Criminal Practice – Consciousness of Guilt – Harmless Error – Petition for Rehearing

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The trial court erred in finding the testimony relevant because the State did not establish a nexus between respondent’s conduct and a consciousness of his guilt. After careful consideration of the petition for rehearing, we are unable to discover that any material fact or principle of law has been either overlooked or disregarded and, therefore, there is no basis for granting a rehearing. Accordingly, we deny the petition for rehearing. However, we withdraw the original opinion and substitute an opinion changing the original opinion only in section III, Harmless Error Analysis.

We reverse and remand for a new trial.

At respondent’s trial for criminal sexual conduct in the third degree, the State introduced a police detective’s testimony that respondent was evasive in response to her attempts to get respondent to come in for an interview. The trial court admitted this testimony over respondent’s relevance objection. The jury found respondent guilty, and the court of appeals affirmed.

The jury convicted respondent of criminal sexual conduct in the third degree, and the trial court sentenced him to six years in prison, suspended upon service of six months in prison and five years of probation. Respondent appealed, and the court of appeals affirmed. We granted respondent’s petition for a writ of certiorari to address whether the trial court acted within its discretion in admitting a detective’s testimony about respondent’s attempts to avoid coming in to see her for an interview.

At the time the detective sought an interview with respondent, he had not been indicted and there was no warrant for his arrest. Rather, respondent was free to refuse to meet with the detective altogether. Respondent’s failure to show up for voluntary interview appointments and his delay in giving a statement to the detective were primarily inaction. The State nevertheless argued respondent’s conduct was active: respondent intentionally scheduled two appointments with the detective knowing he would not show up, all as an effort to hinder the investigation of his criminal activity. Here, we are drawn back to the point we noted earlier that the trial court overruled respondent’s objection “without discussion.” This theory that respondent’s conduct was active, had it been presented to the trial court, could have made a valid nexus, but it must have been based on evidence and should have been subjected to the trial court’s exercise of discretion. With no discussion of this potential nexus at trial, there is no basis to support the State’s theory, just as there is nothing to support or refute other “innocent” reasons respondent may have had for missing the appointments. Third, as our cases require, we must consider precisely how a particular piece of evidence might show a defendant’s consciousness of guilt. It is difficult to discern a nexus between respondent’s inaction in this case and a consciousness that the victim was too drunk to consent to sex weeks earlier.

Respondent argued that from merely the fact he avoided the detective under the circumstances of this case, “it was unclear just what [he] morally or legally may have been guilty of doing.” We agree. Therefore, the detective’s testimony respondent missed two scheduled appointments with her was not relevant to show a consciousness of guilt.

In addition to the fact the State established no nexus between the conduct and a consciousness of guilt, the detective’s characterization of respondent’s conduct as “ducking and dodging” was unsubstantiated guesswork disguised as the detective’s opinion as to respondent’s intent. While it is true the “ducking and dodging” comment was very damaging, it does not render the trial court’s error harmless. The “ducking and dodging” comment was not evidence of respondent’s conduct. The comment cannot be “cumulative” in the sense it rendered the direct testimony not prejudicial. Rather, it made the prejudicial testimony from direct more impactful by spinning respondent’s actual conduct as evasive when it was not necessarily so. We reject the State’s harmless error argument.

Reversed and remanded.

State v. Middleton (Lawyers Weekly No. 010-054-23, 13 pp.) (J.C. Nicholson Jr., J.) Chief Appellate Defender Robert Michael Dudek, of Columbia, for petitioner; Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General William M. Blitch Jr., of Columbia; Solicitor Scarlett Anne Wilson, of Charleston, all for respondent.