State v. Dunlap

SHULER, Judge,

concurring in result only:

While I concur in the judgment of the Court, I write separately because I believe the sole reason the trial court did not abuse its discretion in admitting Dunlap’s prior convictions was because he waived any right to complain when his attorney stated in opening argument that he had “never sold” crack cocaine. See State v. Trotter, 317 S.C. 411, 453 S.E.2d 905 (Ct.App.1995), aff'd as modified by State v. Trotter, 322 S.C. 537, 473 S.E.2d 452 (1996) (a trial court commits no error in allowing the State to introduce evidence where the defendant opened the door to its admission). As a defendant cannot complain of error induced by his own conduct, see State v. Brannon, 341 S.C. 271, 533 S.E.2d 345 (Ct.App.2000) (citing State v. Whipple, 324 S.C. 43, 476 S.E.2d 683 (1996)), I would *327find Dunlap’s decision to “open the door” precluded- any showing of prejudice and affirm his conviction.

However, because I disagree with the opinion’s further analysis of this issue on the merits, I am compelled to concur in result only. Dunlap’s criminal history included convictions, obtained when he was a juvenile, for distributing an imitation controlled substance and conspiracy to distribute crack cocaine. Although distributing an imitation drug is a separate, distinctly punishable crime from the distribution of crack cocaine, I do not believe the resulting disparity in any way reduces the potential for prejudice. To the contrary, I would find any dissimilarity between the crimes merely renders the prior conviction less probative. See, e.g., Green, 338 S.C. at 434, 527 S.E.2d at 101 (“Admission of evidence of a similar offense often does little to impeach the credibility of a testifying defendant while undoubtedly prejudicing him.”) (quoting United States v. Beahm, 664 F.2d 414, 418 (4th Cir.1981)). In other words, if the prior crime is indeed a “far cry” from the crime charged herein, it becomes irrelevant and therefore inadmissible to rebut Dunlap’s claim that he- never sold drugs.

Moreover, I believe the apparent similarity between the prior convictions for distributing what appeared to be crack and conspiracy to distribute the actual drug, and the distribution of crack cocaine, the crime for which Dunlap stood trial, served to place the jury in a position where they could “hardly avoid drawing the inference that the past conviction suggest[ed] some probability” that Dunlap committed the later offense. Id. (quoting Beahm, 664 F.2d at 419). Our courts have recognized that the impeachment value of introducing evidence of the same or similar crimes is minimal when compared to the potential for prejudice. See State v. Colf, 337 S.C. 622, 628, 525 S.E.2d 246, 249 (2000) (finding the trial court “erred in treating the prior crimes as if their similarity heightened their probative value when it actually increased their prejudicial effect”); State v. Bryant, 307 S.C. 458, 461, 415 S.E.2d 806, 808 (1992) (noting that where the State offers prior convictions for similar crimes the “prejudice is even more egregious”); State v. Scriven, 339 S.C. 333, 343, 529 S.E.2d 71, 76 (Ct.App.2000) (stating that where prior crimes “are either similar or identical” to the offense with which the *328defendant is charged, “the likelihood of a high degree of prejudice to the accused is inescapable”).

Here, the trial court stated that although there was “some similarity” between Dunlap’s earlier convictions and the crime charged, his prior record had “significant value” for impeachment purposes because “[cjredibility is certainly a central issue in this case.” In my view, this was error.

Without question, Dunlap’s testimony was crucial to his defense, and his credibility was therefore of paramount importance. Certainly, in instances where a prior conviction is probative of truthfulness it should be admitted, as such evidence bears directly on credibility. See Rule 609(a)(2), SCRE (“[E]vidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.”); State v. Colf 332 S.C. 313, 318, 504 S.E.2d 360, 362 (Ct.App.1998), aff'd as modified by State v. Colf, 337 S.C. 622, 525 S.E.2d 246 (2000) (stating courts have affirmed the introduction of prior convictions for “theft-related crimes,” because they “were highly probative where the jury faced a choice between the State’s and the defendant’s opposing versions of the facts”).

Contrary to the trial court, however, I read our supreme court’s opinion in Green as indicating that, in the absence of a prior conviction for a crime of dishonesty, when a defendant’s credibility is key it is the prejudice from the conviction that is heightened, not its probative value. See Green, 338 S.C. at 434, 527 S.E.2d at 101 (affirming finding of the PCR court that counsel was ineffective when he failed to object when the State impeached Green with two convictions for cocaine possession). Accordingly, but for Dunlap’s tactical mistake in “opening the door,” I would otherwise find the trial court erred in balancing the prejudicial nature of Dunlap’s prior convictions with their limited probative value, as drug offenses generally are not considered probative of truthfulness. See State v. Aleksey, 343 S.C. 20, 538 S.E.2d 248 (2000).