State v. Brayboy

736 S.E.2d 679, 401 S.C. 207, 2012 WL 6177896, 2012 S.C. App. LEXIS 367
CourtCourt of Appeals of South Carolina
DecidedDecember 12, 2012
DocketAppellate Case No. 2009-138127; No. 5060
StatusPublished

This text of 736 S.E.2d 679 (State v. Brayboy) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brayboy, 736 S.E.2d 679, 401 S.C. 207, 2012 WL 6177896, 2012 S.C. App. LEXIS 367 (S.C. Ct. App. 2012).

Opinions

SHORT, J.

Larry Bradley Brayboy appeals his convictions of armed robbery, kidnapping, and assault and battery of a high and aggravated nature (ABHAN), arguing the trial court erred in limiting his ability to impeach a witness with evidence of a prior conviction. We affirm.

I. FACTS/PROCEDURAL BACKGROUND

Late in the evening of December 6, 2008, intruders entered the Pizza Hut in Lake City, South Carolina. The men wore stocking caps and dark clothing. One man held a pistol, and another man had a shotgun. The man with the shotgun hit an employee in the head with the gun and ordered him to open the cash register. The man with the pistol hit another employee on the head with the gun. The employees were told to take off their clothes and surrender their wallets, cell phones, and keys. After the intruders could not open the cash register and realized the police were en route, they fled.

Investigator Jerry Gainey of the Lake City police department testified he was at the gas station across the street during the robbery. Two employees, who had been outside smoking when the robbery began, ran to him and told him what was happening. Gainey radioed for backup and circled to the back of the Pizza Hut. Gainey and his fellow officers caught Quennell Brown and Robin Turner, two of the perpetrators. Gainey collected evidence at the scene including a shotgun that was “like a sawed-off ... shotgun.”

Brown and Turner admitted their involvement in the crime, indicated Brayboy was the third participant, and agreed to plead to lesser charges and testify against him. Subsequently, a Florence County grand jury indicted Brayboy for armed robbery, kidnapping, and ABHAN.

Prior to Turner’s testimony, the trial court heard arguments concerning the admissibility of Turner’s prior convictions, especially his prior conviction for possession of a sawed-off shotgun. Brayboy argued the conviction was more probative than prejudicial, and Turner was merely a witness, not a co-[210]*210defendant. The State argued the conviction was highly prejudicial. Specifically, the State maintained its admission would tend to inappropriately imply Turner’s conformity in this case with his prior conviction rather than impeach him. The State agreed to the admission of the conviction itself to be used for impeachment, but it requested the conviction be referred to as a “weapons” conviction.

The trial court opined:
The issue that was the more interesting issue and the more questionable issue that I have is ... that of the conviction for the possession of a sawed-off shotgun. And the reason obviously that [it] is an issue that is of higher concern is because ... that is a very issue in this case. I have absolutely no question that if it [was] a conviction that Mr. Brayboy had and he was facing this dilemma, it wouldn’t be a dilemma. I would not allow you to ask regarding the sawed-off shotgun.
So, whether that protection extends to a witness ... is questionable.... I’m trying to think to ... [its] logical conclusion and ... why do we not want the jury to hear that type of impeaching ... evidence^] And the reason is ... because we expect and we want the jury to base [its] decision solely on the facts that are presented during the course of this trial ... and not on some issue that occurred in a previous conviction.
The purpose of impeachment is simply to determine whether or not someone is believable or not, and it should have nothing to do with [“]they did it once, they must [have] done it again. [”]
And ... I feel that allowing Mr. Turner to be questioned that he has a prior conviction for possession of a sawed-off shotgun, with that being a direct issue involved in this case, is highly prejudicial to a jury in determining ... someone’s credibility.

The court permitted further discussion, and the State argued that State v. Elmore, 368 S.C. 230, 628 S.E.2d 271 (Ct.App. 2006), although not on point because it involved the admissibility of a prior conviction against a defendant, was instructive. In Elmore, this court discussed the heightened prejudicial [211]*211effect of the admission of a similar prior crime against the defendant. Id. at 238-39, 628 S.E.2d at 275. This court noted:

One permissible approach, advocated by the United States Fourth Circuit Court of Appeals, is to allow the prosecutor to ask the witness about the existence of a prior similar conviction under Rule 609(a)(l)[, SCRE] without disclosing to the jury the nature of the prior offense. See United States v. Boyce, 611 F.2d 530, 531 n. 1 (4th Cir.1979). The Boyce approach was approvingly referenced by our supreme court in Green v. State, 338 S.C. 428, 433 n. 5, 527 S.E.2d 98, 101 n. 5 (2000). The Boyce approach still requires a meaningful balancing of the probative value and prejudicial effect before admission of the prior conviction, although the prejudice occasioned by the similarity of the prior crime to the crime charged is removed.
Id. at 239 n. 5, 628 S.E.2d at 276 n. 5.

The State argued the prejudicial nature of a similar prior crime “goes not so much for impeachment, but more so to ... show action and conformity therein.” Brayboy argued “Rule 609 makes a distinction between witnesses and the accused .... The defendant, when he takes the stand, is a different kind of witness____[T]he higher duty to a defendant, which we also see ... in Rule 404(b)[, SCRE,] and Lyle situations^] as well about a prior bad act, is different with a witness____ [T]he duty is higher when it may implicate the due process rights of a defendant.” Brayboy requested that if the trial court “determine[d] that the word sawed-off shotgun should not be used, ... that the [c]ourt consider using the word firearm rather than just weapon.”

After further discussion, the court stated the reference to a sawed-off shotgun would “take[] a jury away from simply [evaluating] the credibility of the witnesses” and ruled the prior conviction could be admitted only as the unlawful possession of a firearm conviction. Turner and Brown testified, implicated Brayboy, and the jury found him guilty as charged. The trial court sentenced Brayboy to concurrent eighteen-year terms of imprisonment for the armed robbery and kidnapping charges and a concurrent ten-year term for the ABHAN charge. This appeal followed.

[212]*212II. LAW/ANALYSIS

Brayboy argues the balancing test between probative value and prejudicial effect found in Rule 609(a), SCRE, only applies when the State seeks to impeach the accused with a prior conviction. Because Turner was not the defendant in this case, Brayboy argues he should have been permitted to specifically question Turner about the shotgun conviction. Brayboy maintains the trial court erroneously relied on cases that apply only to impeach a defendant. Finally, Brayboy submits he was prejudiced because the only evidence linking him to the crime was the testimony of Turner and Brown. We find no reversible error.

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Related

United States v. James Melvin Boyce, A/K/A "Smiley,"
611 F.2d 530 (Fourth Circuit, 1979)
State v. Elmore
628 S.E.2d 271 (Court of Appeals of South Carolina, 2006)
State v. Thompson
575 S.E.2d 77 (Court of Appeals of South Carolina, 2003)
State v. Colf
525 S.E.2d 246 (Supreme Court of South Carolina, 2000)
State v. Anderson
687 S.E.2d 35 (Supreme Court of South Carolina, 2009)
State v. King
561 S.E.2d 640 (Court of Appeals of South Carolina, 2002)
State v. Pagan
631 S.E.2d 262 (Supreme Court of South Carolina, 2006)
Hunter v. Staples
515 S.E.2d 261 (Court of Appeals of South Carolina, 1999)
Green v. State
527 S.E.2d 98 (Supreme Court of South Carolina, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
736 S.E.2d 679, 401 S.C. 207, 2012 WL 6177896, 2012 S.C. App. LEXIS 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brayboy-scctapp-2012.