State v. Broadnax

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Petitioner,

v.

Christopher Broadnax, Respondent.

Appellate Case No. 2013-000615

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge

Opinion No. 27545

Heard February 4, 2015 – Filed July 8, 2015

REVERSED IN PART, AFFIRMED IN PART

Attorney General Alan McCrory Wilson, Assistant

Attorney General Julie Kate Keeney and Assistant

Attorney General Mary Shannon Williams, all of

Columbia, for Petitioner.

Appellate Defender LaNelle Cantey DuRant, of

Columbia, for Respondent.

CHIEF JUSTICE TOAL: The State of South Carolina appeals the court of
appeals' decision reversing Christopher Broadnax's (Respondent) convictions for
armed robbery and kidnapping, and remanding for a new trial. We reverse in part
and affirm in part the decision of the court of appeals.

FACTUAL/PROCEDURAL HISTORY

At 5:30 p.m. on May 24, 2009, a masked gunman entered Church's Chicken
on Two Notch Road in Columbia. He held one of the employees at gunpoint while
the employee emptied the cash registers. Three other employees locked
themselves in the kitchen. The gunman was wearing a striped shirt, had a
distinctive "lazy eye," and carried a clear plastic bag.

After the employee filled the bag with money from the registers, the gunman
calmly exited the store, climbed into a "gray Dodge old model truck" driven by an
accomplice, and left the scene. One of the employees chased the gunman outside
and saw him riding in the passenger seat of the gray truck as the driver pulled out
of the parking lot onto Two Notch Road.

Police responded to the scene within approximately three minutes, and based
on the employees' descriptions of the getaway vehicle, stopped the driver a short
distance from the Church's Chicken on Two Notch Road.1 When officers
approached the vehicle, they found Respondent crouched down on the floorboard
of the passenger side. Officers immediately noticed that Respondent had a "lazy
eye." The police officers found a gun and a bag full of money (matching the
employees' descriptions) jammed under the truck's passenger seat, adjacent to
Respondent. Further, one of the employees identified Respondent as the gunman
in a "show-up" identification, and testified that he recognized Respondent's
distinctive facial features, build, and clothing.2

1
A testifying officer stated that the truck was distinctive because it was in poor
condition and "had a number of dents and pings and so forth."
2
Several of the employees also made in-court identifications of Respondent as the
perpetrator of the crimes. Furthermore, Respondent's accomplice testified against
him at trial.
 Respondent was charged with one count of armed robbery and four counts
of kidnapping.

After the State rested, Respondent indicated that he would testify in his own
defense. Consequently, the State moved to admit Respondent's prior criminal
record for purposes of impeachment. The trial court heard arguments and
conducted an inquiry into which of Respondent's prior convictions should be
admitted. Pursuant to Rule 609(a)(2), SCRE, and the court of appeals' opinion in
State v. Al–Amin, 353 S.C. 405, 578 S.E.2d 32 (Ct. App. 2003), the trial court
admitted three of Respondent's four prior armed robbery convictions.3

During his testimony, Respondent denied any involvement in the robbery.
However, Respondent's counsel elicited testimony regarding Respondent's prior
convictions for armed robbery.4 The State likewise questioned Respondent about
his prior convictions.

The trial judge then instructed the jury:

You've heard evidence that the defendant was convicted of a crime
other than the one for which the defendant is now on trial. This
evidence may be considered by you if you can conclude it is true only
in deciding whether the defendant's testimony is believable 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 that we are trying
here today.

The jury found Respondent guilty of armed robbery and four counts of
kidnapping, and the trial judge sentenced Respondent to a mandatory minimum
sentence of life imprisonment without the possibility of parole based on
Respondent's prior armed robbery convictions.

On appeal to the court of appeals, Respondent argued, inter alia, that the

3
The trial court also admitted Respondent's prior convictions for transaction card
theft, grand larceny, and petit larceny.
4
The trial court permitted Respondent's counsel to elicit the prior conviction
testimony during his direct examination without waiving his objection to the
admission of that testimony.
trial court erred in admitting his prior armed robbery conviction for impeachment
purposes. See State v. Broadnax, 401 S.C. 238, 241, 736 S.E.2d 688, 689 (Ct.
App. 2013). The court of appeals reversed and remanded the case to the trial court
for a new trial. Id. Specifically, the court of appeals found: (1) Respondent's prior
armed robbery convictions, without more, did not constitute crimes of dishonesty,
and therefore, the trial court should have conducted a balancing test prior to
admitting testimony regarding Respondent's prior armed robbery convictions; and
(2) such error was not harmless beyond a reasonable doubt. Id. at 244–48, 736
S.E.2d at 691–93.

