State v. Judon

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.

Elliott Judon, Jr., Appellant.

Appellate Case No. 2015-000728

Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2017-UP-308
Submitted June 1, 2017 – Filed July 26, 2017

AFFIRMED

Appellate Defender LaNelle Cantey DuRant, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Deputy Attorney General David A. Spencer, both of
Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.

PER CURIAM: Elliot Judon, Jr. appeals his conviction of trafficking cocaine
base, arguing the trial court erred in (1) denying his motion to dismiss in violation
of his right to a fair trial, (2) denying his motion to suppress drugs found during a
search that exceeded the scope of the traffic stop, and (3) denying his motion to
suppress his statement to police admitting he had drugs because it was the product
of coercion by police and the record contains no proof he had been read his
Miranda rights. We affirm1 pursuant to Rule 220(b), SCACR, and the following
authorities:

1. As to whether the trial court erred in denying his motion to dismiss: State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006) ("In criminal cases, the
appellate court sits to review errors of law only."); Brady v. Maryland, 373 U.S.
83, 87 (1963) (holding the suppression of evidence favorable to a defendant
"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"); State v.
Moses, 390 S.C. 502, 515, 702 S.E.2d 395, 402 (Ct. App. 2010) (explaining to
establish a Brady violation in South Carolina, a defendant must demonstrate the
evidence "(1) was favorable to the accused; (2) was in the possession of or known
by the prosecution; (3) was suppressed by the State; and (4) was material to the
accused's guilt or innocence or was impeaching"); Sheppard v. State, 357 S.C. 646,
660, 594 S.E.2d 462, 470 (2004) ("Favorable 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."); State v. Kennerly, 331 S.C.
442, 453, 503 S.E.2d 214, 220 (Ct. App. 1998) (noting evidence is not material
under Brady if disclosed in time for its effective use at trial); State v. Cheeseboro,
346 S.C. 526, 538-39, 552 S.E.2d 300, 307 (2001) (providing "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" to establish a due process violation for the State's failure to preserve
evidence); State v. Reaves, 414 S.C. 118, 127-28, 777 S.E.2d 213, 218 (2015)
(rejecting defendant's argument bad faith could be established when "the police's
actions in failing to preserve evidence were so egregious" and noting even if it
accepted the argument, the record contained no indication the "flaws [in the
investigation] were the product of more than mere negligence"); Cheeseboro, 346
S.C. at 539, 552 S.E.2d at 307 (finding the defendant failed to demonstrate the
State destroyed evidence in bad faith because although "there [was] evidence of
lack of care, there [was] no evidence of an intentional destruction of relevant
evidence"); State v. Jackson, 302 S.C. 313, 315, 396 S.E.2d 101, 102 (1990)
("Specifically, the police must know of the exculpatory value of the evidence
before it is destroyed."); State v. Hutton, 358 S.C. 622, 632, 595 S.E.2d 876, 882

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
(Ct. App. 2004) (finding the defendant could obtain other evidence of comparable
value by other means because the trial court allowed thorough cross-examination
of the witness about the destroyed evidence).

2. As to whether the trial court erred in denying Judon's motion to suppress his
statements and motion to suppress the drugs: State v. Dunbar, 356 S.C. 138, 142,
587 S.E.2d 691, 693-94 (2003) ("In order for an issue to be preserved for appellate
review, it must have been raised to and ruled upon by the trial [court]. Issues not
raised and ruled upon in the trial court will not be considered on appeal."); State v.
Atieh, 397 S.C. 641, 646, 725 S.E.2d 730, 733 (Ct. App. 2012) ("A ruling in limine
is not final; unless an objection is made at the time the evidence is offered and a
final ruling procured, the issue is not preserved for review."); State v. Dicapua, 373
S.C. 452, 455, 646 S.E.2d 150, 152 (Ct. App. 2007) (holding defendant's statement
that he had no objection to the admission of a video into evidence "amounted to a
waiver of any issue [he] had with the [evidence]").

AFFIRMED.

SHORT, WILLIAMS, and KONDUROS, JJ., concur.