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State v. Dunlap

Supreme Court of South Carolina
Apr 7, 2003
353 S.C. 539 (S.C. 2003)

Summary

holding a criminal defendant's opening statement, which created the impression he had no prior connection to the sale of narcotics, opened the door to the introduction of evidence rebutting the contention that the defendant was merely an addict

Summary of this case from State v. Bailey

Opinion

Opinion No. 25616.

Heard March 6, 2003.

Filed April 7, 2003.

Appeal From York County, Henry F. Floyd, Circuit Court Judge.

AFFIRMED AS MODIFIED

Stephen D. Schusterman, of Rock Hill, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Thomas E. Pope, of York, for Respondent.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


We granted certiorari to consider whether the Court of Appeals erred in holding that evidence of petitioner's prior drug convictions were properly admitted at trial. State v. Dunlap, 346 S.C. 312, 550 S.E.2d 889 (Ct.App. 2001). We affirm as modified, finding that Judge Shuler's concurring opinion properly analyzed this case as one involving `door opening' or `invited response.'

FACTS

Petitioner was convicted of distributing crack cocaine in 1999 and received a nineteen-year sentence and was ordered to pay a $100,000 fine. His prior record included the following convictions:

1997: conspiracy to possess crack cocaine with intent to distribute

1994: distribution of an imitation drug

1994: simple possession of marijuana

1991: shoplifting

During petitioner's attorney's opening statement, counsel acknowledged that petitioner "had been in trouble with the law from the time he was fifteen years old," was "a young man addicted to drugs," and "we could convict him right now because he is a young man who was hooked on crack and had a problem with it. He never sold it, but he used it."

ISSUE

Whether petitioner's prior drug convictions were properly admitted?

ANALYSIS

While it is technically accurate that petitioner had never been convicted of distributing crack cocaine, an examination of his record demonstrates that he had attempted, albeit unsuccessfully, to position himself as a drug dealer. The 1994 conviction for distributing an imitation substance came about when petitioner sold a chunk of white chocolate for $800, representing it to be crack cocaine. In 1997, petitioner was convicted of conspiracy to possess crack cocaine with intent to distribute.

The opening statement created the impression that petitioner had no prior connection to the sale of narcotics. In reality, petitioner was not a mere drug user, but an individual who sought to `elevate' his status to that of a drug dealer. That he was unsuccessful in actually selling anyone illegal drugs does not alter the fact that he tried. We therefore agree with Judge Shuler that petitioner's counsel opened the door to the introduction of evidence rebutting the contention that petitioner was merely an addict. Compare Edmond v. State, 341 S.C. 340, 534 S.E.2d 682 (2000) fn. 3 (noting counsel can open door to evidence of post-arrest silence by asserting government never gave defendant opportunity to tell his story); cf. State v. Locklair, 341 S.C. 352, 535 S.E.2d 420 (2000) (statement at pretrial hearing that defendant may offer evidence of mental illness at trial opened door to court-ordered psychiatric exam and to issue of defendant's mental health).

Because we find that counsel opened the door to the admission of petitioner's prior drug record, we need not reach the issue whether these convictions were admissible to impeach petitioner's credibility under Rule 609, SCACR. We take this opportunity, however, to remind the bench and bar that violations of narcotics laws are generally not probative of truthfulness. State v. Aleksey, 343 S.C. 20, 538 S.E.2d 248 (2000) (applying Rule 608, SCRE). This relative lack of probative value should figure prominently in the weighing of prejudice, pursuant to Rule 609(a) (1), when determining whether to permit a criminal defendant's impeachment by such conduct. See Green v. State, 338 S.C. 428, 527 S.E.2d 98 (2000) (factors to be considered in allowing impeachment with prior convictions for crimes not involving dishonesty or falsehood). Further, we agree with Judge Shuler that when the prior offense is similar to the offense for which the defendant is on trial, the danger of unfair prejudice to the defendant from impeachment by that prior offense weighs against its admission. See e.g., State v. Colf, 337 S.C. 622, 628, 525 S.E.2d 246, 249 (2000) (similarity of prior crimes increases prejudice, not probative value).

CONCLUSION

The decision of the Court of Appeals affirming petitioner's appeal is

AFFIRMED AS MODIFIED.

TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.


Summaries of

State v. Dunlap

Supreme Court of South Carolina
Apr 7, 2003
353 S.C. 539 (S.C. 2003)

holding a criminal defendant's opening statement, which created the impression he had no prior connection to the sale of narcotics, opened the door to the introduction of evidence rebutting the contention that the defendant was merely an addict

Summary of this case from State v. Bailey

holding defense counsel's opening statement "opened the door to the introduction of evidence rebutting the contention that [defendant] was merely an addict"

Summary of this case from State v. Page

holding defense counsel's opening statement "opened the door to the introduction of evidence rebutting the contention that [defendant] was merely an addict"

Summary of this case from State v. Rice

In Dunlap, the defendant was charged with distribution of crack cocaine based on the testimony of a witness who claimed to have bought the drugs at issue from the defendant.

Summary of this case from State v. Ostrowski
Case details for

State v. Dunlap

Case Details

Full title:The State, Respondent, v. Laterrance Ramone Dunlap, Petitioner

Court:Supreme Court of South Carolina

Date published: Apr 7, 2003

Citations

353 S.C. 539 (S.C. 2003)
579 S.E.2d 318

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