State v. Robinson ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent-Petitioner,
v.
Stephon Robinson, Petitioner-Respondent.
Appellate Case No. 2017-000990
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Barnwell County
Doyet A. Early III, Circuit Court Judge
Opinion No. 27883
Heard January 10, 2019 – Filed May 8, 2019
AFFIRMED AS MODIFIED
Appellate Defender Victor R. Seeger, of Columbia, for
Petitioner-Respondent.
Attorney General Alan M. Wilson, Deputy Attorney
General Donald J. Zelenka and Senior Assistant Deputy
Attorney General J. Benjamin Aplin, all of Columbia; and
Solicitor James Strom Thurmond Jr., of Aiken, all for
Respondent-Petitioner.
JUSTICE JAMES: Stephon Robinson was convicted of first-degree burglary and
possession of a weapon during the commission of a violent crime. Robinson
appealed, and the court of appeals remanded the matter to the trial court to conduct
an on-the-record balancing test regarding the admissibility of certain prior
convictions the State used to impeach Robinson's credibility pursuant to Rule
609(a)(1) of the South Carolina Rules of Evidence. State v. Robinson, Op. No. 2014-
UP-068 (S.C. Ct. App. filed Feb. 19, 2014). After the remand hearing, the trial court
ruled Robinson's prior convictions were properly admitted; consequently, the
burglary and weapon convictions remained in place.
Robinson appealed again, and the court of appeals issued an unpublished
opinion holding that although the trial court erred in applying two of the five factors
we set forth in State v. Colf,1 any error in the admission of Robinson's prior
convictions for impeachment was harmless. State v. Robinson, Op. No. 2017-UP-
065 (S.C. Ct. App. filed Feb. 1, 2017). We granted cross-petitions for writs of
certiorari to review the court of appeals' decision. We affirm the court of appeals as
modified. The court of appeals reached the correct result by affirming Robinson's
convictions; however, as we will discuss below, the court of appeals' analysis of the
admissibility of the prior convictions was erroneous.
I. FACTUAL AND PROCEDURAL HISTORY
At around 2:00 p.m. on Sunday, February 20, 2011, Eddie Williams was
relaxing in his home when he heard a car pull into his driveway. Williams testified
he heard a knock at the front door, looked through a window, and saw Robinson and
the white car Robinson had driven to his house on prior occasions. Williams ignored
the knock at the door because he figured Robinson had come to the house to play
video games with his nephew, who was not home. Williams testified Robinson got
back into the car and left. Williams made his lunch and retired to his bedroom to
watch a NASCAR race.
Williams testified that about ten minutes later, he again heard a car pull into
his driveway and then heard his front door being kicked in. He grabbed a handgun
from his nightstand and went to investigate. Williams testified he started down the
hallway and confronted Robinson face-to-face. Williams testified he also saw
1
337 S.C. 622, 627, 525 S.E.2d 246, 248 (2000) (adopting the five-factor test used
by federal courts to assist in determining whether the probative value of a prior
conviction outweighs its prejudicial effect for purposes of impeachment under Rule
609, SCRE).
Robinson's brother (Reginald Felder) and another individual he did not recognize
inside his home. Williams fired his handgun, and the intruders ran away. Williams
testified Robinson also had a handgun and fired it in his direction while fleeing the
home. Williams testified he then retrieved a shotgun and fired it into the air outside
the house as the three individuals escaped in a white car. Williams called law
enforcement around 2:20 p.m. and told police the intruders were driving a white
four-door vehicle he thought to be a Pontiac. In two separate photo lineups,
Williams identified Robinson and Robinson's brother as two of the three intruders.
The third intruder was never identified.
On cross-examination, Robinson attacked Williams' credibility, establishing
that Williams initially failed to tell law enforcement he had fired his handgun.
Williams admitted that on the day of the incident, he falsely informed law
enforcement that the bullet holes in his home were not from the burglary but had
been there since he purchased the home. Williams testified he was not truthful with
law enforcement because he thought his handgun had to be registered in order for it
to be legal. The gun had been reported stolen in Beaufort County, but Williams
testified he was unaware of this when he purchased the gun.
Shelly Leanna Gunnels testified she had been in an "on and off" relationship
with Robinson for the last six or seven years. She testified she allowed Robinson to
use her white Pontiac sedan "whenever he wanted to use it." Gunnels testified
Robinson borrowed her car on February 19 and returned it on February 20 (the day
of the incident) "around that afternoon."
At the close of the State's case-in-chief, the trial court informed Robinson of
his right to testify in his defense and warned him the State might be permitted to
impeach his credibility with his prior criminal convictions. When Robinson stated
he wanted to testify, the State requested to impeach him pursuant to Rule 609(a)(1),
SCRE, using 2009 convictions for second-degree burglary and attempted strong arm
robbery and two 2007 Georgia convictions for breaking into an automobile. As we
will discuss, Rule 609(a)(1) provides that prior convictions punishable by
imprisonment for more than one year "shall be admitted" to impeach the credibility
of a defendant who testifies, "if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused." This test
places the burden on the State to convince the trial court the evidence should be
admitted.
