State v. Martin

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.

Ronnie Martin, Appellant.

Appellate Case No. 2015-001065

Appeal From Saluda County
R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No. 2017-UP-246
Heard June 1, 2017 – Filed June 21, 2017

AFFIRMED

Molly Renee Hamilton Cawley, of MHC Law, LLC, of
Charleston; and Chief Appellate Defender Robert
Michael Dudek, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Vann Henry Gunter, Jr., both of
Columbia; and Solicitor Samuel R. Hubbard, III, of
Lexington, for Respondent.

PER CURIAM: Ronnie Martin appeals his conviction for first-degree burglary,
arguing the trial court erred in (1) excluding evidence of third-party guilt, (2)
admitting recorded jail calls, and (3) refusing to instruct the jury on the lesser-
included offense of second-degree burglary. Martin also argues the solicitor's
opening and closing statements so infected the trial with unfairness that it deprived
him of due process, and he contends his conviction should be reversed because of
the cumulative errors of the trial court. We affirm.

1. We find the trial court correctly determined that Martin's testimony regarding
his conversations with Quinton Samuels fails to meet the standard for third-party
guilt evidence. The admissibility of a witness's prior inconsistent statement under
Rule 801(d)(1)(A), SCRE, requires further scrutiny when those statements concern
evidence of third-party guilt. State v. Rice, 375 S.C. 302, 317, 652 S.E.2d 409, 416
(Ct. App. 2007), overruled on other grounds by State v. Byers, 392 S.C. 438, 710
S.E.2d 55 (2011).

[T]he evidence offered by [the] accused as to the
commission of the crime by another person must be
limited to such facts as are inconsistent with his own guilt,
and to such facts as raise a reasonable inference or
presumption as to his own innocence; evidence [that] can
have (no) other effect than to cast a bare suspicion upon
another, or to raise a conjectural inference as to the
commission of the crime by another, is not
admissible. . . . [B]efore such testimony can be received,
there must be such proof of connection with it, such a train
of facts or circumstances, as tends clearly to point out such
other person as the guilty party. Remote acts,
disconnected and outside the crime itself, cannot be
separately proved for such a purpose.

State v. Gregory, 198 S.C. 98, 104–05, 16 S.E.2d 532, 534–35 (1941) (citations and
internal quotation marks omitted); see, e.g., State v. Cooper, 334 S.C. 540, 547–50,
514 S.E.2d 584, 588–89 (1999) (finding a witness's testimony that the witness
overheard a third party admitting to the crime with which the defendant was charged
was inadmissible under Gregory because, aside from the witness's assertions, there
was no credible evidence linking the third party to the crime).

During the proffer, Martin was asked whether he knew who committed the
burglary and, in response, stated, "Well, [Samuels] . . . came by earlier that day and
asked me to go with him to make a lick." "Lick" is slang for a break-in or robbery.
He testified that, after he was imprisoned, he speculated that Samuels committed the
robbery because he saw Samuels shortly after the robbery had occurred and Samuels
admitted to committing a robbery. Martin further testified that Samuels told him he
stole a purse but threw the purse behind a house because he was being chased by the
police. When Samuels testified, he could not recall the night of the burglary. Aside
from Martin's assertions, there is no credible evidence linking Samuels to the crime.

Additionally, we find Martin's argument that Samuel's second statement was
admissible as an excited utterance or present sense impression is not preserved
because Martin did not raise the argument to the trial court. See State v. Garner, 389
S.C. 61, 66, 697 S.E.2d 615, 617 (Ct. App. 2010) ("[I]n order for an issue to be
preserved for appellate review, it must have been raised to and ruled upon by the
trial [court.]"); id. ("[A]rguments raised for the first time on appeal are not preserved
for [appellate] review[.]").

