at SLED.
On April 18, 1994, Connie McKay, another SLED employee, retrieved the evidence from the evidence vault and returned it to Officer Davis. On January 5, 1995, Davis resubmitted the evidence to SLED, placing it in a secured drug box. Chemist Kimberly Thigpen reanalyzed the evidence, finding 0.41 grams of marijuana and 0.07 grams of crack cocaine.
Prior to trial, the State informed the trial court that Susan Kilmer, the chemist who first analyzed the evidence, would not testify because she had moved to Michigan and was beyond the reach of the State's subpoena power. Joseph objected, arguing that Rule 6 of the South Carolina Rules of Criminal Procedure required the State to produce Kilmer. In addition, Joseph argued that cross-examination of Kilmer was necessary to highlight deficiencies in the State's chain of custody. The State explained that, in lieu of Kilmer's testimony, it intended to offer an affidavit from Kilmer explaining her handling of the evidence and stating that she relinquished the evidence in substantially the same condition as when she received it. The trial court overruled Joseph's objection, ruling that the absence of Kilmer was not fatal to the chain of custody.
At trial, Joseph renewed his objection to Kilmer's absence and additionally argued that the State failed to establish an adequate chain of custody. The trial court again overruled Joseph's objections.
The defense's theory of the case was that Joseph had been set up by Officers Ruger and Hardy. Joseph attempted to show that the officers were friends of two other guards who had been terminated shortly before Joseph's arrest as a result of an investigation in which Joseph provided information. At trial, Joseph sought to impeach Ruger's credibility as a witness by introducing during cross-examination evidence of Ruger's 1992 conviction for giving false information to police officers, as well as evidence of Ruger's 1992 entry into and successful completion of the Pretrial Intervention (PTI) program for a charge of possession of crack cocaine. The trial court allowed into evidence Ruger's conviction for giving false information, but ruled that Ruger's participation in the PTI program did not amount to a conviction and was therefore inadmissible.
On appeal, Joseph first challenges the trial court's rulings in connection with his attempts to impeach the credibility of Officer Ruger.
Joseph contends the trial court erred by refusing to allow him to impeach Ruger with his prior possession of crack cocaine. We find no error.
As noted above, Ruger's charge of possession of crack cocaine was disposed of through his successful completion of the PTI program. The Pretrial Intervention Act (the Act), S.C.Code Ann. § 17-22-10 through-170 (1985 & supp.1996), establishes an alternative, noncriminal method for disposition of certain charges in cases where "there is substantial likelihood that justice will be served if the offender is placed in an intervention program [and] it is determined that the needs of the offender and the State can better be met outside the traditional criminal justice process." S.C.Code Ann. § 17-22-60(1) & (2) (Supp.1996). To participate in the PTI program, the offender must satisfy certain statutory requirements, see S.C.Code Ann. § 17-22-50 through -70 (Supp.1996), and must agree, among other things, to the terms and conditions of the intervention program established by the solicitor. S.C.Code Ann. § 17-22-90(3) (Supp.1996). Upon successful completion of the intervention program, the solicitor "shall effect a noncriminal disposition of the charge or charges pending against the offender." S.C.Code Ann. § 17-22-150(a) (Supp.1996).
When a witness takes the stand, he may be impeached by the introduction into evidence of convictions for crimes of moral turpitude. See, e.g., Horton v. State, 306 S.C. 252, 411 S.E.2d 223 (1991); State v. Major, 301 S.C. 181, 391 S.E.2d 235 (1990). In South Carolina, possession of cocaine is considered a crime of moral turpitude. Major, 301 S.C. at 184, 391 S.E.2d at 237 (). However, given that successful completion of the PTI program results in a noncriminal disposition of the charges against the offender, participation in the PTI program cannot be considered a conviction for purposes of impeaching a witness. See 1990 Op. S.C. Att'y Gen. No. 90-51 (); accord 1988 Op. S.C. Att'y Gen. No. 88-77.
A more difficult question, however, is whether successful completion of the PTI program prohibits impeachment of the witness with the conduct giving rise to the PTI involvement. A witness may be impeached with prior bad acts not the subject of conviction that affect his credibility. "The cross-examiner must take the [witness's] answer concerning these alleged acts, however, and if the [witness] denies them, he may not be contradicted." Major, 301 S.C. at 184, 391 S.E.2d at 237; accord State v. China, 312 S.C. 335, 440 S.E.2d 382 (Ct.App.1993). The cross-examiner must have a good faith factual basis before questioning a witness about his past conduct. See State v. Gunn, 313 S.C. 124, 137, 437 S.E.2d 75, 82 (1993), cert. denied, 510 U.S. 1115, 114 S.Ct. 1063, 127 L.Ed.2d 383 (1994); State v. McGuire, 272 S.C. 547, 550, 253 S.E.2d 103, 104 (1979).
Upon successful completion of the intervention program, the offender may apply for a court order directing the destruction of the official records relating to his arrest. S.C.Code Ann. § 17-22-150(a) (Supp.1996). The effect of the order is
to restore the person, in the contemplation of the law, to the status he occupied before the arrest. No person as to whom the order has been entered may be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge the arrest in response to any inquiry made of him for any purpose.
Id. Therefore, upon successful completion of the PTI program, it is as if the arrest never occurred--the offender is not required to admit to the arrest and the offender's denial of the arrest is, by statute, deemed to be truthful. It seems clear, then, that it would be error for a court to allow cross-examination about an arrest disposed of through successful completion of the PTI program.
The Act, however, does not extend the same protection to the conduct giving rise to the arrest. That is, while the Act provides that the offender may deny that he was...
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