Robinson objected, arguing "the prejudicial value outweighs the probative
value." Without conducting the requisite on-the-record analysis of the Colf factors,
the trial court ruled the strong arm robbery conviction and the two breaking and
entering into an automobile convictions were admissible. The trial court ruled the
second-degree burglary conviction was also admissible but ruled it had to be referred
to generically as a "prior felony conviction carrying more than one year in prison."
The use of the burglary conviction for impeachment is not an issue in this appeal.
Robinson testified and denied any involvement in the incident but admitted to
knowing Williams and previously going to Williams' house a "good bit of times" to
"get things from [him]." Robinson later clarified he knew Williams because
Williams sold him marijuana. Robinson testified he was at his own house with his
brother and cousin at the time of the incident. Robinson testified he borrowed
Gunnels' vehicle the night before the burglary so he, his brother, and his cousin could
go to a club that night. Robinson testified he took the car back to Gunnels around
noon or 1:00 p.m. the next day, which would have been prior to the burglary.
On cross-examination, the State questioned Robinson about his prior
convictions as follows:
Q: Are you the same Stephon Robinson that was convicted of strong
arm robbery in 2009?2
A: Yes, sir.
Q: And you're the same Stephon Robinson that had another felony
conviction in 2009 that carried more than a year, aren't you?
A: Yes, sir.
Q: And you're the same Stephon Robinson that in 2007 had two
convictions for breaking and entering automobiles with the intent to
commit a felony or theft?
A: Yes, sir.
2
As noted above, the State originally informed the trial court this was an attempted
strong arm robbery conviction but then told the jury it was a strong arm robbery
conviction. There was no objection to this distinction by Robinson, and there is no
sentencing sheet in the record to allow us to discern which offense is correct. This
discrepancy does not affect our analysis. For consistency, we will refer to this prior
conviction as a strong arm robbery conviction.
Q: But you want this jury to believe that you don't know anything about
this?
A: Yes, sir, because for one, I plead guilty to all of my charges and
take my responsibility because I know I was guilty of those charges.
And two, that was back in my past when I did stupid things to get a
little money to do things because I didn't have. But my parents recently
passed away and we got insurance money and all kind of money back
off that, and I have no reason to kick in this man's door. Nothing.
Q: Let me ask you this, in 2007, was your brother with you whenever
you broke into the cars?
A: Yes, sir.
Q: Did he plead guilty to his charges?
A: Yes, sir.
Q: And in 2009, with the strong arm robbery, was your brother with
you then?
A: Yes, sir.
Q: Who else was with you?
A: No one.
Q: You and your brother?
A: Yes, sir.
Q: And that other felony charge from 2009, was your brother with you
then?
A: No, sir.
Q: He wasn't?
A: No, sir. You talking about the burglary, right?
Q: The charge that you pled guilty to in 2009, the felony charge that
carried more than a year.
A: Yes, sir, yes, sir.
Q: Was your brother with you on that?
A: No, sir.
Q: Okay. So in three out of the four times when you committed a
crime, your brother was with you?
A: Yes, sir.
Arthur Wallace, Robinson's cousin, testified he, Robinson, and Reginald
Felder went to the club together the night before the incident in Gunnels' vehicle and
that Robinson returned Gunnels' vehicle to her around noon or 1:00 p.m., which
would have been before the burglary. Wallace denied their involvement in the
burglary and testified that he, Robinson, and Felder all hung out together at
Robinson's house that day. The State impeached Wallace's credibility with a 2008
second-degree burglary conviction. Robinson does not challenge Wallace's
impeachment in this appeal.
Reginald Felder (Robinson's brother) similarly recounted the three going to
the club the previous night and hanging out together at Robinson's house on the day
of the incident. Felder testified Robinson returned Gunnels' vehicle around 1:00
p.m. the day of the burglary. The State impeached Felder's credibility with the same
2007 Georgia convictions for breaking into an automobile and the same 2009
conviction for strong arm robbery that were used to impeach Robinson. Robinson
does not challenge Felder's impeachment in this appeal.
During Robinson's closing argument, Robinson attacked Williams' credibility.
During the State's closing argument, the State acknowledged the importance of
credibility in the case and commented on the credibility of each of the witnesses.
The trial court gave the following limiting instruction on Robinson's prior
convictions in its charge to the jury:
You also heard in this case evidence that the defendant had
been, in the past, convicted of crimes other than the one
for which he is now on trial. This evidence may be
considered by you if you conclude it's true only in deciding
whether the defendant's testimony is believable or credible
and for no other purpose. You must not consider the
defendant's prior record as any evidence of the defendant's
guilt of the charge we are trying here today.
Robinson appealed his convictions. The court of appeals found the trial court
erred by failing to conduct a meaningful on-the-record balancing test when deciding
whether to admit Robinson's prior convictions and remanded the matter to the trial
court for the sole purpose of conducting the balancing test.3 State v. Robinson, Op.
No. 2014-UP-068 (S.C. Ct. App. filed Feb. 19, 2014). On remand, the trial court
conducted a hearing and heard arguments as to whether Robinson's prior convictions
were admissible under Rule 609(a)(1) and State v. Colf. After the hearing, the trial
court issued an order addressing each of the Colf factors and concluded "the
probative value of the introduction of [Robinson's] prior record outweighed any
prejudice to him under Rule 609(a)(1), SCRE." The trial court denied Robinson's
motion for a new trial.
