State v. Ward

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.

Jerry Lee Ward, Appellant.

Appeal From Cherokee County

Roger L. Couch, Circuit Court Judge

Unpublished Opinion No. 2011-UP-406

Submitted August 15, 2011 – Filed August
29, 2011   

AFFIRMED

Appellate Defender Kathrine H. Hudgins, of
Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W.
Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia;
and Solicitor Barry J. Barnette, of Spartanburg, for Respondent.

PER CURIAM:  Jerry
Lee Ward appeals his convictions for attempted armed robbery, kidnapping, and
assault with intent to kill, arguing the circuit court erred in refusing to
dismiss the indictments because of the State's failure to preserve potentially
exculpatory evidence.  We affirm.[1]

An appellate court only
reviews errors of law in criminal cases and is bound by the circuit court's
findings of fact unless they are clearly erroneous and unsupported by the
evidence.  State v. Williams, 386 S.C. 503, 509, 690 S.E.2d 62, 65 (2010). 
In order to establish a due process violation arising from the State's failure
to preserve evidence, a defendant must "demonstrate (1) that the State
destroyed the evidence in bad faith, or (2) that the evidence possessed an
exculpatory value apparent before the evidence was destroyed and the defendant
cannot obtain other evidence of comparable value by other means."  State
v. Cheeseboro, 346 S.C. 526, 538-39, 552 S.E.2d 300, 307 (2001); see
also State v. Jackson, 302 S.C. 313, 315, 396 S.E.2d 101, 102 (1990).

We hold the circuit court did
not err in denying Ward's motion to dismiss.  First, Ward presents no evidence
or even an argument that the videotape was destroyed in bad faith.  Second, we
find the videotape did not possess an apparent exculpatory value before it was
destroyed.  Only the investigating officer reviewed the videotape, and he testified
that static on the videotape prevented him from identifying the people in the
frame.  The review neither convinced him that the videotape would help in the
identification of the assailant nor made him question the victim's
allegations.  Indeed, the victim testified that the crimes occurred in the convenience
store's cooler—away from the security cameras' view.  Ward's argument that the
videotape "clearly could have possessed" an exculpatory value before
it was destroyed does not "satisfy the standard of constitutional
materiality."  Arizona v. Youngblood, 488 U.S. 51, 56 n.* (1988) ("The
possibility that the [evidence] could have exculpated [the defendant] if
preserved or tested is not enough to satisfy the standard of constitutional
materiality . . . .").  Moreover, Ward had the ability to cross-examine the
investigating officer about what he saw on the videotape and whether the actions
of the people on it were consistent with Ward's account of the facts.  See California v. Trombetta, 467 U.S. 479, 490 (1984) (suggesting
cross-examination as a method to mitigate the absence of potentially
exculpatory evidence by "rais[ing] doubts in the mind of the factfinder"). 
We find Ward's due process rights were not violated.  Accordingly, the decision
of the circuit court is

AFFIRMED.

FEW, C.J., THOMAS
and KONDUROS, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.