State v. Scriven

• Citation: 529 S.E.2d 71,339 S.C. 333
• Decision Date: 13 March 2000
• Docket Number: No. 3131.,3131.
• Parties: The STATE, Respondent, v. James SCRIVEN, Jr., Appellant.
• Court: Court of Appeals of South Carolina

339 S.C. 333

529 S.E.2d 71

The STATE, Respondent, v. James SCRIVEN, Jr., Appellant.

No. 3131.

Court of Appeals of South Carolina.

Heard December 8, 1999.

Decided March 13, 2000.

Rehearing Denied May 6, 2000.

Assistant Appellate Defender Aileen P. Clare, of S.C. Office of Appellate Defense, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Salley W. Elliott, all of Columbia, and Solicitor Randolph Murdaugh, III, of Hampton, for respondent.

HOWARD, Judge:

A jury convicted James Scriven of distributing cocaine and marijuana in violation of S.C.Code Ann. § 44-53-370 (Supp. 1999), and the trial court sentenced him to concurrent terms of twenty-seven years for the cocaine violation and fifteen years for the marijuana violation, together with a $50,000 fine. Scriven appeals his convictions, asserting the trial court erred in allowing impeachment based upon prior drug-related convictions under Rule 609(a)(1), SCRE, and in sentencing him as a third offender when the indictments did not give him notice of sentence enhancement by alleging his prior offenses. We affirm in part, reverse in part, and remand to the trial court to conduct the balancing test required under Rule 609(a)(1), with instructions to grant a new trial in the event the probative value of the prior convictions is outweighed by the prejudice to the accused.

FACTS/PROCEDURAL BACKGROUND

James Scriven was indicted by the Colleton County grand jury for distribution of cocaine, distribution of marijuana, and distribution of unlawful drugs within proximity of a school. The indictments did not allege that Scriven was previously convicted of drug offenses subjecting him to sentence enhancement as a second or subsequent offender, if convicted.

The drug transactions, which occurred several months before Scriven was arrested, were captured on audio and video tape introduced into evidence by the State.¹ The undercover narcotics officer involved in the transaction also identified Scriven at trial. Notwithstanding this evidence, Scriven denied involvement, claiming alibi as his defense. Scriven's alibi was corroborated by his ex-wife.

Over defense objection, the trial court allowed the solicitor to impeach Scriven during cross-examination by eliciting the fact that on March 7, 1990, Scriven was convicted of five drug-related offenses: conspiracy to violate the drug laws of South Carolina; distribution of cocaine within a half mile of a school; possession of cocaine; possession of cocaine with intent to distribute; and distribution of cocaine.

The jury found Scriven guilty of distribution of cocaine and marijuana. He was acquitted of the charge of distribution of cocaine within one-half mile of a school. The court enhanced Scriven's sentences based upon his prior convictions, sentencing him to twenty-seven years imprisonment and a fine of $50,000 on the charge of distribution of cocaine, third offense, and fifteen years for distribution of marijuana, third offense, to run concurrently.

Scriven made a motion to reconsider his sentence on the basis that his indictments did not allege his prior offenses. The court declined to reconsider the sentence. Scriven appeals.

ISSUES

I Can the trial court sentence a person convicted of violating S.C.Code Ann. § 44-53-370 as a third offender when the indictments do not give him notice of sentence enhancement by alleging his prior offenses?

II Did the trial court err by allowing the State to impeach the defendant with prior drug convictions pursuant to Rule 609(a)(1), SCRE?

LAW/ANALYSIS

I Can the trial court sentence a person convicted of violating S.C.Code Ann. § 44-53-370 as a third offender when the indictments do not give him notice of sentence enhancement by alleging his prior offenses?

Scriven first argues that the trial court erred in sentencing him as a third offender because the indictment did not allege his prior drug convictions. We find this argument to be without merit.

"No person may be held to answer for any crime the jurisdiction over which is not within the magistrate's court, unless on a presentment or indictment of a grand jury...." S.C. Const., Art. 1, § 11; S.C.Code Ann. § 17-19-10 (1976); State v. Beachum, 288 S.C. 325, 342 S.E.2d 597 (1986). "An indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon." Carter v. State, 329 S.C. 355, 363, 495 S.E.2d 773, 777 (1998). Where a statute increases the punishment for a second or subsequent offense, the allegation that the offense charged in the indictment was of that character is unnecessary. State v. Parris, 89 S.C. 140, 71 S.E. 808 (1911); see also State v. Burdette, 335 S.C. 34, 515 S.E.2d 525 (1999)

.

