State v. Tuffour, No. 3989.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: Kittredge
• Citation: 613 S.E.2d 814
• Parties: The STATE, Respondent, v. Kwasi Roosevelt TUFFOUR, Appellant.
• Decision Date: 22 June 2005
• Docket Number: No. 3989.

613 S.E.2d 814 The STATE, Respondent,
v.
Kwasi Roosevelt TUFFOUR, Appellant. No. 3989. Court of Appeals of South Carolina. Heard March 9, 2005. Decided May 9, 2005. Rehearing Denied June 22, 2005.

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Katherine Carruth Link, of West Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Christina T. Adams, of Anderson, for Respondent.

KITTREDGE, J.

Kwasi Roosevelt Tuffour was convicted and sentenced for trafficking in crack cocaine, 100 to 200 grams. Tuffour appeals claiming error in the admission at trial of prior bad act evidence, tape recordings, and impeachment evidence. We find the trial court erred in the admission of prior, unrelated alleged drug transactions under the common scheme or plan exception to State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), and Rule 404(b), SCRE. Based on the admission of this forbidden propensity evidence, we reverse and remand for a new trial.

FACTS

Anthony Rice was arrested by the Anderson County Sheriff's Office in December of 2001 and charged with conspiracy to traffic in crack cocaine. Rice cooperated with law enforcement as an "undercover operative," and, in an effort to "work off" his charge, he agreed "to set Kwasi [Tuffour] up."

On December 18, 2001, Rice's cell phone was "wired," and he called Tuffour, presumably to arrange a purchase of five ounces of crack cocaine. The conversation was recorded by law enforcement, but only Rice's voice is audible on the tape.¹ Following the conversation, Rice was "wired," and he drove to the Anderson County town of Belton. He stopped in a known drug area referred to as the "tree." Several officers with the sheriff's office conducted surveillance in the area.

Rice remained at the "tree" for approximately three hours and engaged in numerous conversations, none of which were recorded. The vehicle that Tuffour was driving² passed by the area, and Rice returned to his vehicle and followed Tuffour. The vehicles stopped at a nearby apartment complex. Rice exited his vehicle and approached the vehicle occupied by Tuffour and another person, later identified as a juvenile. The conversation which ensued was recorded, but the recording quality is poor. When Rice gave the prearranged signal to law enforcement, officers immediately approached the vehicle. Tuffour and the other occupant were taken from the vehicle. Crack cocaine was found in the vehicle, and both Tuffour and the juvenile occupant were charged.

Based on the December 18th incident, Tuffour was indicted for trafficking in crack cocaine, 100 to 200 grams. The State succeeded in admitting, over Tuffour's objection, testimony from Rice that he had purchased crack cocaine — typically five ounces at a time — from Tuffour on numerous prior occasions. The State contended that this evidence concerning alleged prior drug sales

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was proper under the common scheme or plan exception to Lyle and Rule 404(b), SCRE. The State asserted that Tuffour would not have sold five ounces of crack cocaine to Rice without the prior relationship and transactions. The trial court additionally admitted evidence in connection with the tape recordings as well as a redacted version of Tuffour's criminal record to impeach his testimony. Tuffour was convicted and sentenced, and he now challenges these evidentiary rulings on appeal.

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only. We are bound by the trial court's factual findings unless they are clearly erroneous." State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (citation omitted). The trial court's ruling admitting evidence, including prior bad act evidence, is reviewed under an abuse of discretion standard. Id. at 6, 545 S.E.2d at 829.

DISCUSSION

Tuffour argues the trial court erred in admitting evidence that Rice, on several prior occasions, had purchased crack cocaine from him in unrelated transactions. Tuffour specifically asserts the admission of this evidence patently violates the rule in Lyle and Rule 404(b), SCRE. We agree.

Perhaps no tenet of evidence law in the context of "prior bad acts" is more firmly established than the principle that propensity or character evidence is inadmissible to prove the specific crime charged:

That contention is grounded upon the familiar and salutary general rule, universally recognized and firmly established in all English-speaking countries, that evidence of other distinct crimes committed by the accused may not be adduced merely to raise an inference or to corroborate the prosecution's theory of the defendant's guilt of the particular crime charged... [p]roof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution's theory that he is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe the prisoner guilty, and thus effectually to strip him of the presumption of innocence. It ... `raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it.'

Lyle, 125 S.C. at 415-16, 118 S.E. at 807 (internal citations omitted).

This rule of evidence is universally recognized in American jurisprudence and is necessary to ensure that the presumption of innocence is not relegated to an empty phrase:

It is a well-established common-law rule that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other offenses at other times, even though they are of the same nature as the one charged in the indictment, is inadmissible for the purpose of showing the commission of the particular crime charged. This rule has been recognized and applied in cases involving prosecutions for the sale of narcotics, so that as a general rule, subject to the exceptions ..., where the state charges a particular sale of narcotics, it is not proper to admit proof of other sales, for the purpose of establishing the particular sale charged.

A. Petry, Admissibility in Prosecution for Illegal Sale of Narcotics of Evidence of Other Sales, 93 A.L.R.2d 1097, § 3 (1964).

There are exceptions to the general rule of inadmissibility:

[U]nder Lyle, evidence of these other bad acts may be admitted to prove the defendant's guilt if that evidence establishes: (1) motive; (2) intent; (3) absence of mistake or accident; (4) identity; or (5) a common scheme or plan involving other crimes so closely related to the one charged that proof of one tends to prove the other.

State v. Barroso, 328 S.C. 268, 271, 493 S.E.2d 854, 855 (1997) (emphasis in original).

In the present case, the trial court relied only on the common scheme or plan

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exception.³ When this exception is invoked by the State, it is important to recognize that a close degree of similarity between the prior bad acts and the crime charged, by itself, does not satisfy Lyle. Indeed, the mere presence of similarity only serves to enhance the potential for prejudice. State v. Gore, 283 S.C. 118, 121, 322 S.E.2d 12, 13 (1984).⁴ The foundation for admissibility transcends mere similarity, for the admission of such evidence under the common scheme or plan exception requires a connection between the extraneous crimes and the crime charged so that proof of the former tends to prove the latter. Succinctly stated, prior bad act evidence must be relevant to prove the alleged crime. See State v. Timmons, 327 S.C. 48, 52, 488 S.E.2d 323, 325 (1997) ("A common scheme or plan concerns more than the commission of two similar crimes; some connection between the crimes is necessary."); State v. Hough, 325 S.C. 88, 95, 480 S.E.2d 77, 80...