Feb 28, 2012 | Criminal Defense, Homicide Defense, Uncategorized
This case involved a horrific, gruesome death involving dangerous dogs and a 10 year old child. Autopsy photographs were described by the forensic pathologist as the worst he had ever encountered. Such graphic evidence can easily upset a jury to the point where the criminal defendant charged cannot get a fair trial. As the court outlined in this opinion, each photograph or piece of evidence must be carefully analyzed to determine whether its probative value is sufficient to overcome the danger of unfair prejudice and warrant introduction into the record. Such analysis is always fact specific to each case but can make the difference between being found guilty and being acquitted. Better make sure your criminal defense attorney understands these critical arguments and is willing to fight for you in court.
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THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Bentley Collins, Appellant.
Appeal From Dillon County
Paul M. Burch, Circuit Court Judge
Opinion No. 4941
Heard November 2, 2011 – Filed February 15, 2012
REVERSED AND REMANDED
Senior Appellate Defender Joseph L. Savitz, III, and Appellate Defender Susan Hackett, both of Columbia, for Appellant.
Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot, Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor William B. Rogers, Jr., of Bennettsville, for Respondent.
FEW, C.J.: Bentley Collins was convicted of involuntary manslaughter and three counts of owning a dangerous animal after his dogs killed a ten-year-old boy. Collins appeals the convictions claiming the trial court erred by (1) admitting seven autopsy photographs of the boy’s partially eaten body and (2) denying his directed verdict motions as to both crimes. Because we find the trial court abused its discretion in admitting the photos, we reverse and remand for a new trial.
I. Facts
At around 7:00 p.m. on November 3, 2006, the boy’s mother returned from a trip to find her son had not come home for dinner. After looking for him at neighbors’ houses, she called the sheriff’s department. The responding officers searched the neighborhood with her. They found the boy’s body in Collins’ yard surrounded by at least three dogs.[1] The boy’s mother later testified “he was torn to pieces. Pieces.”
Collins was indicted for involuntary manslaughter and three counts of owning a dangerous animal under the Regulation of Dangerous Animals Act. S.C. Code Ann. §§ 47-3-710 to -770 (Supp. 2011). After a jury convicted him of all charges, the trial court sentenced him to five years in prison, followed by five years of probation.[2]
II. Admissibility of the Photographs
The State offered into evidence ten photos of the boy’s body. The photos were taken by a forensic pathologist before he performed an autopsy. Collins objected to the admission of the photos under Rule 403, SCRE, arguing that the danger of unfair prejudice substantially outweighed their probative value. After a hearing outside of the jury’s presence, the trial court admitted seven of the photos.
A. Standard of Review
“The admission of evidence is within the circuit court’s discretion and will not be reversed on appeal absent an abuse of thatdiscretion.” State v. Dickerson, 395 S.C. 101, 116, 716 S.E.2d 895, 903 (2011). A trial court has particularly wide discretion in ruling on Rule 403 objections. See State v. Adams, 354 S.C. 361, 378, 580 S.E.2d 785, 794 (Ct. App. 2003) (“A trial judge’s decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances. We . . . are obligated to give great deference to the trial court’s judgment [regarding Rule 403].” (internal citation omitted)). We nevertheless hold that in this case the trial court abused its discretion.
B. Probative Value
Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” “Probative” means “[t]ending to prove or disprove.” Black’s Law Dictionary 1323 (9th ed. 2009). Probative value is the measure of the importance of that tendency to the outcome of a case. It is the weight that a piece of relevant evidence will carry in helping the trier of fact decide the issues. “[T]he more essential the evidence, the greater its probative value.” United States v. Stout, 509 F.3d 796, 804 (6th Cir. 2007) (internal quotation marks omitted). Thus, a court analyzing probative value considers the importance of the evidence and the significance of the issues to which the evidence relates. As our supreme court stated in State v. Torres, 390 S.C. 618, 703 S.E.2d 226 (2010), “[p]hotographs calculated to arouse the sympathy or prejudice of the jury should be excluded if they are . . . not necessary to substantiate material facts or conditions.” 390 S.C. at 623, 703 S.E.2d at 228 (emphasis added). The evaluation of probative value cannot be made in the abstract, but should be made in the practical context of the issues at stake in the trial of each case. See State v. Lyles, 379 S.C. 328, 338, 665 S.E.2d 201, 206 (Ct. App. 2008) (“When [balancing the danger of unfair prejudice] against the probative value, the determination must be based on the entire record and will turn on the facts of each case.” (citing State v. Gillian, 373 S.C. 601, 609, 646 S.E.2d 872, 876 (2007))).
Understanding the practical context of the trial of this case begins with the elements of the crimes charged. A person is guilty of owning a dangerous animal when the State proves (1) he owned or had custody or control of an animal; (2) he knew or reasonably should have known the animal had a propensity, tendency, or disposition to attack unprovoked, cause injury, or otherwise endanger the safety of human beings; (3) the animal made an unprovoked attack; (4) the attack caused bodily injury to a human being; and (5) the attack occurred while the animal was unconfined on the owner’s premises. S.C. Code Ann. §§ 47-3-710(A)(1)-(2)(a), (D); -720; -760(B) (Supp. 2011).
To convict a defendant of involuntary manslaughter, the State must prove one of the following: “(1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.” State v. Crosby, 355 S.C. 47, 51-52, 584 S.E.2d 110, 112 (2003).
On the dangerous animal charges in this case, the trial focused almost exclusively on issues relating to the second and third elements. Importantly, the fourth element—that the dogs’ attack caused bodily injury to a human being—was never in dispute. In the hearing regarding admissibility of the photos, the State argued they would be important for the testimony of both the pathologist and the dog behavior expert. The State then explained how the photos were important, arguing only that they were probative of the third element. The State did not argue the photos were probative of any other element of the dangerous animal charges or any element of involuntary manslaughter.
The State thus argued the probative value of the photos was primarily to establish that the dogs’ attack on the boy was unprovoked. The State’s theory on this point was that Collins underfed the dogs, and because the dogs were hungry, they became aggressive and attacked the boy for food. On appeal, the State makes two specific arguments as to how the photos support its theory: the pathologist needed the photos to explain that the dogs ate the boy, and the photos corroborate the testimony of its dog behavior expert.
As to the State’s first argument, the photos do show that the dogs ate a significant portion of the boy’s flesh. Prior to the introduction of the photos, however, the State presented convincing testimony to prove the same thing. The pathologist testified:
There were extensive traumatic injuries consisting of loss of skin and soft tissue in a tearing fashion about the face, the ears, the eyes, the neck, the chest. There was loss of skin and soft tissue with exposure of the bones of both shoulders. Essentially, the humeral bone in the upper arm, both right and left, was exposed from the shoulder to the elbow.
The State also put the autopsy report into evidence prior to the photos. The pathologist testified to the contents of the report as follows:
I described it as extensive traumatic injury, loss of skin to the face to include the nose, the ears and all soft tissues around the lips with exposure of the mandible, which is the lower jaw, teeth, and the underlying bony part of the skull. . . . The ears and nose were completely eaten away.
The State asked the pathologist what led him to conclude the ears and nose were “eaten away.” He responded: “There was a virtual complete absence of the ear structures on the right side and just remnants, shredded remnants of skin and what were probably portions of the ear on the left. They were essentially gone.” Finally, the pathologist said he normally does not take photos of an autopsy, but did so in this case because “[t]his autopsy showed tremendous traumatic injury to this young man. This degree of injury was [as] significant [a] traumatic injury as I’ve seen. I’ve never seen an attack by animals of this type . . . .” Thus, before the photos were admitted, the pathologist’s testimony conclusively established that the dogs ate the boy. The photos add very little to the jury’s ability to understand the pathologist’s testimony on this point.
The State’s second argument relates to its dog behavior expert, who testified the dogs attacked the boy out of hunger, not provocation. The expert used photographs of the dogs to describe physical features that showed they were malnourished. The officers who responded to the scene testified there were no visible food bowls for the dogs. Based on this evidence, the dog behavior expert gave an opinion that the dogs attacked the boy because they were hungry.[3]
The State argues the photos corroborate the dog behavior expert’s testimony and thus tend to prove the attack was unprovoked. However, the photos relate to the expert’s opinion only to the extent they show the same fact testified to by the pathologist, that the dogs ate the boy. As discussed above, the photos add little to the pathologist’s testimony. Moreover, the expert hardly mentioned the photos of the boy. The assistant solicitor asked this expert only one question regarding the photos: “Could you tell the jury what you found significant in reviewing those particular photos . . . as it relates to the level of aggression with the dogs[?]” The witness’s response to the question did not relate the photos to his opinion or to how he arrived at it. Rather, the response highlights the unfair prejudice in the photos.
Based on – in ten years going back on reports that I’ve noted on dog bites and dog attacks and deaths caused by dogs this is the worst case I’ve ever seen. I worked for the sheriff’s office for over a decade, and I have never seen something so gruesome.
The photos add little to the jury’s ability to understand the dog behavior expert’s testimony.
Finally, we address the trial court’s statement that the photos are probative of the cause of the boy’s death. In explaining his ruling to admit the photos, the trial court stated “we’ve got to keep in mind . . . involuntary manslaughter, which involves cause of death.” We find the photos add very little to the pathologist’s ability to explain or the jury’s ability to understand the cause of death. The pathologist testified the boy “died as a result of extensive traumatic injury secondary to being mauled by dogs.” In particular, the pathologist testified the dogs “lacerated, basically transected the jugular vein on the left side.” When the pathologist discussed the photos, however, he had already completed his explanation of the cause of death. The only mention the pathologist made of the cause of death during his discussion of the photos was his description of one of the photos as “an enlarged view showing the degree of injury to the left neck of this young man.” As to that photo, he stated that the torn jugular vein was “very hard to see in this picture.” Other than to discount the importance of the photos with this statement, the pathologist did not use any of them to explain the cause of death.
We agree that the photos have some probative value in helping the jury understand each of the three points argued by the State: (1) the pathologist’s testimony that the dogs ate the boy, (2) the dog behavior expert’s opinion that the dogs’ attack on the boy was unprovoked, and (3) the pathologist’s testimony that the dogs’ attack in general and the torn jugular vein in particular caused the boy’s death. However, the photos add little to the testimony of the witnesses on these three points. Referring to the supreme court’s statement in Torres that “[p]hotographs calculated to arouse the sympathy or prejudice of the jury should be excluded if they are . . . not necessary to substantiate material facts,” the photos in this case are hardly “necessary.” 390 S.C. at 623, 703 S.E.2d at 228.
More importantly, the issues the State argues the photos relate to are hardly “material.” The three points argued by the State relate to the conduct of the dogs. As to the elements of the crimes, the focus of the trial should have been on Collins’ conduct and whetherhis conduct was criminal in nature. The conduct of the dogs is important, but only to the extent the dogs’ conduct shows Collins’ conduct. The photos are far removed from Collins’ conduct, and even farther removed from whether Collins’ conduct was criminal. The photos show the boy’s body after the dogs attacked and killed him. The condition of the boy’s body circumstantially shows the conduct of the dogs on the day of the attack—they ate the boy. From the conduct of eating the boy, the State argues the jury should infer the dogs were hungry, from which in turn the State argues the jury should infer that Collins starved them. At this point in the chain of inferences that the State asks the jury to draw from these photos, Collins has not violated the Dangerous Animals Act. At least two more steps are required. From the fact that he starved the dogs, the State argues Collins must have done so knowingly, and from this he reasonably should have known the dogs “had a propensity, tendency, or disposition to make an unprovoked attack” on a child to get food. In the practical context of the issues at stake in the trial of this case, these photos are of little significance.
For these reasons, we find the probative value of the photos is minimal.
C. The Danger of Unfair Prejudice
The probative value of the photos must be balanced against “the danger of unfair prejudice.” Prejudice that is “unfair” is distinguished from the legitimate impact all evidence has on the outcome of a case. “‘Unfair prejudice does not mean the damage to a defendant’s case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.'” State v. Gilchrist, 329 S.C. 621, 630, 496 S.E.2d 424, 429 (Ct. App. 1998) (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993)). “All evidence is meant to be prejudicial; it is only unfair prejudice which must be [scrutinized under Rule 403].” Id. (quoting United States v. Rodriguez–Estrada, 877 F.2d 153, 156 (1st Cir. 1989)); see also United States v. Mohr, 318 F.3d 613, 619-20 (4th Cir. 2003) (“Rule 403 only requires suppression of evidence that results in unfair prejudice—prejudice that damages an opponent for reasons other than its probative value, for instance, an appeal to emotion . . . .”).
Photographs pose a danger of unfair prejudice when they have “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.” State v. Holder, 382 S.C. 278, 290, 676 S.E.2d 690, 697 (2009) (internal quotation marks omitted). This definition of unfair prejudice was taken originally from the Advisory Committee Notes to the formerly identical federal rule 403.[4] See State v. Alexander, 303 S.C. 377, 382, 401 S.E.2d 146, 149 (1991) (adopting the definition of unfair prejudice recited in the Notes of the Federal Rules Advisory Committee). Regarding this definition, the Supreme Court of the United States stated: “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). Like probative value, unfair prejudice should be evaluated in the practical context of the issues at stake in the trial of the case. See State v. Wilson, 345 S.C. 1, 7, 545 S.E.2d 827, 830 (2001) (“The determination of prejudice must be based on the entire record and the result will generally turn on the facts of each case.”).
