dissenting:
I respectfully dissent. In my opinion, the denial of the right to impeach State’s witness Burton was not harmless, and this error mandates a new trial. Further, the failure to accord appellant his right to allocution requires, at a minimum, that the case be remanded for resentencing.
The evidence implicating appellant, other than his statements to Burton and Childers, was entirely circumstantial. Although fiber samples from clothes and bedding showed consistencies, the State’s expert admitted that all items manufactured from the same run of material would be consistent. Further, the tests could not identify the blood as either appellant’s or the victim’s, but only as human. The victim’s description of her assailant was so vague and contradictory that the only identifying fact which could be drawn from it was that the perpetrator was male. Finally, as the majority admits, the clothing description given by the victim was merely similar to that worn by appellant.
No witness corroborated or contradicted Burton’s testimony regarding the patently offensive and incriminating jail statement he allegedly overheard. The State’s only other direct evidence was the statements made to inmate Childers. Childers’ credibility, however, was thoroughly impeached by his admissions that he had repeatedly lied to obtain drugs, had numerous fraud convictions, and had spent a lot of time in jail. State v. Gunn, 313 S.C. 124, 437 S.E. (2d) 75 (1993).
While the jury knew that Burton was in jail in January 1990 for violating his probation on a charge of unlawful use of a telephone, his circumstances contrasted sharply with those of Childers. The jury knew, for example, that the unlawful act consisted of “cussing” on the phone, and that the probation violation arose from Burton’s failure to pay a fine. The criminal offense for which Burton was convicted was minimized in the jury’s eyes, and sympathy was generated by his testimony that he was jailed for failing to meet his financial obligation, and thus violating his probation, after breaking his leg and *269losing his job. Unlike inmate Childers, Burton was in no way impeached as a liar, drug user, or career criminal.
Burton’s testimony was the only unimpeached direct evidence of appellant’s guilt, and as such was critical to the State’s case. As noted above, no other witness either corroborated Burton’s statement nor contradicted it. It was not cumulative to other evidence in the record. While Burton was cross-examined, this cross-examination revealed no independent basis of bias on the part of the witness. As noted above, the State’s case was not particularly strong. Applying the Van Arsdall1 factors here, I conclude the erroneous denial of impeachment was not harmless error and would reverse and remand for a new trial.
I also disagree with the majority’s apparent conclusion that the failure to accord a capital defendant the right of allocution is an oversight which must be raised at trial in order to be preserved for appeal. We have consistently remanded for resentencing capital cases in which the trial judge neglected to ask the defendant whether he had anything to say before being sentenced, despite the lack of a contemporaneous objection, and without reliance on the doctrine of in favorem vitae. State v. Jefcoat, 20 S.C. 383 (1884); State v. Trezevant, 20 S.C. 363 (1884); see also State v. Washington, 1 S.C. Law (1 Bay 120) 49 (1791). In Trezevant we indicated that allocution was “indispensably necessary” to imposition of a capital sentence. This error alone requires this case be remanded for resentencing.
For the foregoing reasons, I respectfully dissent.
Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed. (2d) (1986).