State v. Dazzelle Demarcus Smith

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.

Dazzelle Demarcus Smith, Appellant.

Appellate Case No. 2018-000952

Appeal From Greenwood County
Frank R. Addy, Jr., Circuit Court Judge

Unpublished Opinion No. 2022-UP-031
Heard November 2, 2021 – Filed January 26, 2022

AFFIRMED

William G. Yarborough, III, and Lauren Carole Hobbis,
both of William G. Yarborough III, Attorney at Law,
LLC, of Greenville, for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia, and Solicitor David Matthew Stumbo, of
Greenwood, for Respondent.

PER CURIAM: In this action, Dazzelle Demarcus Smith (Appellant) appeals his
drug convictions, arguing that the circuit court erred in (1) denying his motion for a
mistrial based on a witness mentioning Smith's previous arrests; (2) allowing a law
enforcement officer to testify about the value of certain drugs; (3) denying Smith's
motion to suppress certain drugs found in a vehicle that he allegedly drove; and (4)
denying a motion for a new trial based on a juror's answers at voir dire.

On a November night in 2016, three Greenwood City police officers
approached an illegally parked car. As they approached the car, the odor of
marijuana grew increasingly pungent. Seated in the driver's seat was Appellant.

The three officers essentially surrounded the car. Looking across the car with
his flashlight, Officer Martin Harrelson saw a small baggie of marijuana in the door
handle. The officers then apprehended Appellant and searched the car. Inside, they
found additional marijuana, crack cocaine, and powder cocaine.

Appellant was indicted on possession of marijuana with intent to distribute,
possession with intent to distribute crack cocaine, and cocaine trafficking. After two
mistrials, a third trial was held on April 9–10, 2018. Patricia Raiford (Juror) was
impaneled as a juror after neither side objected to her service.

The State's first witness was Arleen Smith (Arleen). Arleen, Appellant's aunt,
was the registered owner of the car that was searched. However, she insisted that
Appellant used the car and essentially lived out of the vehicle. On cross-
examination, as Appellant's counsel tried to emphasize her relationship to the
vehicle, Arleen said: "He['s] been arrested on Tanyard three times." Appellant
immediately moved for a mistrial. The court denied Appellant's motion for a
mistrial. However, the court gave the jury a curative instruction.

During the trial, the officers largely repeated their testimony from a
suppression hearing held before one of the mistrials. The State additionally called
Detective Whitfield Brooks of the Greenwood County Sheriff's Office narcotics
division. When the State attempted to qualify Detective Brooks "as an expert in
illicit narcotic sales," Appellant objected. The court ruled that it would not allow
Detective Brooks to testify as an expert, but would allow him to rely on "his own
personal experience in his involvement with other cases [in testifying as to] what the
value of drugs are . . . ." Appellant did not object to any of the testimony then offered
by Detective Brooks about the value of the drugs found in the vehicle with Appellant.

Appellant was convicted on all charges and sentenced to concurrent terms of
twenty-five, ten, and twenty years. Three days after the trial, counsel for Appellant
filed a motion for a new trial after discovering that Juror knew Appellant and Arleen.
The court held a hearing. At the conclusion of the hearing, the court denied the
motion for a new trial. This appeal followed.

1. As to Appellant's first ground for appeal, we find the circuit court did not
abuse its discretion by declining to grant a mistrial in this case, and the court's
curative instruction was strong. See State v. Crim, 327 S.C. 254, 257, 489 S.E.2d
478, 479–80 (1997) ("The power of the court to declare a mistrial ought to be used
with the greatest caution and for plain and obvious causes stated into the record by
the judge. A mistrial should not be ordered in every case where incompetent
evidence is received and later stricken out." (citation omitted)); id. at 257, 489 S.E.2d
at 480 ("An instruction to disregard objectionable evidence usually is deemed to
have cured the error in its admission unless on the facts of the particular case[,] it is
probable that notwithstanding such instruction[,] the accused was prejudiced.");
State v. Wasson, 299 S.C. 508, 511, 386 S.E.2d 255, 256 (1989) ("The determination
of what curative measures are appropriate in a given case rests in the sound
discretion of the [circuit court]. [It] should exhaust other methods to cure the
prejudice before aborting a trial." (emphasis added) (quoting State v. Stone, 290 S.C.
380, 382, 350 S.E.2d 517, 518 (1986))); State v. Howard, 296 S.C. 481, 483, 374
S.E.2d 284, 285 (1988) ("Among the factors to be considered in ordering a mistrial
are the character of the testimony, the circumstances under which it was offered, the
nature of the case, and the other testimony in the case.").

Taking into account the factors laid out in Howard, we note that the testimony
was fleeting in nature; the testimony was offered during a heated back-and-forth
between the witness and Appellant's counsel, who was essentially attempting to pin
the drugs on the witness; and the other evidence offered to prove Appellant's guilt
was substantial.

2. As to the issue regarding the lay opinion testimony of drug values, we find
this argument was not preserved for our review.

At trial, the State moved to have Detective Whitfield Brooks qualified "as an
expert in illicit narcotics sales." Appellant immediately objected. The court
responded: "I think that's a matter of common experience based upon his background
in this area. So I don't know that he needs to be qualified as an expert." The State
assented, and Appellant said: "Thank you, Your Honor." Appellant raised no further
objections to Detective Brooks's testimony.

