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,
James A. Summersett, Jr., Petitioner.
ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS
Appeal from Charleston County
Daniel F. Pieper, Circuit Court Judge
Memorandum Opinion No. 2008-MO-025
Heard April 1, 2008 – Refiled July 28, 2008
Jack B. Swerling, of Columbia, and Katherine Carruth Link, of W. Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Melody J. Brown, all of Columbia, and Ralph E. Hoisington, of Charleston, for Respondent.
JUSTICE PLEICONES: Petitioner was convicted of murdering his close friend Julian Grant a/k/a Dooley and received a life sentence. The Court of Appeals affirmed in an unpublished opinion, and we granted his petition for a writ of certiorari. We reverse.
Petitioner admitted that he shot Dooley, but defended on the ground of accident. The State presented evidence from which the jury could have concluded petitioner intended to shoot Dooley, as well as evidence that petitioner accidentally shot Dooley while intending to shoot Jeremy Hawkins a/k/a Scrooge, Dooley’s cousin. There was evidence in the record supporting all three theories, and the case turned on witness credibility.
In the late afternoon of April 15, 2002, a brawl broke out between petitioner’s cousin and Dooley’s brother. The families were long time neighbors in a Charleston subdivision, and the young men were well-acquainted. A second fight then erupted between petitioner’s brother and Dooley’s cousin, Scrooge. Petitioner’s brother was armed with a baseball bat given him by petitioner, while Scrooge, according to some witnesses, used a gun to pistol whip the brother. Petitioner, who had a handgun, admitted approaching the pair and hitting Scrooge, who was winning the fight, in the head with the gun. Petitioner claimed to have pulled the gun’s hammer back before hitting Scrooge, a move designed to keep the gun from accidentally firing as it was being used as a bludgeon.
As petitioner began hitting Scrooge, Dooley intervened and pushed petitioner away. According to the defense witnesses, after Dooley shoved petitioner, petitioner began to fall backwards into a ditch. Dooley reached out to catch petitioner, but petitioner hit the ground, the gun discharged, and the bullet hit Dooley who was in the act of reaching/falling towards petitioner. The State’s eyewitnesses, in contrast, testified that petitioner pointed the gun at Dooley, who was shot as he backed up with his hands in the air. Other prosecution witnesses testified that after the shooting petitioner, who was emotionally distraught, left the scene but admitted in phone calls that he meant to shoot Scrooge but accidentally hit Dooley.
Dooley was shot in the chest and bled to death.
The evidence established that petitioner and Dooley were good friends. Moreover, it established pre-existing animosity between Scrooge and petitioner based upon Scrooge’s affair with petitioner’s girlfriend/fiancé, and petitioner’s subsequent affair with Scrooge’s wife. Animosity existed as well because Scrooge had become a federal drug informant. There was also evidence that petitioner had threatened Scrooge with a gun the previous Thanksgiving.
The Court granted certiorari to consider three evidentiary issues:
1) Whether the Court of Appeals erred in finding no reversible error in the trial court’s ruling permitting the State to cross-examine petitioner about his out-of-wedlock children?
2) Whether the Court of Appeals erred in finding no reversible error in the trial court’s decision to admit a prior bad act?
3) Whether the Court of Appeals erred in finding no error in the trial court’s ruling admitting rap lyrics containing death threats against Scrooge written, sung, and produced in part by petitioner?
We find the Court of Appeals erred in affirming the first two challenged rulings, and reverse and remand for a new trial. With regard to the rap lyrics and any resulting prejudice, their admissibility at petitioner’s next trial will depend, in large part, upon the evidentiary showing made in that proceeding. Accordingly, we do not address the merits of that issue here, but admonish the State and the circuit court upon retrial to exercise caution if this issue is raised.
On direct examination, petitioner testified to his activities on April 15, 2002, including references to taking his son Ques to school, and to planning to pick him up afterwards as he “normally” did. Petitioner explained that he did not attend Ques’ late afternoon baseball game as he “normally” did because of car trouble. This testimony was offered to explain why petitioner had a baseball bat in his automobile which he acknowledged giving to his brother.
The State’s cross-examination of petitioner commenced with this exchange:
Q. All right, [petitioner]. By way of background, let’s get some clarity on some of these things. You were talking about you have one child?
Q. You actually have five children; don’t you?
Q. Six children?
Q. By how many different women?
Q. So you have six children by five different women?
Q. Okay. Have you ever had any of those children while you were in wedlock with your wife? Did you ever have any children out of wedlock?
A. I’m not legally married.
Q. Okay. So you just have children ---
(Petitioner’s Attorney): Objection. If we could approach.
A bench conference followed during which petitioner’s attorney objected, saying “I’m aware this is cross-examination but this seems like it is more character evidence.” The solicitor responded that his question was proper because (1) petitioner “put his character on the stand” (2) [petitioner had claimed to be] “good family man with one child and all of the testimony has been about the one child” and (3) “there had [already] been a lot of testimony about adultery in the evidence.” Petitioner’s attorney pointed out, however, that the solicitor had not objected to his cross-examination of various State’s witnesses about their adultery, to which the solicitor responded “Because it is relevant.”
The judge found the solicitor’s cross-examination proper because petitioner had been portrayed “as if he is a good person and he only has one child.” The State reinforced the trial judge’s misimpression that petitioner had testified he only had one child: although petitioner’s attorney pointed out petitioner had never so testified, his objection to this line of questioning was overruled. The interrogation continued, during which, among other things, the solicitor challenged petitioner to name the mothers of his children.
