THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The State,        Respondent,

v.

Douglas Antonio Williams,        Appellant.


Appeal From Greenville County
Joseph J. Watson, Circuit Court Judge


Unpublished Opinion No. 2003-UP-559
Submitted July 15, 2003 – Filed September 26, 2003   


REVERSED AND REMANDED


Senior Assistant Appellate Defender Wanda H. Haile, of Columbia, for Appellant

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, of Columbia, Solicitor Robert M. Ariail, of Greenville, for Respondent(s).

PER CURIAM: Douglas Antonio Williams appeals his convictions for possession with intent to distribute crack cocaine (PWID) and resisting arrest.  He contends the trial judge erred in admitting evidence of identical prior convictions in order to impeach his credibility as a witness at trial.  We reverse and remand.

FACTS

On the afternoon of September 23, 2000, Corporal J. M. Aiken, employed with the Greenville City Police Department, drove to his assigned patrol area.  As Aiken was driving, he saw Williams and two other individuals standing outside an apartment complex.  Aiken exited his vehicle and began to patrol the area on foot.  While walking toward Williams, Aiken saw Williams toss a blue-colored item to the ground.  Aiken then motioned for Williams to come talk to him.  Because he was familiar with Williams, Aiken asked him if he had any outstanding warrants.  Williams denied there were any warrants for his arrest.  Aiken placed Williams in the patrol car while he checked his record.  During this time, Aiken retrieved the object that he saw Williams throw on the ground.  Based on his investigation, Aiken believed it was crack cocaine.

After discovering the crack cocaine, Aiken returned to his vehicle and informed Williams that he was under arrest.  Williams denied the drugs belonged to him.  Aiken instructed Williams to turn around and place his hands behind his back.  A struggle then ensued with Williams kicking Aiken and the door of the patrol car.  Aiken sprayed Williams with mace in an attempt to subdue him.  Williams escaped and fled on foot.  In an effort to locate Williams, Aiken went to Williams’s grandfather’s home.  Aiken asked Williams’s grandfather to have Williams turn himself in.  A few days later, Williams turned himself in at the request of his grandfather.

Further investigation of the substance Aiken retrieved at the scene revealed it to be 2.52 grams of crack cocaine.  A Greenville County grand jury indicted Williams for one count of PWID crack cocaine and one count of resisting arrest.  

At trial, Linda Moss testified for the defense.  Moss, Williams’s friend, was standing next to Williams and Thomas Shell at the time of the incident.  Moss denied anyone approached Williams that afternoon to purchase drugs.  Moss testified she did not see Williams with crack cocaine on that day.

Williams also testified in his own defense.  Prior to his testimony, the judge held an in camera hearing concerning the admissibility of Williams’s prior convictions. Williams had been convicted in 1997 for distribution of crack cocaine and distribution of crack cocaine within a half-mile of a school.  Williams had also pleaded guilty to a charge of possession of crack cocaine in 1998.  Counsel for Williams objected to the admission of the prior convictions on the ground they were prejudicial given they were closely related to the drug charge for which Williams was being tried.  After hearing arguments from counsel and considering the applicable case law and evidentiary rules, the judge permitted the State to impeach Williams with the prior convictions.  The judge reasoned:

Then reviewing this matter under the cases that I have mentioned, specifically taking into consideration the value of - - the impeachment value of the prior crimes that the State is offering, taking into consideration the point in time of the convictions and the witness’ subsequent history, taking into consideration the similarity between the past crimes and the charged crimes, taking into consideration the importance of the Defendant’s testimony, and finally the centrality of the credibility issue, and considering the applicable rules, 403 and 609(a)(1), I will allow the State to impeach the Defendant on these prior convictions.

 He also stated his ruling was “based in part on the fact that at this time nobody has denied or testified that the Defendant did not possess the drugs and did not throw them down.” Williams’s counsel disputed this conclusion, apparently relying on Moss’s testimony.  The judge further found that credibility was a central issue in the case.  He concluded the probative value of the evidence outweighed any prejudicial effect.  

After this ruling, Williams decided to testify.  During his testimony, Williams stated he was present with Thomas Shell and Linda Moss at the time Corporal Aiken approached them.  Williams, however, testified Shell threw down the bag containing crack cocaine.  He denied he ever possessed the crack cocaine.  He admitted that he fought with Aiken.  On direct and cross-examination Williams acknowledged his prior convictions.   Immediately following the cross-examination testimony, the judge gave the jury a limiting instruction regarding the convictions.