ISSUES PRESENTED

I. Whether the court of appeals erred in finding that Respondent's
prior armed robbery convictions were not crimes of dishonesty,
and were therefore inadmissible under Rule 609(a)(2), SCRE?

II. Whether the court of appeals erred in refusing to find any error
in the admission of Respondent's prior criminal record harmless
beyond a reasonable doubt?

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State
v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). The admission or
exclusion of evidence rests in the sound discretion of the trial judge, and will not
be reversed on appeal absent an abuse of discretion. State v. Gaster, 349 S.C. 545,
557, 564 S.E.2d 87, 93 (2002) (citation omitted); see also State v. Kelly, 319 S.C.
173, 176, 460 S.E.2d 368, 370 (1995) ("A trial judge has considerable latitude in
ruling on the admissibility of evidence and his rulings will not be disturbed absent
a showing of probable prejudice." (citation omitted)). "An abuse of discretion
occurs where the conclusions of the trial court either lack evidentiary support or
are controlled by an error of law." State v. McDonald, 343 S.C. 319, 325, 540
S.E.2d 464, 467 (2000) (citation omitted).

LAW/ANALYSIS

I. Prior Armed Robbery Convictions

The State argues that the court of appeals erred in reversing the trial court
because armed robbery is a "crime of dishonesty or false statement" such that it is
automatically admissible under Rule 609(a)(2), SCRE. We disagree.

Rule 609(a), SCRE, provides:

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.

In State v. Al-Amin, the court of appeals considered the question of whether
the appellant was entitled to a new trial after the trial court admitted his prior
armed robbery conviction without first weighing the probative value and
prejudicial effects of the admission. 353 S.C. at 408–09, 414, 578 S.E.2d at 34, 37.
Noting that "[t]here is disagreement among federal circuit courts and state courts
construing Rule 609(a)(2) as to which crimes are included," the court of appeals
explained that "[t]he disagreement revolves around whether convictions for theft
crimes, such as larceny, robbery, and shoplifting, should be admitted under the rule
as involving dishonesty or false statement." Id. at 415, 578 S.E.2d at 37. The
court of appeals acknowledged that a majority of federal courts has adopted a
narrow approach to the question, but declined to follow federal precedent, instead
adopting an expansive approach to determining what constitutes a "crime of
dishonesty or false statement." Id. at 416, 578 S.E.2d at 38. The court of appeals
reasoned:

"An essential element of robbery is that the perpetrator of the offense
steals the goods and chattels of another or, in the case of an attempt to
commit robbery, intends to steal the goods or chattels of the person
assaulted. If this element is not present, the crime is not robbery or an
attempted robbery. Stealing is defined in law as larceny. Larceny
 involves dishonesty. The fact that the perpetrator of the crime
manifests or declares his dishonesty by brazenly committing the crime
does not make him an honest person."

Id. at 421, 578 S.E.2d at 40–41 (quoting State v. Goad, 692 S.W.2d 32, 37 (Tenn.
Crim. App. 1985)). Thus, the court of appeals concluded, "It is the larcenous
element of taking property of another which makes the action dishonest. Larceny is
a lesser-included offense of armed robbery." Id. at 425, 578 S.E.2d at 43 (citations
omitted). The court of appeals, citing several dictionary definitions, found further,

To restrict the application of Rule 609(a)(2) only to those offenses
which evidence an element of affirmative misstatement or
misrepresentation of fact would be to ignore the plain meaning of the
word "dishonesty." "Dishonesty" is, by definition, a "'disposition to
lie, cheat, or steal.'" "To be dishonest means to deceive, defraud or
steal." "'In common human experience[,] acts of deceit, fraud,
cheating, or stealing . . . are universally regarded as conduct which
reflects adversely on a man's honesty and integrity.'"

Id. (internal citations omitted).

More recently, however, we decided State v. Bryant, in which we held that
the trial court erroneously admitted the petitioner's prior firearms convictions under
Rule 609 without weighing the probative value and prejudicial effects of their
admission because the firearms offenses were not crimes involving dishonesty.
369 S.C. 511, 517, 633 S.E.2d 152, 155–56 (2006). In so holding, we stated:

Violations of narcotics laws are generally not probative of
truthfulness. See State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300
(2001) (citing State v. Aleksey, 343 S.C. 20, 538 S.E.2d 248 (2000)).
Furthermore, a conviction for robbery, burglary, theft, and drug
possession, beyond the basic crime itself, is not probative of
truthfulness. United States v. Smith, 181 F. Supp. 2d 904 (N.D. Ill.
2002).[5] Likewise, firearms violations also are not generally probative

5
In Smith, the court stated:

[E]vidence that any witness has been convicted of a crime involving
dishonesty or false statement is admissible without regard to its
 of truthfulness. Accordingly, Petitioner's prior firearms convictions do
not involve dishonesty and their probative value should have been
weighed against their prejudicial effect prior to their admission
pursuant to Rule 609(a)(1).

