State v. Marc Y. McKeiver

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.

Marc Y. Mckeiver, Appellant.

Appellate Case No. 2022-000324

Appeal From Dillon County
Paul M. Burch, Circuit Court Judge

Unpublished Opinion No. 2026-UP-066
Heard December 8, 2025 – Filed February 11, 2026

AFFIRMED

Dayne C. Phillips, of Price Benowitz, LLP, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General Mark Reynolds Farthing, of
Columbia; and Solicitor William Benjamin Rogers, Jr.,
of Bennettsville, all for Respondent.

PER CURIAM: Marc Y. Mckeiver (Appellant) was convicted of trafficking in
methamphetamine 100 grams or more, but less than 200 grams and sentenced to a
twenty-five-year term of imprisonment and ordered to pay a $50,000 fine. On
appeal, Appellant argues the trial court erred by (1) refusing to suppress
photographs obtained from Snapchat when the magistrate did not have the
jurisdictional authority; (2) admitting photographs obtained from Snapchat when
the evidence was not properly authenticated; (3) refusing to suppress the deceased
confidential informant's (CI) live-feed video recording inside Appellant's home in
violation of Article 1, Section 10 of the South Carolina Constitution; and (4)
failing to grant a new trial or an evidentiary hearing following post-trial allegations
of juror concealment. We affirm.
1. Appellant argues the photographs obtained from Snapchat should have been
excluded because the magistrate who issued the search warrant did not have the
authority to issue a warrant to an out-of-state entity for records that were not
physically located in the state. We disagree.

At trial, defense counsel argued the Snapchat photographs should not be admitted
because the search warrant signed by the magistrate was invalid. Snapchat is not
incorporated in Dillon County, defense counsel argued; therefore, the warrant was
null and void because it was outside of the jurisdictional authority. 1 The court
orally denied the motion to suppress the evidence obtained from Snapchat.
Importantly, when making a ruling as to the jurisdictional issue, the court did not
deny suppression based upon the invalidity of the search warrant, but rather it
denied the motion based on the court's independent conclusions: (1) the
investigating officers acted in good faith in obtaining and relying upon the
judicially-issued search warrant because their actions were consistent with
common practices in South Carolina at that time and (2) Appellant had no
expectation of privacy in the information obtained from the search warrant because
Appellant's public posting to "a mass of people" was analogous to placing an ad in
a newspaper. The court found suppression was not warranted in Appellant's case
despite the purported invalidity of the warrant because the good faith exception to
the exclusionary rule was applicable and because Appellant did not have a
legitimate expectation of privacy in the publicly posted photographs. On appeal,
Appellant challenges neither the court's finding of good faith nor the lack of a

1
In a case that was pending at the time of trial, our supreme court rejected this
argument. See State v. Warner, 436 S.C. 395, 403-04, 872 S.E.2d 638, 642 (2022)
(upholding the authority of a county magistrate to issue a warrant to an out-of-state
cell phone service provider for cell-site location information records stored in New
Jersey and holding the warrant was not invalid solely because the records were
stored out-of-state).
reasonable expectation of privacy in his public posts. Rather, he focuses solely on
the argument that the search warrant was invalid based on the out-of-state records.2
As such, the unappealed, independent conclusions of the circuit court became the
law of the case and we affirm. See Atl. Coast Builders & Contractors, LLC v.
Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) ("[A]n unappealed ruling,
right or wrong, is the law of the case"); Weeks v. McMillan, 291 S.C. 287, 292, 353
S.E.2d 289, 292 (Ct. App. 1987) ("Where a decision is based on alternative
grounds, either of which independent of the other is sufficient to support it, the
decision will not be reversed even if one of the grounds is erroneous").

2. Appellant argues the photographs obtained from Snapchat should have been
excluded because the photographs were not properly authenticated pursuant to
Rule 901 of the South Carolina Rules of Evidence, by personal knowledge,
distinctive characteristics, or testimony of a records custodian. We disagree.

"Social media messages and content are writings, and evidence law has always
viewed the authorship of writings with a skeptical eye." State v. Green, 427 S.C.
223, 230, 830 S.E.2d 711, 714 (Ct. App. 2019), aff'd as modified on other grounds,
432 S.C. 97, 851 S.E.2d 440 (2020). "The requirement of authentication cannot be
met by merely offering the writing on its own. Something more must be set forth
connecting the writing to the person the proponent claims the author to be." Id. at
231, 830 S.E.2d at 714 (internal citation omitted). "Rule 901(b), SCRE, lists ten
non-exclusive methods of authentication." Id. at 231, 830 S.E.2d at 715. "Rule
901, SCRE, does not care what form the writing takes, . . .. All that matters is
whether it can be authenticated, for the rule was put in place to deter fraud." Id. at
231, 830 S.E.2d at 714. Under Rule 901(b)(1), SCRE, evidence may be
authenticated by "having someone with personal knowledge about the writing
testify the matter is what it is claimed to be." Id. at 231, 830 S.E.2d at 715. "As
long as a witness with personal knowledge testifies that an exhibit accurately
portrays what it depicts, that should be sufficient to establish its authenticity." 3
Barbara E. Bergman et al., Wharton's Criminal Evidence § 14:2 (15th ed. 2021).
Alternatively, "[m]ost writings meet the authenticity test through 901(b)(4), SCRE,
which enables authentication to be proven by: '[a]ppearance, contents, substance,
internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances.'" Green, 427 S.C. at 232, 830 S.E.2d at 715 (quoting Rule
901(b)(4)).

