State v. Carter

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT

BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 239(d)(2),
SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

David Carter,       
Appellant.

Appeal From Lancaster County

Paul M. Burch, Circuit Court Judge

Unpublished Opinion No. 2005-UP-015

Submitted December 1, 2004 – Filed January
13, 2005

AFFIRMED

Senior Assistant Appellate Defender Wanda P. Hagler, Office
of Appellate Defense, of Columbia, for Appellant.

Attorney General  Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
Assistant Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor
John R. Justice, of Chester, for Respondent.

PER CURIAM:  David Carter appeals his conviction
for armed robbery, arguing the circuit court (1) lacked subject matter jurisdiction
because Carter’s indictment was insufficient; (2) erred in admitting evidence
allegedly obtained unlawfully through a warrantless search; and (3) erred in
allowing the State to make remarks in its closing statement that were allegedly
prejudicial against Carter.  We affirm.

FACTS

Carter and an acquaintance, Marvin Thompson, were
charged with armed robbery in connection with the June 28, 2002, robbery of
the Stop and Shop convenience store in Lancaster.

The day after Carter was incarcerated on the charges,
he asked a sheriff’s deputy to procure some papers from his home.  He specifically
instructed the deputy to go to the home, enter through its unlocked back door,
and go down the hall and through the kitchen to the living room, where a black
bag was located that contained the papers Carter sought.  The deputy complied,
and while walking through the kitchen saw a handwritten “stick up” note stating
“I got a gun.  Put all of the money in the bag or I will shoot you.  Then lay
on the floor.”  The deputy retained the note as evidence.  At trial, Carter
sought to suppress the “stick up” note, claiming it was seized through an illegal
search of his home.  The court allowed the “stick up” note in evidence. 

Thompson pled guilty prior to Carter’s trial, and
in so doing implicated Carter in the robbery.  Thompson subsequently, however,
retreated from his guilty plea statements implicating Carter.  Thompson was
willing to testify for Carter—that Carter was not involved in the armed robbery—but
he was concerned the State would retaliate against him for his change in position. 
The State informed the trial court that it had no intention of retaliating against
Thompson, and in this regard, the State granted Thompson immunity from perjury. 
Thompson did testify for Carter and claimed Carter had not been involved in
the robbery.  In its closing statements, the State suggested that Thompson,
in light of the grant of immunity, had nothing to lose in testifying for his
friend, Carter. Carter’s counsel interrupted the State’s argument and disagreed
with the State’s use and characterization of the grant of immunity to Thompson,
stating “Your Honor, [the State] mischaracterized that totally about what he
had to lose if Your Honor remembers back to yesterday, that’s, in fact, not
the case.”   The court allowed the State to continue its argument.

Carter was convicted on the armed robbery charge.  This appeal
followed.      

DISCUSSION

I.       Subject Matter Jurisdiction

Carter first argues the indictment
was insufficient to confer subject matter jurisdiction because the it cited
the incorrect statutory subsection and also failed to specifically alleged a
“carrying away” of property.  We disagree.

“An indictment is sufficient if
the offense is stated with sufficient certainty and particularity to enable
the court to know what judgment to pronounce, and the defendant to know what
he is called upon to answer and whether he may plead an acquittal or conviction
thereon.”  State v. Adams, 354 S.C. 361, 374, 580 S.E.2d 785, 791 (Ct.
App. 2003).  “The true test of the sufficiency of an indictment is not whether
it could be made more definite and certain, but whether it contains the necessary
elements of the offense intended to be charged and sufficiently apprises the
defendant of what he must be prepared to meet.”  Browning v. State, 320
S.C. 366, 368, 465 S.E.2d 358, 359 (1995).  “[I]n viewing the sufficiency of
an indictment we must look at the issue with a practical eye in view of the
surrounding circumstances.”  State v. Gunn, 313 S.C. 124, 130, 437 S.E.2d
75, 78 (1993).