Id. (emphasis added).

Here, the State argues that because Bryant involved convictions for firearms
offenses, and not explicitly a prior armed robbery conviction, the above language
is merely dicta. Therefore, the State relies on earlier precedents from our courts—
namely Al-Amin—and points to other states' precedents to support its argument that
armed robbery is a crime of dishonesty, such that no balancing test is required.

We take this opportunity to overrule Al-Amin, and reaffirm the rule as
formulated in Bryant that armed robbery is not a crime of dishonesty or false
statement for purposes of impeachment under Rule 609(a)(2). While many states
have adopted a broader interpretation of the Rule, we find the analysis to be more
nuanced than that undertaken by the Al-Amin court.6 Under Al-Amin's and the

prejudicial effect. Fed. R. Evid. 609(a)(2). Smith's forgery conviction
is admissible under Rule 609(a)(2). However, his convictions for
robbery, burglary, theft, and drug possession convictions are not, as
the government has not shown that any of them involved false
statements or acts of deceit beyond the basic crime itself, and as to the
theft convictions has not shown that it involved items of significant
value.

181 F. Supp. 2d at 909 (internal citations omitted).
6
See Stuart P. Green, Deceit and the Classification of Crimes: Federal Rule of
Evidence 609(a)(2) and the Origins of Crimen Falsi, 90 J. Crim. L. & Criminology
1087, 1119 (2000) ("The problem with [a broad reading of the term 'crime of
dishonesty'] . . . is that it blurs the moral distinction between stealing and lying. A
person who steals is certainly dishonest; she rejects the idea of making an honest
living; she cheats; she takes something to which she is not entitled; she disobeys
the rules. But there is no particular reason to think that she is deceitful. Indeed,
what little empirical evidence there is indicates that a prior conviction for larceny
(stealing by stealth) says little or nothing about a witness'[s] propensity to lie."
(footnote omitted)).
concurrence's rationale, the exception contained in Rule 609(a)(2), which permits
the automatic admission of certain prior convictions, swallows the rule contained
in Rule 609(a)(1), in which discretion regarding the admission of prior convictions
rests with the trial judge. We think this interpretation is contrary to the intent of
the Rule.

Thus, we hold 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." Adams v. State, 644 S.E.2d 426, 431–32 (Ga. Ct.
App. 2007) (footnote omitted) (surveying federal and state treatment of the issue,
and adopting the more narrow federal definition); see also United States v. Smith,
551 F.2d 348, 362–63 (D.C. Cir. 1976) ("[I]n its broadest sense, the term 'crimen
falsi' has encompassed only those crimes characterized by an element of deceit or
deliberate interference with a court's ascertainment of truth." (emphasis added)).
Armed robbery, therefore, is not per se probative of truthfulness.

The Federal Rules of Evidence specifically identify crimena falsi in Rule
609(a)(2), FRE, as crimes which by their very nature permit the impeachment of a
witness convicted of a crime of "dishonesty or false statement." Green, supra note
6, at 1090. In fact,

[t]he original Conference Report makes the link between Rule
609(a)(2) and the crimena falsi explicit, defining the phrase "crimes
involving dishonesty or false statement" as "crimes such as perjury,
subornation of perjury, false statements, criminal fraud,
embezzlement, or false pretense, or any other offense in the nature of
crimen falsi, the commission of which involves some element of
deceit, untruthfulness, or falsification bearing on the accused's
propensity to testify truthfully."

Id. at 1090–91 (emphasis added) (footnote omitted) (quoting H.R. Conf. Rep. No.
93-1037, at 9 (1975)). While the State emphasizes that South Carolina did not
adopt this explanatory language when it adopted Federal Rule 609, the notion of
crimen falsi in the evidentiary context is long-established in the common law of
South Carolina. See, e.g., State v. Peterson, 35 S.C. 279, 282, 14 S.E. 617, 618
(1892) ("The old, well-settled rule was that one who had been convicted of a crime
belonging to the class known as the 'crimen falsi' was said to be infamous, and
incompetent to testify."). Thus, the State's argument is unavailing. Cf. Williams v.
Condon, 347 S.C. 227, 247, 553 S.E.2d 496, 507 (Ct. App. 2001) ("A strong
presumption . . . exists that the General Assembly does not intend to supplant
common law principles when enacting legislation." (citations omitted)).7

