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 Supreme Court
The State, Respondent,
Gary Bennett, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Horry County
John M. Milling, Circuit Court Judge
Memorandum Opinion No. 2007-MO-040
Heard February 14, 2007 – Filed June 25, 2007
Chief Attorney Joseph L. Savitz, III, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia, and John Gregory Hembree, of Conway, for Respondent.
JUSTICE PLEICONES: We granted certiorari to review a Court of Appeals’ decision finding error but no prejudice in the trial court’s impeachment ruling, and affirming petitioner’s murder and armed robbery convictions. State v. Bennett, Op. No. 2004-UP-439 (S.C. Ct. App. filed August 13, 2004). We affirm.
Petitioner was charged with murdering and robbing the victim, an acquaintance, in her home. The State’s case rested, almost exclusively, on the testimony of Andrew Lindsay. Lindsay admitted being in the trailer when petitioner killed the victim, but denied having prior knowledge of petitioner’s plans or assisting him in committing the murder or the armed robbery. Although petitioner presented no evidence, he sought to suggest through cross-examination that Lindsay had gone to the trailer alone and committed both offenses.
At the outset of the trial, the State made a motion in limine to limit Lindsay’s impeachment by his 1991 conviction for second degree murder in Illinois. Specifically, the State sought and obtained a ruling limiting the impeachment to the fact that Lindsay had been convicted of a felony carrying a 15 year sentence. The Court of Appeals held that while the trial judge erred in limiting Lindsay’s impeachment, petitioner was not prejudiced by that ruling.
Whether the Court of Appeals erred in finding petitioner was not entitled to a new trial because the trial court improperly limited his impeachment of Lindsay?
Rule 609(a)(1), SCRE, provides:
(a) General Rule. For the purpose of attacking the credibility of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused….
According to the reporter’s notes, the same standard for balancing prejudice against probative value under Rule 403 is employed, whether the person to be impeached is a witness or a criminal defendant.
The reason for permitting a jury to learn of a witness’s prior conviction is to allow the jurors to use the conviction in evaluating the witness’s credibility. Rule 609. Once the trial judge determines the witness has a qualifying prior conviction, he must then apply a Rule 403 balancing test. In weighing prejudice and probative value, a trial judge must take into account similarities between past convictions and present charges. Close similarities weigh against admissibility. State v. Bryant, 369 S.C. 511, 633 S.E.2d 152 (2006).
Here, the crime for which petitioner was on trial, and for which he wished to shift suspicion to Lindsay, was murder. Had the judge wished, he could have excluded Lindsay’s prior homicide conviction altogether on the ground that prejudice outweighed any probative value. In permitting Lindsay to be impeached by his prior offense, but prohibiting disclosure of the nature of the crime, the trial judge removed the possibility that the jury would impermissibly use the prior conviction to adjudge Lindsay guilty of this murder, rather than use the conviction to evaluate his credibility. Thus, petitioner was not deprived of the impeachment value inherent in Lindsay’s prior conviction.
“An appellate court will not disturb a trial court’s ruling concerning the scope of cross-examination of a witness to test his credibility…absent a manifest abuse of discretion.” State v. Johnson, 338 S.C. 114, 525 S.E.2d 515 (2001). We perceive no abuse of discretion here.
The decision of the Court of Appeals affirming petitioner’s convictions is
TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.