State v. Wright

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.

Lloyd Wright, Appellant.

Appeal From Charleston County

Kristi Lea Harrington, Circuit Court
Judge

Unpublished Opinion No. 2011-UP-363

Submitted April 1, 2011 – Filed June 30,
2011   

AFFIRMED

Appellate Defender LaNelle Cantey DuRant,
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 Harold M. Coombs, Jr., all of
Columbia; Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

PER CURIAM:  While
investigating a potential "open-air" illegal drug market, the
Charleston Police Department, in conjunction with the Federal Bureau of
Investigation (FBI), conducted an undercover operation in September of 2007. 
On September 17, Investigator Karen Springmeyer, operating undercover, drove to
an area known as Athens Court.  She noticed several "subjects," one
of whom told her to pull down a side street.  There, a man, allegedly Lloyd
Wright, approached her vehicle, and she told him she wanted to buy some crack. 
The man reached in the car and handed her the drugs, and she paid him $50.00 in
"marked money" the FBI provided for the the operation.  Springmeyer then
returned to her unit and delivered the crack to Investigator Seabrook, the case
agent. 

Three
weeks later, Wright was arrested for the drug transaction.  The marked money
was never recovered.  Wright was tried for distribution of cocaine base and distribution
of cocaine base within a close proximity of a school, and he was convicted of
both charges.  The trial court sentenced him to life without the possibility of
parole.  This appeal followed. 

STANDARD OF
REVIEW

In
criminal cases an appellate court sits to review errors of law only.  State
v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).

LAW/ANALYSIS

Wright's
alleges the trial court erred in failing to strike Hurteau's testimony because
he lacked personal knowledge.  We disagree.  Wright specifically indicated to
the trial court that the basis for his objection was Rule 612, SCRE, which
provides the following:

If a witness uses a writing to refresh
memory for the purpose of testifying, either—

(1) while testifying, or

(2) before testifying, if the court
in its discretion determines it is necessary in the interests of justice, an
adverse party is entitled to have the writing produced at the hearing, to
inspect it, to cross-examine the witness thereon, and to introduce in evidence those
portions which relate to the testimony of the witness. If it is claimed that
the writing contains matters not related to the subject matter of the testimony
the court shall examine the writing in camera, excise any portions not so
related, and order delivery of the remainder to the party entitled thereto. Any
portion withheld over objections shall be preserved and made available to the
appellate court in the event of an appeal. If a writing is not produced or
delivered pursuant to order under this rule, the court shall make any order
justice requires, except that in criminal cases when the prosecution elects not
to comply, the order shall be one striking the testimony or, if the court in
its discretion determines that the interests of justice so require, declaring a
mistrial.

Here,
the trial court permitted, and the State did not prevent, Springmeyer's and
Seabrook's reports to be marked as exhibits and allowed Wright the opportunity
to review the documents and cross-examine Hurteau on them.  Accordingly, we see
no grounds to allege error under Rule 612.[1]

Wright
further argues the State violated Rule 5, SCRCrimP,[2] and Brady v. Maryland[3] in failing to provide a copy of the "operational plan."  We disagree.

Rule 5 provides in pertinent part:

Upon request of the defendant the
prosecution shall permit the defendant to inspect and copy books, papers,
documents, photographs, tangible objects ... which are within the possession,
custody or control of the prosecution, and which are material to the preparation
of his defense or are intended for use by the prosecution as evidence in chief
at the trial[] . . . .

Rule
5(a)(1)(C), SCRCrimP.

Similarly, Brady holds that "the suppression by the prosecution of evidence
favorable to an accused upon request 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."  373 U.S. at 87.  To establish such a due
process violation, an accused must demonstrate "(1) the evidence was
favorable to the accused, (2) it was in the possession of or known to the
prosecution, (3) it was suppressed by the prosecution, and (4) it was material
to guilt or punishment."  State v. Gibson, 334 S.C. 515, 524, 514
S.E.2d 320, 324 (1999) (footnote omitted). 

Here,
the State argued it neither had knowledge of nor possession of such a plan. 
Likewise, the trial court found there had been no showing the operational plan
was in the State's possession, the State had suppressed it, or the State failed
to disclose it.  The evidence supports these findings.  Similarly, nothing in
the record supports Wright's contention that the document, which Hurteau
testified was for the purpose of protecting the public, the officers, and the
suspects during the investigation, was material or exculpatory.  Accordingly,
the trial court did not err.

Wright
lastly argues the drug evidence should have been suppressed because the State
failed to properly establish the chain of custody.  We disagree.  "[A] party
offering into evidence fungible items such as drugs or blood samples must
establish a complete chain of custody as far as practicable."  State v. Sweet,
374 S.C. 1, 6, 647, S.E.2d 202, 205 (2007).  The determination of whether the
State has established the chain of custody as far as practicable depends on the
unique facts of each case.  State v. Hatcher, Op. No. 26950 (S.C. Sup.
Ct. filed Mar. 21, 2011) (Shearouse Adv. Sh. No. 10 at 82-83).  "Testimony
from each custodian of fungible evidence . . . is not a prerequisite to
establish a chain of custody sufficient for admissibility." Sweet,
374 S.C. at 7, 647 S.E.2d at 206 (citing State v. Taylor, 360 S.C. 18,
27, 598 S.E.2d 735, 739 (Ct. App. 2004)).  "Where other evidence establishes
the identity of those who have handled the evidence and reasonably demonstrates
the manner of handling of the evidence, our courts have been willing to fill
gaps in the chain of the custody due to an absent witness."  Id.  "[W]here
all individuals in the chain are, in fact, identified and the manner of
handling is reasonably demonstrated, it is not an abuse of discretion for the
trial judge to admit the evidence in the absence of proof of tampering, bad
faith or ill-motive."  Hatcher, Op. No. 26950, at 81. 

In
this case, the essence of Wright's argument is (1) Seabrook failed to sign the
evidence sheet and as a result Wright was unaware Seabrook was in the chain of
custody until the time of trial and (2) Joe Lelama, the evidence technician who
signed the evidence into the evidence room, did not testify. 

In
this case, although Seabrook forgot to sign the evidence sheet, he testified
that he delivered the evidence in a sealed package to the Charleston Police
Department's evidence lock box.  Similarly, although Lelama did not testify,
Hinton testified that Lelema received the evidence on September 20, 2007, based
on his recognition of Lelama's initials on the property sheet and evidence
tag.  Then, Susan Moody testified she retrieved the evidence from the evidence
room, signed it out, and transported it to the laboratory for analysis. 
Finally, laboratory manager Elizabeth Wiggins-Mitchell testified she received
the sealed evidence bags, tested the evidence, determined it was cocaine base,
and replaced it into a new sealed container bearing her initials.  Moreover,
she identified this sealed container, which bore her initials, in court. 
Accordingly, we find the trial court did not abuse its discretion in admitting
the evidence. 

CONCLUSION

The
ruling of the trial court is

AFFIRMED.

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

[1]  Wright argues
Hurteau's testimony should also have been striken under Rule 602, SCRE. 
Notwithstanding that Wright specifically clarified to the trial court the basis
for his objection was Rule 612, the trial court noted that Hurteau had personal
knowledge by virtue of being at the scene during the controlled buy.  We agree
and note that any defect in his memory was for the jury to weigh. 

[2]  We note that although Wright did not make a precise
objection based on Rule 5, at the outset of his motion before the trial court
he did note that the operational plan "was not provided in discovery[] . .
. [and that he] believe[d] it was discoverable." 

[3] 373 U.S. 83 (1963).