THE STATE
OF SOUTH CAROLINA
In The Court of Appeals
________
Timothy L. Hunter, Respondent,
v.
Julie A. Staples and South Carolina Department of Education,
of Whom South Carolina Department of Education is, Appellant.
________
Appeal From Charleston
County
L. Henry McKellar, Circuit Court Judge
________
Opinion No. 2961
Heard October 8, 1998 - Filed March
15, 1999
________
AFFIRMED
________
Eugene P. Corrigan, III, of Grimball & Cabaniss, of Charleston, for appellant.
Forrest C. Wilkerson, Jr., of N. Charleston, for respondent.
________
CONNOR, J.: South Carolina Department of Education appeals an evidentiary ruling of the trial court. The Department also appeals the denial of its motions for judgment notwithstanding the verdict, new trial, and remittitur. We affirm.
FACTS
Timothy L. Hunter was involved in an
accident with a school bus driven by Julie A. Staples.(1)
The accident occurred when Hunter's pickup truck collided with the school bus
when it hydroplaned into the intersection rather than stopping. Although Hunter
attempted to avoid the collision, he could not stop in time. Immediately after
the accident, he was transported to the hospital and released the same day. The
next day, he experienced pain in his neck, back, leg, and finger. A week later,
he sought medical treatment for these injuries. This treatment continued for several
months. He was released to return to work approximately six months after the accident.
Hunter thereafter sued Staples and her employer, South Carolina Department of
Education, to recover damages from the accident.
At trial, the Department moved in
limine to impeach Hunter with his prior convictions. The court denied the
motion. The jury returned a verdict in favor of Hunter for $86,627.61, finding
him 5% negligent and Staples 95% negligent. Subsequently, the Department moved
for a new trial on the ground the judge erred in excluding evidence of Hunter's
criminal record. The Department also requested judgment notwithstanding the
verdict or, in the alternative, a new trial or remittitur based on the failure
of proof of damages. The court denied these motions as well. The Department
appeals. DISCUSSION
I. Impeachment
The Department argues the trial court
erred in refusing to allow admission of Hunter's criminal convictions. It contends
Hunter's recovery depended on his credibility. It submits Rules 608, 609, and
613, SCRE, constitute authority under which the convictions could have been admitted.(2)
A. Rule 608: Evidence
of Character, Conduct and Bias of Witness
Rule 608, SCRE, is almost identical
to the Federal Rule. Although the Department did not specify, we assume it relies
on subsection (b) in making its argument. That section reads, in relevant part:
Specific instances of the conduct
of a witness, for the purpose of attacking or supporting the witness' credibility,
other than conviction of crime as provided in Rule 609, may
not be proved by extrinsic evidence. They may, however, in the discretion of
the court, if probative of truthfulness or untruthfulness, be inquired into
on cross-examination of the witness (1) concerning the witness' character for
truthfulness or untruthfulness, or (2) concerning the character for truthfulness
or untruthfulness of another witness as to which character the witness being
cross-examined has testified. (Emphasis added.)
The Department's reliance on Hunter's
previous convictions as a basis for impeachment is misplaced. Under the
language emphasized above, the use of a conviction is specifically excluded
from the purview of Rule 608. See United States v. Parker, 133
F.3d 322 (5th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 1851 (1998)
(prior bad acts that have not resulted in a conviction may be admissible
under Fed. R. Evid. 608(b)); United States v. Sotelo, 97 F.3d 782 (5th
Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 620 (1996), and cert.
denied, ___ U.S. ___, 117 S. Ct. 1002, and cert. denied, ___ U.S.
___, 117 S. Ct. 1324 (1997)(Rule 608(b) provides for impeachment on cross-examination
with acts other than convictions); United States v. Smith, 80 F.3d 1188,
1193 (7th Cir. 1996)("the plain language of [Rule 608(b)] allows for cross-examination
of matters 'other than conviction of crime' "). See also United States
v. Turner, 104 F.3d 217 (8th Cir. 1997)(when defendant was not convicted
of the crime sought to be introduced, it was only admissible if probative of
his truthfulness under Rule 608(b)). The Department cannot seek to have Hunter's
convictions admitted under Rule 608(b).
B. Rule 613: Prior Statements
of Witnesses
The Department maintains Hunter testified
during his deposition that he only had three or four convictions on his record,
when in fact he had eleven. The Department wanted to use Hunter's deposition
statements to impeach his credibility by showing he had made a prior inconsistent
statement.
