State v. Black

¶1dissenting.

¶2I respectfully dissent. I agree with the majority that the Court of Appeals erred in affirming the trial court’s decision to allow Bush, petitioner’s only witness, to be impeached by two remote manslaughter convictions. I disagree, however, with the majority’s conclusion that this improper impeachment was harmless error.

¶3The test for determining whether an error involving a witness’s credibility9 is harmless is derived from Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). See State v. Holmes, 320 S.C. 259, 464 S.E.2d 334 (1995); State v. Gadsden, 314 S.C. 229, 442 S.E.2d 594 (1994). The first inquiry is into the importance of the witness’s testimony to the proponent’s case, then whether the witness’s testimony was cumulative and whether other evidence contradicts or corroborates this witness’s testimony, and finally we look to the strength of the State’s case. Here, the case was largely a credibility contest between petitioner and the victim, a classic “he said, she said” contest without any physical evidence. Bush was the only other person present at the time of the alleged incident, and his testimony was critical to petitioner’s defense. While I agree that under some circumstances an error in permitting a witness to be impeached by prior convictions can be deemed harmless in light of another unobjected-to impeachment, I do not find those circumstances present here. Compare e.g. State v. McFarlane, 279 S.C. 327, 306 S.E.2d 611 (1983)(in lewd act prosecution, defendant’s *32erroneous impeachment with manslaughter harmless in light of proper impeachment with second degree rape conviction).

¶4In my opinion, the erroneous impeachment of Bush by the two manslaughter convictions cannot be deemed harmless because he was also impeached by a weapons offense. State v. Holmes, supra.I would reverse the decision of the Court of Appeals, and remand the case for a new trial.