Robinson again appealed. The court of appeals addressed only two of the five
Colf factors, held the trial court erred in its application of those two factors, but
affirmed Robinson's convictions because "any error in the admission of Robinson's
prior convictions was harmless." State v. Robinson, Op. No. 2017-UP-065 (S.C. Ct.
App. filed Feb. 1, 2017). The court of appeals did not address the remaining three
Colf factors and thus did not determine whether the prior convictions were properly
admitted after an analysis of all five Colf factors. We granted both Robinson's and
the State's petitions for writs of certiorari.
II. STANDARD OF REVIEW
In criminal cases, appellate courts sit to review errors of law only. State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "The admission of evidence
concerning past convictions for impeachment purposes remains within the trial
[court's] discretion, provided the [trial court] conducts the analysis mandated by the
evidence rules and case law." State v. Dunlap, 346 S.C. 312, 324, 550 S.E.2d 889,
896 (Ct. App. 2001). "An abuse of discretion occurs when the conclusions of the
trial court either lack evidentiary support or are controlled by an error of law." State
v. Douglas, 369 S.C. 424, 429-30, 632 S.E.2d 845, 848 (2006).
3
See State v. Scriven, 339 S.C. 333, 344, 529 S.E.2d 71, 76 (Ct. App. 2000)
(providing a trial court must conduct "a meaningful analysis to balance the
impeachment value of [a defendant's] prior convictions, if any, against the
prejudicial impact, as clearly required under Rule 609(a)(1)").
III. DISCUSSION
Both Robinson's and the State's arguments revolve around their perception of
a correct application of the Colf factors in determining whether Robinson's prior
convictions were ultimately admissible at trial pursuant to Rule 609(a)(1), SCRE.
Robinson argues the court of appeals correctly applied the two factors it discussed
but erred by not addressing the remaining factors and not ruling on the ultimate
admissibility of his prior convictions. Robinson also argues the error in admitting
the prior convictions was not harmless beyond a reasonable doubt. The State argues
the court of appeals erred in its application of the two factors it did discuss.
In discussing the issues pertinent to this appeal, we will attempt to clarify the
approach that must be undertaken by a trial court when determining whether to admit
or exclude evidence of prior convictions of a witness for impeachment purposes.
A. Rule 609, SCRE
Rule 609 of the South Carolina Rules of Evidence governs the admissibility
of a witness's prior convictions for purposes of impeachment. Rule 609 prescribes
varying standards for admissibility of evidence of prior convictions. In pertinent
part, Rule 609 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;
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.
Rule 609(a) invokes three impeachment scenarios. First, under Rule
609(a)(1), evidence that a witness other than an accused has been convicted of a
crime punishable by death or imprisonment for more than one year (in the
jurisdiction where the conviction occurred) is admissible, subject to Rule 403,
SCRE. Under Rule 403, evidence of such a conviction "may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence." The Rule 403 test
places the burden upon the opponent of the evidence to establish inadmissibility
pursuant to Rule 403. Second, under Rule 609(a)(1), when the accused chooses to
testify during his trial, if the State seeks to introduce impeachment evidence that the
accused has been convicted of a crime punishable by imprisonment for more than
one year, the evidence is admissible if the State establishes the probative value of
admitting the evidence outweighs its prejudicial effect upon the accused. Third,
under Rule 609(a)(2), if a witness, even an accused, has been convicted of a crime
involving dishonesty or false statement, evidence of such a conviction shall be
admitted regardless of the maximum punishment and regardless of the probative
value or prejudicial effect of the evidence. See State v. Bryant, 369 S.C. 511, 517,
633 S.E.2d 152, 155 (2006).
Rule 609(b) invokes one impeachment scenario. Evidence of a conviction of
any kind is not admissible if more than ten years has elapsed from the date of
conviction or the release of the witness from confinement for that conviction,
whichever is the later date, unless the proponent of the evidence establishes that the
probative value of the conviction, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect. Rule 609(b) includes notice
requirements and establishes a presumption against the admissibility of these
"remote" convictions, and the State bears the burden of substantially overcoming the
presumption.
Rule 609(a)(2) requires no balancing test for admissibility of a prior
conviction for a crime involving dishonesty or false statement. However, Rule
609(a)(1) and Rule 609(b) require the trial court to balance—in three varying
degrees—the probative value of evidence of a prior conviction and the degree of
prejudice to the opponent of the evidence (as noted, the Rule 403 test also requires
the trial court to consider confusion of the issues, misleading the jury, etc.). Even
though these three Rule 609 admissibility tests differ from one another, we have,
through State v. Colf, provided a uniform set of factors for the trial court to consider
when applying each test.
In State v. Colf, we considered the admissibility of a criminal defendant's
convictions under Rule 609(b), as the defendant's trial took place more than ten years
from the defendant's release from confinement for the prior convictions. 337 S.C.
622, 625-26, 525 S.E.2d 246, 247-48 (2000). In Colf, we adopted the five-factor
analysis employed by federal courts when weighing the probative value of prior
convictions against the prejudicial effect to the accused. Id. at 627, 525 S.E.2d at
248. These factors include:
1) The impeachment value of the prior crime.