Here, the trial judge felt constrained by Al-Amin to forgo a balancing test,
even though he noted that Al-Amin was a "significant departure" from what he
understood the law to be, especially because the State sought to admit three prior
convictions identical to the one for which Respondent was currently on trial. We
agree with the trial judge that the prejudicial effect of admitting prior convictions
for the exact same offense is often very high. See State v. Scriven, 339 S.C. 333,
343–44, 529 S.E.2d 71, 76–77 (Ct. App. 2000) (stating that because the prior
convictions were "similar or identical to charged offenses, . . . the likelihood of a
high degree of prejudice to the accused [was] inescapable"). For this reason, a rule
that places discretion with the trial judge is even more desirable, and unlike the
concurrence, we think the trial judge is the best arbiter of whether a very
prejudicial piece of evidence should be admitted in this situation—unless of course
the prior crime specifically relates to a defendant's penchant to tell the truth on the
witness stand. Importantly, our holding today does 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.

Ultimately, the Rule is designed to help the jury discern the truth. It is not a
tool for the State to bolster its case against the criminal defendant for the mere fact
that the defendant has engaged in prior criminal activity. The balance we strike
today cuts to the heart of our system's conceptions of fair trial and fair play.

Thus, we affirm the court of appeals' finding that armed robbery is not a
crime of "dishonesty or false statement," rendering it admissible pursuant to Rule

7
While the concurrence criticizes our reliance on the federal interpretation of the
Rules, we note that we routinely look to the federal interpretation of the Rules of
Evidence to guide us in our interpretation of our own Rules of Evidence. See, e.g.,
Auto-Owners Ins. Co. v. Rhodes, 405 S.C. 584, 594, 748 S.E.2d 781, 786 (2013)
("Because our appellate courts have not definitively addressed Rule 60(b)(5), we
have looked to the federal courts' interpretation as our rule is similar to the federal
rule."); Laffitte v. Bridgestone Corp., 381 S.C. 460, 474 n.10, 674 S.E.2d 154, 162
n.10 (2009) ("The language of Rule 26(c), SCRCP, mirrors that of federal Rule
26(c). Because there is no South Carolina precedent construing this rule, federal
interpretation of Rule 26(c) is persuasive authority." (citation omitted)).
609(a)(2), SCRE.8

II. Harmless Error

Next, the State argues that any error in admitting the prior armed robbery
convictions was harmless beyond a reasonable doubt. We agree.

While we agree with the court of appeals that in many instances, the
admission of identical prior convictions for impeachment purposes enhances its
prejudicial nature, it does not conclusively render the error so prejudicial that is it
not subject to a harmless error analysis. Rather,

[w]hether the improper introduction of this evidence is harmless
requires us to look at the other evidence admitted at trial to determine
whether the defendant's "guilt is conclusively proven by competent
evidence, such that no other rational conclusion could be reached."

State v. Brooks, 341 S.C. 57, 62–63, 533 S.E.2d 325, 328 (2000) (quoting State v.
Parker, 315 S.C. 230, 234, 433 S.E.2d 831, 833 (1993)).

Here, the other evidence implicating Respondent in these crimes was
overwhelming. Respondent was positively identified by several employees who
recalled Respondent's distinctive facial features and clothing. Furthermore, one of
the employees watched as Respondent's accomplice drove him away from the
scene in a dented gray truck, which the police stopped a only a short distance away
within minutes after the employees reported the robbery. Inside the getaway
vehicle, police found Respondent crouching in the floorboard area, sitting adjacent
to a gun and a bag of money matching the employees' descriptions.

Therefore, in spite of the error in admitting Respondent's prior convictions
for armed robbery, we find such error was harmless beyond a reasonable doubt,
and we reverse the part of the court of appeals' decision finding otherwise. See,
e.g., State v. Mizzell, 349 S.C. 326, 334, 563 S.E.2d 315, 319 (2002) ("'Harmless
beyond a reasonable doubt' means the reviewing court can conclude the error did

8
We note that—contrary to the concurrence's assertion—whether or not
shoplifting is a crime of dishonesty has never been decided by this Court and is not
before us at this time.
not contribute to the verdict beyond a reasonable doubt.").9

CONCLUSION

For the foregoing reasons, the decision of the court of appeals is

REVERSED IN PART, AFFIRMED IN PART.

KITTREDGE and BEATTY, JJ., concur. HEARN, J., concurring in a
separate opinion in which PLEICONES, J., concurs.

