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24719 - State v. Barroso, et al.

Davis Adv. Sh. No. 33
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent

v.

Juan Adriano Barroso

a/k/a "Juan Juan",

Kenneth D. Jefferson,

David Ray Matthews,

Michael A. Poston,

Grier Carter Copeland,

James Alfred Hudson

a/k/a "Bimbo", Dennis

M. Jefferson, John E.

Watford, Jr., Herman

McClain, Henry

Christopher Grady,

Ronald Mackey

Amerson, Ronnie

Ellison Moody, Derrick

Randy Lloyd, James

Michael Hill, James

Napoleon Smith,

William Van Jefferson,

Bobby Bell, Garris

Edwin Amerson, Ronald

Thomas Rogers, Tommy

L. McElveen, Freddie

Stevens, Jr., and Gene

Edward Taylor, Defendants,

Of whom Bobby Bell,

John E. Watford, Jr.,

James Michael Hill, and

Tommy L. McElveen

are Petitioners.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

p. 27


Appeal From Darlington County

John H. Waller, Jr., Judge

Opinion No. 24719

Heard April 15, 1997 - Filed December 1, 1997

REVERSED AND REMANDED

Chief Attorney Daniel T. Stacey, for petitioner Bobby Bell;

Assistant Appellate Defender Robert M. Dudek, for petitioner

John E. Watford; Assistant Appellate Defender M. Anne

Pearce, for petitioner Tommy McElveen, all of S. C. Office of

Appellate Defense; and Tara Dawn Shurling, for petitioner

James Michael Hill, all of Columbia.

Attorney General Charles Molony Condon; Chief Jonathan E.

Ozmint, and Assistant Attorney General Chris Gantt Hoffman,

both of State Grand Jury, all of Columbia, for respondent.

FINNEY, C.J.: This is a state grand jury cocaine conspiracy

case. Twenty-two individuals were indicted for trafficking in more than

400 grams. Eleven of the individuals were tried together; seven (including

the four petitioners) were found guilty as charged, two were convicted of

lesser offenses, and two were acquitted. The seven convicted of trafficking

appealed, and the Court of Appeals affirmed the convictions of six, and

reversed that of the seventh. State v. Barroso, 320 S.C. 1, 462 S.E.2d 862

(Ct. App. 1995). This Court granted certiorari to review one issue:

Whether petitioners were denied a fair trial because the State was

permitted to introduce voluminous testimony of other bad acts, primarily

concerning marijuana use and distribution? We find that they were, and

accordingly reverse their convictions and remand.

This cocaine case involved numerous individuals in the

Lamar area. Several weeks earlier a marijuana trafficking case had been

tried in the same geographic area, involving some of the same individuals

involved in this cocaine trial. Only one of these petitioners, Mr. Bell, was

indicted in the marijuana conspiracy, and he was acquitted. The Court of

Appeals held, agreeing with the State's contentions before that Court, that

p. 28


STATE v. BARROSO, et al.

"these were two distinct conspiracies with distinct co-conspirators, distinct

time periods, distinct places of operation, distinct offenses and distinct

overt acts." State v. Barroso, 320 S.C. at 16, 462 S.E.2d at 872. This

holding was not challenged by the State, and therefore is the law of the

case. Mathis v. Johnson, 258 S.C. 189, 188 S.E.2d 466 (1972). Further, to

the extent we can discern the roles of the participants in the two

conspiracies from this record, it appears that while the main figures were

largely the same, the lesser players were dissimilar. These petitioners are

all lesser participants in the alleged cocaine conspiracy.

Over the vigorous objection of the petitioners and the

other defendants, the State was permitted at this cocaine trial to elicit

from its own witnesses extensive testimony regarding marijuana use and

sales, including detailed descriptions of the witnesses' own propagation,

use and distribution of marijuana; their dealings with other State's

witnesses; and evidence of sales to petitioners Watford, Bell, and

McElveen.1 Although no direct evidence tied petitioner Hill to marijuana,

the State was allowed to present evidence that he used cocaine before the

time period specified in the conspiracy indictment.