The seven photos admitted are graphic and shocking. They depict a ten-year-old boy’s body on an autopsy table after being partially eaten by dogs. The photos are in color. One photo provides an encompassing view of what remains of the boy’s upper body. Three close-up photos show the remains of his face. The exposed skull and jaw bone are plainly visible in these photos. Two of these close-ups also show the exposed arm, shoulder, and rib bones, where the flesh was eaten away from the middle of his chest, across his shoulder and down to his elbow, on both sides. One photo shows the left side of the boy’s face from the back, again with the exposed jaw bone visible. The remaining two photos are of the body from the waist down, showing his blood-stained shorts and the bite marks on his legs. The pathologist described what the photos show, but seeing the photos draws an intense emotional response and a level of sympathy for the dead child that does not come from the testimony. It is difficult to look at each photo, and the combined effect of all seven is disturbing. The photos that show what remains of the child’s face are chilling. The danger of unfair prejudice of the admitted photos is extreme.
D. Balancing Probative Value and Unfair Prejudice
We have noted that a trial court has particularly wide discretion in ruling on Rule 403 objections. Adams, 354 S.C. at 378, 580 S.E.2d at 794. In this case, however, we find the danger of unfair prejudice in these photographs substantially outweighs their probative value, and the trial court abused its discretion in ruling otherwise.
Our analysis depends heavily on the capacity of these photos to draw the jury’s attention away from the elements of the crimes charged, which are framed to focus the jury primarily on the conduct of the defendant. Seeing the photos of the child’s partially eaten body lying on the autopsy table prompts an intense emotional response. The photos evoke sympathy for the boy and also for his mother for what she must have endured when she saw her son in this condition in Collins’ yard. Consequently, the photos have precisely the effect contemplated by the definition of unfair prejudice: “an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one.” Holder, 382 S.C. at 290, 676 S.E.2d at 697 (internal quotation marks omitted). As stated in Old Chief, the photos “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” In Old Chief, the improper ground for declaring guilt was the defendant’s propensity to commit crimes. 519 U.S. at 180-81. Other courts have identified additional improper grounds, such as when the evidence “appeals to the jury’s sympathies [or] arouses its sense of horror.” United States v. Thompson, 359 F.3d 470, 479 (7th Cir. 2004) (internal quotation marks omitted).
These gruesome photos have an overwhelming capacity to lure the jury into declaring guilt on the emotional basis of sympathy for the boy and his mother and horror at the sight of the boy’s body. This is the unfair prejudice that substantially outweighs the probative value of the photos. We recognize that the photos add a visual element not present in the testimony of the witnesses. However, this visual element does far more to create a danger of unfair prejudice than it does to add probative value. These photos are beyond “the outer limits of what our law permits a jury to consider.” See Torres, 390 S.C. at 624, 703 S.E.2d at 229. For this reason, we find the trial court abused its discretion in admitting the photos.[5]
E. The Probative Value of Corroboration
The State argues, however, that the photos corroborate the testimony of the pathologist and the dog behavior expert, and thus have sufficiently high probative value that it is not substantially outweighed by the danger of unfair prejudice. The State is correct that the extent to which an autopsy photograph corroborates other evidence or testimony increases its probative value. However, the probative value from a photograph’s tendency to corroborate will vary depending on the facts of an individual case. In some cases, photographs that corroborate important testimony on issues significant to the case may have very high probative value. As we have already explained, however, the photos in this case have minimal probative value, even considering the limited extent to which they corroborate the testimony of the witnesses.
This conclusion is supported by our opinion in State v. Jarrell, 350 S.C. 90, 564 S.E.2d 362 (Ct. App. 2002). In Jarrell, we stated: “A test to determine whether the trial court abused its discretion is whether the photographic evidence serves to corroborate the testimony of witnesses offered at trial. ‘If the photograph serves to corroborate testimony, it is not [an] abuse of discretion to admit it.'” 350 S.C. at 106, 564 S.E.2d at 371 (quoting State v. Rosemond, 335 S.C. 593, 597, 518 S.E.2d 588, 590 (1999)). As our opinion in Jarrell indicates, however, the photographs admitted in that case corroborated important testimony on significant issues to such an extent that their probative value was very high.
Jarrell was charged with homicide by child abuse, accessory before and after murder, criminal sexual conduct, and unlawful conduct towards a child. 350 S.C. at 95, 564 S.E.2d at 365. Like the photos in this case, the photographs admitted in Jarrell showed the extent of the child’s injuries. Unlike this case, however, the child’s injuries in Jarrell were essential to the State’s ability to prove the crimes of homicide by child abuse, criminal sexual conduct, and unlawful conduct towards a child. This is because the elements of those crimes require the jury to focus on the effect the defendant’s conduct had on the child. Thus, we placed importance on the fact that the Jarrell photographs “corroborated the testimony about the condition of the child.” 350 S.C. at 106, 564 S.E.2d at 371. Further, the time of the child’s death was an important issue in Jarrell. The fact that the baby had been dead long enough for rigor mortis to set in and decomposition to begin, as shown by the photographs, “corroborated the pathologist’s testimony about the time of death” and “support[ed] the charge against Jarrell of accessory after the fact.” Id.
Most importantly, the Jarrell photographs corroborated testimony supporting the State’s theory of motive. Jarrell discussed the abuse and death of the child with inmates while she was in jail awaiting trial. “She . . . stated that she and Father planned to kill the baby . . . because the baby had an upcoming doctor’s appointment and the abuse would be readily apparent to anyone examining the baby.” 350 S.C. at 96, 564 S.E.2d at 366. We explained the significance of the photos to Jarrell’s motive as follows:
We agree that the photographs were necessary to corroborate the testimony presented at trial. A photograph displaying the anal injuries due to the sexual abuse corroborated both the pathologist’s testimony regarding the extent of those injuries and the witnesses’ testimony that Jarrell’s motive for planning to kill the baby was because the sexual abuse was readily apparent. 350 S.C. at 106, 564 S.E.2d at 371.
The supreme court has also placed importance on the fact that autopsy photographs corroborate the testimony of witnesses. InHolder, the court stated: “‘If the offered photograph serves to corroborate testimony, it is not an abuse of discretion to admit it.'” 382 S.C. at 290, 676 S.E.2d at 697 (quoting State v. Nance, 320 S.C. 501, 508, 466 S.E.2d 349, 353 (1996)). Holder was also a homicide by child abuse case. Thus, as in Jarrell, the injuries to the child were critical to the State’s ability to prove the elements of the crime. The supreme court explained: “The photographs corroborated the pathologist’s testimony about the extensive bruising on the child, which was in various stages of healing, and showed that even internal organs manifest signs of bruising. This is particularly helpful to jurors who are unversed in medical matters.” 382 S.C. at 290-91, 676 S.E.2d at 697. The photos also corroborated the pathologist’s testimony refuting Holder’s testimony.
Although Holder testified she was unaware of any marks on her son prior to his death and thought he was suffering from simple food poisoning, it is abundantly clear from the extensive bruising on the child, which was in various stages of healing, and the torn internal organs, that he had been seriously injured. These photographs demonstrate that the damage to the child would have been difficult to ignore. 382 S.C. at 291, 676 S.E.2d at 697.
Because the photographs in Jarrell and Holder strongly corroborated important testimony on significant issues, the photographs were found to have very high probative value. The supreme court explained this in Holder: “We find the photographs clearly demonstrate the extent and nature of the injuries in a way that would not be as easily understood based on the testimony alone.” 382 S.C. at 290, 676 S.E.2d at 697.
Depending on the facts of a specific case, there may be other ways in which evidence challenged under Rule 403 corroborates evidence. See Black’s Law Dictionary 636 (9th ed. 2009) (“[C]orroborating evidence” is “[e]vidence that differs from but strengthens or confirms what other evidence shows (esp. that which needs support).”). Trial courts should consider the corroborating effect of evidence when analyzing its probative value. However, the limited extent to which these photos corroborate the testimony of the witnesses does not significantly increase the minimal probative value of the photos. A photograph of the partially eaten body of a child is not necessary to demonstrate that the dogs killed the boy and ate a significant portion of his flesh. These facts are readily understood based on the pathologist’s testimony alone. Thus, we disagree with the State that these photos sufficiently corroborate the testimony of the pathologist or the dog behavior expert such that the probative value of the photos is not substantially outweighed by the extreme danger of unfair prejudice.
F. Deference to the Trial Court’s Analysis
The State also argues the trial court’s exclusion of several photographs indicates it did exercise discretion, and we should not disturb that exercise. The State correctly points out that both the supreme court and this court have deferred to the judgment of the trial court when the record reveals the trial court actually exercised its discretion. See, e.g., Jarrell, 350 S.C. at 106, 564 S.E.2d at 371 (“Significantly, the trial court did not admit all the photographs, giving the State a choice between two photographs depicting the same injury. . . . [T]he trial court’s exclusion of photographs demonstrates it exercised its discretion.”); see also Torres, 390 S.C. at 624, 703 S.E.2d at 229 (“[T]he trial judge did exercise his discretion by excluding three of the State’s photographs, ruling that they were duplicative and prejudicial.”).
The record in this case, however, shows that the trial court did not independently analyze the probative value of the photos. Therefore, the trial court did not properly exercise its discretion. See State v. Mansfield, 343 S.C. 66, 86, 538 S.E.2d 257, 267 (Ct. App. 2000) (“The failure to exercise discretion, however, is itself an abuse of discretion.”). The State called the pathologist to testify during the admissibility hearing. The court began its examination of the pathologist by telling him the State wanted to admit the photos at issue because they were “necessary for you to explain your findings.” The court then asked the pathologist to “confirm” whether or not he “need[ed]” each photo. The pathologist answered the question in conclusory fashion: “Your honor, these would certainly enable me to describe the degree of injury and show the extent of it. . . . [T]hese I think would be very beneficial to explain exactly what happened to this young man.” The court then asked the pathologist: “Are there some in there that we could pull out that are merely repetitious?” The pathologist identified three photos, which were not admitted. The court then stated:
Okay, based on [the pathologist’s] testimony [that] he needs it in his scientific explanation I’m allowing those in . . . .
After counsel for Collins and the State questioned the pathologist, the trial court ruled:
It is an unusual case, however, we’ve got to keep in mind that we’ve got involuntary manslaughter which involves death, cause of death. You’ve got [the pathologist] here who is one of the best, and he’s informed the Court that he needs it. All right. I’m standing by what I’ve done. I’m overruling the objections
Without evaluating the probative value of the photos, the trial court was unable to balance that probative value against the danger of unfair prejudice, as required by Rule 403. The trial court’s failure to independently make that evaluation is particularly significant in this case because, as we discussed earlier, the pathologist’s explanation of the importance of the photos does not withstand scrutiny. Moreover, while the pathologist is fully capable of understanding the importance of the photos to medical considerations such as cause of death, the pathologist is not the person charged with the responsibility of relating that importance to the legal issues in the case. The trial court is charged with that responsibility.
The danger of unfair prejudice is so high that it required little analysis. The probative value, on the other hand, required careful analysis. In Jarrell and Torres the appellate court deferred to the judgment of the trial court when it admitted some autopsy photographs but excluded others. The deference in those cases, however, was not simply to the trial court’s decision. Rather, the appellate court deferred to the trial court’s analysis. We do not defer to the trial court’s decision in this case because the record reflects it was not based on the court’s own analysis.
III. Harmless Error
We have considered whether the admission of the photographs was harmless beyond a reasonable doubt. See State v. Myers, 359 S.C. 40, 48, 596 S.E.2d 488, 492 (2004) (declining to reverse for error under Rule 403 because the error was harmless). In making the determination that the error was not harmless, we have considered the fact that the other evidence of the condition of the child’s body also has potential to cause a similar emotional reaction we find constitutes the unfair prejudice in these photographs. Thus, we have evaluated whether the additional emotional impact of the photographs over and above that caused by other evidence in the case is such that the erroneous admission of the photographs is harmless. Given the intense emotional reaction caused by viewing these photos, we cannot say that their admission into evidence was harmless beyond a reasonable doubt. Accordingly, we reverse the trial court’s decision to admit the photos and remand for a new trial.
IV. Directed Verdict
Collins argues the trial court erred in denying his motions for directed verdict as to both crimes. We find evidence in the record to support each element of both crimes. Therefore, the trial court ruled correctly in denying Collins’ motions for directed verdict. SeeState v. Phillips, 393 S.C. 407, 412, 712 S.E.2d 457, 459 (Ct. App. 2011) (“An appellate court may reverse the trial court’s denial of a directed verdict motion only if no evidence supports the trial court’s ruling.”).
Accordingly, the decision of the trial court to admit the photos is REVERSED and the case is REMANDED for a new trial.
THOMAS and KONDUROS, JJ., concur.
[1] Collins was not home at the time of the incident or when the officers and the boy’s mother arrived.
[2] The specific sentences were five years for involuntary manslaughter and three years concurrent for two of the dangerous animal convictions. On the third dangerous animal conviction, the sentence was three years consecutive suspended on five years’ probation and the payment of $8,000 in restitution to the boy’s family for funeral expenses.
[3] The dog behavior expert also testified the dog bites on the lower part of the boy’s body indicated “the dogs had bitten the ten-year-old in the legs taking him down first. . . . They would go for the legs first and take him down which shows from the bites and the tissue loss.”
[4] Rule 403 and other federal rules of evidence were amended on December 1, 2011, “as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules.” Rule 403, FRE, advisory committee’s note. The changes to Rule 403, FRE, are “stylistic only,” with “no intent to change any result in any ruling on evidence admissibility.” Id.
[5] See Old Chief, 519 U.S. at 182-83 (“If an alternative [is] found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk.”).
