THE STATE OF
In The Supreme Court
The State, Respondent.
Thomas Bryant, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Marc H. Westbrook, Circuit Court Judge
Opinion No. 26183
Heard November 15, 2005 - Filed July 17, 2006
Assistant Appellate Defender Robert M. Dudek, of
South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Derrick K. McFarland, and Solicitor Warren B. Giese, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: We granted Petitioner a writ of certiorari to review State v. Bryant, 356 S.C. 485, 589 S.E.2d 775 (Ct. App. 2003), in which the court of appeals affirmed the trial court’s admission of Petitioner’s two prior firearms convictions. We reverse.
Petitioner has been confined to a wheelchair for over twenty years due to a car accident. On July 22, 1999, he was visiting the Bottoms Up strip club, where he met the victim, Daniel Fletcher Austin. At approximately 3:30 a.m., the two left the club together to go back to Petitioner’s hotel room.
Between 3:30 and 4:00 a.m., as he was leaving his room to go to work, Kevin Hawkins saw Petitioner alone in the corridor. Petitioner asked Hawkins to get him help because he said he had been injured in a physical altercation. Hawkins informed the front desk clerk of Petitioner’s claims. As the clerk called the sheriff’s department, she heard shots. Immediately before calling the sheriff, the clerk testified she had given
The police arrived and found
Petitioner was convicted of murder and the unlawful possession of a weapon by a convicted felon. He was sentenced to life without parole for the murder and five years concurrent for the weapons charge.
Did the circuit court err in admitting Petitioner’s prior firearms convictions?
At trial, prior to Petitioner testifying, the State sought to introduce evidence that Petitioner had previously been convicted of voluntary manslaughter in 1984, shoplifting in 1992, a bad check charge in 1994, possession of a unlawful weapon by a convicted felon in 1997, and pointing and presenting a firearm in 1998. Petitioner did not object to the admission of the shoplifting or bad check convictions. He argued, however, that the manslaughter conviction should be excluded because it was more than ten years old. As to the two weapons convictions, Petitioner argued they did not have anything to do with truthfulness and thus their probative value was low. He further argued that their similarity to the current charges caused their admission to be highly prejudicial.
The State contends the convictions were offered to impeach Petitioner and to show “the defendant continues to get in trouble even after 1990. Every two years, he commits at least two crimes.” The trial judge allowed the firearms convictions to be introduced, and although the manslaughter conviction itself was not introduced, Petitioner stipulated he had been convicted of a violent crime in 1984.
The court of appeals affirmed Petitioner’s convictions in a 2:1 decision. Bryant, 356 S.C. 485, 589 S.E.2d 775. Relying on State v. Green, 338 S.C. 428, 527 S.E.2d 827 (2000), the majority reviewed the trial court’s statements as a whole and concluded that the trial court had an appropriate reason to admit the evidence “based on [the trial court’s] belief the testimony could lead to an inference [Petitioner] was unworthy of credibility because of his prior convictions.” Bryant, 356 S.C. at 491, 589 S.E.2d at 776.
Noting the importance of “[Petitioner's] testimony to his defense, and the state's burden of discounting his testimony to prove the elements of murder,” the Court of Appeals nonetheless held the trial judge did not abuse his discretion in admitting Petitioner’s prior convictions to impeach his credibility.
This Court has held that a trial judge must conduct a balancing test to determine whether remote convictions are admissible under Rule 609(b), SCRE. State v. Colf, 337 S.C. 622, 626, 525 S.E.2d 246, 248 (2000). Rule 609(b) creates a presumption that remote convictions are inadmissible and places the burden on the State to overcome this presumption.
(1) The impeachment value of the prior crime; (2) The point in time of the conviction and the witness's subsequent history; (3) The similarity of the past crime and the charged crime; (4) The importance of the defendant's testimony; and (5) The centrality of the credibility issue.
Under Rule 609(a)(2), SCRE, if a crime is viewed as one involving dishonesty, the court must admit the prior conviction because, prior convictions involving dishonesty or false statement must be admitted regardless of their probative value or prejudicial effect. Thus, Petitioner’s convictions for shoplifting and writing bad checks were properly admitted and Petitioner does not dispute this. The issue is whether the prior firearms convictions involve dishonesty or false statements so as to be admissible without weighing the probative value of their admission with its prejudicial effect.
Violations of narcotics laws are generally not probative of truthfulness. See State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 S.C. (2001) (citing State v. Aleksey, 343 S.C. 20, 538 S.E.2d 248 (2000)). Furthermore, a conviction for robbery, burglary, theft, and drug possession, beyond the basic crime itself, is not probative of truthfulness.
In admitting the prior firearms convictions, the trial judge noted that “the fact that he may tend to get in trouble from time to time, while it has a certain amount of prejudice in it, also, does include that issue of whether or not he's worthy of belief.” The trial judge did not address the similarity of the prior convictions to the current charges as required by Colf. Additionally, we note that when the prior offense is similar to the offense for which the defendant is on trial, the danger of unfair prejudice to the defendant from impeachment by that prior offense weighs against its admission. See e.g., Colf, 337 S.C. at 628, 525 S.E.2d at 249. Petitioner’s prior firearms convictions had nothing to do with Petitioner’s credibility and, their admission was more prejudicial than probative, especially in light of the offenses for which he was on trial. Accordingly, we hold the trial court erred in admitting Petitioner’s prior firearms convictions.