2) The point in time of the conviction and the witness's subsequent
history.
3) The similarity between the past crime and the charged crime.
4) The importance of the defendant's testimony.
5) The centrality of the credibility issue.
Id. "These factors are not exclusive; trial courts should exercise their discretion in
light of the facts and circumstances of each particular case." Id. Although Colf
focused on the admission of prior convictions more than ten years old under Rule
609(b), our courts have also consistently applied these factors for purposes of a Rule
609(a)(1) analysis. See, e.g., Bryant, 369 S.C. at 517 n.1, 633 S.E.2d at 155 n.1.
To summarize, Rule 609(a)(2) contemplates one impeachment scenario, that
being for convictions of crimes involving dishonesty or false statement, with
automatic admissibility regardless of who the witness is and regardless of
punishment or resulting prejudice. Rule 609(a)(1) and Rule 609(b) contemplate
three impeachment scenarios with three different admissibility standards: (1) under
Rule 609(a)(1), if the witness is someone other than the accused and has a prior
conviction of a crime punishable by death or imprisonment for more than one year,
the trial court must balance the Colf factors and determine whether, under Rule 403,
the probative value of the conviction is substantially outweighed by the danger of
unfair prejudice and/or other relevant considerations set forth in Rule 403. The
burden of establishing inadmissibility of the conviction is upon the opponent of the
evidence; (2) under Rule 609(a)(1), if the witness is the accused and has a prior
conviction of a crime punishable by death or imprisonment for more than one year,
the trial court must balance the Colf factors and determine whether the probative
value of the conviction outweighs its prejudicial effect to the accused. The burden
of establishing admissibility is upon the State, the proponent of the evidence; (3)
under Rule 609(b), if the conviction is a "remote" conviction (even a conviction of
a crime involving dishonesty or false statement under Rule 609(a)(2)), the trial court
must balance the Colf factors and determine whether the probative value of the
conviction, supported by specific facts and circumstances, substantially outweighs
its prejudicial effect. Rule 609(b) establishes a presumption against the admissibility
of a remote conviction and places the burden of establishing admissibility of the
conviction upon the proponent of the evidence.
While the same Colf factors are to be considered in determining admissibility
under all three of the 609(a)(1) and 609(b) impeachment scenarios, the practitioner
and the trial bench should be mindful of the different admissibility standards in the
three scenarios. We also note that these rules apply in civil cases, except of course
the portion of Rule 609(a)(1) prescribing the standard to be applied when the witness
is the accused in a criminal case. This Court and the court of appeals have
encountered various circumstances under which a Rule 609/Colf analysis was
required. In the instant case, we have the opportunity to clarify some of the issues
faced by both trial courts and appellate courts when Rule 609(a)(1) is in play.
In Bryant, the defendant was on trial for murder and unlawful possession of a
weapon by a convicted felon; he testified at trial and was impeached with two prior
firearms convictions. 369 S.C. at 514-15, 633 S.E.2d at 154-55. When considering
whether those convictions were automatically admissible under Rule 609(a)(2) as
crimes of dishonesty or false statement, we stated: "Violations of narcotics laws are
generally not probative of truthfulness. Furthermore, a conviction for robbery,
burglary, theft, and drug possession, beyond the basic crime itself, is not probative
of truthfulness. Likewise, firearms violations also are not generally probative of
truthfulness." Id. at 517, 633 S.E.2d at 155-56 (internal citations omitted). Finding
the defendant's prior firearm convictions did not involve dishonesty or false
statement, we explained the probative value of the convictions should have been
weighed against their prejudicial effect prior to their admission under Rule
609(a)(1). Id. at 517, 633 S.E.2d at 156. We ultimately held it was error for the trial
court to admit the defendant's prior firearm convictions. Id. at 518, 633 S.E.2d at
156. We reasoned the defendant's prior firearms convictions "had nothing to do with
[the defendant's] credibility and, their admission was more prejudicial than
probative, especially in light of the offenses for which he was on trial."4 Id.In State v. Broadnax, the defendant was on trial for armed robbery and
kidnapping; he testified at trial and was impeached with his prior armed robbery
convictions. 414 S.C. 468, 471-72, 779 S.E.2d 789, 790-91 (2015). The trial court
admitted the defendant's armed robbery convictions pursuant to Rule 609(a)(2) and
the court of appeals' prior decision in State v. Al-Amin, 353 S.C. 405, 578 S.E.2d 32(Ct. App. 2003). Broadnax, 414 S.C. at 471, 779 S.E.2d at 790. Overruling Al-Amin
and reaffirming the rule articulated in Bryant, we held armed robbery is not a crime
of dishonesty or false statement and, therefore, the defendant's prior convictions
were not admissible under Rule 609(a)(2). Broadnax, 414 S.C. at 476, 779 S.E.2d
at 793. We explained that "for impeachment purposes, crimes of 'dishonesty or false
statement' are crimes in the nature of crimen falsi 'that bear upon a witness's
propensity to testify truthfully.'" Id. (quoting Adams v. State, 644 S.E.2d 426, 432
(Ga. Ct. App. 2007)). We emphasized our holding did "not preclude the admission
of prior convictions for armed robbery; rather, it merely enables a trial judge to
conduct a balancing test pursuant to Rule 609(a)(1) when the State seeks prior
convictions for armed robbery to impeach a criminal defendant's testimony." Id. at
478, 779 S.E.2d at 794.
