B. Evidentiary Considerations

• Library: Drug Litigation in South Carolina (SCBar) (2021 Ed.)

B. EVIDENTIARY CONSIDERATIONS

1. Evidence of the Defendant's Good Character: South Carolina Rule of Evidence 404(a)(1)

"A defendant may introduce evidence of his good character."²³⁸ If a defendant presents evidence of good character and reputation, he is entitled to a jury instruction regarding this evidence if he makes a request for a good character instruction. If the defendant requests the good character charge, the trial judge must instruct the jury that "evidence of good character and good reputation may in and of itself create a doubt as to guilt and should be considered by the jury, along with all the other evidence, in determining guilt or innocence of the defendant."²³⁹ The defendant must request a good character instruction to preserve the issue for appeal.²⁴⁰ "To warrant reversal, the trial court's refusal to give [a good character instruction] must be both erroneous and prejudicial."²⁴¹

In State v. Harrison,²⁴² the defendant was convicted of simple possession of cocaine. At trial, the defendant testified that he was trying to purchase the cocaine but that the transaction was not completed.²⁴³ The defendant also testified he never had possession of the cocaine because it was never under his control. This testimony conflicted with the testimony of the police officer, who testified that he saw the defendant drop the cocaine. In addition, the defendant presented evidence of his community involvement along with testimony of two character witnesses who testified to the defendant's reputation for good character and reputation. The defendant also testified that his conduct on the night of the arrest was not part of his normal lifestyle and that he was remorseful for his behavior.

The trial court refused the defendant's request for a good character instruction. The court of appeals reversed holding the trial court erred in refusing to give the requested instruction. The defendant had presented evidence of his good character and reputation and had requested the good character instruction; thus, the trial court erred in failing to give the requested instruction where the issue of the defendant's good character and reputation was raised by the evidence. Furthermore, the court of appeals held that the error was not harmless. First, the defendant's admission that he attempted to purchase the cocaine could not be considered an admission of guilt because he was indicted for possession of cocaine not attempted possession of cocaine. Second, the disputed testimony of the officer that he saw the defendant drop the drugs did not amount to conclusive proof of guilt. Finally, the jury had multiple questions regarding the law of possession. Therefore, the court of appeals concluded that a different verdict may have been reached if the jury had received the good character instruction because the State did not present overwhelming evidence that the defendant possessed the cocaine and because the State did not try the defendant for attempted possession of cocaine. Thus, the refusal to give the good character instruction was both erroneous and prejudicial.

However, if the defendant presents evidence of his good character, the State may present evidence rebutting the defendant's good character.²⁴⁴ In other words, "the defendant may open the door to what would otherwise be improper evidence."²⁴⁵ Denial of drug use or drug sales can open the door to evidence of prior drug activity or drug convictions.²⁴⁶

2. Prior Bad Acts: South Carolina Rule of Evidence 404(b)

"Generally, evidence of prior crimes or other bad acts to prove the defendant's guilt for the crime charged is not admissible."²⁴⁷ Thus, "evidence of other crimes or prior bad acts is inadmissible to show criminal propensity or to demonstrate the accused is a bad individual."²⁴⁸ However, South Carolina Rule of Evidence 404(b) provides an exception to the rule by adopting the State v. Lyle²⁴⁹ exceptions. These exceptions provide for the admission of prior bad acts evidence for the purpose of showing motive, identity of the person charged with the present crime, the existence of a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the proof of the other, the absence of mistake or accident, or intent.²⁵⁰

In order to introduce evidence of prior drug activity the State must establish "a logical connection between the other criminal acts and the crime charged."²⁵¹ In making the determination of whether evidence of prior bad acts is admissible, the trial court must gauge its logical relevancy to the particular purpose for which it is sought to be introduced. If the prior bad act is "logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime."²⁵²