Rule 613, SCRE, does not provide
for the admission of prior statements, but rather sets forth the conditions
under which such statements may be admitted. South Carolina has, however, always
followed the traditional rule that inconsistent statements are admissible to
impeach a witness' credibility. See State v. Copeland, 278 S.C.
572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S. 1103, and cert.
denied, 463 U.S. 1214 (1983).
To have an inconsistent statement,
there must be a statement with which to compare it. The record before us contains
only the Department's allegation that Hunter testified in his deposition he
only had three or four convictions, when in fact he had eleven. However, there
is no subsequent trial statement by Hunter that contradicts his deposition testimony.
At trial, the Department did not proffer the deposition testimony, nor Hunter's
trial testimony contradicting his deposition testimony. Moreover, the Department
neglected to include the relevant deposition excerpts in the record it provided
us. Therefore, this argument is not preserved for our review. See D.W.
Flowe & Sons, Inc. v. Christopher Constr. Co., 326 S.C. 17, 482 S.E.2d
558 (1997); Rule 103(a)(2), SCRE.
C. Rule 609: Prior Convictions
The Department next alleges the court
erred in refusing to allow Hunter to be cross-examined concerning his prior convictions
under Rule 609. The Department wanted to question Hunter about his August 1987
burglary conviction and two criminal domestic violence convictions from 1993.(3)
The trial judge refused to admit both the burglary conviction and the domestic
violence convictions. He refused to allow the admission of the domestic violence
convictions because they did not carry a sentence of at least one year imprisonment.
He appeared to base his decision to exclude the burglary conviction on Rule 403,
SCRE analysis as applied through Rule 609(a)(1). He also held the conviction lacked
relevance.
Rule 609 provides in pertinent part:
(a) General Rule. For the purpose
of attacking the credibility of a witness,
(1) evidence that a witness other
than an accused has been convicted of a crime shall be admitted, subject to
Rule 403, if the crime was punishable by death or imprisonment in excess of
one year under the law under which the witness was convicted, and evidence that
an accused has been convicted of such a crime shall be admitted if the court
determines that the probative value of admitting this evidence outweighs its
prejudicial effect to the accused; and
(2) evidence that any witness has
been convicted of a crime shall be admitted if it involved dishonesty or false
statement, regardless of the punishment.
. . .
(b) Time Limit. Evidence of a conviction
under this rule is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the court determines,
in the interests of justice, that the probative value of the conviction supported
by specific facts and circumstances substantially outweighs its prejudicial
effect.
To determine if the trial court erred
in excluding Hunter's convictions under Rule 609(a), we must first decide under
which subsection the conviction falls. See United States v. Seamster,
568 F.2d 188 (10th Cir. 1978)(when determining admissibility under Rule 609,
the trial court must first determine whether the prior conviction was a general
felony or involved dishonesty and false statements). The domestic violence convictions,
however reprehensible, do not establish Hunter was deceitful or untruthful.
Accordingly, these convictions would not be admissible under Rule 609(a)(2).
They would also be excluded from the operation of Rule 609(a)(1) because they
are not punishable by imprisonment in excess of one year. This leaves only the
burglary conviction.
On three occasions the judge specifically
stated he weighed competing considerations concerning probative value and prejudice.
First, after the Department's motion in limine, he said, "I'm going
to exclude his criminal record . . . I think the prejudicial effect outweighs
any probative value in this case."
Additionally, at the motions hearing
at the conclusion of the testimony, the judge stated:
Both of those rules and the rules
of evidence dealing with the criminal records-one of them talks about a witness
that says subject to Rule 403. Then they talk about the accused. It says subject
to probative value outweighing prejudicial effect. That's basically my ruling.
That really didn't have anything to do with this case.
Moreover, when the Department made
a motion for judgment notwithstanding the verdict, the judge ruled:
Okay. I excluded the evidence of
his criminal record because both of-that rule says one of them is subject to
Rule 403. Probative value outweighs prejudicial effect and that applies both
to parties and witnesses. That's why I excluded it. I didn't think it had any
relevance in this case.
The trial judge's continued reference
to Rule 403 indicates he relied on Rule 609(a)(1) in making his decision. Despite
this ruling, it is questionable whether the Department has preserved an argument
for appeal under this subsection. On appeal, the Department does not mention
Rule 609(a)(1) or the Rule 403 balancing test in its initial brief. Although
it references the terms "probative value" versus "prejudicial impact," these
terms appear within the context of its argument under Rules 608 and 613, but
not Rule 609. The Department specifically argues error under Rule 609(a)(1)
only in its reply brief.