9
The State also contends that the court of appeals erred in refusing to remand the
case to the trial court, and in conducting the Rule 609(a)(1) balancing test itself.
Our harmless error analysis renders the remand issue moot.
JUSTICE HEARN: I concur in the result reached by the majority.
However, I would reverse the court of appeals' opinion and hold the trial
court did not err in admitting Broadnax's prior convictions because armed
robbery is a crime involving dishonesty under Rule 609(a)(2) of the South
Carolina Rules of Evidence.
I appreciate the majority's discussion of the similar federal rule and its
accompanying legislative history. As the majority correctly asserts, the
federal rule has been interpreted to limit the application of Rule 609(a)(2),
FRE to those prior convictions of crimes whose central elements involve
crimen falsi. See United States v. Smith, 551 F.2d 348, 362–63 (D.C. Cir.
1976) ("[I]n its broadest sense, the term 'crimen falsi' has encompassed only
those crimes characterized by an element of deceit or deliberate interference
with a court's ascertainment of truth.").
However, the majority's analysis ignores that neither our rule nor its
commentary, both of which were promulgated by this Court, contain any
reference to crimen falsi. Cf. Rule 609 note ("Subsection (a) does change the
law in South Carolina."). Further, I disagree with the majority that the
common law somehow contains and thus preserves the concept that crimen
falsi is the operative standard. Curiously, the sole case the majority cites to
support this proposition, State v. Peterson, 35 S.C. 279, 14 S.E. 617 (1892),
affirmed the trial court's admission of a prior conviction for the exact crime at
issue today: robbery. Id. at 281, 14 S.E. at 618.
Accordingly, this Court's interpretation of Rule 609(a)(2), SCRE must
be limited to its plain language. The Rule states:
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.

Rule 609(a), SCRE (emphasis added). As our court of appeals succinctly
noted in State v. Al–Amin, 353 S.C. 405, 578 S.E.2d 32 (Ct. App. 2003), the
operative word for this analysis is "dishonesty." As elucidated by that court:
To restrict the application of Rule 609(a)(2) only to those
offenses which evidence an element of affirmative misstatement
or misrepresentation of fact would be to ignore the plain meaning
of the word "dishonesty." "Dishonesty" is, by definition, a
"'disposition to lie, cheat, or steal.'" "To be dishonest means to
deceive, defraud or steal." "'In common human experience[,] acts
of deceit, fraud, cheating, or stealing . . . are universally regarded
as conduct which reflects adversely on a man's honesty and
integrity.'"
Id. at 425, 578 S.E.2d at 43 (internal citations omitted). Restricting our
analysis—as we must—to the plain language of 609(a)(2), SCRE there is no
doubt armed robbery constitutes a crime involving dishonesty. Stealing, even
more so when done at gunpoint, is essentially the type of behavior reflecting
adversely on one's character for truthfulness envisioned by Rule 609(a)(2).
Holding that armed robbery is a crime of dishonesty pursuant to Rule
609(a)(2) would avoid the perverse result the majority creates, where
shoplifting is a crime of dishonesty pursuant to State v. Shaw, 328 S.C. 454,
492 S.E.2d 402 (Ct. App. 1997), but armed robbery is not.10 Further, it
comports with the outcome a majority of states have reached on the same
issue. See Jane M. Draper, Annotation, What Constitutes Crime Involving
“Dishonesty or False Statement” Under Rule 609(a)(2) of Uniform Rules of
10
I do not believe the result in this case is dictated by stare decisis. As the
majority points out, the Court's decision in State v. Bryant, 369 S.C. 511, 517, 633
S.E.2d 152, 155–56 (2006), dealt only with the question of whether prior firearm
convictions involve dishonesty. Thus, the Court was not required to reach the
same issue that is before us today. See generally State v. Austin, 306 S.C. 9, 19,
409 S.E.2d 811, 817 (Ct. App. 1991) (Sanders, C.J.) ("[A]ppellate courts in this
state, like well-behaved children, do not speak unless spoken to and do not answer
questions they are not asked.").
Evidence or Similar State Rule—Crimes Involving Violence or Potential for
Violence, 83 A.L.R. 277 (2000) (compiling decisions from other
jurisdictions); see, e.g., Alexander v. State, 611 P.2d 469, 476 n.18 (Alaska
1980) ("It is the larceny element of robbery which makes such a conviction
admissible as impeachment of a witness.").
Accordingly, I would hold the trial court did not err by allowing in
evidence of Broadnax's prior convictions pursuant to 609(a)(2) because
armed robbery is a crime involving dishonesty, and would reverse the
contrary decision of the court of appeals.
PLEICONES, J., concurs.