Feb 28, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This recent NC Supreme Court case deals with fairly common issues associated with any police stop involving a vehicle. At what point do the police have a basis to search your car without a warrant. If a court finds the police went too far, the remedy is a Motion to Suppress any evidence illegally obtained, no matter what they find. Better make sure your attorney knows these critical rules and is willing to fight for you in court. We do and will.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
IN THE SUPREME COURT OF NORTH CAROLINA
No. 33A11
STATE OF NORTH CAROLINA v. OMAR SIDY MBACKE
Appeal pursuant to N.C.G.S. ‘ 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 703 S.E.2d 823 (2011), reversing an order denying defendant‟s motion for appropriate relief entered on 16 June 2009 by Judge Ronald E. Spivey in Superior Court, Forsyth County. Heard in the Supreme Court on 6 September 2011.
Roy Cooper, Attorney General, by Martin T. McCracken, Assistant Attorney General, for the State-appellant.
Tin Fulton Walker & Owen, PLLC, by Noell P. Tin and Matthew G. Pruden,for defendant-appellee.
EDMUNDS, Justice.
In this case, we consider whether the search of defendant Omar Sidy Mbacke‟s automobile following his arrest for carrying a concealed gun violated his Fourth Amendment right against unreasonable searches and seizures. Because it was reasonable for the arresting officers to believe that they might find evidence of the offense of arrest in defendant‟s vehicle, we conclude that defendant‟s rights were not violated. Accordingly, we reverse the Court of Appeals decision and instruct that court to reinstate the trial court‟s denial of defendant‟s motion for appropriate relief.
Defendant was indicted for the offenses of trafficking in cocaine by possession, trafficking in cocaine by transportation, possession with intent to sell and deliver cocaine, and carrying a concealed gun. Prior to trial, defendant filed a motion to suppress evidence seized from his vehicle during a search that was conducted only after officers had arrested him and placed him in a police car. The trial court held a hearing on defendant‟s motion, during which the State presented evidence that on 5 September 2007, Winston-Salem police officers were dispatched to 1412 West Academy Street in response to a 911 call placed by Sala Hall. Hall reported that a black male who was armed with a black handgun, wearing a yellow shirt, and driving a red Ford Escape was parked in his driveway. Hall added that the male had “shot up” his house the previous night. The dispatcher relayed this information to the officers. Officers Walley and Horsley arrived at the scene at approximately 3:08 p.m., less than six minutes after Hall called 911. They observed a black male (later identified as defendant) who was wearing a yellow shirt and backing a red or maroon Ford Escape out of the driveway at the reported address. The officers exited their patrol cars, drew their service weapons, and moved toward defendant while ordering him to stop his car and put his hands in the air. At about the same time, Officer Woods arrived and blocked the driveway to prevent the Escape‟s escape. Defendant initially rested his hands on his vehicle‟s steering wheel, but then lowered his hands towards his waist. In response, the officers began shouting louder commands to defendant to keep his hands in sight and to exit his vehicle.
Defendant raised his hands and stepped out of his car, kicking or bumping the driver‟s door shut as he emerged. The officers ordered defendant to lie on the ground and then handcuffed him, advising him that while they were not arresting him, they were detaining him because they had received a report that a person matching his description was carrying a weapon. In response to a question from the officers, defendant said that he had a gun in his waistband. Officer Walley lifted defendant‟s shirt and saw a black handgun. After Officer Woods retrieved the pistol and rendered it safe, defendant was arrested for the offense of carrying a concealed gun.
The officers secured defendant in the back seat of a patrol car, then returned to defendant‟s Escape and opened the front door on the driver‟s side. Officer Horsley immediately saw a white brick wrapped in green plastic protruding from beneath the driver‟s seat where defendant had been sitting. As Officer Horsley was showing Officer Walley what he had found, defendant slipped one hand out of his handcuffs, reached through the partially opened window of the police car in which he had been placed, and attempted to open the vehicle door using the exterior handle. After resecuring defendant, the officers searched the entirety of his car incident to the arrest but found no other contraband. A field test of powdery material from the white brick was positive for cocaine, and a subsequent analysis by the State Bureau of Investigation laboratory determined that the brick consisted of 993.8 grams of cocaine.
At the conclusion of the suppression hearing, the trial court made oral findings of fact and conclusions of law, then denied defendant‟s motion to suppress. These findings of fact and conclusions of law were later set out in a written order issued by the court after defendant‟s trial.
When the case was called for trial, defense counsel confirmed with the trial court that his objection to the trial court‟s denial of his motion to suppress was on the record. Later that day, defense counsel renewed the motion to suppress,bringing to the court‟s attention a case that had been issued just that morning by the Supreme Court of the United States, Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). After some discussion with the trial judge, defensecounsel advised the court that he would not ask for a hearing during the trial on the applicability of Gant, but instead would pursue that particular issue via a motion for appropriate relief. As a result of defense counsel‟s decision not to seek an immediate ruling on the effect of Gant, the trial court‟s pretrial denial of defendant‟s motion to suppress stood unaffected. Defense counsel preserved his objection by objecting during trial when the State elicited testimony from the officers regarding the search and by renewing his motion to suppress at the close of the State‟s evidence. The objection was overruled and the renewed motion denied.
The jury found defendant guilty of all charges. The trial court sentenced defendant to concurrent terms of 175 to 219 months of imprisonment. On 1 May 2009, defense counsel timely filed a motion for appropriate relief. In it, defense counsel argued that Gant retroactively applied to defendant‟s case andthat the evidence found in the vehicle should be suppressed pursuant to Gant‟s analysis of searches incident to arrest. At a 20 May 2009 hearing, the State presented additional evidence regarding the search. After applying Gant to all the evidence presented, the trial court denied the motion for appropriate relief in an order entered on 16 June 2009.
Defendant appealed. Although defendant addressed five assignments oferror in his brief, the Court of Appeals observed that defendant‟s notice of appeal raised only the trial court‟s denial of his motion for appropriate relief. ___ N.C. App. ___, ___, 703 S.E.2d 823, 825 (2011). Accordingly, the Court of Appeals limited its review to that issue. Id. at ___, 703 S.E.2d at 825-26.
The Court of Appeals majority reversed the trial court‟s decision, holding that “it was not „reasonable to believe [Defendant‟s] vehicle contain[ed] evidence of the offense‟ of carrying a concealed weapon.” Id. at ___, 703 S.E.2d at 830 (alterations in original) (quoting Gant, 556 U.S. at ___, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501). The dissenting judge disagreed, arguing that evidence of intent to conceal the weapon, or “indicia of ownership or use of the firearm seized,” or both, could have been in the car. Id. at ___, 703 S.E.2d at 831 (Stroud, J., dissenting). In addition,the dissenting judge argued that, under the facts presented here, the officers‟ actions were reasonable. Id. at ___, 703 S.E.2d at 831. The State appealed to this Court on the basis of the dissent.
When reviewing a trial court‟s ruling on a motion for appropriate relief, the appellate court must “determine whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.” State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982). “If no exceptions are taken to findings of fact [made in a ruling on a motion for appropriate relief], such findings are presumed to be supported by competent evidence and are binding on appeal.‟ State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (quoting Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962)). In such a case, the reviewing court considers only “whether the conclusions of law are supported by the findings, a question of law fully reviewable on appeal.” State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (citations omitted), cert. denied, 547 U.S. 1073, 126 S. Ct. 1773, 164 L. Ed. 2d 523 (2006). Accordingly, because defendant did not assign error to any of the trial court‟s findings of fact, we review only the trial court‟s conclusions of law.
Our review necessarily begins with a discussion of Arizona v. Gant, in which the Supreme Court considered whether searching an automobile incident to arrest violated the defendant driver‟s Fourth Amendment rights when he had been arrested for a traffic offense only and had no access to his car at the time of the search. 556 U.S. at ___, 129 S. Ct. at 1714-15, 173 L. Ed. 2d at 491-92. Gant‟s car was not searched until he had been arrested, handcuffed, and locked in the back of a patrol car. Id. at ___, 129 S. Ct. at 1715, 173 L. Ed. 2d at 492. Although the officers had no apparent reason to suspect at the time of the search that Gant‟s vehicle contained any contraband, they found cocaine and a weapon in the car. Id. at ___, 129 S. Ct. at 1715, 173 L. Ed. 2d at 492.
The Supreme Court‟s analysis of the propriety of the search focused on its opinion in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768(1981), in which the Court held that an officer may search the passenger area of a vehicle incident to the arrest of the driver. Gant, 556 U.S. at ___, 129 S. Ct. at 1716-23, 173 L. Ed. 2d at 493-501 (citing Belton, 453 U.S. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 774-75). The majority in Gant noted that the Court in Belton had reasoned that such an approach was consistent with the purposes set out in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), of ensuring both police officer safety and the preservation of evidence. Gant, 556 U.S. at ___, 129 S. Ct. at 1716-18, 173 L. Ed. 2d at 493-95. However, the Supreme Court observed in Gant that many lower courts had interpreted Belton expansively “to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Id. at ___, 129 S. Ct. at 1718, 173 L. Ed. 2d at 495. The majority in Gant concluded that such broad readings undermined Belton‟s and Chimel‟s dual rationales. Id. at ___, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496. The Court repudiated these interpretations and limited Belton‟s application by holding that when a defendant is arrested, the defendant‟s car can be searched “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‟ Id. at ___, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 2137, 158 L. Ed. 2d 905, 920 (2004) (Scalia & Ginsburg, JJ., concurring in the judgment)).
In its conclusions of law, the trial court here found that “[t]here has been no change in circumstances or in the Law to warrant the Court setting aside its ruling on [defendant‟s] Pre–trial Motion” because “[t]he main issue of contention in the Pre-trial Motion to Suppress was whether the Winston-Salem Police officers involved had a sufficient articulable and reasonable suspicion to stop the Defendant‟s vehicle. This issue was not affected by the Supreme Court‟s ruling in Arizona v. Gant.” This conclusion by the trial court remains unchallenged.
The trial court then turned its attention to the applicability of Gant to defendant‟s motion for appropriate relief and found that defendant had been
secured in a police vehicle and was not within reaching distance of the passenger compartment of his car when officers searched his vehicle. Thus, no search was permitted under the first alternative set out in Gant. However, as to Gant‟s second prong, the trial court found that defendant had been arrested for carrying a concealed gun and that the officers had reason to believe that evidence of the offense of arrest, such as “other firearms, gun boxes, holsters, ammunition, spent shell casings and other indicia of ownership of the firearm” “would be located in the interior of the Defendant‟s vehicle.” Concluding that Gant did not foreclose the search of a vehicle pursuant to an arrest under those circumstances, the trial court denied the motion.
The Supreme Court subsequently has left no doubt that Gant applies to the case at bar because defendant’s case was “not yet final‟ when Gant was decided. Davis v. United States, 564 U.S. ___, ___, 131 S. Ct. 2419, 2430-31, 180 L. Ed. 2d 285, 298 (2011) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987)) (stating that Gant applies retroactively to such cases). Accordingly, we must consider whether the trial court properly applied the holding in Gant to the evidence at bar when it denied defendant‟s motion for appropriate relief.
Despite defendant‟s apparent attempt to escape the police car in which he had been confined, the trial court was correct in finding that Gant‟s first prong did not permit a search because defendant was neither unsecured nor within reaching distance of the passenger compartment of his car at the time of the search. Our inquiry must then focus on whether it was reasonable for the police to believe that defendant‟s vehicle might contain evidence of the crime of arrest. See Gant, 556 U.S. at ___, ___, 129 S. Ct. at 1714, 1719, 173 L. Ed. 2d at 491, 496-97. Because the Supreme Court did not define the term “reasonable to believe,”some analysis is appropriate to provide guidance to law enforcement personnel who must apply Gant in their daily work. Despite the suggestion in United States v. Williams, 616 F.3d 760, 764-65 (8th Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1548, 179 L. Ed. 2d 310 (2011), that “probable cause” and “reasonable to believe” are equivalent concepts, we are satisfied that the reasonable to believe standard enunciated in Gant establishes a threshold lower than probable cause. See United States v. Vinton, 594 F.3d 14, 25 (D.C. Cir.) (“Presumably, the “reasonable to believe‟ standard requires less than probable cause, because otherwise Gant’s evidentiary rationale would merely duplicate the automobile exception,‟ which the Court [in Gant] specifically identified as a distinct exception to the warrant requirement.”), cert. denied, ___ U.S. ___, 131 S. Ct. 93, 178 L. Ed. 2d 58 (2010).
Instead, we conclude that the “reasonable to believe” standard set out in Gant parallels the objective “reasonable suspicion” standard sufficient to justify a Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). Although the rationales for the two standards differ somewhat, in that Gant addresses officer safety and evidence preservation, Gant, 556 U.S. at ___, ___, 129 S. Ct. at 1715-16, 1719, 173 L. Ed. 2d at 492-93, 496-97, while Terry addresses “effective crime prevention and detection” along with officer and public safety, Terry, 392 U.S. at 22-24, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 906-08, we believe the underlying concept of a reasonable articulable suspicion discussed in Terry, id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906, is readily adaptable to a scenario in which a search of a vehicle is contemplated after the occupants have been arrested and detained. See also United States v. Place, 462 U.S. 696, 702, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110, 117-18 (1983) (explicitly adopting the “reasonable, articulable suspicion” standard implied in Terry). In addition, law enforcement officers and courts have worked with the Terry standard for decades, making application of Gant’s similar objective standard a straightforward matter. Accordingly, we hold that when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect‟s vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.