2
Appellant's counsel conceded to this at oral argument.
We hold the trial court did not err in admitting the Snapchat photographs based on
failure to authenticate. At trial, Agent Martin testified that he obtained Snapchat
records for the account "duke_ttg" pursuant to a search warrant and identified the
account as Appellant's based on posts showing Appellant, Appellant's nickname
"Duke," and a phone number linked to Appellant. The records included photos
posted on the date of the drug transaction showing Appellant and uniquely shaped,
multi-colored pills matching those purchased during the controlled buy. Law
enforcement photographs of the purchased pills were introduced and appeared
identical to the pills shown on the Snapchat account. We hold both the court and
the jury could reasonably and reliably conclude the photographs, which depicted
both Appellant himself and what appeared to be identical, highly unique pills he
sold to the CI, were what they were purported to be. See Green, 427 S.C. at 233,
830 S.E.2d at 715-716 (noting several facts linked messages to the defendant and
ruling that "[t]aken together, th[o]se circumstances serve[d] as sufficient
authentication to meet the low bar Rule 901(b)(4), SCRE, sets"); id. (holding the
court was "persuaded the [fraud] risk [surrounding social media] is one Rule 901,
SCRE, contemplates and can contain. Lawyers can always argue case-specific
facts bearing on this risk and attempt to convince the jury the writing is not
genuine"). Additionally, the State argued pretrial that the Snapchat photos were
properly authenticated via the certificate of authenticity provided by Snapchat
pursuant to Rule 902, SCRE. In addition to the authentication pursuant to Rule
901, we find the photographs were properly authenticated as an "acknowledged
document" under Rule 902. Accordingly, we affirm as to this issue. See Rule
220(c), SCACR ("The appellate court may affirm any ruling . . . upon any ground[
] appearing in the Record on Appeal.").

3. Appellant argues the trial court erred in refusing to suppress the deceased
CI's live-feed video recording made inside Appellant's home in violation of Article
1, Section 10's prohibition against unreasonable invasions of privacy. We find this
issue unpreserved for appellate review. Following the pretrial ruling on the matter,
defense counsel clarified he was only arguing a "live feed wire" with an officer
"watching on the other end" could not be used on a CI who entered a residence,
and the State explained it was not seeking to admit any evidence from the "live
feed" device. The State indicated the live feed device was malfunctioning at the
time of the transaction; therefore, the State only sought to introduce video evidence
from the non-live stream device. Based upon our review of the record, oral
argument, and in light of defense counsel's clarification at trial, any issue with the
recording admitted into evidence was not preserved for appellate review since the
recording played at trial did not come from the "live feed" device. See State v.
Bryant, 372 S.C. 305, 315-316, 642 S.E.2d 582, 588 (2007) (explaining an issue
conceded at trial cannot be asserted later on appeal); State v. Patterson, 324 S.C. 5,
19, 482 S.E.2d 760, 767 (1997) (instructing an appellant "is limited to the grounds
raised at trial").

4. Appellant argues the trial court erred by failing to grant a new trial or an
evidentiary hearing, when defense counsel produced affidavits at a post-trial
hearing indicating two jurors intentionally concealed information during voir dire.
We disagree.

Our state and federal constitutions guarantee a party the right to an impartial jury,
and "voir dire can be an essential means of protecting this right." Warger v.
Shauers, 574 U.S. 40, 50 (2014); U.S. Const. amends. VI, XIV; S.C. Const. art. I, §
14. If a party challenges a juror for cause, the trial court must examine the juror to
determine if the juror "is sensible of any bias or prejudice" about the case. S.C.
Code Ann. § 14-7-1020 (2017). In analyzing a claim of juror bias, our appellate
courts have recently abandoned the distinction between intentional versus
unintentional concealment. The proper inquiry is now as follows, "Where a party
claims a juror has withheld material information in response to a voir dire question,
the trial court must determine, preferably after a hearing, whether the juror's
withholding suggests bias. This will typically turn on the nature of the information
withheld, rather than the nature of the juror's state of mind in not disclosing it."
State v. Rowell, 444 S.C. 109, 115, 906 S.E.2d 554, 557 (2024). Further,
evaluating the merits of a juror misconduct claim is a fact-intensive inquiry, which
is most appropriately conducted after a hearing. See State v. Sparkman, 358 S.C.
491, 496, 596 S.E.2d 375, 377 (2004) ("Whether a juror's failure to respond
[during voir dire] is intentional is a fact intensive determination that must be made
on a case-by-case basis."); McCoy v. State, 401 S.C. 363, 371, 737 S.E.2d 623, 628
(2013) ("[E]valuating the merits of a juror misconduct claim is a fact-intensive
inquiry, which is most appropriately conducted after a hearing").

We hold the trial court did not abuse its discretion in denying Appellant's request
for a new trial based on juror concealment. Following the motion, the court
properly ordered a hearing to evaluate the juror misconduct claims. At the hearing,
the reliability and credibility of the affidavits were called into question. The State
warned the circuit court of the dangers of overturning convictions based solely on
after-produced affidavits from a convicted defendant's group of friends. Further,
Appellant had ample opportunity to notify counsel and the court of potential juror
biases, and both jurors in question were seated without challenge from either party.
Accordingly, we hold the court properly denied Appellant's request for a new trial
based on juror concealment during voir dire. See State v. Tucker, 423 S.C. 403,
414, 815 S.E.2d 467, 472–73 (Ct. App. 2018) (finding that "[l]eaving credibility
determinations in jury misconduct claims to trial judges means respecting their
decision that they have enough evidence to weigh it at all, whether the witness'
testimony is spoken or written[,]" thus holding that although live testimony may
aid credibility assessments, judges can still effectively assess credibility from
affidavits by evaluating both content and manner of communication).

Based on the foregoing, Appellant's conviction and sentence are

AFFIRMED.

WILLIAMS, C.J., and THOMAS and CURTIS, JJ., concur.