In order to be admitted, the probative value of the prior bad acts must substantially outweigh their prejudicial effect.²⁵³ Furthermore, unless the prior bad acts were the subject of a conviction or indictment, the prior bad acts must be established by clear and convincing evidence.²⁵⁴ "Clear and convincing evidence is that degree of proof which will produce in the mind of the trier of facts a firm belief as to the allegations sought to be established."²⁵⁵ A finding that prior drug activity was proved by clear and convincing evidence will be reviewed for errors of law only and, thus, will be overturned only if the finding was clearly erroneous.²⁵⁶ "If there is any evidence to support the admission of the bad act evidence, the trial judge's ruling will not be disturbed on appeal."²⁵⁷

Unfair prejudice can be found where the 404(b) evidence was too remote in time. However, remoteness in time is not dispositive,²⁵⁸ and no set time limit exists "beyond which a prior bad act is simply, per se, too remote."²⁵⁹

In State v. Jones,²⁶⁰ the S.C. Supreme Court held that while "evidence that police began an investigation because of reports of criminal activity is admissible. . . , identification of an individual as the suspect of a criminal investigation, based upon speculation and effectively calling into question that individual's character is not."²⁶¹ However, what Jones prohibits "is not evidence that a defendant was once considered a suspect in the particular criminal investigation which led to the defendant's arrest, but evidence a defendant was made a suspect due to generalized reports of his character or past conduct."²⁶² Thus, "[t]estimony regarding personal knowledge of a particular criminal transaction is not character evidence and therefore not inadmissible under Rule 404."²⁶³

If such evidence is admitted at trial, the trial judge must give the jury an instruction limiting their consideration of the evidence to the particular purpose for which it is offered.²⁶⁴ Whether Lyle evidence was properly admitted is subject to a harmless error standard of review.²⁶⁵

a. Common Scheme or Plan

"Evidence of prior bad acts is admissible when it tends to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others."²⁶⁶ A common scheme or plan involves more than the commission of two similar crimes; some connection between the two is necessary. For common scheme or plan purposes, the prior bad acts and the crime charged must have a close degree of similarity or connection.²⁶⁷ Where the evidence of the bad acts is so similar to the charged offense that the previous act enhances the probative value of the evidence so as to outweigh its prejudicial effect, it is admissible.²⁶⁸

South Carolina appellate courts have addressed when prior drug activity may be admitted against a defendant as evidence of a common scheme or plan. In State v. Humphries,²⁶⁹ the defendants were convicted of trafficking in marijuana. Law enforcement received information from a confidential informant that the defendants would be receiving a package from California containing marijuana. Law enforcement intercepted the package, confirmed the package contained approximately 40 pounds of marijuana, and made a controlled delivery to the defendants. Law enforcement then executed a search warrant, seizing the unopened package, files, ledgers, and $4,500 in cash. The defendants' employee testified at trial that the defendants had previously instructed him not to open packages similar to the one from California. The employee also testified that a similar package arrived at his home after the defendants were arrested, that he knew the package was for one of the defendants, that he opened the package and found that it contained marijuana, that he called the defendant to come and pick it up, and that the defendant did indeed retrieve the package from the employee's home. The defendants challenged the admissibility of all evidence of the post-arrest delivery as improper character evidence. The trial court admitted the post-arrest delivery evidence as a common scheme or plan. The court of appeals affirmed²⁷⁰ holding that, while the trial court erred in admitting the subsequent delivery evidence because at most the evidence suggested a new scheme to traffic in drugs that was not sufficiently connected to the earlier scheme to qualify as a common scheme, the error was harmless because other undisputed evidence proved the defendants' guilt. The S.C. Supreme Court reversed²⁷¹ holding that the admission of evidence of the post-arrest delivery was not harmless. The S.C. Supreme Court held that, while the State's evidence constituted some evidence of guilt, the employee's testimony regarding the subsequent delivery was highly significant because it was the only direct evidence of the defendant's intent to deal in marijuana.

In State v. Raffaldt,²⁷² the defendant was charged with conspiracy to traffic in cocaine. A co-defendant testified that in 1991, he brought a quantity of cocaine from New York to a...