Here, defendant was arrested for the offense of carrying a concealed gun. The arrest was based upon defendant‟s disclosure that the weapon was under his shirt. Other circumstances detailed above, such as the report of defendant‟s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant‟s vehicle. Accordingly, the search was permissible under Gant, and the trial court properly denied defendant‟s motion for appropriate relief. Our holding is consistent with the results reached by other courts. Although we are not bound by these cases, we consider their analyses informative. See State v. Warren, 252 N.C. 690, 696, 114 S.E.2d 660, 666 (1960) (noting that North Carolina is “not bound by the decisions of the Courts of the other States,” but that “overwhelming authority” in favor of a certain interpretation of law is “highlypersuasive”).
In general, courts examining an offense involving weapons have inferred that the offense, by its nature, ordinarily makes it reasonable to believe the defendant‟s car will contain evidence of that offense, so that searching a defendant’s car incident to an arrest for a weapons offense is almost always consistent with the Fourth Amendment. See, e.g., United States v. Rochelle, 422 F. App‟x 275, 277 (4th Cir.) (unpublished per curiam decision) (finding that officers had reason to believe the defendant‟s vehicle contained evidence of the offense of arrest, unlawful firearms possession), cert. denied, ___ U.S. ___, 132 S. Ct. 438, 181 L. Ed. 2d 285 (2011); Vinton, 594 F.3d at 25-26 (same after arrest for possession of a prohibited weapon); United States v. Leak, No. 3:09-cr-81-W, 2010 WL 1418227, at *5 (W.D.N.C. Apr. 5, 2010) (same after arrest for both driving with a suspended license and carrying a concealed weapon); United States v. Wade, No. 09-462, 2010 WL 1254263, at *2-3, *5 (E.D. Pa. Mar. 29, 2010) (finding that the officer had reason to believe the defendant‟s jacket, which the defendant had left in the car in which he had been riding when the police approached, might contain additional evidence of the offense of arrest, illegal possession of a firearm), aff’d on other grounds, ___ F. App ___, No. 10-3847, 2011 WL 5524995 (3d Cir. Nov. 14, 2011) (unpublished); People v. Osborne, 96 Cal. Rptr. 3d 696, 698, 705, 175 Cal. App. 4th 1052, 1056-57, 1065 (concluding that officers had reason to believe the car the defendant appeared to be burglarizing at the time of his apprehension would contain evidence relating to the offense of arrest, illegal possession of a firearm), rev. denied, No. S175724, 2009 Cal. LEXIS 11474 (Oct. 28, 2009). But see United States v. Brunick, 374 F. App 714, 716 (9th Cir.) (unpublished) (concluding that the defendant‟s arrest for carrying a concealed weapon, a knife, did not give rise to a reason to believe evidence would be found in the defendant‟s vehicle because there was no likelihood of finding additional evidence related to the offense for which the defendant was arrested; however, vehicle search allowed under inventory search exception), cert. denied, ___ U.S. ___, 131 S. Ct. 355, 178 L. Ed. 2d 230 (2010).
Even though we conclude that the search of defendant‟s vehicle was constitutionally permissible, we stress that we are not holding that an arrest for carrying a concealed weapon is ipso facto an occasion that justifies the search of a vehicle. We believe that the “reasonable to believe” standard required by Gant will not routinely be based on the nature or type of the offense of arrest and that the circumstances of each case ordinarily will determine the propriety of any vehicular searches conducted incident to an arrest.
The decision of the Court of Appeals is reversed, and that court is instructed to reinstate the trial court‟s denial of defendant‟s motion for appropriate relief.
REVERSED.
Justice TIMMONS-GOODSON dissenting.
Defendant was arrested for carrying a concealed weapon after telling police he had a gun in his waistband. He then was handcuffed and secured in the back of a police car. Next, rather than seek a warrant, law enforcement conducted a warrantless search of defendant‟s vehicle. The majority condones this search, but I must respectfully dissent. There was no reason to believe defendant‟s vehicle contained evidence that he was carrying a concealed weapon, and the majority unjustifiably rewrites Fourth Amendment jurisprudence set forth by the Supreme Court of the United States.
Warrantless searches “are per se unreasonable under the Fourth Amendment,” save a “few specifically established and well–delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 173 L. Ed. 2d 485, 493 (2009) (citation and quotation marks omitted). In Gant, the Supreme Court carved out one such exception, which permits police officers to search a vehicle incident to a lawful arrest “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Id. at 343, 173 L. Ed. 2d at 496 (citation and quotation marks omitted). In the same breath that it declared this exception, the Supreme Court recognized that “[i]n many cases ... there will be no reasonable basis to believe the vehicle contains relevant evidence.” Id. (citations omitted). This is one of those “many cases.”
At the time police officers searched defendant‟s vehicle, there was no reason to believe it contained evidence relevant to the crime of arrest—carrying a concealed weapon. First, defendant lowering his hands toward his waist may suggest that defendant had a gun, but this action did not indicate that his vehicle contained evidence of carrying a concealed weapon. After all, if defendant was lowering his hands to hide something, he would be trying to hide his weapon—the weapon he relinquished to police. Similarly, that a 911 caller identified defendant as the man who shot up his house the night before does not suggest that defendant’s car contained evidence that he was carrying a concealed weapon. Finally, the majority contends that defendant, by closing his vehicle door, gave the officers reason to believe the automobile contained evidence of the offense of arrest. This reasoning dangerously undermines the right to privacy. On the one hand, if defendant choses North Carolina law generally prohibits the intentional carrying of a concealed handgun off of one’s own property. N.C.G.S. § 14-269 (a1) (2011). the vehicle door when complying with an officer‟s order to exit the vehicle, then law enforcement, under today’s opinion, can search the car. On the other hand, if defendant leaves the door open, officers can conduct a broader plain view search of the passenger compartment. Protecting one‟s privacy from police searches by closing a vehicle door does not give rise to a reasonable belief to justify a warrantless search.2
The majority attempts to mollify concerns about the breadth of today’s opinion by stating that the weapons charge does not ipso facto justify the warrantless search. But without an explanation of how the facts actually create a reasonable belief that relevant evidence is located in defendant‟s vehicle, the Court’s opinion does exactly what it purports to avoid—permit a warrantless search based upon the nature of the offense.3 The absence of facts in this case suggesting that defendant‟s vehicle contained evidence of the crime of arrest signals that the Court will permit the search of an arrestee‟s vehicle in any concealed weapons case. In my view, the Court reads the Gant exception too broadly and allows searches beyond the scope contemplated by the Supreme Court.
I also disagree with the majority‟s suggestion that the Fourth Amendment permits officers to search the passenger compartment of a defendant‟s vehicle when the secured defendant has an air of “furtiveness” surrounding him. The majority‟s “furtiveness” argument has no precedent in Fourth Amendment jurisprudence. The Court compounds this problem by emphasizing that its opinion is consistent with decisions in other jurisdictions in that “an offense involving weapons… , by its nature, ordinarily makes it reasonable to believe that the defendant‟s car will contain evidence of that offense, so that searching a defendant‟s car incident to an arrest for a weapons offense is almost always consistent with the Fourth Amendment opinion‟s lack of specificity leaves law enforcement without a clear fact pattern for comparison with other scenarios. Officers, thinking they have complied with this opinion, may conduct vehicle searches only to have the fruits of those searches excluded from trial.
In addition to the majority‟s misapplication of Gant to the facts of this case, Idisagree with the majority‟s decision to equate the “reasonable, articulable suspicion” standard described in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), with the reasonable belief requirement set forth in Gant. First, as a threshold matter, the majority fails to establish that the Gant phrase “reasonable to believe” needs clarification. The Supreme Court thought this phrase was adequately instructive to law enforcement, and so do I. This phrase is meaningful to judges, lawyers, and police officers alike. As the saying goes, “If it ain‟t broke, don‟t fix it.”
Second, the Supreme Court was well aware of the Terry standard when it authored Gant in 2009, yet it chose to adopt a reasonable belief standard, not the “reasonable, articulable suspicion” standard of Terry. I would not import Terry jurisprudence into the Gant analysis without direction from the Supreme Court.
Third, contrary to the assertion by the majority, law enforcement‟s familiarity with the Terry standard will not make the application of Gant by law enforcement officers “straightforward.” Officers‟ experience applying Terry is irrelevant to answering the question at hand: whether it is reasonable to believe that defendant‟s vehicle contains evidence of the offense of arrest. Substituting the Terry standard confuses the matter by conflating different areas of Fourth Amendment jurisprudence, stop and frisk compared with a search incident to arrest. In short, the majority‟s substitution of the Terry standard for the standard chosen by the Supreme Court in Gant introduces confusion with no benefit.
Finally, I also must point out that the majority offers absolutely no authority to support its rewriting of Fourth Amendment jurisprudence. The majority cites to United States v. Place, 462 U.S. 696, 702, 77 L. Ed. 2d 110, 117-18 (1983), as support for its proposition that “the underlying concept of a reasonable articulable suspicion discussed in Terry . . . is readily adaptable to a scenario in which a search of a vehicle is contemplated after the occupants have been arrested and detained.” Place, however, offers no support for this proposition, as it permits dogs to sniff luggage for narcotics and does not address the search of a vehicle incident to arrest. Id. at 706, 77 L. Ed. 2d at 120.
Today‟s opinion is especially troublesome because there was plenty of time to seek a warrant. Defendant was secured, and neither officer safety nor evidence preservation was a concern. Further, there was no reason to believe that defendant‟s vehicle contained evidence relevant to his arrest for carrying a concealed weapon. As a result, the decision of the majority to rewrite Fourth Amendment jurisprudence set forth by the Supreme Court of the United States is unwarranted and unhelpful. This revision to constitutional law unfortunately diminishes the Fourth Amendment rights guaranteed to our state‟s citizens with no benefit to the interests of law enforcement.
Feb 26, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This recent SC Court of Appeals case discusses another close example of what constitutes an unreasonable search by police and subsequent challenge to seized evidence. Although the Court ultimately ruled in favor of the State, the decision reaffirms how fact specific these issues are. Because the outcome of a criminal case can turn on the admission of crucial evidence, it is imperative that your criminal defense attorney know the rules and be willing to fight to keep improperly obtained evidence excluded. It can literally make the difference between being found guilty or being acquitted. The stakes are too high to risk hiring an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Shirley Mae Geer, Appellant.
Appeal from Greenwood County
John C. Hayes, III, Circuit Court Judge
Opinion No. 4760
Heard May 19, 2010 – Filed November 24, 2010
AFFIRMED
Appellate Defender M. Celia Robinson, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General A. West Lee, all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for Respondent.
GEATHERS, J.: Shirley Mae Geer appeals her conviction for possession of crack cocaine. Geer asserts the trial court erred by (1) failing to dismiss the charges against her or to grant a continuance in order to give her time to request and review exculpatory evidence withheld by the State that was favorable to her defense; (2) denying her motion to quash the indictment on the ground of selective prosecution; (3) denying her motion to suppress drug evidence seized as the result of an unreasonable, warrantless, beneath-the-skin search that was unsupported by probable cause; and (4) denying her motion to suppress the drug evidence because the State failed to present a sufficient chain of custody. We affirm.
FACTS/PROCEDURAL BACKGROUND
At approximately 11:30 p.m. on the night of September 9, 2007, Officer Byrd and Officer Crisp responded to a dispatch call directing them to Butler Street (a dead-end street) in Greenwood County. Upon arriving at the location, they found Michael Leon Parks standing outside of his vehicle and Geer seated in the vehicle on the front, passenger seat. Officer Byrd began to question Parks about his reason for being at the location, and he determined that Parks was being dishonest. Officer Byrd continued to question Parks. After Officer Byrd told Parks that it would be in his best interest to be honest, Parks admitted that he had given Geer two rocks of crack cocaine in exchange for her performance of oral sex and that Geer had put the rocks in her mouth. Relying on Parks’ assertion, Officer Byrd approached Geer and asked her to open her mouth. When Geer complied, Officer Byrd discovered two off-white, rock-like substances underneath her tongue. Officer Byrd then asked Geer to spit the rocks onto the hood of his patrol car, and she complied. He then scooped the rocks into a manila envelope and secured the envelope in the patrol car.
Before making any arrests, the officers telephoned their supervisor. Thereafter, they decided not to arrest Parks because the situation would embarrass his girlfriend and family and would cause him embarrassment at work. Instead, they gave him a courtesy summons for solicitation of prostitution. The officers also discussed how Parks was going to get home. They could not allow him to drive because he did not have a valid driver’s license. This conversation was recorded on an audiotape from the patrol car and later stored at the Greenwood County Police Department. Geer, however, was arrested, taken into custody, and charged with prostitution and possession of crack cocaine. Even though Parks admitted to distributing the crack cocaine to Geer, he was not charged with distribution of crack cocaine, and the charge against him for solicitation of prostitution was dismissed at the request of Officer Byrd. The charge against Geer for prostitution was also dismissed, and she proceeded to trial on the charge of possession of crack cocaine.
After Geer was arrested, Officer Byrd took the manila envelope containing the crack cocaine rocks to the Greenwood City Hall, where a field test was performed on them. After the substance was tested and weighed, it was placed in a “best bag”[1] with an assigned control number, documented, and put into the evidence locker. The evidence was then taken from the locker by Officer Ed Suddeth and transferred to the control evidence room. A few days later, Officer Suddeth took the evidence to the South Carolina Law Enforcement Division (SLED) to be analyzed. From the time Officer Suddeth removed the evidence from the evidence locker until he turned it over to the SLED log-in area to be placed in a vault, the seal on the best bag was intact and the chain of custody logs were signed.
