State v. Harvey

268 S.E.2d 587, 275 S.C. 225, 1980 S.C. LEXIS 425

• Court: Supreme Court of South Carolina
• Decided: July 30, 1980
• Docket: 21280
• Status: Published

Opinions

Ness, Justice:

Appellant Terry Edward Harvey appeals his conviction for distribution of marijuana. We reverse and remand.

The testimony reveals that appellant sold a quantity of marijuana to a police officer at appellant’s home. Appellant relying on the defense of alibi, offered evidence that he was in route from Miami, Florida and did not arrive, in Green-ville, at his home, until the day after the alleged sale.

Appellant asserts that prejudicial error was committed when the solicitor questioned one of his alibi witnesses about the witness’ plea of guilty of simple possession of marijuana in 1977. The trial judge overruled the objection and denied a motion for a mistrial.

Appellant does not contend that the trial evidence was insufficient to sustain his conviction. The sole issue is the propriety of the solicitor’s cross examination of the witness about a prior conviction which did not involve a crime of moral turpitude or dishonesty.

By long established rule a prosecutor may not introduce evidence of a witness’ bad character. Wigmore, Evidence, § 57 (3rd Ed.) ; State v. Lee, 269 S. C. 421, 237 S. E. (2d) 768 (1977). The danger of prejudice outweighs the probative value of the evidence, and the danger of prejudice is at its highest when bad character is shown by evidence of other crimes. The possibility that the similarity between these offenses may have affected the jury’s deliberations and contributed to appellant’s conviction cannot be entirely discounted.

A witness may not be impeached by evidence of specific acts of misconduct, except for crimes involving moral turpitude and not too remote. Taylor v. State, 258 S. C. 369, 376, 188 S. E. (2d) 850 (1972); Gantt v. Columbia Coca-Cola Bottling Company, 204 S. C. 374, 29 S. E. (2d) 488 (1944).

Exhaustive research has revealed no case which declares the offense of simple possession of marijuana to be a crime involving moral turpitude. See 65 A. L. R. (3d) 705. The State asserts harmless error but in view of the similarity between the prior offense and the present charge, the risk of unfair prejudice is especially strong.

We hold that simple possession of marijuana does not constitute a crime of moral turpitude ¹ and that the admission of this evidence was prejudicial. Hatchett v. State, 552 S. W. (2d) 414 (Tenn. 1977). We reverse and remand for a new trial.

Lewis, C. J., and Littlejohn and Gregory, JJ., concur. Walter T. Cox, III, Acting Associate Justice, dissents.

1 “Moral turpitude involves an act of baseness, vileness, or depravity-in the social duties -which a man owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” Miller on Criminal Law (1934) page 24.