B. Application of the Colf Factors and Rule 609(a)(1) in this Case
4
Perhaps a clearer statement in Bryant would have been that the prior firearms
convictions "had little" to do with the defendant's credibility, as we did not intend to
hold prior firearms convictions are per se inadmissible under Rule 609(a)(1) and
Rule 609(b). We can envision circumstances in which such prior convictions may
well be admissible, provided the trial court conducts the requisite balancing test and
rules accordingly.
Robinson's prior convictions include a 2009 conviction for second-degree
burglary, a 2009 conviction for strong arm robbery, and two 2007 Georgia
convictions for breaking and entering into an automobile with the intent to commit
a felony or theft. As previously noted, the 2009 second-degree burglary conviction
was "sanitized" when the trial court allowed the State to elicit testimony that
Robinson had a prior felony conviction carrying more than one year in prison. The
introduction of this conviction is not an issue in this appeal.
The parties obviously disagree as to the admissibility of the strong arm
robbery conviction and the two breaking and entering into an automobile
convictions. Robinson's strong arm robbery conviction and his two breaking into an
automobile convictions are not automatically admissible as crimes of dishonesty or
false statement under Rule 609(a)(2); therefore, the trial court was required to
conduct an analysis under Rule 609(a)(1) and State v. Colf to determine whether the
probative value of admitting these prior convictions outweighed the prejudicial
effect to Robinson. As we noted above, on remand, the trial court considered all five
Colf factors and determined the convictions were admissible under Rule 609(a)(1);
however, the court of appeals reviewed only two of the five factors.
1. The impeachment value of the prior crime.
"The starting point in the analysis is the degree to which the prior convictions
have probative value, meaning the tendency to prove the issue at hand—the witness's
propensity for truthfulness, or credibility." State v. Black, 400 S.C. 10, 21, 732
S.E.2d 880, 886 (2012). "The tendency to impact credibility . . . determines the
impeachment value of the prior conviction. Impeachment value refers to how
strongly the nature of the conviction bears on the veracity, or credibility, of the
witness." Id. at 21-22, 732 S.E.2d at 887. The purpose of the impeachment is not
to show the witness is a bad person but rather to show background facts which impact
the witness's credibility. Id. at 22, 732 S.E.2d at 887.
The trial court provided the following analysis regarding the impeachment
value of Robinson's prior crimes:
This Court finds the admission of the four prior
convictions has value for impeachment purposes and that
the prejudicial effect of the admission of the prior
convictions, if any, is not outweighed by their admission.
While no specific details of the prior convictions were
provided to this Court or the jury in this case, the mere fact
that the Defendant had twice been convicted of serious
crimes within a few years of the alleged offense would
tend to impact the Defendant's credibility. Simply put,
convictions for breaking into motor vehicles and strong-
arm robbery don't imply that the accused was an armed
burglar, as was alleged in this case, but they do imply that
the accused is not someone to be trusted - that he might
not be credible.
Citing Black, 400 S.C. at 21-22, 732 S.E.2d at 887, and Bryant, 369 S.C. at 517, 633
S.E.2d at 155, the court of appeals concluded the trial court erred in finding
Robinson's prior convictions had impeachment value, reasoning South Carolina
courts have found prior convictions for robbery, burglary, and theft are not probative
of truthfulness. This was error.
In Black, the defendant's only corroborating witness was impeached using
two manslaughter convictions that were more than ten years old. 400 S.C. at 15, 732
S.E.2d at 883. Because of the remoteness of the prior convictions, under Rule
609(b), the convictions were only admissible if the probative value "substantially"
outweighed the prejudicial effect. Id. at 18, 732 S.E.2d at 885. This is a more
strenuous admissibility test than the one called for under Rule 609(a)(1). When
employing a Colf analysis and addressing the impeachment value factor, we stated,
"A rule of thumb is that convictions that rest on dishonest conduct relate to
credibility, whereas crimes of violence, which may result from a myriad of causes,
generally do not." Id. at 22, 732 S.E.2d at 887. We noted that although the prior
convictions arguably raised concerns regarding the witness's general character, it is
more narrowly the witness's propensity for telling the truth that is properly placed at
issue under Rule 609. Id. at 23, 732 S.E.2d at 887. We held, "The manslaughter
convictions, while crimes of violence, are not particularly probative of the specific
trait of truthfulness; consequently, their impeachment value is limited. . . . In this
case, the trial court did not relate any specific facts or circumstances, other than the
mere existence of the convictions, that made them particularly probative of [the
witness's] credibility." Id. at 23-24, 732 S.E.2d at 887-88.