Here, the caption twice stated Carter
was indicted for “§ 16-11-0330(B)  ARMED ROBBERY.”  At trial, the parties agreed
that the indictment incorrectly referred to subsection (B) of section 16-11-330,
which addresses “attempted armed robbery,” instead of subsection (A), which
addresses “armed robbery.”  See S.C. Code Ann. § 16-11-330 (1976).  
The court allowed the State to amend the typographical error at trial over Carter’s
objection.  We find that this minor alteration merely corrected a typographical
error.  See S.C. Code Ann. § 17-19-100 (2003).

Additionally, the indictment stated:

That David Carter did in Lancaster County on or about June
28, 2002, while armed with a deadly weapon, to wit:  pistol, feloniously take
from the person or presence of STOP AND SHOP such goods or monies being described
herein as follows:  money with intent to deprive the owner permanently of such
property.

Carter argues the indictment fails because it does not include
the words “carrying away” to demonstrate the requisite element of asportation,
which means “taking of an object with felonious intent.”  Locke v. State,
341 S.C. 54, 57, 533 S.E.2d 324, 325 (2000).  However, we find that the indictment’s
language stating “feloniously take from the person or presence of” the store
inherently includes the element of asportation.  See Id. at 56,
533 S.E.2d at 325 (“Indictment language ‘taking of goods and/or monies from
the person or presence of’ alleged the substance of asportation . . . was sufficient
because asportation merely meant the taking of an object with felonious intent”).

Viewing this indictment
with a practical eye and considering the surrounding circumstances, we find
it sufficiently apprised Carter of the specific crime for which he was charged. 
In particular, we note the indictment stated he was charged with “ARMED ROBBERY”
and included the statute, albeit with a typographical error concerning the subsection
which the court was entitled to correct.  Furthermore, the body of the indictment
included the details of the circumstances Carter was called upon to defend and
alleges the substance of the crime charged, including the requisite element
of asportation.  Thus, we find the indictment sufficient to confer subject matter
jurisdiction.

II.      Admission of Evidence

Carter argues the court
erred in allowing the “stick up” note into evidence because it was seized pursuant
to a warrantless search.  We disagree, for we find evidence to support the trial
judge’s findings.  State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000)
(the standard of review in Fourth Amendment search and seizure cases is limited
to determining whether any evidence supports the trial court’s findings, and
the appellate court may reverse only where there is clear error). 

“[O]bjects falling within the plain view
of a law enforcement officer who is rightfully in position to view these objects
are subject to seizure and may be introduced in evidence.”  State v. Brown,
289 S.C. 581, 588, 347 S.E.2d 882, 886 (1986).  Here, Carter admittedly asked
the officer to enter his home, specifically the kitchen area, where the note
was left open on a table.  Concerning the conspicuous nature of the kitchen
table, Carter acknowledged that anyone present in his kitchen, including law
enforcement, would see “anything” on his table.  These facts satisfy the plain
view exception to the warrant requirement.  State v. Abdullah, 357 S.C.
344, 349, 592 S.E.2d 344, 352-53 (Ct. App. 2004) (plain view exception to warrant
requirement requires that the initial intrusion be lawful, the discovery of
the evidence be inadvertent, and the incriminating nature of the evidence be
immediately apparent). 

III.    The State’s Closing Statement

Carter alleges the circuit court
erred in permitting the State to make a comment questioning the motive of Thompson,
the co-defendant witness who had pled guilty, been granted immunity, and then
testified favorably toward Carter.

In the present case, Carter’s counsel asserted,
“Your Honor, [the State] mischaracterized that totally about what he had to
lose if Your Honor remembers back to yesterday, that’s, in fact, not the case.” 
This interruption of the State’s closing statement can hardly be said to constitute
a specific objection or a request for relief.   Even assuming counsel’s statement
may properly be construed as an objection, there is clearly no request for relief. 
Accordingly, we find the issue unpreserved for appellate review.  See
State v. Black, 319 S.C. 515, 521, 462 S.E.2d 311, 315 (Ct. App. 1995)
(“The proper course to be pursued when counsel makes an improper argument is
for opposing counsel to immediately object and to have a record made of the
statements or language complained of and to ask the court for a distinct ruling
thereon”); State v. Patterson, 324 S.C. 5, 17, 482 S.E.2d 760, 766 (1997)
(holding a “general objection that does not specify the particular ground on
which the objection is based is insufficient to preserve a question for review”). 

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.