Once the court decided that Brooks could testify "based upon his background
in this area," Appellant could only preserve this issue for review by
contemporaneously objecting to the testimony Brooks provided as a lay witness and
receiving a ruling from the circuit court on that ground. See I'On, L.L.C. v. Town of
Mt. Pleasant, 338 S.C. 406, 421–22, 526 S.E.2d 716, 724 (2000) ("An appellate
court may not, of course, reverse for any reason appearing in the record. The losing
party must first try to convince the lower court it . . . has ruled wrongly and then, if
that effort fails, convince the appellate court that the lower court erred.").

3. As to the motion to suppress, the seizure of the marijuana baggie found in the
door is clearly covered by the "plain view" exception. See State v. Brown, 289 S.C.
581, 588, 347 S.E.2d 882, 886 (1986) ("Under th[e plain view] exception, objects
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. Dobbins, 420 S.C. 583, 595, 803 S.E.2d 876, 882 (Ct. App.
2017) ("The two elements needed to satisfy the plain view exception are (1) the
initial intrusion that afforded the authorities the plain view was lawful and (2) the
incriminating nature of the evidence was immediately apparent to the seizing
authorities." (quoting State v. Wright, 416 S.C. 353, 368, 785 S.E.2d 479, 487 (Ct.
App. 2016))); State v. Nelson, 336 S.C. 186, 193, 519 S.E.2d 786, 789 (1999) ("As
a general matter, the decision to stop an automobile is reasonable where police have
probable cause to believe that a traffic violation has occurred.").

Here, the initial intrusion was lawful; the officers saw a car illegally parked,
and as they approached, two of them smelled marijuana. Either of these reasons
alone might have provided probable cause to approach and "stop" the vehicle; both
of them together unquestionably provided the needed justification. Further, if the
plain view exception is applicable, there is no initial violation of the Fourth
Amendment, and Appellant's argument about the later-discovered drugs being "fruit
of the poisonous tree" is unwarranted.

4. As to Appellant's request for a new trial based on Juror's failure to disclose
her knowledge of Appellant and members of his family, we find no error. See State
v. Tucker, 423 S.C. 403, 411, 815 S.E.2d 467, 471 (Ct. App. 2018) ("A new trial is
warranted when: (1) the juror intentionally concealed information, and (2) the
information withheld would have triggered a challenge for cause or been material to
a party's choice to use a preemptory challenge." (citing State v. Woods, 345 S.C. 583,
587, 550 S.E.2d 282, 284 (2001))); id. ("[I]ntentional concealment occurs when the
question presented to the jury on voir dire is reasonably comprehensible to the
average juror and the subject of the inquiry is of such significance that the juror's
failure to respond is unreasonable." (alteration in original) (quoting State v.
Galbreath, 359 S.C. 398, 404 n.2, 597 S.E.2d 845, 848 n.2 (Ct. App. 2004))); Lynch
v. Carolina Self Storage Ctrs., Inc., 409 S.C. 146, 155, 760 S.E.2d 111, 116 (Ct.
App. 2014) ("[U]nintentional concealment occurs 'where the question posed is
ambiguous or incomprehensible to the average juror, or where the subject of the
inquiry is insignificant or so far removed in time that the juror's failure to respond is
reasonable under the circumstances.'" (quoting Woods, 345 S.C. at 588, 550 S.E.2d
at 284)); Tucker, 423 S.C. at 411, 815 S.E.2d at 471 ("A party alleging innocent or
unintentional nondisclosure 'has a heightened burden to show that the concealed
information indicates the juror is potentially biased, and that the concealed
information would have been a material factor in the party's exercise of its
peremptory challenges.'" (quoting State v. Coaxum, 410 S.C. 320, 329, 764 S.E.2d
242, 246 (2014))).

In this case, Juror did not conceal anything that was sought to be uncovered
by the voir dire questions. The question that Appellant alleges Juror should have
answered differently was: "Is there any member of the jury panel related by blood
or marriage to any of th[e] possible witnesses or anyone who has any close business
or social relationship with th[e] witnesses?" Based on the record, Juror's knowledge
of Appellant and previous familiarity with Arleen was not of the type that the court
intended to be included in the question. See State v. Guillebeaux, 362 S.C. 270, 275,
607 S.E.2d 99, 102 (Ct. App. 2004) ("Juror was not asked during voir dire if she
knew any of the witnesses, she was asked if she had any type of social relationship
with [one of the witnesses]. Juror's knowledge of who [the witness] was and the rare
exchange of greetings with him in her community did not constitute a 'social
relationship.'"); cf. Lynch, 409 S.C. at 156, 760 S.E.2d at 117 ("The definition of
'relationship' denotes a 'connection' between people. See Webster's New World
College Dictionary 1209 (4th ed.2008) (defining 'relationship" as 'the quality or state
of being related; connection' and 'a continuing attachment or association between
persons, firms, etc.'); The American College Dictionary 1022 (1969) (defining
'relationship' as 'connection; a particular connection')."). Further, if the question was
truly read as broadly as Appellant contends, such a reading would render it
ambiguous to the average juror. Therefore, at most, the concealment here is
unintentional and, despite Appellant's arguments, there is no indication in the record
that Juror was biased against Appellant.

AFFIRMED.

THOMAS and GEATHERS, JJ., and HUFF, A.J., concur.