As mentioned above, in Bryant, when we discussed the possibility of a prior
conviction's automatic admissibility under Rule 609(a)(2), we stated, "[A]
conviction for robbery, burglary, theft, and drug possession, beyond the basic crime
itself, is not probative of truthfulness." 369 S.C. at 517, 633 S.E.2d at 155. Here,
the court of appeals applied our statement out of context in finding Robinson's prior
convictions were not probative of credibility for purposes of a Rule 609(a)(1)
analysis. Although prior convictions for robbery, burglary, theft, and drug
possession are not crimes of dishonesty or false statement, which would result in
automatic admissibility under Rule 609(a)(2), such convictions may still have
impeachment value under Rule 609(a)(1). If the court of appeals' conclusion
regarding this factor is carried to its logical extreme, no convictions would ever have
impeachment value under Rule 609 unless they were crimes of dishonesty or false
statement admitted under Rule 609(a)(2). Rule 609(a)(2) would inevitably swallow
Rule 609(a)(1).
Even though Robinson's convictions for strong arm robbery and breaking and
entering automobiles are not crimes involving dishonesty or false statement within
the meaning of Rule 609(a)(2), that does not rule out the existence of impeachment
value in each one of these prior offenses. The trial court observed, "Simply put,
convictions for breaking into motor vehicles and strong-arm robbery don't imply that
the accused was an armed burglar, as was alleged in this case, but they do imply that
the accused is not someone to be trusted - that he might not be credible." It was
within the trial court's discretion to conclude that because Robinson has prior
convictions for such offenses, he legitimately might not be considered credible. See
Black, 400 S.C. at 21-22, 732 S.E.2d at 887 ("Impeachment value refers to how
strongly the nature of the conviction bears on the veracity, or credibility, of the
witness."). The trial court did not abuse its discretion in finding Robinson's prior
convictions had impeachment value.
2. The point in time of the conviction and the witness's subsequent
history.
Robinson's prior convictions were in 2007 and 2009. He was tried for the
burglary of Williams' residence in 2011. The trial court found Robinson's prior
convictions revealed a continuing pattern of criminal behavior that could
legitimately impact his credibility in the eyes of the jury. The court of appeals did
not address this factor.
Robinson acknowledges the temporal proximity of his prior convictions to his
current charges. However, Robinson contends the trial court erred by mentioning in
its remand order what the sentences were for his convictions, arguing that while there
was temporal proximity, "the jury did not and should not have known what the
sentences were for each of Robinson's prior convictions." This argument has no
merit, as the jury heard no evidence of the length of the sentences for the prior
convictions. The trial court simply addressed the "subsequent history" portion of
this Colf factor by comparing Robinson's prior releases from confinement to the
timing of the instant crime. An analysis of the sentences illustrates closeness in time
between the prior offenses and the offense for which Robinson was on trial,
revealing a pattern of behavior that legitimately evoked questions of Robinson's
credibility. The trial court did not abuse its discretion in weighing this factor as it
did.
3. The similarity between the past crime and the charged crime.
"[E]vidence of similar offenses inevitably suggests to the jury the defendant's
propensity to commit the crime with which he is charged. This risk is not eliminated
by limiting instructions." Colf, 337 S.C. at 628, 525 S.E.2d at 249. "[W]hen the
prior offense is similar to the offense for which the defendant is on trial, the danger
of unfair prejudice to the defendant from impeachment by that prior offense weighs
against its admission." Bryant, 369 S.C. at 517-18, 633 S.E.2d at 156.
Robinson dwells heavily on this point and claims the trial court erred in its
application of this factor. The trial court found there was very little similarity
between the past crimes and the charged crimes. The trial court reasoned:
[T]he State was prohibited from mentioning the
Defendant's 2009 burglary conviction during the trial.
Instead, the State was required to simply refer to the
conviction as "a felony conviction that carries more than a
year." There is nothing about that characterization of the
prior conviction to make it similar to the offense that the
Defendant faced. As to the strong-arm robbery and
breaking into motor vehicles charges, there is no
indication that any of those charges involved the use of a
deadly weapon (a crucial element of the burglary charge),
or that they involved entering someone's home (also an
element of the burglary charge). Despite defense counsel's
claim, there is no similarity between the prior convictions
and the offenses for which the Defendant was on trial in
this case.
The court of appeals did not address this factor.
First-degree burglary is defined, as applied to this case, as entering "a dwelling
without consent and with intent to commit a crime in the dwelling" and "when, in
effecting entry or while in the dwelling or in immediate flight, he or another
participant in the crime . . . is armed with a deadly weapon." S.C. Code Ann. § 16-
11-311(A)(1)(a) (2015). "Strong armed robbery is defined as the felonious or
unlawful taking of money, goods, or other personal property of any value from the
person of another or in his presence by violence or by putting such person in fear."
State v. Rosemond, 356 S.C. 426, 430, 589 S.E.2d 757, 758 (2003). The Georgia
breaking and entering into an automobile convictions are violations of section 16-8-
18 of the Georgia Code (2018), which provides: "If any person shall enter any
automobile or other motor vehicle with the intent to commit a theft or a felony, he
shall be guilty of a felony and, upon conviction thereof, shall be punished by
imprisonment for not less than one nor more than five years, or, in the discretion of
the trial judge, as for a misdemeanor."
Robinson argues the similarity of his prior convictions to the instant burglary
charge weighs against admissibility. He contends the common thread between the
burglary charge and the prior convictions is the taking of the property of another.
Robinson asserts the jury became aware of his prior stealing habits and his pattern
of escalating conduct.
