Public-domain · open source
OpenJurist

346 S.C. 312

550 S.E.2d 889

State v. Dunlap

Court of Appeals of South Carolina

Decided July 2, 2001

Court of Appeals of South Carolina · decided 2001-07-02

Cited by 9 later decisions — most recently May 2019

9 state decisions

Key passage — most relied on by later courts

“(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; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. .... (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence * of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.”

quoted by 1 later decision, including State v. Robinson

Relies on United States v. Beahm · State v. Aleksey · State v. Colf

Good law ✅— No negative treatment on recordhow we know

Decided 2001-07-02

View the full empirical analysis of this case →

SHULER, Judge,

¶1concurring in result only:

¶2While I concur in the judgment of the Court, I write separately because I believe the sole reason the trial court did not abuse its discretion in admitting Dunlap’s prior convictions was because he waived any right to complain when his attorney stated in opening argument that he had “never sold” crack cocaine. See State v. Trotter, 317 S.C. 411, 453 S.E.2d 905 (Ct.App.1995), aff'd as modified by State v. Trotter, 322 S.C. 537, 473 S.E.2d 452 (1996) (a trial court commits no error in allowing the State to introduce evidence where the defendant opened the door to its admission). As a defendant cannot complain of error induced by his own conduct, see State v. Brannon, 341 S.C. 271, 533 S.E.2d 345 (Ct.App.2000) (citing State v. Whipple, 324 S.C. 43, 476 S.E.2d 683 (1996)), I would *327find Dunlap’s decision to “open the door” precluded- any showing of prejudice and affirm his conviction.

¶3However, because I disagree with the opinion’s further analysis of this issue on the merits, I am compelled to concur in result only. Dunlap’s criminal history included convictions, obtained when he was a juvenile, for distributing an imitation controlled substance and conspiracy to distribute crack cocaine. Although distributing an imitation drug is a separate, distinctly punishable crime from the distribution of crack cocaine, I do not believe the resulting disparity in any way reduces the potential for prejudice. To the contrary, I would find any dissimilarity between the crimes merely renders the prior conviction less probative. See, e.g., Green, 338 S.C. at 434, 527 S.E.2d at 101 (“Admission of evidence of a similar offense often does little to impeach the credibility of a testifying defendant while undoubtedly prejudicing him.”) (quoting United States v. Beahm, 664 F.2d 414, 418 (4th Cir.1981)). In other words, if the prior crime is indeed a “far cry” from the crime charged herein, it becomes irrelevant and therefore inadmissible to rebut Dunlap’s claim that he- never sold drugs.

¶4Moreover, I believe the apparent similarity between the prior convictions for distributing what appeared to be crack and conspiracy to distribute the actual drug, and the distribution of crack cocaine, the crime for which Dunlap stood trial, served to place the jury in a position where they could “hardly avoid drawing the inference that the past conviction suggest[ed] some probability” that Dunlap committed the later offense. Id.(quoting Beahm, 664 F.2d at 419). Our courts have recognized that the impeachment value of introducing evidence of the same or similar crimes is minimal when compared to the potential for prejudice. See State v. Colf, 337 S.C. 622, 628, 525 S.E.2d 246, 249 (2000) (finding the trial court “erred in treating the prior crimes as if their similarity heightened their probative value when it actually increased their prejudicial effect”); State v. Bryant, 307 S.C. 458, 461, 415 S.E.2d 806, 808 (1992) (noting that where the State offers prior convictions for similar crimes the “prejudice is even more egregious”); State v. Scriven, 339 S.C. 333, 343, 529 S.E.2d 71, 76 (Ct.App.2000) (stating that where prior crimes “are either similar or identical” to the offense with which the *328defendant is charged, “the likelihood of a high degree of prejudice to the accused is inescapable”).

¶5Here, the trial court stated that although there was “some similarity” between Dunlap’s earlier convictions and the crime charged, his prior record had “significant value” for impeachment purposes because “[cjredibility is certainly a central issue in this case.” In my view, this was error.

¶6Without question, Dunlap’s testimony was crucial to his defense, and his credibility was therefore of paramount importance. Certainly, in instances where a prior conviction is probative of truthfulness it should be admitted, as such evidence bears directly on credibility. See Rule 609(a)(2), SCRE (“[E]vidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.”); State v. Colf 332 S.C. 313, 318, 504 S.E.2d 360, 362 (Ct.App.1998), aff'd as modified by State v. Colf, 337 S.C. 622, 525 S.E.2d 246 (2000) (stating courts have affirmed the introduction of prior convictions for “theft-related crimes,” because they “were highly probative where the jury faced a choice between the State’s and the defendant’s opposing versions of the facts”).

¶7Contrary to the trial court, however, I read our supreme court’s opinion in Green as indicating that, in the absence of a prior conviction for a crime of dishonesty, when a defendant’s credibility is key it is the prejudice from the conviction that is heightened, not its probative value. See Green, 338 S.C. at 434, 527 S.E.2d at 101 (affirming finding of the PCR court that counsel was ineffective when he failed to object when the State impeached Green with two convictions for cocaine possession). Accordingly, but for Dunlap’s tactical mistake in “opening the door,” I would otherwise find the trial court erred in balancing the prejudicial nature of Dunlap’s prior convictions with their limited probative value, as drug offenses generally are not considered probative of truthfulness. See State v. Aleksey, 343 S.C. 20, 538 S.E.2d 248 (2000).

/346/sc/312 · .json · Public domain