SLED Officer Larry Zivkovitch, a drug analyst, retrieved the best bag from the log-in area on October 31, 2007, and on November 28, 2007, he performed an analysis on its contents.[2] The initial spot test indicated that there was a possibility that the substance was cocaine. Officer Zivkovitch then ran a second, instrument-based test used by scientists (an FTIR test)[3] on the substance, and it was positively identified as cocaine base, commonly known as crack. After Officer Zivkovitch analyzed and weighed the substance, he placed it in a heat-sealed bag with his initials underneath the heat seal and returned it to the evidence log-in area to await its transfer by the Greenwood Police Department.
Geer’s trial was held on February 28, 2008, in Greenwood County. The trial lasted one day, and the jury returned a verdict of guilty on the charge of possession of crack cocaine. As a result of her conviction, Geer was sentenced to two years’ incarceration, suspended upon two years’ probation with substance abuse counseling and random drug and alcohol testing, and a $500 fee was imposed upon her for the use of the public defender. This appeal followed.
ISSUES ON APPEAL
The issues on appeal are: (1) whether the trial court erred in denying Geer’s motion for a continuance; (2) whether the trial court erred in denying Geer’s motion to quash the indictment, asserting selective prosecution by the State; (3) whether the trial court erred in denying Geer’s motion to suppress the drug evidence, asserting that it was obtained through an unconstitutional, warrantless search; and (4) whether the trial court erred in denying Geer’s motion to suppress the drug evidence because the State failed to present a sufficient chain of custody.
STANDARD OF REVIEW
“In criminal cases, the appellate court sits to review errors of law only.” State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court “is bound by the trial court’s factual findings unless they are clearly erroneous.” Id. “This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases.” State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). “This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge’s ruling is supported by any evidence.” Id.
LAW/ANALYSIS
I. Motion for Continuance
Geer argues the trial court erred when it denied her motion for a continuance because evidence was withheld by the State until the day before trial. We disagree.
“The granting of a motion for a continuance is within the sound discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion.” State v. Yarborough, 363 S.C. 260, 266, 609 S.E.2d 592, 595 (Ct. App. 2005). “An abuse of discretion arises from an error of law or a factual conclusion that is without evidentiary support.” State v. Irick, 344 S.C. 460, 464, 545 S.E.2d 282, 284 (2001); see also State v. Funderburk, 367 S.C. 236, 239, 625 S.E.2d 248, 249-50 (Ct. App. 2006) (“An abuse of discretion occurs when the trial court’s ruling is based on an error of law.”). Even if there was no evidentiary support, “[i]n order for an error to warrant reversal, the error must result in prejudice to the appellant.” State v. Preslar, 364 S.C. 466, 473, 613 S.E.2d 381, 385 (Ct. App. 2005); see also State v. Wyatt, 317 S.C. 370, 372-73, 453 S.E.2d 890, 891 (1995) (stating that error without prejudice does not warrant reversal). “[R]eversals of refusal of continuance are about as rare as the proverbial hens’ teeth.” State v. Lytchfield, 230 S.C. 405, 409, 95 S.E.2d 857, 859 (1957).
In addressing the merits of Geer’s motion for a continuance, we first analyze her contention that the State withheld evidence that was favorable to her defense until the eve of trial in violation of Rule 5, SCRCrimP. Rule 5(a)(1)(C), SCRCrimP, states in part:
Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects . . . which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial . . . .
In the present case, the evidence presented to Geer by the State the evening before the trial was an audiotape of the arrest. According to Rule 5, SCRCrimP, if the evidence was considered “material to the preparation of [her] defense . . . and intended for use by the prosecution as evidence in chief at the trial,” Geer had a right to possession and review of the audiotape. Geer argued “under the solicitor’s program, the State was required to provide all discovery at the initial appearance or provide a list of things that were outstanding,” but the record does not indicate that Geer requested that the State provide any evidence as required under Rule 5.
Geer was arrested and charged with possession of crack cocaine on September 9, 2007, but her trial was not held until February 28, 2008. She had ample time to request and receive discovery information before the eve of trial. Geer did not request any information regarding the night of her arrest but relied upon the State’s production of the audiotape on the eve of trial. Geer has not shown that the discovery of information contained on the audiotape was a denial of evidence that was material to the preparation of her defense, thereby rising to the level of a Rule 5 violation. Further, the audiotape provided evidence that served to inculpate rather than exculpate her. That is, the evidence provided proof that Geer was in fact in possession of crack cocaine on the night of her arrest. Furthermore, the record does not indicate the State intended to use the audiotape “as evidence in chief at the trial.” In fact, a thorough review of the record reveals that the State never introduced the audiotape or a transcript of its contents into evidence. The facts show that there was no violation of Rule 5, and the trial court did not err in denying Geer’s motion for a continuance.
In conjunction with her assertion of a violation of Rule 5, SCRCrimP, Geer also maintains that the State’s withholding of evidence was in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”). The State argues that Geer did not raise the issue of a Brady violation in support of her motion to dismiss at the trial, and thus, it is not preserved for our review.
The State is correct in its argument that Geer did not explicitly state its late delivery of the evidence constituted a Brady violation; however, Geer presented arguments “sufficiently specific to bring into focus the precise nature of the alleged error so that it [could] be reasonably understood by the trial judge.” McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 344, 479 S.E.2d 67, 75 (Ct. App. 1996). “A party need not use the exact name of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground.” State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003); see also State v. Russell, 345 S.C. 128, 132, 546 S.E.2d 202, 204 (Ct. App. 2001) (explaining that even though exact words are not used to argue an issue, if it is clear from the argument presented in the record that the motion was made on a particular ground, the argument will be considered raised to the trial court and will be preserved for review).
Nevertheless, Geer has not established that a Brady violation occurred. There are three categories of Brady violations: “(1) cases that include [non-disclosed] evidence of perjured testimony about which the prosecutor knew or should have known, (2) cases in which the defendant specifically requested the [non-disclosed] evidence, and (3) cases in which the defendant made no request or only a general request for Brady material.” Gibson v. State, 334 S.C. 515, 524-25, 514 S.E.2d 320, 325 (1999).
“Brady only requires disclosure of evidence which is both favorable to the accused and material to guilt or punishment.” State v. Taylor, 333 S.C. 159, 177, 508 S.E.2d 870, 879 (1998) (citing United States v. Bagley, 473 U.S. 667 (1985)). “A Brady claim is based on the requirement of due process.” Gibson, 334 S.C. at 524, 514 S.E.2d at 324. To establish a due process violation, an accused must demonstrate “(1) the evidence was favorable to the accused, (2) it was in the possession of or known to the prosecution, (3) it was suppressed by the prosecution, and (4) it was material to guilt or punishment.” Id.
Moreover, the State’s late disclosure of the evidence did not impair Geer’s ability to present a defense regarding whether she possessed crack cocaine. A Brady violation would have occurred only had the evidence been favorable to the defense, the State possessed and withheld it, and it was material to Geer’s guilt or punishment. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. Also, “[n]o due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial.” United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985). Geer has not established aBrady violation occurred such that there is a reasonable probability the result of her trial would have been different had she received the evidence earlier. The audiotape was not played during trial nor did Geer attempt to use its contents to establish a defense to the charge of possession of crack cocaine. As such, the trial court did not err in denying Geer’s motion for a continuance based on a Rule 5, SCRCrimP, or a Brady violation. Thus, the decision of the trial court to deny her motion for a continuance is affirmed.
II. Motion to Quash Based on Selective Prosecution
Geer argues the trial court erred when it denied her motion to quash the indictment based on selective prosecution. The State argues that Geer’s motion to quash based on selective prosecution was in reference to the charge of prostitution, not on the drug possession charge, and is therefore not preserved for this Court’s review. We conclude that the issue was preserved, but that the trial court did not err by denying Geer’s motion to quash.
“It is well settled that an issue may not be raised for the first time in a post-trial motion.” S.C. Dep’t of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007). “Further, it is a litigant’s duty to bring to the court’s attention any perceived error, and the failure to do so amounts to a waiver of the alleged error.” Id. “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.” Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998); see also Jean Hoefer Toal et al., Appellate Practice in South Carolina 57 (2d ed. 2002) (stating that to be preserved for appellate review, an issue must have been “(1) raised to and ruled upon by the trial court, (2) raised by the appellant, (3) raised in a timely manner, and (4) raised to the trial court with sufficient specificity.”).
In this case, Geer argued selective prosecution because she was arrested for prostitution while Parks was not. Geer further argued that the decision not to prosecute Parks for distributing drugs was part of the overall scheme to protect his reputation as the prosecution of the drug charge would likely reveal his involvement in prostitution. The court, Geer, and the State discussed at length the State’s decision to prosecute Geer for drug possession while declining to charge Parks with drug distribution. Ultimately, the court denied Geer’s motion to quash the indictment against her. Accordingly, because the issue of selective prosecution on the drug charge was sufficiently raised and ruled upon, we hold that it has been preserved for this Court’s review.
Nevertheless, while we find the State’s exercise of its prosecutorial discretion troublesome, we conclude that Geer’s argument fails on the merits. There are two prongs that a defendant must satisfy to establish selective prosecution. First, “a defendant must first demonstrate that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted.” United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978). “Second, the defendant must demonstrate that the government’s discriminatory selection of him for prosecution was based upon an impermissible ground, such as race, religion or his exercise of his [F]irst [A]mendment right to free speech.” Id.
“Courts look suspiciously on selective prosecution claims because they ‘ask[ ] the court to exercise judicial power over a “special province” of the Executive [branch].'” State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 200, 525 S.E.2d 872, 885 (2000) (quoting United States v. Armstrong, 517 U.S. 456 (1996)) (first alteration by court). Because of this balance of powers concern, a “‘presumption of regularity supports’ . . . prosecutorial decisions and, ‘in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.'” Armstrong, 517 U.S. at 465 (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).
In order to prevail on a claim for selective prosecution, Geer would have to show not just that she “had been singled out for prosecution, but that the decision to prosecute was based on unconstitutional considerations.” United States v. Marcum, 16 F.3d 599, 602 (4th Cir. 1974). “A defendant may demonstrate that the administration of a criminal law is ‘directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive’ that the system of prosecution amounts to ‘a practical denial’ of equal protection of the law.” Armstrong, 517 U.S. at 464-65 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886)) (omission by court).
“In our criminal justice system, the Government retains ‘broad discretion’ as to whom to prosecute.” Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380, n.11 (1980)). “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Here, Geer has not established that she was singled out for prosecution on unconstitutional grounds. She has not alleged nor does the record contain anything to show that the State chose to prosecute her based solely on impermissible grounds such as her gender or race. As a result, she has not proven that the State’s decision to prosecute her constitutes selective prosecution warranting reversal of the trial court’s denial of her motion to quash.
III. Warrantless, Beneath-the-Skin Search and Probable Cause
Geer argues the trial court erred when it denied her motion to suppress drug evidence on the ground that it was obtained through an unconstitutional, warrantless, beneath-the-skin search because the search was unsupported by probable cause. We disagree.
“When reviewing a Fourth Amendment search and seizure case, an appellate court must affirm the trial judge’s ruling if there is anyevidence to support the ruling.” State v. Missouri, 361 S.C. 107, 111, 603 S.E.2d 594, 596 (2004). The trial court’s factual findings on whether evidence should be suppressed due to a Fourth Amendment violation are reviewed for clear error. State v. Brockman, 339 S.C. 57, 66, 528 S.E.2d 661, 666-67 (2000) (stating that a private search is a question of fact and the trial court’s ruling will be reversed only if there is clear error).
The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. Amend. IV.
Similarly, the South Carolina Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.
S.C. Const. Art. I, § 10.
With respect to searches involving intrusions beyond the body’s surface, the United States Supreme Court has held:
The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.
Schmerber v. California, 384 U.S. 757, 769-70 (1966).
The acquisition of beneath-the-skin evidence requires certain considerations, namely, the existence of “probable cause to believe the suspect has committed the crime,” “a clear indication that relevant material evidence will be found,” and “the method used to secure [the evidence] is safe and reliable.” State v. Baccus, 367 S.C. 41, 53-54, 625 S.E.2d 216, 222-23 (2006). Probable cause merely requires that,
[T]he facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that certain items may be . . . . useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required.
Texas v. Brown, 460 U.S. 730, 742 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). “Probable cause may be found somewhere between suspicion and sufficient evidence to convict.” State v. Blassingame, 338 S.C. 240, 250, 525 S.E.2d 535, 540 (Ct. App. 1999).
In the case at hand, the police responded to a call at approximately 11:30 p.m. on a dead end street and found Geer and Parks with Parks’ vehicle. When Officer Byrd questioned Parks as to why they were there, Parks began to act suspiciously and lied about the circumstances surrounding his presence at the scene. This caused Officer Byrd to believe that Parks and Geer may have been involved in criminal activity. Upon further questioning and against his interests, Parks admitted that he and Geer had been engaged in an act of prostitution and that he had paid Geer for the act with illegal drugs. Parks informed the officers that Geer had placed the drugs in her mouth, underneath her tongue. This information gave Officer Byrd a clear indication that if he searched Geer, “relevant material evidence” would be found.