Even if properly preserved, we find
no error in the trial judge's decision to exclude Hunter's burglary conviction.
Under Rule 609(a)(1), evidence that a witness, to include a party in a civil
trial, has been convicted of a crime shall be admitted subject to Rule 403.
Rule 403 provides that, although relevant, evidence may be excluded if "its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consideration of undue
delay, waste of time, or needless presentation of cumulative evidence." Rule
609(a)(1) gives broad discretion to the trial judge and his or her ruling should
not be disturbed absent an abuse of discretion. United States v. Morrow,
977 F.2d 222 (6th Cir. 1992), cert. denied, 508 U.S. 975 (1993);
Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence
§ 403.02[2][d](Joseph M. McLaughlin ed., 2d ed. 1998)(The appellate court will
uphold a trial court's application of Rule 403 unless it finds the trial court
has committed an abuse of discretion.).
As indicated by the excerpts of the
record, the judge specifically stated he excluded the burglary conviction because
the prejudicial effect of the conviction outweighed its probative value. Moreover,
he found the conviction was not relevant to the case. Although he did not specifically
enunciate the factors involved in reaching his ultimate decision, it is evident
the judge considered Rule 609(a)(1) in conjunction with the Rule 403 balancing
analysis. He did not abuse his discretion in excluding Hunter's burglary conviction.
Even though we may have reached a different result, this alone is not sufficient
to reverse the trial judge's decision. See United States v. Green,
887 F.2d 25, 27 (1st Cir. 1989)(A trial judge's decision regarding the comparative
probative value and prejudicial effect of evidence should be reversed only in
"exceptional circumstances."); United States v. Long, 574 F.2d 761 (3rd
Cir.), cert. denied, 439 U.S. 985 (1978)(A trial judge's balancing decision
under Rule 403 should not be reversed simply because an appellate court believes
it would have decided the matter otherwise because of a differing view of the
highly subjective factors of the probative value or the prejudice presented
by the evidence.); Id. at 767("If judicial self-restraint is ever desirable,
it is when a Rule 403 analysis of a trial court is reviewed by an appellate
tribunal.").
The Department failed to preserve
an argument for appeal under Rule 609(a)(2). At trial, it never mentioned Rule
609(a)(2), which mandates the admission of crimes involving dishonesty or false
statements. In fact, in response to the trial judge's question, "What kind of
recent convictions or crimes involving dishonesty do you have?" the Department
responded, "They don't have to be crimes involving dishonesty to use them."
This is the only instance the word dishonesty was mentioned in the record on
appeal. See Creech v. South Carolina Wildlife & Marine Resources
Dep't, 328 S.C. 24, 491 S.E.2d 571 (1997)(It is axiomatic that an issue
cannot be raised for the first time on appeal, but must have been raised to
and ruled upon by the trial judge to be preserved for appellate review.). Furthermore,
the Department did not argue error under Rule 609(a)(2) in its initial brief.
Therefore, it was precluded from asserting this argument for the first time
in its reply brief. See Continental Ins. Co. v. Shives, 328 S.C.
470, 492 S.E.2d 808 (Ct. App. 1997)(An appellant may not use the reply brief
to argue issues not argued in the initial brief.).
Even if the issue of dishonesty under
Rule 609(a)(2) had been argued to the trial court and in the Department's initial
brief, the argument would fail. In order to preserve the issue the Department
should have submitted the burglary indictment to the judge so that he could
rule on the dishonesty question. Cf. State v. Bailey, 275 S.C.
444, 272 S.E.2d 439 (1980)(pre-Rules of Evidence case)(whether assault and battery
of a high and aggravated nature is a crime of moral turpitude depends upon the
facts of the case; party seeking to impeach witness using prior ABHAN conviction
must produce the indictment for the trial judge's review). There was no way
for the judge, nor is there a means for us, to determine the nature of the burglary
without this information. See Crestwood Golf Club, Inc. v. Potter,
328 S.C. 201, 493 S.E.2d 826 (1997)(appellant has the burden of presenting a
sufficient record for appellate review); Greenville Memorial Auditorium v.
Martin, 301 S.C. 242, 391 S.E.2d 546 (1990)(failure to make proffer of excluded
evidence precludes review on appeal).
Rule 609(b) sets a time limit for
the use of prior convictions for impeachment purposes. Subject to the probative/prejudicial
test set forth in Rule 609(a), convictions less than ten years old are presumed
admissible for impeachment purposes. Cf. State v. Colf, 332 S.C.
