State v. Gilliard

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.

Kevin Jerome Gilliard, Appellant.

Appellate Case No. 2009-147948

Appeal From Anderson County
J. Cordell Maddox, Jr., Circuit Court Judge

Unpublished Opinion No. 2012-UP-351
Heard March 14, 2012 – Filed June 13, 2012

AFFIRMED

Tristan M. Shaffer, of Dessausure Law Firm, of
Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Salley W. Elliott, and Assistant
Attorney Deborah R.J. Shupe, all of Columbia; and
Solicitor Christina T. Adams, of Anderson, for
Respondent.
PER CURIAM: Kevin Gilliard (Gilliard) appeals his conviction for trafficking
crack cocaine, arguing the circuit court erred in refusing to provide a jury
instruction on spoliation of evidence based on the State's failure to produce a
videotaped recording of the booking area at the detention center. We affirm
pursuant to Rule 220(b)(1), SCACR.

We find the circuit court properly refused Gilliard's request for a jury instruction
because there was no evidence the State acted in bad faith, and Gilliard failed to
show the exculpatory value of the destroyed videotape. Moreover, Gilliard's
counsel specifically stated he did not think the videotape was destroyed in bad
faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding that unless a
criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process); see also
State v. Cheeseboro, 346 S.C. 526, 538-539, 552 S.E.2d 300, 307 (2001) ("The
State does not have an absolute duty to preserve potentially useful evidence that
might exonerate a defendant. To establish a due process violation, a defendant
must demonstrate (1) that the State destroyed the evidence in bad faith, or (2) 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.").

AFFIRMED.

WILLIAMS, THOMAS, and LOCKEMY, JJ., concur.