The State, however, contends even if the trial court erred, the admission of Petitioner’s prior convictions was harmless. We disagree.
Error is harmless where it could not reasonably have affected the result of the trial. In re Harvey, 355 S.C. 53, 584 S.E.2d 893 (2003). Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result. State v. Sherard, 303 S.C. 172, 399 S.E.2d 595 (1991). Thus, an insubstantial error not affecting the result of the trial is harmless where a defendant’s guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached. State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989). The circumstances of each individual case are to be considered.
Additionally, “this Court has placed great emphasis on the importance of a defendant’s right to assert self-defense when there is any evidence to support it.” State v. Taylor, 356 S.C. 227, 235, 589 S.E.2d 1, 5 (2003) (emphasis added). In acknowledgement of this important right, our Court has made every effort to assure that the burden remains on the State to disprove self-defense.
In this case, Petitioner’s defense was that he acted in self-defense, and this hinged entirely on his own testimony. Moreover, the only witnesses to the shooting were Petitioner and the victim. Although, the record contains evidence which may undermine Petitioner’s self-defense theory, the record also contains evidence which supports Petitioner’s self-defense theory. Therefore, the State should not be allowed to attack the defendant’s credibility with inadmissible prior convictions; especially where the Petitioner’s credibility was essential to his defense. Accordingly, we hold the improper admission of Petitioner’s prior firearms convictions was not harmless.
Based on the foregoing, we hold the improper admission of Petitioner’s prior firearms convictions was erroneous and does not qualify as harmless error. Accordingly, we hold his murder conviction should be
MOORE, PLEICONES, JJ., and Acting Justice James C. Williams, concur. BURNETT, J., dissenting in a separate opinion.
BURNETT, J.: I agree with the majority’s conclusion the trial court erred in admitting Petitioner’s prior firearms convictions. However, I disagree with the majority’s harmless error analysis. Therefore, I respectfully dissent.
Error is harmless where it could not reasonably have affected the result of the trial. In re Harvey, 355 S.C. 53, 63, 584 S.E.2d 893, 897 (2003). The materiality and prejudicial character of the error must be determined from its relationship to the entire case. State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985). Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result. State v. Sherard, 303 S.C. 172, 176, 399 S.E.2d 595, 597 (1991). Thus, an insubstantial error not affecting the result of the trial is harmless where guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached. State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989). Error is harmless beyond a reasonable doubt where it did not contribute to the verdict obtained.
To establish self defense: (1) the defendant must be without fault in bringing on the difficulty; (2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) the defendant must show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life; and (4) the defendant had no other probable means of avoiding the danger. State v. Bryant, 336 S.C. 340, 344-45, 520 S.E.2d 319, 321-22 (1999); State v. Goodson, 312 S.C. 278, 280, 440 S.E.2d 370, 372 (1994).
At trial, Petitioner argued he acted in self defense and this defense hinged entirely on his own testimony. In my opinion, Petitioner’s exculpatory story of self defense is not plausible.
Petitioner testified he was living at Days Inn, where he met the victim, Austin, earlier in the week. He testified on July 22, 1999, he went to Bottoms Up, a strip club, where he met
Kevin Hawkins testified he saw Petitioner alone in the corridor between 3:30 a.m. and 4:00 a.m. Petitioner asked Hawkins to tell the front desk clerk he had been robbed and needed help. Hawkins testified Petitioner had a scrape on his nose and he informed the front desk of Petitioner’s request.
Petitioner testified as he opened the door to his room,
Petitioner then went to the nightstand and retrieved a loaded pistol. He shot
In my opinion, Petitioner’s guilt was conclusively proven by competent evidence such that no other rational conclusion could have been reached. Petitioner testified that after he shot the unarmed
Significantly, the ballistics evidence does not support Petitioner’s claims. The State’s ballistics experts testified the pistol shots were fired through the hotel room door. Further, an officer testified he did not see any blood in the hotel room which is inconsistent with
Even though the trial court erred in admitting Petitioner’s prior convictions, the error was harmless because the evidence fails in any respect to support Petitioner’s self-defense theory. A reasonably prudent person would not have believed Petitioner had to shoot
Although Colf involved the admission of remote convictions under Rule 609(b), the “[Court of Appeals] has implicitly recognized the value of these factors in making such a determination under Rule 609(a)(1), and urged the trial bench to not only articulate its ruling, but to also provide the basis for it, thereby clearly and easily informing the appellate courts that a meaningful balancing of the probative value and the prejudicial effect has taken place as required by Rule 609(a)(1).” State v. Martin, 347 S.C. 522, 530, 556 S.E.2d 706, 710 (Ct. App. 2001) (internal quotation marks omitted).
At trial, Petitioner admitted he was guilty of unlawful possession of a weapon by a convicted felon and his self-defense argument went to only the murder charge. Accordingly, his conviction for unlawful possession of a weapon stands.
Petitioner testified he was not sure if the person in the breezeway was