State v. Wilson
| Decision Date | 08 November 1999 |
| Docket Number | No. 3072.,3072. |
| Citation | 524 S.E.2d 411,337 S.C. 629 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Michael Rochelle WILSON, Appellant. |
Assistant Appellate Defender Tara S. Taggart, of SC Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Charles H. Richardson, all of Columbia; and Solicitor Arthur H. Wilder, Jr., of Sumter, for respondent.
Michael Rochelle Wilson was convicted by a jury of possession of crack cocaine with the intent to distribute. The trial judge sentenced him to twenty-five years imprisonment and fined him $50,000. On appeal, Wilson asserts the trial judge committed reversible error by allowing the State to introduce evidence of a prior drug transaction under Rule 404(b), SCRE, and State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). We reverse and remand for a new trial.
On August 24, 1995, police executed a search warrant on a motel room in the Downtowner Hotel in Sumter, S.C. The room was occupied by Wilson and his girlfriend, Mona Lisa Mitchell. As officers entered the room, Wilson came out of the adjoining bathroom. Officers searched the room and found a South Carolina identification card belonging to Wilson, a beeper, razor blades, and .78 grams of crack cocaine. They also found more than $700 in currency, a beer can modified for use as a pipe, and four small cellophane bags. Both Wilson and Mitchell were arrested and charged with possession of crack cocaine with intent to distribute it.
In the week prior to Wilson's trial, Mitchell was allowed by the State to plead guilty to the lesser offense of possession of crack cocaine in return for her agreement to testify against Wilson. According to Mitchell, she and Wilson were no longer boyfriend and girlfriend. During trial, Wilson objected to Mitchell's testimony concerning an alleged drug transaction involving Wilson which she claimed to have witnessed in the hallway of the motel two days before the arrest. In the in camera hearing which followed, Mitchell testified she saw Wilson hand a woman a plastic bag containing what appeared to be a white rock in exchange for twenty dollars. Mitchell characterized the substance as "drugs," but during cross-examination explained that her basis for this assumption was that she recognized the person who took it as someone "who usually smoke." However, she did not know the identity of the woman.
Wilson objected to the testimony on the grounds that it was not clear and convincing and the prejudice outweighed the probative value. The court ruled the testimony admissible to demonstrate Wilson's intent to distribute the crack in the hotel room under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
On appeal, Wilson argues the trial court erred in admitting evidence of his prior bad acts. He alleges the evidence (1) did not constitute clear and convincing proof of a prior crime, (2) was irrelevant, and (3) was extremely prejudicial.1 We agree that the State failed to provide clear and convincing evidence of the prior drug sale, and the evidence should not have been admitted.
Evidence of a person's other bad acts is inadmissible to prove the person's propensity to commit a crime. Rule 404(b), SCRE. Such evidence is admissible to demonstrate "motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." Id.; Lyle, supra. In a criminal case, evidence of other crimes or bad acts must be clear and convincing if the acts are not the subject of a conviction. State v. Parker, 315 S.C. 230, 433 S.E.2d 831 (1993); State v. Berry, 332 S.C. 214, 503 S.E.2d 770 (Ct.App. 1998).
We conclude the uncorroborated testimony of Mitchell was not clear and convincing evidence of a prior crime.2 We first note that Mitchell unquestionably had a stake in the outcome by virtue of her involvement in the crime. To the extent she could place the blame for possession of the drugs upon Wilson, she obviously benefitted in her plea negotiation and in lessening her degree of culpability for sentencing purposes. Her credibility was thus diminished. Second, we note that her description of the prior sale was very scant, and almost casual. On one hand, she testified she only saw a bag containing a white substance, which she "guessed" contained drugs. On the other hand, she testified she "knew" the bag which was exchanged contained drugs, yet her only basis for that knowledge was her identification of the recipient as someone "who smoke" (sic), we assume, crack cocaine. This conclusion is further suspect, however, because she could not even identify the recipient. Finally, we note there is no independent indicia of reliability or corroboration.
Essentially, then, the only evidence of this prior drug sale was Mitchell's description of it, which is subject to the inescapable conclusion that it could just as easily have been made up for personal gain as to have been truthful. Consequently, the evidence of a prior drug transaction was not clear and convincing. Where the issues of possession and intent to distribute are at stake, as they were here, the prejudice to the defendant is obvious, and requires no further elaboration.
For the forgoing reasons, Wilson's conviction is
REVERSED AND REMANDED.
HUFF, J., dissenting in a separate opinion.
The majority holds the evidence of the prior drug sale was not clear and convincing. Because I find the account of the prior drug sale more than sufficient to meet the clear and convincing standard, I respectfully dissent.
On August 24, 1995, officers executed a search warrant in a room at the Downtowner Motel in Sumter. Present in the room were appellant and a female, Mona Lisa Mitchell. Officers searched the room and found a South Carolina identification card belonging to Wilson, a beeper, some razor blades, and what tests revealed was .78 grams of crack cocaine. They also found more than $700 in currency, a beer can modified for use as a smoking device, and four small "zip-lock" bags. At trial, the State sought to introduce testimony from Mitchell that Wilson sold drugs a couple of days prior to that August 24 in the same motel. In an in camera hearing, Mitchell testified a couple of nights before the officers searched her and Wilson's room, she witnessed Wilson selling drugs from their room as she was coming thorough the hallway. She stated she saw Wilson hand a girl a plastic bag, which contained a white rock substance, in exchange for twenty dollars. She stated, although she did not know the person's name and could not recall what she looked like, she knew Wilson was passing her drugs because she knew the girl "usually smoke[d]."
The State asserted the testimony was admissible under Rule 404(b), SCRE, for the purpose of showing appellant's intent to distribute. The State argued, because the weight of the drugs was less than one gram, it was not entitled to the presumption of Wilson's intent to distribute the drug and it therefore had a heavier burden in proving intent.3 Defense counsel objected to the testimony, arguing its prejudicial effect outweighed its probative value and that the testimony did not meet the necessary clear and convincing standard. The trial judge ruled the testimony was admissible under Rule 404(b), SCRE and under the Supreme Court case of State v. Gore, 299 S.C. 368, 384 S.E.2d 750 (1989), to demonstrate Wilson's intent to distribute the drugs.
Before the jury, Mitchell testified the drugs found in the room did not belong to her. She further stated that, a couple of days prior to August 24, 1995, she observed Wilson engaged in a drug transaction in the hotel's hallway. She witnessed him hand an unidentified woman a white rock substance contained in a plastic bag in exchange for twenty dollars.
Wilson argues the trial court erred in admitting evidence of his prior bad acts. He alleges the evidence (1) did not constitute clear and convincing proof of a prior crime, and (2) was irrelevant and extremely prejudicial.4 I disagree. Evidence of a person's prior bad acts is not admissible to prove a person's propensity to commit a crime. Rule 404(b), SCRE. The purpose of excluding evidence of prior bad acts is to ensure a defendant is convicted, not based upon the prior bad act, but upon the present offense with which he is charged. State v. Johnson, 314 S.C. 161, 442 S.E.2d 191 (Ct.App.1994). However, such evidence may be admissible in order to establish "motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent." Rule 404(b), SCRE; see also State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). "Clear and...
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