Criminal Practice – Evidence – Accomplice Witness – Impeachment – Prior Conviction

State v. Brayboy (Lawyers Weekly No. 011-174-12, 8 pp.) (Paul E. Short Jr., J.) (James E. Lockemy, J., concurring in the result only) Appealed from Florence County Circuit Court (Thomas A. Russo, J.) S.C. App.

Holding: The trial court’s balancing test satisfied Rule 403, SCRE, when it decided to exclude evidence that a witness’ prior conviction involved a sawed-off shotgun, the same type of weapon involved in the robbery at issue.

We affirm defendant’s convictions of armed robbery, kidnapping, and assault and battery of a high and aggravated nature.

Because Robin Turner was a witness rather than the accused, in order to exclude the weapons conviction, the court was required to find the probative value was substantially outweighed by the danger of unfair prejudice. Although the trial court did not specifically cite Rule 403, the court considered these issues in its analysis: (1) “because we … want the jury to base their decision solely on the facts that are presented during the course of this trial … and not on some issue that occurred in a previous conviction”; (2) “the purpose of impeachment is simply to determine whether or not someone is believable or not, and it should have nothing to do with ‘they did it once, they must [have] done it again’”; and (3) “allowing Mr. Turner to be questioned that he has a prior conviction for possession of a sawed-off shotgun, with that being a direct issue involved in this case, is highly prejudicial to a jury in determining … someone’s credibility.” We find the court indicated its consideration of whether the probative value of the conviction was substantially outweighed by the danger of unfair prejudice. Accordingly, we find no reversible error.

In addition, if the trial court erred, it was harmless beyond a reasonable doubt.

Turner was impeached with multiple convictions: (1) unlawful possession of a “firearm”; (2) common law robbery; (3) possession of a stolen vehicle; and (4) receiving stolen goods. He was also questioned about his pending charges and plea agreement with the state, the terms of which would result in a 10-year federal sentence and the dismissal of all state charges. Furthermore, the other codefendant, Quennell Brown, also testified defendant was the third perpetrator and maintained he was with defendant when defendant purchased the shotgun.

Affirmed.

Concurrence

(Lockemy, J.) I would hold that limiting defendant’s ability to question Turner about Turner’s sawed-off shotgun conviction was a violation of Rule 609(a)(1), SCRE. Furthermore, I do not agree that the trial court conducted a Rule 403 balancing test. However, any error was harmless because Turner was impeached with multiple convictions, and Brown testified defendant was the third perpetrator.