The State asserted this marijuana evidence was

admissible as "other bad acts" under State v. Lyle, 125 S.C. 406, 118 S.E.

803 (1923). While the general rule is that evidence of other bad acts by

the defendant is not admissible to prove the defendant committed the

crime charged, under 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.

Id.(emphasis added). The evidence adduced at trial against these

petitioners showed isolated purchases of marijuana in amounts indicating

the petitioners were merely personal users. Cf.. State v. Gunn, 313 S.C.

124, 437 S.E.2d 75 (1993) (proof of a buyer-seller relationship is

insufficient to tie the buyer to the conspiracy). We fail to see how this


1Thirty-four witnesses testified to evidence of marijuana importation,

distribution, and use. The gist of this testimony was that the three main

figures in this cocaine conspiracy (financial backers Kenneth Jefferson and

Grier Copeland, and primary distributor "Bimbo" Hudson) dealt in large

quantities of marijuana before the inception of the cocaine conspiracy.

The only marijuana testimony involving these petitioners came from three

witnesses, one of whom testified to a single sale to petitioner Bell, another

to two sales to petitioner McElveen, and a third who testified that

petitioner Watford had bought marijuana from her husband.

p. 29


STATE v. BARROSO, et al.

evidence of isolated marijuana transactions is probative of petitioners'

participation in the marijuana conspiracy, much less how it is probative of

petitioners' alleged roles as dealers in the cocaine trafficking conspiracy.

As it relates to these petitioners, we find no evidence of a common scheme

or plan within the meaning of Lyle.

As the State argued and the Court of Appeals held, the

bulk of the marijuana evidence admitted at the trial did not involve these

petitioners. See footnote 1, supra. We do not agree that this fact is

sufficient to allay prejudice to the petitioners. The evidence against

petitioners was far from overwhelming, resting entirely on the testimony of

several individuals, all "higher up" in the cocaine conspiracy hierarchy,

who had turned State's evidence in order to receive reduced sentences.

The extensive evidence of extraneous bad acts by the State's witnesses

served here to bolster their credibility, in the sense that they were

presented to the jurors as repentant persons determined to clear their

consciences and assist the State in restoring law and order in Lamar.

Compare, e.g., State v. Joseph, Op. No. 2711 (S.C. Ct. App. filed August

18, 1997)(impeached witness not permitted to explain circumstances

surrounding criminal conviction in order to mitigate its impact). We find

that the erroneously admitted evidence here served to prejudice these

petitioners by raising a spurious inference of guilt. This effect was

exacerbated in this mass conspiracy trial, with the enhanced danger that

the jury would lose sight of individual guilt, and convict for reasons other

than the evidence. See State v. Gunn, supra.

Since the State's witnesses were not on trial, Lyle-type

evidence of their participation in marijuana trafficking was simply

irrelevant. We remind the State that mere association with admitted

members of the conspiracy is insufficient to tie other persons to the

conspiracy. State v. Sullivan 277 S.C. 35, 282 S.E.2d 838 (1981) cited

with approval in State v. Gunn, supra. Contrary to the holding of the

Court of Appeals, we cannot construe this extensive evidence of marijuana

trafficking from the State's witnesses as simply impeachment evidence

elicited by the State from its own witnesses to "draw the sting out" of

cross-examination. Impeachment evidence is limited to admission of the

fact of the misconduct, and does not encompass the details of the

transgression. e.g., State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976);

State v. Joseph, supra. The evidence here far exceeded the permissible

scope of impeachment. Further, at the time this case was tried, our law

prohibited a party from impeaching its own witness. Cf., Hicks v.

Coleman, 240 S.C. 227, 125 S.E.2d 473 (1962).

The marijuana evidence was not admissible at trial, and

p. 30


STATE v. BARROSO, et al.

its admission prejudiced the petitioners. Accordingly, we

REVERSE AND REMAND.

TOAL, MOORE, BURNETT, AJ., and Acting Associate Justice

George T. Gregory Jr., concur.

p. 31