The Court of Appeals held that petitioner’s attorney’s objection to the cross-examination may have been untimely, and thus the propriety of the cross-examination may not have been preserved for appellate review. We disagree. The cross-examination began with an unusual series of questions and it was not immediately apparent that the solicitor was delving into the number of petitioner’s children and his relationship with them and their mothers. We find the objection was timely.
Next, the Court of Appeals found that it was unnecessary to decide whether petitioner put his character trait as a good father in issue during his direct examination or whether he had merely been testifying to a narrative of events. We find petitioner did not put his character as a good father in issue. Moreover, while the number of children and mothers is undoubtedly probative of petitioner’s fertility, and may raise doubts about his commitment to societal conventions, it sheds no light on whether or not he is a good father to those children. Even if petitioner had put this character trait in issue, the cross-examination was not relevant.
Before this Court, the State has taken a different tack, arguing that the evidence was elicited not as character evidence but rather to impeach petitioner’s testimony. We are unable to discern what in petitioner’s direct testimony was impeached by the evidence of his six out-of-wedlock children and their mothers’ names.
The ultimate ruling by the Court of Appeals was that any error in permitting this testimony was harmless in light of the other evidence of petitioner’s promiscuity, that is, that petitioner had had a sexual relationship with Scrooge’s wife. We are not confident that a single adulterous relationship equates to “promiscuity” in the same sense that fathering six children by five different women does, and thus do not agree that this evidence was harmless because it was merely cumulative to other evidence of promiscuity.
In short, petitioner did not put his character as a good father in issue, nor is evidence that he has fathered six children by five mothers probative whether he is, in fact, a good father. Further, adultery with a married woman does not make one “promiscuous” as that term is commonly understood and thus the evidence of petitioner’s out-of-wedlock children was not cumulative to the evidence of his adultery. The State’s cross-examination was not designed to elicit any evidence probative either of petitioner’s guilt or of his credibility, but rather was intended solely to paint him as a person who does not respect societal norms, and to suggest that he was an irresponsible individual who did not even know the names of his children’s mothers. The circuit court erred in allowing this questioning, and the Court of Appeals erred in deeming it “cumulative.” We find both error and prejudice. We need not decide, however, whether this error alone would warrant reversal in light of a second erroneous evidentiary ruling by the trial court.
Other Bad Acts
As mentioned above, the State presented two different theories: either petitioner intentionally shot Dooley, or Dooley was hit as petitioner targeted Scrooge. Petitioner’s defense theory was accident; that is, that the gun discharged accidentally when he hit the ground as he fell backwards.
In 1993, petitioner fired a shot which struck an acquaintance of petitioner’s, Ernest Riley, in the foot. Petitioner was charged with assault and battery with intent to kill in connection with that shooting, and eventually pled nolo contendre to the charge. The State sought to introduce evidence of this event under Rule 404(b), SCRE and State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), to show the absence of accident or mistake in the Dooley shooting.
The issue arose after attorney Thrower testified as a defense witness to post-shooting telephone conversations on April 15 in which petitioner maintained he had accidentally shot and killed Dooley. Before beginning Thrower’s cross-examination, the State sought a ruling whether it could examine Thrower about the Riley case in which he had represented petitioner. The State maintained the Riley shooting was probative of petitioner’s current claim of accident because he had previously claimed that the shooting of Riley, also an acquaintance, was likewise an accident. Petitioner’s counsel protested that, among other things, in this case petitioner claimed to have accidentally fired the gun, while in the Riley case he admitted intentionally shooting at the ground, but that Riley was accidentally injured when the bullet ricocheted and hit his foot. Moreover, the State argued “similarity” in that both shootings took place in the Orleans Wood subdivision, in both cases petitioner fled from the scene, and in both cases he subsequently maintained in phone conversations that the shooting was accidental. Petitioner’s attorney protested that these were completely separate incidents, and that petitioner was not using “accident” in its legal meaning. The judge eventually ruled that the Riley shooting admissible to show an absence of mistake or accident in the Dooley shooting.
Thrower then testified before the jury to the facts, as he recalled them, surrounding the 1993 Riley shooting, but his recollection was vague. The State later called Riley. He testified that petitioner had gotten in a fight with Riley’s fiancée’s sister and pulled a gun on her. Riley “confronted” petitioner about this incident, and two days later petitioner “confronted” Riley, and pulled a gun on him, pointing it at Riley’s head. Riley testified he told petitioner to go ahead and kill him, since everyone knew petitioner carried “a little .22 that would usually crap on him” and therefore was not afraid. In fact, it was as petitioner was pointing the gun down that it fired: the bullet hit the ground and ricocheted up, hitting Riley in the heel.
The Riley shooting is not probative whether the Dooley shooting was an accident, intentional, or unintentional. The facts of these two shootings are not analogous to a situation where, for example, a man who is on trial for shooting and killing his second wife claims accident, having previously “accidentally” shot and killed his first spouse. Here, there is no “logical relevance” between the two shootings. State v. Lyle, supra; State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001).
The admission of the Riley shooting was prejudicial error and the Court of Appeals erred in deferring to the trial judge’s discretion in admitting this evidence. This error alone, but especially in combination with the improper cross-examination of petitioner, requires we grant a new trial on both charges. Accordingly, the decision of the Court of Appeals affirming petitioner’s convictions and sentence is
TOAL, C.J., MOORE, WALLER and BEATTY, JJ., concur.
 He was also convicted of possession of a firearm during the commission of a crime of violence but received no separate sentence.
 State v. Summersett, Op. No. 2005-UP-373 (S.C. Ct. App. filed June 10, 2005) (App. pp. 819-827).