The jury convicted Williams of PWID crack cocaine and resisting arrest.  The trial judge sentenced Williams to twenty-five years imprisonment and payment of a $50,000 fine for PWID crack cocaine and a year imprisonment for resisting arrest.  The sentences were to be served concurrently.  Williams appeals.

DISCUSSION

Williams argues the trial judge erred in admitting into evidence his prior convictions.  Because the prior drug convictions were identical to the current PWID charge, he contends the admission of this evidence was extremely prejudicial.  He further contends the admission of this evidence was prejudicial given his credibility was crucial to his defense.  Additionally, he asserts the prior convictions suggested to the jury that he had the propensity to commit drug offenses. 

The admission of evidence is within the trial judge’s discretion and will not be disturbed on appeal absent abuse of that discretion.  State v. Tucker, 319 S.C. 425, 428, 462 S.E.2d 263, 265 (1995).  

Rule 609 of the South Carolina Rules of Evidence governs the admissibility of evidence of prior convictions to impeach a witness’s credibility.  Applicable to the instant case is Rule 609(a)(1), SCRE.  This rule provides a “two-part test for determining whether a defendant’s prior convictions can be used to impeach him:  (1) the prior crime must have been punishable by death or imprisonment in excess of one year, and (2) the court must determine that the probative value of admitting the evidence outweighs its prejudicial effect to the accused.”  Green v. State, 338 S.C. 428, 432, 527 S.E.2d 98, 100 (2000). 

Our Supreme Court has found that similar prior convictions are not necessarily inadmissible in all cases.  Green, 338 S.C. at 433, 527 S.E.2d at 101.  However, the Court has instructed trial judges to “weigh the probative value of the prior convictions against their prejudicial effect to the accused and determine, in their discretion, whether to admit the evidence.”  Id.  In order to make this determination, our Supreme Court has outlined the following factors to be considered:

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. 

State v. Colf, 337 S.C. 622, 627, 525 S.E.2d 246, 248 (2000). 

Applying these factors to the instant case, we find the trial judge erred in admitting Williams’s prior drug convictions.  The prior convictions were of limited impeachment value.  See State v. Dunlap, 353 S.C. 539, 542, 579 S.E.2d 318, 320 (2003) (finding relative lack of probative value of violations of narcotics laws “should figure prominently in the weighing of prejudice, pursuant to Rule 609(a)(1), when determining whether to permit a criminal defendant’s impeachment by such conduct”); State v. Cheeseboro, 346 S.C. 526, 543, 552 S.E.2d 300, 309 (2001) (holding narcotics offenses are generally not considered probative of truthfulness).  The State impeached Williams with convictions that were four and five years old.  Because the prior drug offenses were similar to the current PWID offense, the prejudicial effect of their admission was heightened.  See Dunlap, 353 S.C. at 542, 579 S.E.2d at 320 (stating “when 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”).  Williams’s testimony was crucial to his defense due to the limited number of witnesses to the incident.  William’s credibility was also critical given the competing testimony of Aiken. 

Finally, we reject the State’s contention that the admission of Williams’s prior convictions constituted harmless error.  First, the judge’s limiting instruction was not sufficient to cure the error.  See Green, 338 S.C. at 434, 527 S.E.2d at 101 (“The jury, despite limiting instructions, can hardly avoid drawing the inference that the past conviction suggests some probability that defendant committed the similar offense for which he is currently charged.”(quoting United States v. Beahm, 664 F.2d 414, 418-19 (4th Cir. 1981))).  Secondly, there was not overwhelming evidence of Williams’s guilt given the conflicting testimony of Aiken, Williams, and Moss.  See State v. Berry, 332 S.C. 214, 221-22, 503 S.E.2d 770, 774 (Ct. App. 1998) (finding improper admission of prior bad act evidence was not harmless error where evidence of guilt was not overwhelming and credibility was crucial to the defense case); see also State v. Reeves, 301 S.C. 191, 194, 391 S.E.2d 241, 243 (1990) (“Error which substantially damages the defendant’s credibility cannot be held harmless where such credibility is essential to his defense.”).  

Accordingly, we reverse Williams’s convictions and remand for a new trial.

REVERSED AND REMANDED.

HEARN, C.J., CONNOR and ANDERSON, JJ., concur.