State v. Bolden , 303 S.C. 41 ( 1990 )

Gregory, Chief Justice:

Appellant was convicted of armed robbery and possession of a weapon in the commission of a violent crime. He was sentenced respectively to concurrent terms of twenty years and five years. We reverse and remand.

On November 17, 1987, at approximately 6:10 a.m., the desk clerk at the La Quinta Inn in Greenville was robbed by a man carrying a pistol. The victim identified appellant as the perpetrator. Appellant admitted at trial that he checked into the motel with Lula Mae Gray sometime around midnight on November 16th for the purpose of having sexual relations with her. He claimed he left the premises and returned home before the time of the robbery.

Appellant contends the trial judge erred in allowing Lula Mae’s testimony that she and appellant smoked crack cocaine in the room sometime during the night. We agree. This Court recently held in State v. Coleman, 301 S.C. 57, 389 S.E. (2d) 659 (1990), that admission of evidence the defendant is a social user of crack cocaine is prejudicial error where its only function is to demonstrate the defendant’s bad character. Here, there is nothing in the record to indicate a logical relevance between use of crack cocaine during the night before the robbery and the robbery which occurred at 6:10 a.m. the following day. Cf. State v. Jones, 273 S.C. 723, 259 S.E. (2d) 120 (1979); see also State v. Bell, 302 S.C. 18, 393 S.E. (2d) 364 (1990). Because the only function of this testimony was to demonstrate appellant’s bad character, it should have been excluded.

We reject the State’s contention that the testimony was relevant and admissible as part of the “res gestae” of the crimes for which appellant was charged. See United States v. Masters, 622 F. (2d) 83 (4th Cir. 1980).¹ Evidence of appellant’s cocaine use was not essential to a full presentation of the State’s case, nor was it so intimately connected with.the crimes charged that its introduction was appropriate to complete the story of the crime. Id. at 86. Moreover, even if the testimony were relevant, its probative value is clearly outweighed by its unfair prejudice. Id. at 87; see also State v. Bell, supra.

Further, we disagree with the State’s argument that admission of the testimony was harmless beyond a reasonable doubt because the evidence was merely cumulative to appellant’s own admission that he smoked marijuana in the motel room that night. This Court has recently held that simple possession of cocaine is a crime of moral turpitude, State v. Major, 301 S.C. 181, 391 S.E. (2d) 235 (1990), whereas simple possessiqn of marijuana is not. State v. Harvey, 275 S.C. 225, 268 S.E. (2d) 587 (1980). Evidence of appellant’s use of crack cocaine is not merely cumulative to his admission to marijuana use, a drug offense of lesser culpability. We find this error requires reversal.

We address the next issue in view of the likelihood it will be raised again on retrial. Appellant contends that under Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), double jeopardy bars his punishment for both armed robbery and possession of a weapon during a violent crime. We disagree. The double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. (2d) 535 (1983); Matthews v. State, 300 S.C. 238, 387 S.E. (2d) 258 (1990). Blockburger is not controlling where legislative intent is clear from the face of the statute. Garrett v. United States, 471 U.S. 773, 105 S. Ct. 2407, 85 L. Ed. (2d) 764 (1985); Matthews, supra. Armed robbery is a violent crime under S.C. Code Ann. § 16-1-60 (Supp. 1989). S.C. Code Ann. § 16-23-490 (Supp. 1989) expressly provides additional punishment for possession of a weapon during commission of a violent crime as defined in § 16-1-60. It is clear from the face of the statute the legislature intended to allow cumulative punishment in this instance.

We need not address appellant’s remaining exceptions. The judgment of the circuit court is reversed and the case is remanded for a new trial.

Reversed and remanded.

Harwell, Chandler and Finney, JJ., concur. Toal, J., dissents in separate opinion.

1 This justification does not fit squarely within any of the five categories identified in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923), under which evidence of other crimes is admissible to prove the crime charged.