State v. Chisolm

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED
BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Tyrese R. Chisolm,       
Appellant.

Appeal From Charleston County

Deadra L. Jefferson, Circuit Court Judge

Unpublished Opinion No. 2004-UP-499

Submitted September 15, 2004 – Filed
October 5, 2004

REVERSED AND REMANDED

Assistant Appellate Defender
Aileen P. Clare, of Columbia, for Appellant.

Attorney General Henry Dargan
McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney
General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs,
Jr., all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for
Respondent.

PER CURIAM:  Tyrese R. Chisolm appeals his
second-degree burglary conviction, arguing the trial court erred in refusing
to allow rehabilitative evidence of his alibi witness’ truthful character. 
We reverse and remand for a new trial.
[1]

FACTS

Doug Sweeney and his friend, Jackson Goss, stopped
by Sweeney’s apartment building and were almost to the front door when a man
they did not recognize came out of the doorway with a green bicycle.  The men
exchanged hellos and Sweeney and Goss went inside.  When Sweeney thought to
himself that the man did not look like someone who would be visiting his downstairs
neighbors, he asked his roommate whether the neighbors had a green bicycle. 
She said they did and told him one of her own bicycles had been stolen only
two hours earlier.  Sweeney called 911 and with Goss’ help, provided a description
of the man. 

Sarah Samuel, Sweeney’s neighbor, testified
her green bicycle was taken from the apartment building.  She had left the bicycle
under a stairwell inside the building.  When she returned, the police were there
and she learned of the theft.  

An officer patrolling the area where
the burglary occurred noticed Chisolm, who matched the burglar’s description
and was on a green bicycle.  Chisolm attempted to escape when the officer asked
him to stop, eventually leaving the bicycle and fleeing on foot.  However, the
officer caught up with him.  Chisolm was taken into custody at approximately
4:15, about an hour to an hour and fifteen minutes after Sweeney and Goss first
saw the burglar. 

Chisolm presented an alibi defense. 
He testified he was at the Steinberg Law Firm at the time of the crime, waiting
to see Steven Goldberg regarding a workers’ compensation claim.  He claimed
that after he left the office, he purchased the bicycle and a cell phone from
a man fitting the burglar’s description. 

Critical to Chisolm’s defense was the
testimony of Walter Bilbro, an attorney who had associated members of the Steinberg
firm on Chisolm’s workers’ compensation case.  Bilbro testified he had reminded
Chisolm of his 1:00 p.m. appointment with Goldberg and that at approximately
3:50 p.m. Chisolm called him from the firm to tell him he had been waiting for
Goldberg but Goldberg failed to meet him.  Bilbro testified Chisolm put a receptionist
on the phone at Bilbro’s request and she confirmed that Chisolm had been waiting
and that Goldberg was not in the office.  Other witnesses placed Chisolm
at the firm that afternoon, and testified he waited a considerable time for
Goldberg, but they were not able to confirm precisely when Chisolm was there. 

During Bilbro’s direct testimony, he
admitted the Supreme Court had publicly reprimanded him.  During the State’s
cross-examination, Bilbro revealed he was reprimanded for violating the rule
requiring attorneys to refrain from conduct involving dishonesty, fraud, deceit,
or misrepresentation and for violating the rule that prohibits an attorney from
engaging in conduct tending to bring the legal profession into disrepute.  In
response, the defense asked to submit the testimony of another attorney in the
community who would speak positively regarding Bilbro’s reputation for honesty. 
The court refused to admit the testimony, citing the possibility of several
witnesses for each side on the issue.  The court reasoned the dueling testimony
could distract everyone from the “true purpose” of the trial—Chisolm’s “guilt
or innocence.”  The prosecution and defense stipulated that if allowed,
the defense would have called attorney Stephen Booker, who would have testified
he had dealt with Bilbro on many cases, working both with him and against him;
that he knew his reputation for truthfulness in the community; and that his
reputation in the legal community is that he is truthful. 

DISCUSSION

The admission of evidence is within the
trial court’s sound discretion and will not be reversed on appeal absent an
abuse of that discretion.  An abuse of discretion occurs when the trial court’s
ruling is based on an error of law.  State v. McDonald, 343 S.C. 319,
325, 540 S.E.2d 464, 467 (2000).  Evidence of a witness’ truthful character
is only admissible after the witness’ character for truthfulness “has been attacked
by opinion or reputation evidence or otherwise.”  Rule 608(a)(2), SCRE.  “Impeachment
is not a dispassionate study of the witness’s capacities and character, but
rather is regarded in our tradition as an attack upon his credibility. 
Under our adversary system of trials, the witness’s proponent must be given
an opportunity to meet this attack by evidence rehabilitating the witness.” 
1 McCormick on Evidence § 47 (5th ed. 1999).

Here, the State attacked Bilbro’s character for
truthfulness by inquiring about the details of his public reprimand.  The State’s
examination revealed Bilbro had been reprimanded for violating Rule 407, which
prohibits attorneys from engaging in “dishonesty, fraud, deceit or misrepresentation.” 
The prosecutor had Bilbro read the rule into the record.  The State’s cross-examination
clearly was intended to damage Bilbro’s credibility as a truthful witness. 
Evidence of his truthful character, such as Booker’s testimony, was thereby
rendered admissible under Rule 608(a)(2).  The trial court’s refusal to admit
the proffered evidence was thus governed by an error of law.  Further, because
Bilbro’s testimony was central to Chisolm’s defense, the exclusion of evidence
of his truthful reputation cannot be considered harmless.  See State
v. Bell, 302 S.C. 18, 27, 393 S.E.2d 364, 369 (1990) (holding exclusion
of evidence is reversible only where error and prejudice are shown); State
v. Mitchell, 286 S.C. 572, 573, 336 S.E.2d 150, 151 (1985) (holding whether
an error is harmless depends on the circumstances of the case, but it is harmless
where it could not reasonably have changed the outcome of the trial).

REVERSED AND REMANDED.

STILWELL, BEATTY, and SHORT, JJ., concur.

[1]        This appeal was originally submitted pursuant to Anders
v. California, 386 U.S. 738 (1967).  The court denied counsel’s petition
to be relieved and ordered re-briefing on this issue.  We decide this case
without oral argument pursuant to Rule 215, SCACR.