313, 504 S.E.2d 360 (Ct. App. 1998), petition for cert. filed (convictions
over ten years old are presumptively inadmissible). See Jack B. Weinstein
& Margaret A. Berger, Weinstein's Federal Evidence § 609.07 (Joseph
M. McLaughlin ed., 2d ed. 1998).
The trial judge in this case did
not exclude Hunter's burglary conviction as "too remote" under Rule 609(b).
Nowhere does the judge say he is ruling under Rule 609(b), which does not refer
to Rule 403. At the very beginning of the trial the judge did say he was excluding
the burglary conviction because it was over ten years old and, therefore, was
too remote. The Department's lawyer pointed out the conviction was not quite
ten years old. Thereafter, the judge did not mention remoteness again. Furthermore,
Rule 609(b) requires a ruling under this section to be "supported by specific
facts and circumstances." The Department argued no specific facts, and the judge
made no specific finding.
II. Post-Trial
Motions
The Department also argues the trial
judge improperly denied its post-trial motions. After the jury returned a verdict
of $86,627.61,(4) the Department moved for judgment
notwithstanding the verdict, a new trial nisi remittitur, or, alternatively,
a new trial absolute on the ground the evidence did not support the amount of
the verdict, specifically Hunter's claim for lost wages.(5)
The trial judge denied each of these motions.
In ruling on a motion for judgment
notwithstanding the verdict, the trial court must view the evidence and its
inferences in the light most favorable to the nonmoving party. Shupe v. Settle,
315 S.C. 510, 515, 445 S.E.2d 651, 654 (Ct. App. 1994). The court must deny
the motion if either the evidence yields more than one reasonable inference
or its inferences are in doubt. Id. The verdict will be upheld if there
is any evidence to sustain the factual findings implicit in the jury's verdict.
Id.
In terms of actual damages, Hunter
presented evidence of approximately $7,000 in medical bills. Hunter testified
at the time of the accident, September 17, 1993, he was employed as an iron
worker earning $8.20 per hour. In March of 1994, Hunter was released from medical
treatment. However, one of Hunter's treating chiropractors, Jerry Fox, believed
Hunter would still have future problems associated with his injuries. After
Hunter was released from medical treatment, he looked for work in his field
and for other alternatives because he was still in pain. During this time, he
received approximately $126 per week in unemployment compensation. Hunter testified
he could not find suitable employment until January of 1995. On cross-examination,
Hunter acknowledged he did not have any records concerning his loss of income.
Initially, we note the Department
did not request a special verdict form; therefore, we cannot determine how the
jury reached its verdict with respect to Hunter's lost wages. In any event,
we find the trial judge properly denied the Department's JNOV motion. There
was sufficient evidence for the jury to find Hunter lost wages because of the
injuries sustained in the accident.
A motion for new trial nisi remittitur
asks the trial court in its discretion to reduce the verdict because it is "merely
excessive," although not motivated by considerations such as passion, caprice
or prejudice. O'Neal v. Bowles, 314 S.C. 525, 431 S.E.2d 555 (1993).
If the amount of the verdict is grossly excessive so as to be the result of
passion, caprice, prejudice or some other influence outside the evidence, the
trial judge must grant a new trial absolute, not a new trial nisi remittitur.
Id. However, the jury's determination of damages is entitled to substantial
deference. Rush v. Blanchard, 310 S.C. 375, 426 S.E.2d 802 (1993). The
denial of new trial motions is within the discretion of the trial court, and
absent an abuse of discretion, it will not be reversed on appeal. Cock-N-Bull
Steak House, Inc. v. Generali Ins. Co., 321 S.C. 1, 466 S.E.2d 727 (1996).
The record supports the trial judge's denial of the Department's motions for
a new trial nisi remittitur and a new trial absolute. There was no
abuse of discretion.
Accordingly, the decision of the
circuit court is
AFFIRMED.
CURETON and STILWELL, JJ.,
concur.
1. Staples is
not a party to this appeal.
2. In the record
before us, neither the lawyers nor the judge mentioned specific rule numbers
or subsections in their discussions. Therefore, we can only tell which rule
was argued by the language used.
3. Although the
Department refers in general to Hunter's prior convictions, the record on appeal
reveals only the burglary and domestic violence convictions were discussed at
trial. Moreover, the Department did not include a list of Hunter's prior convictions
as part of the record on appeal.
4. A judgment of $82,296.23 was entered based on the jury's assignment of 5% negligence to Hunter.
5. The Department also moved for a new trial on the ground the judge erred in excluding evidence of Hunter's criminal record. As previously discussed, we find no error in the judge's exclusion of this evidence.