Even though he initially lied about what they were doing at the scene, Parks’ eventual truthful admission gave Officer Byrd the probable cause necessary to conduct a search of Geer’s mouth, and the search was not based upon a “mere chance that [the] desired evidence might be obtained.” Schmerber, 384 U.S. at 70. The facts available to Officer Byrd led him to believe that a criminal offense had occurred and that Parks and Geer were involved. Considering the totality of the circumstances (the lateness of the hour, the dead-end street, Parks’ initial suspicious behavior and his eventual admission against his interest) Officer Byrd had a clear indication that not only had a criminal act taken place but also that evidence would be found. The record indicates that Officer Byrd did not reach into Geer’s mouth but asked her to spit the rocks onto the hood of the patrol car and she complied, thus, ensuring the evidence was found and retrieved in a safe and reliable manner.
Furthermore, our Supreme Court has held, “[a] suspect has no constitutional right to destroy or dispose of evidence by swallowing, consequently he cannot consider the mouth a ‘sacred orifice’ in which contraband may be irretrievably concealed from the police.” State v. Dupree, 319 S.C. 454, 458, 462 S.E.2d 279, 282 (1995) (quoting State v. Williams, 560 P.2d 1160, 1162 (Wash. Ct. App. 1977)). Given the nature of the evidence and the manner in which Geer sought to conceal it, it was necessary for Officer Byrd to immediately seize the evidence in order to ensure that Geer did not destroy it by swallowing it. Baccus, 367 S.C. at 53, 625 S.E.2d at 222.
As stated, when an appellate court reviews a Fourth Amendment search and seizure case, it must affirm the trial court’s ruling if any evidence supports the ruling. State v. Missouri, 361 S.C. 107, 111, 603 S.E.2d 594, 596 (2004). In this case, we agree with the trial court, finding sufficient evidence supports the search and seizure. Accordingly, Geer has not shown that the trial court committed clear error when it allowed the evidence to be admitted. Even though Officer Byrd did not secure a warrant for the search of Geer’s mouth due to the nature of the evidence and the possibility that it could be easily destroyed, this Court finds that the trial court properly found the search constitutional and supported by probable cause. Consequently, this Court finds no Fourth Amendment violation and the trial court’s denial of Geer’s motion to suppress the evidence is affirmed.
IV. Chain of Custody
Geer argues the trial court erred when it denied her motion to suppress the drug evidence because the State failed to present a sufficient chain of custody. We disagree.
“[A] party offering into evidence fungible items such as drugs or blood samples must establish a complete chain of custody as far as practicable.” State v. Sweet, 374 S.C. 1, 6, 647 S.E.2d 202, 205 (2007). “In applying this rule, [the South Carolina Supreme Court] has held that where a party has established the identity of each person in the chain of custody, issues regarding the care of the evidence only go to the weight of the specimen as credible evidence, and not its admissibility.” Id. at 8, 647 S.E.2d at 206. “The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion.” State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002).
At trial, the State submitted testimony sufficient to prove the chain of custody from the time Officer Byrd secured the evidence in the patrol vehicle at the scene of the arrest until it was returned to the custody of the Greenwood Police Department. There was also testimony that the blue line seal and the heat seal on the envelope containing the evidence, although opened by each person who tested it, had not been tampered with. At trial, the evidence was also presented, examined, and found to be intact.
Geer argues that because the State admits that there were inconsistencies in the affidavit that was submitted regarding Officer Suddeth’s receipt of the evidence from Officer Byrd, the admission of the evidence should be suppressed. The affidavit states that the evidence was received “in person”; however, Officer Suddeth actually retrieved the evidence from the evidence locker. The custody form that is used to log in evidence lists two choices when logging the evidence, “in person” or “via mail.” The discrepancy was explained to and accepted by the trial court that as a matter of standard procedure, when filling out a form, if the receiver takes the evidence from the evidence locker, he or she has no other choice but to log it as received “in person.” The discrepancy was not a blatant disregard for the truth of how the evidence was transferred. Additionally, Geer argues that there was a discrepancy of one tenth of a gram in the actual weight of the substance when it was logged by Officer Byrd compared to when it was logged by Officer Zivkovitch. That discrepancy was explained to and accepted by the trial court as resulting from the field testing done at City Hall.
“While proof need not negate all possibility of tampering, it is generally held that the party offering such specimen is required to establish, at least as far as practicable, a complete chain of evidence, tracing possession from the time the specimen is taken from the human body to the final custodian by whom it is analyzed.” Benton v. Pellum, 232 S.C. 26, 33, 100 S.E.2d 534, 537 (1957) (internal citation omitted). Conversely, if the State had failed to establish an adequate chain of custody such that the inconsistency or discrepancy in the chain was critical, the chain of custody would have been considered fatally deficient and the trial court would have erred in admitting the evidence. State v. Joseph, 328 S.C. 352, 364-65, 491 S.E.2d 275, 281-82 (Ct. App. 1997). Here, the State has established a complete chain of custody from the time the evidence was taken from Geer until it was admitted at trial. None of the minor discrepancies rise to the level of reversible error. Consequently, the decision of the trial court to deny Geer’s motion to suppress the evidence based on an insufficient chain of custody is affirmed.
CONCLUSION
Based on the foregoing, the trial court did not err or abuse its discretion when it denied Geer’s motion for a continuance, her motion to quash based on selective prosecution, and her motion to suppress the drug evidence. Accordingly, the decision of the trial court is
AFFIRMED.
KONDUROS, J., concurs.
LOCKEMY, J., dissents.
Lockemy, J: I agree with the majority that the State’s exercise of its prosecutorial discretion is “troublesome” to say the least. However, I respectfully dissent because I believe the search of Geer’s mouth violated the Fourth Amendment’s prohibition against an unreasonable search. The only fact available to Officer Byrd indicating a search of Geer’s mouth would reveal relevant material evidence was Parks’s mere assertion that Geer had placed drugs in her mouth, which he made after previously lying to Officer Byrd. I would hold this sole assertion from someone with doubtful veracity is insufficient to establish a clear indication drugs would be found in Geer’s orifice to support a search. U.S. Const. amend. IV; S.C. Const. art. I, §10; see State v. Dupree, 319 S.C. 454, 459, 462 S.E.2d 279, 282 (1995) (finding a clear indication drugs would be found in Dupree’s mouth existed where officers observed Dupree standing in a laundromat known for drug activity, holding what the they believed were drugs, placing his hand to his mouth and attempting to leave through the back door). As in Dupree, I believe more facts are necessary to establish a clear indication.
[1] A best bag is a sealable envelope in which evidence is placed. In order to ensure that it is not tampered with, after the bag is sealed, a blue line sticker is placed on it. If it is ever tampered with, the line would break and it would be easy to detect that the contents had been compromised.
[2] The record indicates that the evidence was in the custody of Officer Zivkovitch from October 31, 2007, until he took it “back down to the vault, down in the log-in area for the officers to pick back up.” Officer Zivkovitch did not perform the test until November 28, 2007. The record does not indicate exactly where within Officer Zivkovitch’s custody the evidence was actually secured, and Geer made no objection concerning this issue.
[3] A Fourier Transform Infrared Spectroscopy (FTIR) or Full Spectrum Scan is an instrument that “shines infrared light through a sample” substance.
[T]he light that is absorbed or transmitted is measured by the instrument. An IR spectrum, or printout, is created that shows the light absorbed at different wavelengths. An IR spectrum is much like a fingerprint in that it is unique to a substance and can therefore be used to make a positive identification.
State of Alaska Department of Public Safety, Scientific Crime Detection Laboratory, Controlled Substances, http://www.dps.alaska.gov/Crimelab/ services/controlledsubstances.aspx (last visited Aug. 3, 2010).
Feb 26, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This recent SC Court of Appeals case reflects the importance of making motions to suppress evidence based on improper warrantless searches by police. Here, the arresting officer clearly searched a closed duffel bag looking for evidence of other crimes without first getting a warrant. The suspect was already in custody and placed in the back of the patrol car. He posed no threat to the officer’s safety. With a proper warrant, this individual would have been sentenced to 25 years in prison. Due to the hard work and tenacity of his criminal defense lawyer, his charges were ultimately defeated, and he is free. Better make sure your criminal lawyer is experienced and willing to fight all the way for you.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried just about every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Danny Cortez Brown, Appellant.
Appeal From Horry County
Steven H. John, Circuit Court Judge
Opinion No. 4697
Heard March 2, 2010 – Filed June 14, 2010
REVERSED
Appellate Defender Elizabeth A. Franklin, 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 Norman Mark Rapoport, Assistant Attorney General Suzanne H. White, all of Columbia; and John Gregory Hembree, of Conway, for Respondent.
SHORT, J.: Danny Brown was charged with trafficking cocaine. Following a jury trial, he was convicted and sentenced to twenty-five years incarceration. He appeals, arguing the trial court erred by denying his motion to suppress the drugs seized after his arrest for an open container violation. We reverse.
FACTS
Officer Daryl Williams was on patrol in Myrtle Beach, South Carolina. While traveling down a road, he observed a 1976 Plymouth next to him and saw a passenger drinking what appeared to be a beer. The passenger, Brown, saw Officer Williams and tucked the beer can between his legs. Officer Williams pulled the car over and noticed a small duffel bag on the floorboard between Brown’s legs. Officer Williams testified he was suspicious of the occupants because the driver acted nervous while Brown appeared “artificially laid back.”
Initially, Brown denied having a beer, but then he pulled the can up from his lap. Officer Williams removed Brown from the car, recovered the beer can, arrested him for an open container violation, and placed his duffel bag on the sidewalk. He handcuffed Brown and placed him in a patrol car. After securing Brown, Officer Williams returned to the car to make “small talk” with the driver. He returned to the duffel bag, searched it, and found cocaine concealed inside a Fritos bag. Officer Williams stated he closed the duffel bag and resumed conversation with the driver. He ran the driver’s license, discovered it was suspended, and placed the driver under arrest for that offense.
During trial, Brown moved to suppress the drugs on a violation of his Fourth Amendment rights. The trial court denied the motion to suppress, finding there was probable cause to stop the car, and Brown’s arrest was lawful. The trial court held the search was proper because it was a search incident to a lawful arrest. Brown was found guilty and sentenced to twenty-five years imprisonment. This appeal followed.
STANDARD OF REVIEW
When reviewing a Fourth Amendment search and seizure case, we do not review the trial court’s ultimate determination de novo, rather we apply a deferential standard. State v. Khingratsaiphon, 352 S.C. 62, 70, 572 S.E.2d 456, 459-60 (2002). This court reviews the trial court’s ruling like any other factual finding, and we will reverse only if there is clear error. Id. Therefore, we will affirm if any evidence exists to support the trial court’s ruling. Id.
LAW/ANALYSIS
On appeal Brown argues the trial court erred by denying his motion to suppress the drugs in violation of his Fourth Amendment rights. We agree.
The Fourth Amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. Any evidence seized in violation of the Fourth Amendment must be excluded. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
It is well established that warrantless searches and seizures by the police are per se unreasonable, unless they fall within one of several recognized exceptions. State v. Weaver, 361 S.C. 73, 80-81, 602 S.E.2d 786, 790 (Ct. App. 2004). These exceptions include: (1) search incident to a lawful arrest; (2) hot pursuit; (3) stop and frisk; (4) automobile exception; (5) plain view doctrine; (6) consent; and (7) abandonment. Id.
A. Search Incident to Arrest[1]
Under the search incident to arrest exception, if the arrest is supported by probable cause, police officers may search an arrestee’s person and the area within his or her immediate control for weapons and destructible evidence without first obtaining a search warrant. State v. Ferrell, 274 S.C. 401, 405, 266 S.E.2d 869, 871 (1980). However, this doctrine does not allow law enforcement officers to conduct a warrantless search of an arrestee’s automobile after the arrestee has been handcuffed or otherwise prevented from regaining access to the car, unless it is reasonable to believe (1) the arrestee might access the vehicle at the time of the search, or (2) that the vehicle contains evidence of the offense of the arrest. Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1723-24 (2009) (limiting New York v. Belton, 453 U.S. 454 (1981) and Thornton v. U.S., 541 U.S. 615 (2004)).
The burden of establishing the existence of circumstances constituting an exception to the general prohibition against warrantless searches is upon the State. Weaver, 361 S.C. at 81, 602 S.E.2d at 790.
In the present case, neither of the exceptions stated in Gant apply. Officer Williams testified he had Brown exit the car to be handcuffed and arrested for the offense of open container. He took the duffel bag from the car, placed it on the sidewalk, and then put Brown in the back of his patrol car. After securing Brown, Officer Williams returned to the car and made “small talk” with the driver. He testified:
I wanted to deal with him later, but I just wanted to get a glance into the bag, so I did unzip the bag, and look in. It was personal items like, perhaps deodorant, undergarments . . . and there was a bag of Fritos potato chips, corn chips, whatever . . . and it was open, so it was kind of crumpled shut, I believe, so I went and just opened it up to get a look into the bag, and then I seen inside that bag a — what appeared to be a plastic bag with a white powdery substance, which is — you know, looks — appears to be cocaine.
It is clear from Officer Williams’ testimony that Brown was handcuffed and securely placed in the patrol car prior to Officer Williams searching the duffel bag. During Officer Williams’ search, Brown could not have accessed the vehicle or the duffel bag. Thus, it was impossible that Brown could have accessed the vehicle at the time of the search, making the first exception in Gant inapplicable.