Robinson also points to another similarity between his prior convictions and
the charged offense that he contends requires exclusion of the prior convictions—
his brother being with him during his commission of the prior crimes and the charged
crime. The State cross-examined Robinson on this point, but Robinson did not
object to that line of questioning; therefore, this narrow argument is not preserved
for our review. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94
(2003) (providing an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial court in order to be preserved for
appeal).
The trial court did not abuse its discretion in analyzing the similarity factor as
it did. Robbery and breaking and entering into automobiles involve different
conduct than burglary and possession of a weapon during the commission of a
violent crime, and neither the robbery nor the breaking into automobiles involved
being armed with a deadly weapon or entering a dwelling. The fact that breaking
and entering automobiles and first-degree burglary both involve entering into
someone's property without consent was not, in the trial court's judgment, a
determinative factor. Neither was the fact that robbery and burglary are overly
similar just because, according to Robinson, most burglaries are undertaken with an
eye towards stealing something. In this case, the trial court's limiting instruction
sufficiently addressed Robinson's fear that the evidence would be inappropriately
used as propensity evidence. The trial court acted within its discretion in weighing
this factor as it did.
4. The importance of the defendant's testimony.
Robinson's defense at trial was an alibi defense. When analyzing the
importance of Robinson's testimony, the trial court reasoned:
Given the fact that the Defendant's testimony was entirely
cumulative to the testimony of the other two defense
witnesses, it was not necessary for the Defendant to take
the stand in his defense. In fact, the only thing the
Defendant testified to that his other witnesses did not
confirm was that he [Robinson] had bought marijuana
from Mr. Williams at the home prior to the date of the
burglary.
The court of appeals did not address this factor.
Robinson argues the trial court's evaluation of the importance of his testimony
ignored the constitutional significance of his right to testify in his own defense and
the State's efforts to undermine his alibi defense. He contends there is often a no
more powerful witness for the defense than the defendant himself. Robinson argues,
"To characterize [his] testimony as cumulative because he presented other alibi
witnesses is far too simplistic." Robinson contends the "most compelling portion"
of his testimony was his explanation that he had taken responsibility for his past
crimes, as well as noting his lack of motive to steal. He maintains the importance of
his testimony increased the potential prejudice of admitting his prior convictions and
should have weighed against their admission.
The trial court acted within its discretion in analyzing this factor. Robinson's
direct examination was brief; his testimony largely echoed the testimony of his
brother and cousin, who were both able to communicate the alibi upon which
Robinson's defense relied. Though Robinson communicated a couple of additional
points, his testimony was largely cumulative to that of other witnesses. See Brooke
v. United States, 385 F.2d 279, 285 (D.C. Cir. 1967) (finding there was no abuse of
discretion in ruling a defendant's prior convictions could be used for impeachment
in the event he testified because defendant would have given a version that was
substantially the same as the version given by another defense witness).
Additionally, Robinson's testimony was not necessary to explain his mindset
at the time of the alleged crime. Cf. United States v. Smith, 181 F. Supp. 2d 904,
910 (N.D. Ill. 2002) (finding the importance of a defendant's testimony was
enhanced when the State was required to prove his intent to defraud, thus, this factor
cut against the admission of the defendant's prior convictions). With or without
Robinson's testimony, the jury had to resolve the issue of Williams' credibility, since
his testimony was the only direct evidence of Robinson's guilt.
Robinson also contends the trial court ignored his argument that it was
important for him to testify so he could explain to the jury that his prior convictions
were guilty pleas, which showed he admits responsibility for the crimes he commits,
and that his refusal to plead to the instant charges would tend to establish he was not
guilty of the instant charges. This argument is quite illogical. Following Robinson's
rationale to its logical extreme, he should want the prior convictions to be introduced
so he could explain to the jury that he accepts responsibility when he is guilty but
denies responsibility when he is not guilty.
Robinson also cites authority discussing the constitutional right of an accused
to testify in his defense regarding criminal matters. A defendant's right to testify is
indeed fundamental. See, e.g., State v. Rivera, 402 S.C. 225, 241, 741 S.E.2d 694,
702 (2013) (declaring a criminal defendant's right to testify is a well-established right
in South Carolina). However, this right does not preclude the State from impeaching
a defendant's credibility with prior convictions. If the defendant's right to testify
were to trump all other considerations relevant to Colf and Rule 609, then a
defendant could never be impeached with prior convictions. The trial court did not
abuse its discretion in weighing this factor as it did.
5. The centrality of the credibility issue.
Acknowledging the lack of physical evidence in this case, the trial court found
the credibility of Williams, Robinson, and Robinson's other witnesses "was central
to the case." The trial court explained this factor weighed in favor of admitting
Robinson's prior convictions. However, the court of appeals disagreed, explaining
it was error for the trial court to find this factor weighed in favor of admitting the
prior convictions "because our courts are hesitant to admit evidence of prior
convictions when credibility is central to the case." The court of appeals relied on
Green v. State, 338 S.C. 428, 433-34, 527 S.E.2d 98, 101 (2000), for this proposition.
