State v. Lee

• Decision Date: 20 September 1977
• Docket Number: No. 20516,20516
• Citation: 269 S.C. 421,237 S.E.2d 768
• Parties: The STATE, Respondent, v. Eugene Owens LEE, Appellant.
• Court: South Carolina Supreme Court

Page 768

237 S.E.2d 768

269 S.C. 421

The STATE, Respondent, v. Eugene Owens LEE, Appellant.

No. 20516.

Supreme Court of South Carolina.

Sept. 20, 1977.

W. Gaston Fairey and P. Lewis Pitts, Jr., Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Joseph R. Barker, Brian P. Gibbes and Edward B. Latimer, and Sol. James C. Anders, Columbia, for respondent.

RHODES, Justice:

The appellant was found guilty of rape and sentenced by the trial judge to forty (40) years imprisonment. The appellant maintains that the occurrence of alleged trial errors warrants a reversal of his conviction and a new trial. We disagree and affirm.

The appellant previously had been convicted of rape in 1962. Prior to the trial of the instant case, there took place a lengthy discussion involving the trial judge, assistant solicitor (solicitor), and the two attorneys from the public defender's office representing the appellant. The discussion concerned whether the solicitor could attempt to impeach the appellant's credibility, if the appellant took the witness stand, by inquiring about the prior conviction. The trial judge ruled that the solicitor could attempt to impeach the appellant by asking him whether he had "ever been convicted of a crime of moral turpitude". ¹

When the appellant took the stand, one of his counsel on direct examination asked him whether he had previously been convicted of a crime of moral turpitude. To this question the appellant answered "yes". Also, earlier the appellant was identified as a "parolee" by his parole officer who was called to the witness stand by the defense counsel. On cross-examination of the appellant, the solicitor asked him whether he was on parole for a crime of moral turpitude. The appellant answered that he was. ²

It appears that "rape" was never mentioned during the course of the trial as being the "crime of moral turpitude" for which the appellant had been convicted in 1962. However, the appellant contends that certain of the solicitor's references during closing argument to the appellant's prior conviction amounted to an attack on his character. In this way, it is argued, the appellant's prior conviction could have been considered by the jury as substantive evidence of the appellant's guilt of the rape for which he was charged in the instant case.

A prior conviction of a crime of moral turpitude may be used for the purpose of impeaching a defendant-witness's credibility if the conviction is not too remote in time. See cases collected in 19 West's S.C. Digest, "Witnesses", k Numbers 345(1), 345(2), and 350. However, defendant's character may not be attacked unless he has put his character in issue. State v. Britt, et al., 235 S.C. 395, 111 S.E.2d 669 (1959); State v. Bolin, 177 S.C. 57, 180 S.E. 809 (1935). The record of this case does not indicate that the appellant placed his character in issue.

Our attention is called particularly to the following portions of the solicitor's argument to the jury:

"(Y)ou may have noticed how he (appellant) shook while he was on the stand. That had no real relevance, but you saw him real closely as he came up here and took the stand, he very smoothly said no, he didn't do this. He had gone to the parole board that morning, he was on parole, but he didn't commit the crime. He had been convicted of a crime, not just any crime, but a crime of moral turpitude."

And, shortly after this statement was made, the solicitor argued that:

"They say he is going to jail for forty years. I submit to you that is not even enough. But that is not for your consideration. What your consideration is is (sic) did he do it or not, because the judge is going to sentence this man. And if he is not a bad man, the judge can give him anywhere from five to forty years, with which he will be eligible for parole after a third of that. But he is a menace to society, been convicted of this crime of moral turpitude. . . ."

We do not believe the solicitor in this case exceeded the proper scope of inquiry and argument regarding the appellant's credibility. The trial judge properly refused to grant appellant's motion for a mistrial. Great deference is accorded to a trial judge's decision to grant or deny such a motion. His ruling will not be disturbed in the absence of an abuse of discretion amounting to an error of law. Keller v. Pearce-Young-Angel Co., 253 S.C. 395, 171 S.E.2d 352 (1969); State v. Lake, 257 S.C. 407, 186 S.E.2d 256 (1972).

In State v. Hinson, et al., 226 S.C. 495, 85 S.E.2d 735 (1955), defendants were found guilty of rape. Although they admitted committing a robbery in connection with the incident as well as previous similar robberies, they denied the rape charge. On appeal, it was contended that it has highly improper for the prosecution to have referred to defendants as "criminals" and "robbers" during the course of the trial and that a mistrial should have been ordered. In affirming the convictions, this Court held that such references by the solicitor were not improper when arguing the credibility of the defendant's testimony. It was stated:

"Appellants having admitted the robbery, it was permissible for counsel to argue this fact as bearing on the credibility of their testimony. Having elected to testify, they occupied the dual role of defendants and witnesses. In the latter capacity, their reputation for truth and veracity was placed in issue . . ." State v. Hinson, supra, 226 S.C. at 499, 85 S.E.2d at 736.

In this case, the quoted excerpts from the solicitor's argument to the jury merely restate the facts that appellant was on parole from conviction for a crime of moral turpitude. As in Hinson, supra, it was proper for the solicitor to argue the fact of appellant's conviction in connection with his believability as a witness.

The statement by the solicitor that appellant was a "menace to society" cannot be considered prejudicial since that concept forms the very basis for crimes involving moral turpitude. "Moral turpitude signifies an inherent quality of baseness, vileness, depravity, and, generally speaking, it involves an act of inherent baseness in the private, social, or public duties which one owes to his fellow man or to society . . ." 58 C.J.S. Moral p. 1203.

Therefore, that appellant was a "menace to society" was implicit in the fact of his prior conviction for a crime of moral turpitude and he sustained no prejudice by the solicitor's use of that phrase. The exception is without merit.

The appellant also argues that the trial judge erred in refusing to admit, and allow questioning from, a transcript of the preliminary hearing in this case. It is contended that the court's exclusion of the transcript hindered the appellant in cross-examining the prosecutrix effectively and thereby prevented him from impeaching her trial testimony with respect to her description of her assailant and her remembrance of the events surrounding the rape.

The record reveals that the solicitor objected to the admission of the transcript and to cross-examination of the prosecutrix therefrom on two grounds, namely: (1) the stenographer had not been sworn by the magistrate to record the proceedings of the preliminary hearing; and (2) the transcript was inaccurate in that it was not a...