As to the second Gant exception, Officer Williams was not looking for evidence for the offense charged. There was no evidence presented that Officer Williams had a reasonable belief that the duffel bag or Frito bag held further evidence of the open container violation. Brown told Officer Williams he did not have any more beer. More to the point, when asked if the beer can was taken into evidence, Officer Williams explained, for this type of charge “we don’t take that sort of thing in evidence.” We therefore conclude the search incident to arrest exception does not apply in the present case.[2]
B. The Automobile Exception
Because of its mobility and the lessened expectation of privacy in motor vehicles, a motor vehicle may be searched without a warrant based solely on probable cause. State v. Cox, 290 S.C. 489, 491, 351 S.E.2d 570, 571-72 (1986). Just like a driver of an automobile, passengers possess a reduced expectation of privacy with regard to the property that they transport in cars. Wyoming v. Houghton, 526 U.S. 295, 303 (1999). The standard for probable cause to make a warrantless search is the same as that for a search with a warrant. State v. Bultron, 318 S.C. 323, 332, 457 S.E.2d 616, 621 (Ct. App. 1995).
Articulating precisely what probable cause means is not possible. Ornelas v. U.S., 517 U.S. 690, 695-96 (1996). Probable cause is a commonsense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Id. Probable cause to search exists where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found in a particular place. Id. The principal components of the determination of probable cause will be whether the events which occurred leading up to the search, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. Id. The scope of a warrantless search of an automobile is defined by the object of the search and the places in which there is probable cause to believe that the object may be found. State v. Perez, 311 S.C. 542, 546, 430 S.E.2d 503, 505 (1993).
If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Houghton, 526 U.S. at 301-02. This rule applies to all containers within a car, without qualification as to ownership of a particular container and without a showing of individualized probable cause for each container. Id.
As noted above, Officer Williams placed Brown under arrest for an open container. Officer Williams had already recovered the beer can, which interestingly he did not take into evidence, prior to searching the duffel bag. Based on this, the only evidence Officer Williams could have been searching for was more beer. The bag in question was not a grocery bag where one would expect to find beer. Rather, the bag was a zipped-up duffel bag that would be used to carry clothes. One of the officers stated, “The black duffel bag was more like a gym bag, like a small carry-on bag to take on an airplane, or to a gym. . . .”
Additionally, Officer Williams never testified he searched the bag to find evidence of a crime. According to Officer Williams, he removed the bag from the car because it posed a “safety issue,” and because he wanted to separate the bag from the driver. Officer Williams stated after he placed Brown in the patrol car, he searched the duffel bag because he “wanted to get a glance into the bag.”
Viewing the evidence and testimony through the lens that the State bears the burden to prove an exception to the prohibition against warrantless searches, as we must, we conclude Officer Williams did not have probable cause to search the bag.
C. The Exclusionary Rule, Inevitable Discovery, and Inventory Search
The State urges us to accept that the drugs would have been inevitably discovered during an inventory search. We disagree.
The exclusionary rule provides that evidence obtained as a result of an illegal search must be excluded. State v. Sachs, 264 S.C. 541, 560, 216 S.E.2d 501, 511 (1975). The inevitable discovery doctrine is an exception to the exclusionary rule and states that if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, the information is admissible despite the fact it was illegally obtained. Nix v. Williams, 467 U.S. 431, 443-44 (1984). The fruit of the poisonous tree doctrine, most often associated with violations of the Fourth Amendment’s prohibition of unreasonable searches and seizures, prohibits the use of evidence obtained directly or indirectly through an unlawful search or seizure. Wong Sun v. U.S., 371 U.S. 471, 484 (1963).
If the police are following standard procedures, they may inventory impounded property, including closed containers, to protect an owner’s property while it is in police custody. Colorado v. Bertine, 479 U.S. 367, 372-73 (1987). Standardized criteria or established routine must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. Florida v. Wells, 495 U.S. 1, 3 (1990).
The State provided very scant testimony, at best, that the duffel bag or car would have been taken into police custody after Brown and the driver were arrested.[3] Although commonsense dictates the police would have done exactly this, we are confined by the law that the prosecution bears the burden to establish by a preponderance of the evidence that the evidence would inevitably have been discovered. Nix, 467 U.S. at 443-44. Additionally, police must follow standard procedures to conduct an inventory search and no such testimony was presented. Thus, we conclude the inevitable discovery doctrine does not apply and the trial court erred by failing to exclude the evidence. See State v. Grant, 174 S.C. 195, 177 S.E.2d 148, 149 (1934) (“The right of people to go about their business without being subjected to undue search and seizure . . . by the authorities of the law . . . . are essential to an orderly government.”). Consequently, we reverse Brown’s conviction and vacate his sentence.
CONCLUSION
Accordingly, the trial court’s decision is
REVERSED.
WILLIAMS and LOCKEMY, JJ., concur.
[1] Initially, the State argues this issue is not preserved for review. We disagree. Trial counsel asked the trial court to suppress the evidence, and the trial court denied this request. This issue was raised to and ruled upon by the trial court and is properly before this court. Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“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.”).
[2] In fairness to the trial court, it did not have the guidance provided to us by the United States Supreme Court in the Gant case.
[3] The solicitor asked an officer, “Did you have occasion to search that vehicle pursuant to the arrest?” In reply the officer testified, “Yes. Yes sir. Under lawful search incident to arrest of the vehicle (sic), in the passenger area, and pursuant also to guidelines of doing inventory of the vehicle before towing, we searched that vehicle.”
Feb 25, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
The following article details the end of the federal government’s tolerance for growing medical marijuana in California. Of course, this new crackdown will presumably be enforced throughout the country. After decades of fighting a “war on drugs,” we do not seem any closer to winning. In fact, we are clearly losing same. Not all drugs can be legalized, but the arguments for continued marijuana laws are diminishing. Possession in most states results in a monetary fine. Think of the tax revenue that could be generated. Imagine taking the criminal element out of the process. Think of the research that has already been done to show legitimate medical uses for treatment of disease and resulting pain relief.
The attorneys at Reeves, Aiken & Hightower, LLP, do not encourage or endorse any illegal drug use. However, we support the legalization of marijuana for the above reasons and aggressively defend those charged with drug related crimes, including possession, distribution, and/or manufacturing. Our experienced trial attorneys include a former SC prosecutor, a former NC District Attorney intern, and a former SC public defender. Attorney Art Aiken has tried criminal cases of all types in both state and federal courts. If you have been arrested for a drug crime, we would welcome an opportunity to sit down and review your particular case. Compare our attorneys’ credentials to any other law firm. Then call us for a private consultation. www.rjrlaw.com
Federal Warning Ends County Truce With Pot-Growers
By LISA LEFF Associated Press
SAN FRANCISCO February 25, 2012 (AP)
Residents of Mendocino County, the redwood and marijuana-rich territory in California’s fabled Emerald Triangle, thought they had reached détente in the decades-old clash between pot growers and local law enforcement two years ago when the sheriff agreed to stop raiding medical cannabis producers who paid to have their crops inspected.
For a $1,500 fee and adherence to rules over water usage, odor control and distance from neighbors, marijuana farmers working for groups of patients could grow up to 99 plants on five acres of land. Numbered red zip ties had be affixed to each plant, confirming the county’s seal of approval and giving a visiting deputy proof the pot was legally grown.
The one-of-a-kind program generated $663,230 for the sheriff’s department — and prompted inquiries from other jurisdictions interested in creating their own.
But this month, the permitting system became the most striking casualty of the crackdown on medical marijuana cultivation and distribution by California’s federal prosecutors. The board of supervisors ended the experiment after the U.S. attorney for Northern California threatened take the county to court for helping produce an illegal drug.
“We thought we had something that was working and was making our life easier so we could turn our attention to other pressing matters,” Supervisor John McCowen said. “We were creating an above-ground regulatory framework that protected public safety and protected the environment. It was truly a landmark program.”
After four-and-a-half months, the federal government’s highly publicized offensive has reverberated unevenly throughout California. It has resulted in a near-total shutdown of storefront pot dispensaries in some cities that welcomed federal intervention. It has upset officials in pot-friendly places, who thought they had found the right formula for facilitating legal use. And it has created uncertainty in localities still struggling to curtail their pot outlets.
Medical pot is legal to varying degrees in 16 states and the District of Columbia. And officials in more than half of them have been told government workers implementing medical marijuana laws could face criminal charges.
But California, which in 1996 became the first state to legalize marijuana for medical use, has come under special scrutiny. Its laws remain the nation’s most liberal, allowing doctors to issue pot recommendations for almost any ailment and giving local authorities broad discretion, but little guidance, in how to implement them.
The state’s laws stand in conflict with federal law, which holds marijuana is illegal substance with no recognized health benefits. And the current offensive is designed to make dispensaries and local government officials comply with it.
The primary tool the U.S. attorneys have used is threatening to seize the properties of landlords who knowingly leased farms or retail spaces to the commercial medical marijuana trade. But they also have filed criminal and civil charges against owners of nonprofit dispensaries they say were pocketing tons of money and furnishing pot to people who had no medical need for it. And in some cases, such as Mendocino’s, they have warned government officials.
“These licensing schemes are inconsistent with federal law,” Melinda Haag, Northern California’s U.S. attorney, said in October. “We are simply reminding local officials the ordinances are illegal.”
As part of the statewide crackdown, about 90 dispensaries in 19 Southern California cities were sent letters telling them to close or face possible criminal charges and fines. More than a dozen building owners where marijuana clinics were once located have been subjected to federal forfeiture lawsuits.
In Orange County, the city of Lake Forest had a dozen dispensaries operating a year ago. After officials sought help from federal prosecutors, only one pot shop remains.
In San Diego, the vast majority of the 180 or so pot shops whose landlords were sent warning letters have closed. And in unincorporated parts of Sacramento County, where the Board of Supervisors cited the federal crackdown when outlawing dispensaries, all 97 pot shops are gone.
“What the feds bring to the party is they can do things under their federal law that cities and counties and even the state of California cannot do,” said Jeffrey Dunn, an attorney who has helped Lake Forest and other Southern California cities shutter dispensaries. “There are no disputes about medicinal use because it doesn’t matter. If you are distributing marijuana, end of discussion.”
Federal authorities have not yet weighed into Los Angeles, where city officials tried to limit the number of pot shops two years ago and are now considering a total ban.
City officials believe there still may be hundreds of shops doing business right now. “As of today, we don’t know how many exist,” said special assistant city attorney Jane Usher. “The last thing they are inclined to do is to tell us they are open.”
Until Mendocino County officials bowed to pressure, the federal offensive was not very visible in pot-tolerant places either. In San Francisco, only five of the city’s 26 dispensaries have closed, with federal prosecutors saying they were targeted because of their proximity to places such as schools and playgrounds. Only one of neighboring Marin County’s six clinics closed, and Fairfax town officials appealed to keep it and its tax revenue.
Advocates and experts say Justice Department directives have sent mixed signals since the election of President Barack Obama —first saying that prosecutors would no longer pursue dispensaries following state law, then stating that cultivating, selling and distributing marijuana was still against the law.
The pressure by California’s federal prosecutors came in response to the second directive and the unsuccessful efforts by local governments to keep dispensaries in check, said McGregor Scott, a former U.S. attorney in Sacramento.
“The perception by proponents of medical marijuana was that, if they… were complying with state law, the feds were going to leave them alone,” Scott said. “I think what happened is, the administration realized they had made a mistake by taking the lid off.”
Supporters of medical marijuana have questioned why the federal government is derailing attempts to create legal frameworks for getting pot to people authorized to use it.
“They claim they don’t have any problem with individual medical marijuana patients accessing their medicine, but then go out of their way to prevent the creation of any kind of responsible system from being developed,” said Stephen Gutwillig, the Drug Policy Alliance’s director in California. “It’s basically a form of sabre rattling.”
Associated Press writer Greg Risling contributed to this article from Los Angeles.
Feb 15, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This recent SC Court of Appeals decision discusses issues of what constitutes “expectation of privacy” and “reasonable suspicion.” Both of these critical legal concepts are always fact specific, and a ruling can make the difference between a conviction or having your criminal charges dismissed. Better make sure your criminal attorney understands these issues thoroughly and can make the necessary arguments to protect your 4th Amendment rights.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried just about every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Jomar Antavis Robinson, Appellant.
Appeal From York County
Lee S. Alford, Circuit Court Judge
Opinion No. 4942
Heard October 3, 2011 – Filed February 15, 2012
AFFIRMED
Appellate Defender Elizabeth Franklin-Best, of Columbia, for Appellant.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Attorney General Harold M. Coombs, and Solicitor Kevin Brackett, all of Columbia, for Respondent.
WILLIAMS, J.: Jomar Antavis Robinson (Robinson) was convicted of possession of crack cocaine with intent to distribute, possession of crack cocaine with intent to distribute within one-half mile of a public park, unlawful carrying of a pistol, possession of marijuana, and resisting arrest. The circuit court sentenced Robinson to life imprisonment. Robinson appeals, arguing the circuit court erred in (1) denying Robinson’s motion to suppress drugs found as a result of an illegal search and seizure; and (2) allowing the State to qualify the Commander of the Drug Enforcement Unit as an expert witness. We affirm.
FACTS/PROCEDURAL HISTORY
On March 20, 2010, Sergeant Rayford Louis Ervin, Jr. (Ervin) with the York County Drug Enforcement Unit (the Drug Enforcement Unit) conducted surveillance of the Hall Street Apartments in response to numerous anonymous complaints of criminal activity in the area. Ervin stated he observed conduct consistent with drug transactions and called for back-up. Lieutenant James M. Ligon (Ligon) and Officer Brian Schettler (Schettler) with the Drug Enforcement Unit responded. Upon their arrival, Ervin informed the officers he observed an individual, wearing a black leather jacket, meeting vehicles that pulled into the parking lot, going up to the vehicles’ windows for a short time, and then returning to the porch of an apartment.
