State v. Mizzell
| Decision Date | 26 June 2000 |
| Docket Number | No. 3205.,3205. |
| Citation | 341 S.C. 529,535 S.E.2d 134 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Jamie MIZZELL and Jimmy Allen (Tootie) Mizzell, Appellants. |
Assistant Appellate Defender Melissa J. Reed Kimbrough, of SC Office of Appellate Defense, of Columbia, for appellants.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for respondent.
Jamie Mizzell and Jimmy Allen "Tootie" Mizzell appeal their convictions for second degree burglary and grand larceny. They argue the trial court erred in excluding certain impeachment evidence against the State's primary witness. We affirm.
On September 24, 1996, Howard Woods arrived home to find his backdoor open. Woods concluded from the broken lock and dark scuff mark on the door that someone had opened the door by kicking it. Inside he discovered more than thirty of the firearms he collected were missing. Officers investigating the crime discovered Thomas Harley had nine of the stolen guns. These nine guns were conservatively valued at more than $2,000. Harley initially did not want to cooperate with authorities but eventually returned the guns to law enforcement.
Based on the police investigation, the Colleton County Grand Jury indicted the Mizzells on one count each of grand larceny, first degree burglary, and possession of a weapon during the commission of a crime. The State thereafter tried the Mizzells on one count each of grand larceny, second degree burglary, and possession of a weapon during the commission of a crime. At trial, Harley testified that he purchased the guns for $700 from the Mizzells. The Mizzells arrived at his home in a truck and offered to sell him some guns. He picked seven guns from a selection of guns inside the truck. The Mizzells then "threw in two for free." He recalled seeing another man and a woman in the truck.
After police investigation revealed Donald Steele was the man Harley saw in the truck, the State charged Steele with the same crimes as the Mizzells but planned to try Steele for those crimes after the Mizzells' trial. Steele testified at the Mizzells' trial. Although Steele admitted participating in the burglary and larceny, he portrayed himself in the best possible light. He testified that he drove himself, his estranged wife, and the Mizzells to Woods's home in his truck.
According to Steele, after Tootie kicked the door open, the Mizzells went inside the home. When the Mizzells returned, they were carrying guns which they threw into the back of the truck. After the Mizzells got back into the truck, Steele drove away from the scene. The Mizzells instructed him to drive down a particular road to a house where the Mizzells sold some of the guns. Steele again drove down some more roads as instructed. Steele testified that when they neared the outskirts of Summerville, he stopped and told the Mizzells to take the guns out of his truck. The Mizzells hid the guns in a ditch on the side of the road. The Mizzells and Steele then purchased marijuana and crack cocaine, drove to a motel, and smoked the drugs.
During Steele's cross-examination, Jamie Mizzell's counsel attempted to ask Steele how much prison time he could receive for the crimes with which he was charged. After suggesting the State should object, the trial court held a hearing on the matter. The trial court ruled the precise potential sentences Steele faced were inadmissible, reasoning the Mizzells were attempting to improperly bring their own potential penal liability before the jury through "the back door." The State suggested the Mizzells could ask Steele whether he could go to jail for a long time if convicted. Jamie Mizzell's counsel agreed to conform the question as requested.
During the same hearing, the trial court also considered the Mizzells' request to admit evidence of Steele's seventeen-year-old convictions for housebreaking and contributing to the delinquency of a minor. The Mizzells allegedly wanted to introduce this evidence in order to "let the jury know about the credibility and the believability of [Steele]." Additionally, in a prior discussion, the Mizzells suggested this evidence would show Steele engaged in a pattern of using or influencing people younger than himself to engage in criminal activity. The trial court ruled the evidence inadmissible, dismissing any potential probative value.
At the conclusion of the evidence, the trial court directed verdicts in favor of the Mizzells on the charges of possession of weapons during the commission of a crime. The trial court then submitted the remaining charges to the jury, and the jury returned guilty verdicts on all charges. The trial court sentenced Jamie Mizzell to fifteen years for second degree burglary and five concurrent years for grand larceny. The trial court sentenced Tootie Mizzell to fifteen years for second degree burglary, suspended upon service of five years and five years probation, and five concurrent years for grand larceny. In addition, the trial court ordered each of the Mizzells to pay restitution in the sum of $8,010, with joint and several liability. This appeal follows.
The Mizzells argue the trial court erred in refusing to permit evidence of Steele's 1981 convictions for housebreaking and contributing to the delinquency of a minor. They first argue the trial court erred in failing to exercise its discretion under Rule 609, SCRE. They also maintain that if the trial court had exercised its discretion, the evidence would have been admissible. We find no reversible error.
Rulings on the admissibility of evidence are within the trial court's discretion and will not be disturbed on appeal absent an abuse of that discretion. Baber v. Greenville County, 327 S.C. 31, 488 S.E.2d 314 (1997). Further, "[t]he 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. Colf, 337 S.C. 622, 625, 525 S.E.2d 246, 247-48 (2000), aff'g as modified, 332 S.C. 313, 504 S.E.2d 360 (Ct.App.1998).
Rule 609(b), SCRE, governs the use of stale convictions to impeach witnesses. This subsection provides:
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.
Rule 609(b), SCRE (emphasis added). According to this rule, a conviction more than ten years old is presumptively inadmissible. Colf, 337 S.C. at 626, 525 S.E.2d at 248. The trial court may allow the conviction into evidence only after deciding the probative value of the evidence substantially outweighs the prejudicial effect and "articulating for the record the specific facts and circumstances supporting its decision." Id. at 629, 525 S.E.2d at 249.
In this case, the trial court refused to admit Steele's remote convictions into evidence. The trial court, therefore, was not required to articulate on the record its weighing of the probative value and prejudicial effect. The record, however, does reflect the following discussion concerning the trial court's decision:
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State v. Mizzell
...a jury convicted petitioners of second degree burglary and grand larceny. The Court of Appeals affirmed. See State v. Mizzell, 341 S.C. 529, 535 S.E.2d 134 (Ct.App.2000). We granted certiorari to review the Court of Appeals' decision. We FACTS On September 24, 1996, Howard Woods' ("Woods") ......
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