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2004-UP-499 - State v. Chisolm

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Tyrese R. Chisolm,        Appellant.


Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge


Unpublished Opinion No. 2004-UP-499
Submitted September 15, 2004 – Filed October 5, 2004


REVERSED AND REMANDED


Assistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

PER CURIAM:  Tyrese R. Chisolm appeals his second-degree burglary conviction, arguing the trial court erred in refusing to allow rehabilitative evidence of his alibi witness’ truthful character.  We reverse and remand for a new trial. [1]

FACTS

Doug Sweeney and his friend, Jackson Goss, stopped by Sweeney’s apartment building and were almost to the front door when a man they did not recognize came out of the doorway with a green bicycle.  The men exchanged hellos and Sweeney and Goss went inside.  When Sweeney thought to himself that the man did not look like someone who would be visiting his downstairs neighbors, he asked his roommate whether the neighbors had a green bicycle.  She said they did and told him one of her own bicycles had been stolen only two hours earlier.  Sweeney called 911 and with Goss’ help, provided a description of the man. 

Sarah Samuel, Sweeney’s neighbor, testified her green bicycle was taken from the apartment building.  She had left the bicycle under a stairwell inside the building.  When she returned, the police were there and she learned of the theft.  

An officer patrolling the area where the burglary occurred noticed Chisolm, who matched the burglar’s description and was on a green bicycle.  Chisolm attempted to escape when the officer asked him to stop, eventually leaving the bicycle and fleeing on foot.  However, the officer caught up with him.  Chisolm was taken into custody at approximately 4:15, about an hour to an hour and fifteen minutes after Sweeney and Goss first saw the burglar. 

Chisolm presented an alibi defense.  He testified he was at the Steinberg Law Firm at the time of the crime, waiting to see Steven Goldberg regarding a workers’ compensation claim.  He claimed that after he left the office, he purchased the bicycle and a cell phone from a man fitting the burglar’s description. 

Critical to Chisolm’s defense was the testimony of Walter Bilbro, an attorney who had associated members of the Steinberg firm on Chisolm’s workers’ compensation case.  Bilbro testified he had reminded Chisolm of his 1:00 p.m. appointment with Goldberg and that at approximately 3:50 p.m. Chisolm called him from the firm to tell him he had been waiting for Goldberg but Goldberg failed to meet him.  Bilbro testified Chisolm put a receptionist on the phone at Bilbro’s request and she confirmed that Chisolm had been waiting and that Goldberg was not in the office.  Other witnesses placed Chisolm at the firm that afternoon, and testified he waited a considerable time for Goldberg, but they were not able to confirm precisely when Chisolm was there. 

During Bilbro’s direct testimony, he admitted the Supreme Court had publicly reprimanded him.  During the State’s cross-examination, Bilbro revealed he was reprimanded for violating the rule requiring attorneys to refrain from conduct involving dishonesty, fraud, deceit, or misrepresentation and for violating the rule that prohibits an attorney from engaging in conduct tending to bring the legal profession into disrepute.  In response, the defense asked to submit the testimony of another attorney in the community who would speak positively regarding Bilbro’s reputation for honesty.  The court refused to admit the testimony, citing the possibility of several witnesses for each side on the issue.  The court reasoned the dueling testimony could distract everyone from the “true purpose” of the trial—Chisolm’s “guilt or innocence.”  The prosecution and defense stipulated that if allowed, the defense would have called attorney Stephen Booker, who would have testified he had dealt with Bilbro on many cases, working both with him and against him; that he knew his reputation for truthfulness in the community; and that his reputation in the legal community is that he is truthful. 

DISCUSSION

The admission of evidence is within the trial court’s sound discretion and will not be reversed on appeal absent an abuse of that discretion.  An abuse of discretion occurs when the trial court’s ruling is based on an error of law.  State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000).  Evidence of a witness’ truthful character is only admissible after the witness’ character for truthfulness “has been attacked by opinion or reputation evidence or otherwise.”  Rule 608(a)(2), SCRE.  “Impeachment is not a dispassionate study of the witness’s capacities and character, but rather is regarded in our tradition as an attack upon his credibility.  Under our adversary system of trials, the witness’s proponent must be given an opportunity to meet this attack by evidence rehabilitating the witness.”  1 McCormick on Evidence § 47 (5th ed. 1999).

Here, the State attacked Bilbro’s character for truthfulness by inquiring about the details of his public reprimand.  The State’s examination revealed Bilbro had been reprimanded for violating Rule 407, which prohibits attorneys from engaging in “dishonesty, fraud, deceit or misrepresentation.”  The prosecutor had Bilbro read the rule into the record.  The State’s cross-examination clearly was intended to damage Bilbro’s credibility as a truthful witness.  Evidence of his truthful character, such as Booker’s testimony, was thereby rendered admissible under Rule 608(a)(2).  The trial court’s refusal to admit the proffered evidence was thus governed by an error of law.  Further, because Bilbro’s testimony was central to Chisolm’s defense, the exclusion of evidence of his truthful reputation cannot be considered harmless.  See State v. Bell, 302 S.C. 18, 27, 393 S.E.2d 364, 369 (1990) (holding exclusion of evidence is reversible only where error and prejudice are shown); State v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (holding whether an error is harmless depends on the circumstances of the case, but it is harmless where it could not reasonably have changed the outcome of the trial).

REVERSED AND REMANDED.

STILWELL, BEATTY, and SHORT, JJ., concur.


[1]        This appeal was originally submitted pursuant to Anders v. California, 386 U.S. 738 (1967).  The court denied counsel’s petition to be relieved and ordered re-briefing on this issue.  We decide this case without oral argument pursuant to Rule 215, SCACR.