Ligon and Schettler approached the porch and smelled a strong odor of marijuana. Of the five individuals on the porch, two men were wearing black jackets matching Ervin’s description. Ligon and Schettler asked the men for their identification. Ligon noticed one of the individuals, later identified as Robinson, had a pistol hanging out of the right pocket of his jacket. Ligon told the two individuals he could smell marijuana and see Robinson’s pistol, and he was going to conduct a Terry[1] search. As Robinson began to retreat, both Ligon and Robinson reached for Robinson’s pistol, and a fight between Ligon and Robinson ensued. During the struggle, Robinson’s jacket fell to the ground and Robinson fled the scene. Ligon pursued him, and after an altercation, Ligon placed Robinson in handcuffs. Once Robinson was in custody, Schettler searched the inside of Robinson’s jacket and found the pistol, a bag containing marijuana, and a bag containing crack cocaine.
A York County grand jury indicted Robinson for possession of crack cocaine with intent to distribute, possession of crack cocaine with intent to distribute within one-half mile of a public park, unlawful carrying of a pistol, possession of marijuana, and resisting arrest.
Robinson moved in limine to suppress the pistol, marijuana, and crack cocaine found in Robinson’s pocket, arguing the contents of his jacket were the result of an illegal search. The circuit court denied this motion finding the search did not violate Robinson’s Fourth Amendment rights; Robinson did not have an expectation of privacy on the porch; and the officers had reasonable suspicion to investigate. When the State introduced the pistol and crack cocaine into evidence during trial, Robinson timely objected. However, despite his motion in limine to suppress the marijuana, Robinson offered the bag of marijuana into evidence during the cross-examination of one of the State’s witnesses as a trial strategy.[2]
The State called Commander Marvin Brown (Commander Brown) of the Drug Enforcement Unit as a witness. The State offered Commander Brown as an expert in “how crack cocaine is packaged, sold, the going price, the typical intoxicating dose, and the different habits between the typical addict, the user, and the typical drug dealer.” Robinson objected, arguing Commander Brown was not qualified as an expert witness under Rule 702 of the South Carolina Rules of Evidence. After voir dire of Commander Brown, the circuit court concluded he was qualified to testify as an expert.
Following the State’s case-in-chief, Robinson moved for a directed verdict. In addition, Robinson renewed his motion to suppress the evidence obtained from the search, but he specifically conceded the marijuana was admissible based on his introduction of the marijuana during trial. The court denied Robinson’s motions. Robinson was convicted of all charges and was subsequently sentenced to life imprisonment pursuant to section 17-25-45 of the South Carolina Code (Supp. 2010).[3] This appeal followed.
STANDARD OF REVIEW
In criminal cases, the appellate court reviews errors of law only. State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003). The appellate court is bound by the circuit court’s factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001).
LAW/ ANALYSIS
I. Motion to Suppress
Robinson argues the marijuana and cocaine were improperly admitted at trial because they were obtained in an unlawful manner. We disagree.
a. Marijuana
Robinson introduced the marijuana into evidence during his cross-examination of Ligon; therefore, he cannot now complain of its admission on appeal. See State v. Johnson, 298 S.C. 496, 498, 381 S.E.2d 732, 733 (1989) (holding a defendant who expressly consented to the admission of evidence at trial waived any right to raise the issue of admissibility on appeal); State v. O’Neal, 210 S.C. 305, 312, 42 S.E.2d 523, 526 (1947) (holding a defendant may not complain of admission of evidence when he introduced the same kind of evidence on cross-examination); State v. Beam, 336 S.C. 45, 52, 518 S.E.2d 297, 301 (Ct. App. 1999) (holding a defendant cannot complain about the admission of evidence on appeal when he opened the door to the introduction of that evidence).
b. Crack Cocaine
Robinson argues the circuit court erred in admitting the crack cocaine at trial when (1) he had a reasonable expectation of privacy on the porch; and (2) Ligon and Schettler entered without a warrant and in the absence of exigent circumstances. We disagree and address each argument in turn.
i. Expectation of Privacy
Robinson contends the search was in violation of his Fourth Amendment rights because he had an expectation of privacy on the porch. We disagree.
For Robinson to establish a Fourth Amendment violation, he must show a legitimate expectation of privacy on the porch. See State v. Missouri, 361 S.C. 107, 112, 603 S.E.2d 594, 596 (2004) (“To claim protection under the Fourth Amendment of the U.S. Constitution, defendants must show that they have a legitimate expectation of privacy in the place searched.”). “A legitimate expectation of privacy is both subjective and objective in nature: the defendant must show (1) he had a subjective expectation of not being discovered, and (2) the expectation is one that society recognizes as reasonable.” Id. (quoting Oliver v. U.S., 466 U.S. 170, 177 (1984)).
“A reasonable expectation of privacy exists in property being searched when the defendant has a relationship with the property or property owner.” State v. Flowers, 360 S.C. 1, 5, 598 S.E.2d 725, 728 (Ct. App. 2004). While an overnight guest may have a reasonable expectation of privacy in the host’s property, “a person present only intermittently or for a purely commercial purpose does not have a reasonable expectation of privacy.” Id.
Here, the circuit court found Robinson did not have the same expectation of privacy as he would have in his own home. Robinson did not live in the apartment connected to the porch or any apartment located in the Hall Street Apartment complex. Furthermore, there is no evidence he was an overnight guest or otherwise had a connection to the premises or apartment lessee to give him a reasonable expectation of privacy. Robinson failed to establish he had an expectation of not being discovered on the porch, nor did he ask the police to leave. See In the Matter of Brazen, 275 S.C. 436, 436, 272 S.E.2d 178, 178 (1980) (finding the defendant did not have a subjective expectation of privacy in an open garage when he had an opportunity to demonstrate an expectation of privacy or ask the police to leave, but instead did nothing). Therefore, Robinson failed to show he had a reasonable expectation of privacy on the porch.
ii. Reasonable Suspicion
Robinson also argues Ligon and Schettler violated his Fourth Amendment rights because they entered the porch without a warrant and in the absence of exigent circumstances. We disagree.
“A police officer may stop and briefly detain and question a person for investigative purposes, without treading upon his Fourth Amendment rights, when the officer has a reasonable suspicion supported by articulable facts, short of probable cause for arrest, that the person is involved in criminal activity.” State v. Taylor, 388 S.C. 101, 109, 694 S.E.2d 60, 64 (Ct. App. 2010) (quoting State v. Blassingame, 338 S.C. 240, 248, 525 S.E.2d 535, 539 (Ct. App. 1999)). “‘Reasonable suspicion’ requires a ‘particularized and objective basis that would lead one to suspect another of criminal activity.'” State v. Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2002) (quoting U.S. v. Cortez, 449 U.S. 411, 418 (1981)). In determining whether reasonable suspicion exists, the totality of the circumstances should be evaluated. State v. Corley, 383 S.C. 232, 240, 679 S.E.2d 187, 191 (Ct. App. 2009). While anonymous tips do not supply the indicia of reliability to establish reasonable suspicion, an “anonymous tip can provide the basis of an investigatory stop if the officer conducting the stop verifies the tip’s reliability by observing the suspect engaged in criminal activity.” Taylor, 388 S.C. at 114, 694 S.E.2d at 66. The officer’s experience and intuition is an additional factor to consider in determining whether reasonable suspicion exists. Id. at 116, 694 S.E.2d at 68.
Here, the circuit court held:
[T]aking the totality of the circumstances, the officer’s knowledge about the area, what had been reasonably observed, that there were anonymous tips, the police officers investigation and observing the area, . . . the drug transactions [that] were going on in the parking lot based on an officer’s knowledge of what drug transactions look like in those situations, . . . they are going there simply to determine the identification of the people who are there, . . . heightened by the fact that they smelled the green marijuana, and heightened by the fact that they saw a weapon hanging out of the defendant’s pocket. So all of that, taking the totality of the circumstances they would have reasonable suspicion to investigate further and to pat down the defendant . . . .
Ligon and Schettler testified to specific and articulable facts to show they had reasonable suspicion that criminal activity was afoot. Based on Ervin’s observation of conduct consistent with drug transactions, Ligon and Schettler approached the porch, and Ligon asked for Robinson’s identification. Ligon and Schettler both testified this was a consensual encounter, and Robinson could have terminated the encounter at any time. See State v. Foster, 269 S.C. 373, 380, 237 S.E.2d 589, 592 (1977) (holding an officer’s request to see identification does not constitute a seizure within the meaning of the Fourth Amendment). The fact that the officers smelled marijuana as they approached the porch reasonably heightened their suspicion. See State v. Banda, 371 S.C. 245, 253, 639 S.E.2d 36, 40 (2006) (holding the court recognizes there is an “indisputable nexus between drugs and guns” to justify a frisk for weapons when an officer has reasonable suspicion that drugs are present) (internal citation omitted). When Schettler saw the pistol hanging out of Robinson’s jacket pocket, he had reasonable suspicion to frisk Robinson for weapons. We find the police had reasonable suspicion to stop Robinson, and thus did not violate his Fourth Amendment rights.
Accordingly, we affirm the circuit court’s denial of Robinson’s motion to suppress the crack cocaine.
II. Expert Witness Qualification
Robinson next argues the circuit court erred in qualifying Commander Brown as an expert witness. We disagree.
A person is competent as an expert when he or she has acquired knowledge, skill, or experience so that he or she is better able than the jury to form an opinion on the subject matter. Rule 702, SCRE; see also Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 252-53, 487 S.E.2d 596, 598 (1997) (“To be competent to testify as an expert, ‘a witness must have acquired by reason of study or experience or both such knowledge and skill in a profession or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony.'”) (internal citation omitted). “An expert is not limited to any class of persons acting professionally.” Id. at 252, 487 S.E.2d at 598 (internal citation omitted). “The party offering the expert has the burden of showing his witness possesses the necessary learning, skill, or practical experience to enable the witness to give opinion testimony.” State v. Schumpert, 312 S.C. 502, 505, 435 S.E.2d 859, 861 (1993). However, defects in the amount or quality of education or experience go to the weight of the expert’s testimony and not its admissibility. State v. Myers, 301 S.C. 251, 256, 391 S.E.2d 551, 554 (1990).
Robinson questioned Commander Brown regarding writings, publications, and experience in the area of narcotics enforcement. Commander Brown indicated he wrote an article in a national magazine for the United States Attorney’s Office detailing how the Drug Enforcement Unit was organized. He testified he teaches three classes: search and seizure, asset forfeiture, and basic narcotics. In addition, Commander Brown makes an annual appearance as a guest instructor at a commander’s school for the United States Attorney’s Office regarding drug enforcement and drug trends. Commander Brown testified he was the narcotics supervisor for over twenty years. Further, he stated he worked on the first crack cocaine case in York County and has observed crack cocaine “evolve as to how it’s packaged and sold throughout the years, especially . . . in York County.” Moreover, Commander Brown stated he had been qualified more than six times as an expert in previous state court criminal cases in “how cocaine is packaged, sold, the going price, the typical intoxicating dose.” Commander Brown also affirmed that he has been qualified as an expert in federal court twice on the same subject matter.
We find Commander Brown’s thirty years of experience in narcotics enforcement coupled with his involvement in hundreds of crack cocaine cases sufficient to qualify him as an expert on this topic. See State v. Henry, 329 S.C. 266, 273, 495 S.E.2d 463, 466 (Ct. App. 1997) (“There is no abuse of discretion as long as the witness has acquired by study or practical experience such knowledge of the subject matter of his testimony as would enable him to give guidance and assistance to the jury in resolving a factual issue which is beyond the scope of the jury’s good judgment and common knowledge.”).
Moreover, because the qualification of Commander Brown did not require the jury to give his testimony any greater weight than that given to a lay witness, Robinson did not suffer any prejudice from Commander Brown’s expert qualification. See State v. Douglas, 380 S.C. 499, 503, 671 S.E.2d 606, 609 (2009) (finding a defendant was not prejudiced by the witness’s expert qualification because the fact that the witness was qualified as an expert did not require the jury to accord her testimony any greater weight than that given to any other witness); State v. White, 382 S.C. 265, 271, 676 S.E.2d 684, 687 (2009) (finding the circuit court properly instructed the jury to give the expert witness’s testimony “such weight and credibility as you deem appropriate as you will with any and all witnesses that will testify at this trial”); State v. Commander, 384 S.C. 66, 75, 681 S.E.2d 31, 35 (Ct. App. 2009) (“As with any witness, the jury is free to accept or reject the testimony of an expert witness.”) (internal citation omitted).
The State offered Commander Brown’s testimony to advise the jury as to how crack cocaine was sold and packaged, which is information not commonly known to the average juror. Further, this information would aid the jury in determining whether Robinson intended to distribute the crack cocaine or only possessed the crack cocaine for personal use. Therefore, the circuit court did not abuse its discretion in qualifying Commander Brown as an expert witness.
CONCLUSION
Accordingly, the circuit court’s rulings are
AFFIRMED.
SHORT and GEATHERS, JJ., concur.
[1] Terry v. Ohio, 392 U.S. 1 (1968).
[2] Robinson’s attorney affirmed at trial he introduced the marijuana into evidence as a trial strategy.
[3] Pursuant to section 17-25-45, upon conviction of possession of crack
cocaine with intent to distribute within one-half mile of a public park:
“[A] person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has two or more prior convictions for: (1) a serious offense; (2) a most serious offense; (3) a federal or out-of-state offense that would be classified as a serious offense or most serious offense under this section; or (4) any combination of the offenses listed in (1), (2), and (3) above.”