In Green, we affirmed the post-conviction relief (PCR) court's finding that
defense counsel was ineffective for failing to argue the probative value of the
defendant's prior convictions for possession of crack cocaine was outweighed by
their prejudicial effect pursuant to Rule 609(a)(1), when the defendant was on trial
for distributing crack cocaine within proximity of a school. 338 S.C. at 432, 527
S.E.2d at 100. We noted the novelty of the issue: "whether the probative value of a
prior conviction, similar to the crime charged, not involving dishonesty or false
statement, outweighs its prejudicial effect, where credibility is critical." Id. at 432-
33, 527 S.E.2d at 100. After listing the Colf factors and noting the trial court should
have considered them, we reasoned:
In the instant case, evidence in the record supports the
PCR court's ruling that [the defendant] was prejudiced by
defense counsel's failure to argue the prejudicial effect of
the convictions outweighed their probative value. [The
defendant] was impeached with evidence of two
convictions for possession of cocaine that were four and
five years old. His credibility was critical, as the jury had
to choose between his version of events and that of the
SLED agents.
Id. at 433-34, 527 S.E.2d at 101.
The court of appeals' analysis and reliance on Green is flawed. In Green, we
were primarily concerned with the similarity of the prior convictions to the current
charges. Further, we did not make a ruling as to which direction the credibility factor
would turn, only recognizing "credibility was critical." This analysis did not
constitute a broad conclusion that our courts are hesitant to admit evidence of prior
convictions when credibility is central to a case.
Robinson also argues the following statement in Bryant supports the court of
appeals' proposition: "[T]he State should not be allowed to attack the defendant's
credibility with inadmissible prior convictions; especially where the [defendant's]
credibility was essential to his defense." 369 S.C. at 518-19, 633 S.E.2d at 156.
Importantly, Robinson overlooks our use of the word "inadmissible" in this passage.
We made this statement in Bryant during a harmless error analysis. It goes without
saying that an "inadmissible" conviction should never be admitted into evidence.
Contrary to the court of appeals' conclusion, when credibility is central to a
case, the introduction of prior convictions for impeachment purposes becomes even
more legitimate. Rule 609 is entitled "Impeachment by Evidence of Conviction of
Crime." Attacking the accused's credibility forms the entire basis for a party seeking
introduction of prior conviction evidence under Rule 609. If the jury must choose
between the defendant's credibility and that of another witness, there would be a high
probative value in admitting evidence of prior convictions to impeach the
defendant's credibility. On the other hand, if credibility is not central to the case,
then the prior convictions would have less probative value, and the risk of a jury
improperly using the prior convictions in an inappropriate manner, despite a limiting
instruction, could be higher.
Other jurisdictions favor admissibility when witness credibility is central to a
jury's deliberation. See, e.g., United States v. Jackson, 696 F.2d 578, 589 (8th Cir.
1982) (finding the probative value of a prior conviction was further enhanced by the
critical role a defendant's credibility would have played if he had chosen to testify);
United States v. Caldwell, 760 F.3d 267, 287-88 (3d Cir. 2014) (providing that when
credibility is important, this factor weighs in favor of admissibility); United States
v. Smith, 181 F. Supp. 2d 904, 910 (N.D. Ill. 2002) ("[C]redibility will be critical.
This factor tilts significantly in favor of admitting the prior convictions."); State v.
Swanson, 707 N.W.2d 645, 655-56 (Minn. 2006) ("Because credibility was a central
issue here, the fourth and fifth [] factors weigh in favor of admission of the prior
convictions."); Jordan v. State, 592 So. 2d 522, 524 (Miss. 1991) ("The importance
of the defendant's credibility weighs in favor of admissibility of the prior
convictions."); State v. Bohe, 447 N.W.2d 277, 281 (N.D. 1989) ("[I]n light of the
nature of [the defendant's] prior felonies and of the fact that the credibility of the
witnesses was the main issue in the case, the probative impeachment value of [the
defendant's] prior felony convictions appears to outweigh the prejudicial effect of
their admission into evidence.").
The trial court did not abuse its discretion in weighing this factor as it did.
IV. CONCLUSION
The trial court did not abuse its discretion in evaluating the Colf factors as it
did and in concluding Robinson's prior convictions were admissible under Rule
609(a)(1), SCRE. In any given case involving the same indicted charges, two
different trial courts could examine the same prior conviction(s), evaluate the same
five Colf factors, and perhaps reach opposite conclusions as to the admissibility of
the prior convictions. In such an instance, it is conceivable that under our standard
of review, both trial courts would be affirmed. This is the nature of our standard of
review in Rule 609(a)(1) cases when a trial court weighs the probative value of a
prior conviction against its prejudicial effect.
We affirm the court of appeals' decision to uphold Robinson's convictions for
first-degree burglary and possession of a weapon during the commission of a violent
crime. However, we modify the court of appeals' opinion by holding the trial court
did not abuse its discretion in admitting Robinson's prior convictions under Rule
609(a)(1), SCRE. In light of our holding, we need not examine Robinson's harmless
error argument. See State v. Allen, 370 S.C. 88, 102, 634 S.E.2d 653, 660 (2006)
(declining to address remaining issues when the disposition of a prior issue is
dispositive of the appeal).
AFFIRMED AS MODIFIED.
BEATTY, C.J., KITTREDGE, FEW, JJ., and Acting Justice Thomas E. Huff
concur.