Davis Adv. Sh. No. 33
In The Supreme Court
The State, Respondent
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
Ellison Moody, Derrick
Randy Lloyd, James
Michael Hill, James
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
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
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
"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
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.
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
its admission prejudiced the petitioners. Accordingly, we
REVERSE AND REMAND.
TOAL, MOORE, BURNETT, AJ., and Acting Associate Justice
George T. Gregory Jr., concur.