Scriven was charged and convicted of violating S.C.Code Ann. § 44-53-370. This section makes it illegal to distribute marijuana and cocaine. Although it contains provisions for sentence enhancement upon conviction for a second or greater offense, these provisions are not elements of the offense. See Carter, 329 S.C. 355,

495 S.E.2d 773 (1998) (although § 44-53-375 provides that a violation of § 44-53-370 involving methamphetamine (crank) carries a greater sentence than the sentence provided for in § 44-53-370 for other Schedule II drugs, section 44-53-375 does not define a separate crime but only provides an enhanced punishment); see also State v. Towery, 300 S.C. 86, 87, 386 S.E.2d 462 (1989) (indictment which alleged the defendant "did traffic in cocaine by willfully, unlawfully and knowingly having in his possession a quantity of cocaine" was sufficient to confer subject matter jurisdiction notwithstanding its failure to specify the quantity of cocaine alleged to be in defendant's possession); cf. State v. Benton, 338 S.C. 151, 526 S.E.2d 228 (2000); State v. Hamilton, 327 S.C. 440, 486 S.E.2d 512 (Ct.App.1997).²

The indictments advised Scriven of the elements of the charged offenses and the factual allegations which supported them. They stated the offenses with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he was called upon to answer and whether he could plead an acquittal or conviction thereon. Consequently, the court had subject matter jurisdiction to sentence Scriven as a third offender.

In reaching this conclusion, we believe Scriven's reliance on State v. Mitchell is misplaced. In Mitchell, the court stated the prevailing rule in this country at that time, which required "an indictment or information to allege convictions of prior offenses, where such prior convictions would enhance the punishment or would affect the grade or degree of the offense charged." Mitchell, 220 S.C. 433, 434, 68 S.E.2d 350, 351 (1951). However, the court further noted that South Carolina has historically followed the contrary rule. Id. at 436, 68 S.E.2d at 352 (citing State v. Allen, 8 Rich. 448; State v. Smith, 8 Rich. 460; State v. Parris, 89 S.C. 140, 71 S.E. 808 (1911); and State v. Kelly, 89 S.C. 303, 71 S.E. 987 (1911)).

Furthermore, the issue raised by the defendant and decided in Mitchell was the reverse of that posed here. Mitchell concerned a prosecution for Driving Under the Influence of Alcohol or Drugs (DUI), second offense. In a DUI prosecution, the allegation that the offense is second or subsequent is necessary to confer jurisdiction in General Sessions Court. See also Tyler v. State, 247 S.C. 34, 145 S.E.2d 434 (1965)

. In Mitchell, the defendant argued that the allegations concerning prior offenses should have been removed from the indictment because they were prejudicial. Consequently, Mitchell stands for the proposition that an indictment properly alleges a second or subsequent offense when it is necessary to establish the jurisdiction of the court, notwithstanding the possibility of prejudice to the accused arising from the allegation. See State v. Benton, 338 S.C. 151, 526 S.E.2d 228 (2000).

We conclude the indictments fully informed Scriven of the offenses with which he was charged, and because he was subject to the enhanced penalty provisions upon conviction, the trial court properly considered his prior convictions at the time of sentencing. II Did the trial court err by allowing the State to impeach the defendant with prior drug convictions pursuant to Rule 609(a)(1), SCRE?

Scriven next argues the trial court committed reversible error by allowing the State to impeach him with prior drug-related convictions. At the conclusion of the State's case, Scriven's attorney advised the court that Scriven intended to testify in his defense, and then moved to exclude Scriven's prior convictions on the basis that testimony as to these convictions by name would be so prejudicial to the defendant as to completely outweigh any probative value and would deprive him of a fair trial. The trial court did not entertain any argument as to the probative value for impeachment or prejudicial effect of the prior offenses to the accused. Without articulating any reasons for the decision, the trial court denied the motion. During cross-examination, the State was then allowed to impeach Scriven with the five prior drug convictions.

Under Rule 609(a)(1), SCRE, evidence that an accused has been convicted of a crime, which was punishable by death or imprisonment in excess of one year, is admissible for impeachment if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused. The party attempting to introduce the prior conviction for impeachment purposes has the initial burden of establishing the basis for its admission. See United States v. Cunningham, 638 F.2d 696 (4th Cir.1981)

. Furthermore, the rule requires the trial...