State v. Birch

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Darrell Lee Birch, Appellant.

Appellate Case No. 2012-213215

Appeal From Marion County
William H. Seals, Jr., Circuit Court Judge

Unpublished Opinion No. 2014-UP-366
Heard October 14, 2014 – Filed October 29, 2014

AFFIRMED

Appellate Defender Carmen V. Ganjehsani, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson, and Assistant
Attorney General William M. Blitch, Jr., all of Columbia,
for Respondent.

PER CURIAM: Darrell Lee Birch appeals his convictions for possession with
intent to distribute cocaine base and for possession of ecstasy, arguing the trial
court erred in (1) refusing to suppress the drug evidence because his mere presence
at a home lawfully searched did not create probable cause to search him, the officer
lacked reasonable suspicion for a Terry1 stop and frisk, and the search exceeded the
scope of a lawful pat-down when the officer forcibly removed Birch's hand from
his pocket; (2) denying Birch's motion for a continuance; and (3) refusing to grant
a mistrial because an officer's testimony constituted improper prior bad acts
evidence. We affirm pursuant to Rule 220(b)(1), SCACR, and the following
authorities:

1. Regarding the trial court's denial of Birch's motion to suppress the drug
evidence: Michigan v. Summers, 452 U.S. 692, 705 (1981) (holding officers
executing search warrants are permitted to detain occupants until search is
completed); Muehler v. Mena, 544 U.S. 93, 98-99 (2005) (permitting use of
reasonable force to effectuate detention of occupants during execution of search
warrant); State v. Freiburger, 366 S.C. 125, 132, 620 S.E.2d 737, 740 (2005)
(holding full warrantless search of person is permitted if he has been lawfully
arrested, and search is conducted in immediate vicinity of, and substantially
contemporaneously to, arrest).

2. Regarding the trial court's denial of Birch's motion for a continuance: State
v. Yarborough, 363 S.C. 260, 266, 609 S.E.2d 592, 595 (Ct. App. 2005) ( "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.");
Rule 7(b), SCRCrimP (stating no motion for continuance for absence of witness
will be granted without sworn statement that witness' testimony is material, and
due diligence has been used to procure witness); Rule 7(b)(2), SCRCrimP
(requiring sworn statement concerning facts defendant believes absent witness
would testify to and the grounds for such belief); State v. Colden, 372 S.C. 428,
438, 641 S.E.2d 912, 918 (Ct. App. 2007) (holding all aspects of Rule 7(b),
SCRCrimP, are strictly required); State v. McKennedy, 348 S.C. 270, 280-81, 559
S.E.2d 850, 855-56 (2002) (finding defendant was not entitled to continuance
when he failed to name any witnesses he wished to call, how they would be
beneficial to his case, or identify any evidence that could be introduced if he had
more time to prepare); Skeen v. State, 325 S.C. 210, 214-15, 481 S.E.2d 129, 131-
32 (1997) (finding no reversible error for failure to request continuance because no
evidence was presented that additional time to prepare would have made any
possible impact on result).

1
Terry v. Ohio, 392 U.S. 1 (1968).
3. Regarding the trial court's denial of Birch's motion for a mistrial: State v.
Stanley, 365 S.C. 24, 33, 615 S.E.2d 455, 460 (Ct. App. 2005) ("The decision to
grant or deny a mistrial is within the sound discretion of the trial judge."); State v.
Thompson, 352 S.C. 552, 561, 575 S.E.2d 77, 82 (Ct. App. 2003) (finding officer's
single reference to warrants for the defendant "did not constitute sufficient
prejudice to justify a mistrial"; holding vague reference to prior criminal record
does not warrant mistrial when State does not attempt to introduce evidence
accused has been convicted of other crimes); State v. Wiley, 387 S.C. 490, 496, 692
S.E.2d 560, 563 (Ct. App. 2010) (finding reference during opening statements to
outstanding warrants did not justify mistrial); State v. George, 323 S.C. 496, 511,
476 S.E.2d 903, 912 (1996) (concluding judge's instruction to disregard statements
suggesting defendant's possible involvement with drugs cured any alleged error;
finding issue of whether denial of mistrial was proper to be unpreserved but noting
appellant's "possible drug dealing was merely suggested and no testimony was
presented concerning such behavior").

AFFIRMED.

HUFF, SHORT, and KONDUROS, JJ., concur.