State v. Miller

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.

Antonio Miller, Appellant.

Appellate Case No. 2012-208640

Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2014-UP-409
Heard October 6, 2014 – Filed November 19, 2014

AFFIRMED IN PART AND VACATED IN PART

Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka, Assistant
Attorney General J. Anthony Mabry, all of Columbia,
and Solicitor James Strom Thurmond, Jr., of Aiken, for
Respondent.
PER CURIAM: Antonio Miller appeals his convictions of murder, kidnapping,
burglary in the first degree, and possession of a firearm during the commission of a
violent crime. Miller argues (1) the trial court erred in denying his motion to
suppress the evidence located in a residence because the search warrant affidavit
did not provide the magistrate with a reliable sufficient nexus to provide probable
cause that the residence was his home and he was hiding drugs, weapons, or the
fruits of a murder within the home and (2) his sentence for kidnapping should be
vacated because it was improper due to his sentence for murder. We affirm in part
and vacate in part.

1. We find the trial court did not err in denying Miller's motion to suppress the
evidence located in a residence because given all the circumstances set forth in the
search warrant affidavit, there was a fair probability evidence of a crime would be
found in the residence identified. Thus, the trial court correctly found the
magistrate had a substantial basis for concluding probable cause existed to issue
the warrant. See State v. Dupree, 354 S.C. 676, 684, 583 S.E.2d 437, 441 (Ct.
App. 2003) ("A magistrate may issue a search warrant only upon a finding of
probable cause."); State v. Bellamy, 336 S.C. 140, 143, 519 S.E.2d 347, 348 (1999)
("The South Carolina General Assembly has enacted a requirement that search
warrants may be issued 'only upon affidavit sworn to before the magistrate . . .
establishing the grounds for the warrant.'" (quoting S.C. Code Ann. § 17-13-140
(1985))); Dupree, 354 S.C. at 684, 583 S.E.2d at 441 ("The affidavit must contain
sufficient underlying facts and information upon which the magistrate may make a
determination of probable cause."); id. ("The magistrate should determine probable
cause based on all of the information available to the magistrate at the time the
warrant was issued."); id. at 685, 583 S.E.2d at 442 ("The magistrate's task in
determining whether to issue a search warrant is to make a practical, common
sense decision concerning whether, under the totality of the circumstances set forth
in the affidavit, including the veracity and basis of knowledge of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a
crime will be found in the particular place to be searched."); State v. Sullivan, 267
S.C. 610, 617, 230 S.E.2d 621, 624 (1976) (providing affidavits should be viewed
in a common sense and realistic fashion because they are not meticulously drawn
by lawyers); id. ("Search warrants are constitutionally preferred and in determining
whether they should issue, magistrates are concerned with probabilities and not
certainties."); Dupree, 354 S.C. at 683, 583 S.E.2d at 441 ("The appellate court
should give great deference to a magistrate's determination of probable cause."); id.
at 684, 583 S.E.2d at 441 ("In determining the validity of the warrant, a reviewing
court may consider only information brought to the magistrate's attention."); id. at
683, 583 S.E.2d at 441 ("Our task is to decide whether the magistrate had a
substantial basis for concluding probable cause existed."); id. (stating the term
"probable cause" does not import absolute certainty); id. at 683-84, 583 S.E.2d at
441 ("Searches based on warrants will be given judicial deference to the extent that
an otherwise marginal search may be justified if it meets a realistic standard of
probable cause.").

2. We find Miller's sentence for kidnapping was improper due to his sentence
for murder and should be vacated. See S.C. Code Ann. § 16-3-910 (2003)
("Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry
away any other person by any means whatsoever without authority of law, except
when a minor is seized or taken by his parent, is guilty of a felony and, upon
conviction, must be imprisoned for a period not to exceed thirty years unless
sentenced for murder as provided in Section 16-3-20." (emphasis added)); State v.
Vick, 384 S.C. 189, 201, 682 S.E.2d 275, 281 (Ct. App. 2009) ("Our courts have
long held, where an appellant has been sentenced for murder of a victim, this code
section precludes a sentence for kidnapping of that victim, and any such sentence
should be vacated."); id. at 202, 682 S.E.2d at 282 ("[O]ur courts have, in the past,
'summarily vacated' sentences for kidnapping where such sentences were
precluded by § 16-3-910 because the defendant received a concurrent sentence
under the murder statute."); Owens v. State, 331 S.C. 582, 585, 503 S.E.2d 462,
463 (noting the appellate courts have "summarily vacated" sentences for
kidnapping when the defendant received a concurrent sentence under the murder
statute). Therefore, we affirm Miller's conviction for kidnapping, but vacate his
sentence for kidnapping. See Vick, 384 S.C. at 203, 682 S.E.2d at 282 (affirming
Vick's convictions, but vacating the clearly erroneous kidnapping sentence in the
interest of judicial economy "because the State concedes the kidnapping sentence
was erroneously imposed" and "our courts recognize there may be exceptional
circumstances allowing the appellate court to consider an improper sentence even
though no challenge was made to the sentence at trial and have further summarily
vacated in matters such as the one at hand").

AFFIRMED IN PART AND VACATED IN PART.

HUFF, SHORT, and KONDUROS, JJ., concur.