2. We find the trial court properly admitted the recorded jail telephone calls
between Martin and his girlfriend, Kimberly Gantt. Title III of the Omnibus Crime
Control and Safe Streets Act prohibits, with certain exceptions, the interception of
"any wire, oral or electronic communication" in the absence of a court order. See 18
U.S.C. §§ 2511(1), 2516 (2015). However, the prohibitions of the statute do not
apply to the recording of prisoners' conversations on institutional telephones if the
recordings are made pursuant to the "law enforcement" exception or if a party
consents to the interception. United States v. Hammond, 286 F.3d 189, 192 (4th Cir.
2002). The law enforcement exception "excludes from the definition of
'interception' recordings made by 'any telephone or telegraph instrument, equipment
or facility, or any component thereof . . . being used by . . . an investigative or law
enforcement officer in the ordinary course of his duties.'" Id. (quoting 18 U.S.C. §
2510(5)(a)(ii)); see id. at 191–92 (finding a prisoner's calls were not "intercepted"
and, therefore, not prohibited by the statute because "the recordings were made as
part of [the prison's] routine monitoring"). Pursuant to the consent exception, "[i]t
shall not be unlawful . . . to intercept a wire, oral, or electronic communication"
when "one of the parties to the communication has given prior consent." 18 U.S.C.
§ 2511(2)(c) (2015); see Hammond, 286 F.3d at 192 (joining the First, Second,
Eighth, and Ninth Circuits in concluding the consent exception applies to prisoners
who are "required to permit monitoring as a condition of using prison telephones");
see also United States v. Frink, 328 F. App'x 183, 189–90 (4th Cir. 2009) (finding
the consent exception to the prohibition of recording calls applied when the message
that the call was "subject to monitoring and recording" played at the beginning of
each telephone call).
The law enforcement and consent exceptions to Title III render Saluda County
Detention Center's (SCDC's) recording of Martin's conversations permissible. The
law enforcement exception applies because the recordings of Martin's conversations
with Gantt were made as part of SCDC's routine monitoring. Janice Ergle, the
custodian of records for all phone conversations at SCDC, testified that records of
the phone conversations were kept in the ordinary course of business and were
monitored as a security measure. Additionally, Martin consented to having his
conversations intercepted. Prior to an inmate using the phone at SCDC, a recording
plays and alerts the inmate that the conversation could be monitored. Martin
consented to having his calls recorded by continuing to use SCDC's phone after the
warning message played.

Additionally, we find the recording of Martin's jail calls did not violate the
Fourth Amendment's protections against unreasonable searches and seizures. "A
government agent's search is unreasonable when it infringes on 'an expectation of
privacy that society is prepared to consider reasonable.'" United States v.
Castellanos, 716 F.3d 828, 832 (4th Cir. 2013) (quoting United States v. Jacobsen,
466 U.S. 109, 113 (1984)). In order to have a legitimate expectation of privacy, one
must have (1) a subjective expectation of privacy that (2) is objectively reasonable,
i.e., one that society is willing to recognize as reasonable. Id. Prisoners have neither
a subjective nor an objective expectation of privacy in phone calls made on prison
telephones. United States v. Van Poyck, 77 F.3d 285, 290–91 (9th Cir. 1996). A
prisoner does not have a subjective expectation of privacy when the prisoner is
notified that his calls are being monitored. Id. at 290. Further, no prisoner should
reasonably expect privacy in outbound telephone calls due to the severe curtailing
of other privacy rights by virtue of being imprisoned. See id. at 290–91; see also
United States v. Clark, 651 F. Supp. 76, 81 (M.D. Pa. 1986) (finding prisoners do
not have a legitimate expectation of privacy in prison telephone conversations
because prisons routinely monitor and record phone conversations to enhance
security).

Martin had neither a subjective nor objective expectation of privacy in his
prison telephone calls with Gantt. Martin did not have a subjective expectation of
privacy because, as discussed above, he was notified that his calls were being
monitored. Additionally, even if Martin had a subjective expectation of privacy, any
such expectation was not objectively reasonable. To hold otherwise would be
inconsistent with the recognition that prisoners have severely curtailed privacy rights
and would frustrate SCDC's ability to preserve security in its facility.
3. We find the trial court properly refused to charge the jury on the lesser-
included offense of second-degree burglary. A trial court's decision not to charge
the jury on a lesser-included offense is reviewed for an abuse of discretion. State v.
Pittman, 373 S.C. 527, 570, 647 S.E.2d 144, 166 (2007). "An abuse of discretion
occurs when the trial court's ruling is based on an error of law or, when grounded in
factual conclusions, is without evidentiary support." Id. at 570, 647 S.E.2d at 166–
67. "A trial [court] must charge a lesser[-]included offense if there is any evidence
from which the jury could infer the defendant committed the lesser rather than the
greater offense." State v. White, 361 S.C. 407, 412, 605 S.E.2d 540, 542 (2004).
The "presence of evidence to sustain [a] crime of a lesser degree determines whether
it should be submitted to the jury and [the] mere contention that [the] jury might
accept [the] State's evidence in part and might reject it in part will not suffice." State
v. Tyndall, 336 S.C. 8, 22, 518 S.E.2d 278, 285 (Ct. App. 1999). Second-degree
burglary is a lesser-included offense of first-degree burglary. State v. Goldenbaum,
294 S.C. 455, 457, 365 S.E.2d 731, 732 (1988) (finding the trial court properly
refused to charge the lesser-included offenses of second- and third-degree burglary
because "[t]here was no evidence . . . from which the jury could infer that [the]
appellant committed second or third rather than first[-]degree burglary").

The trial court properly refused to charge second-degree burglary because
there is no evidence from which the jury could infer it was daytime when the
burglary occurred. In addition to the testimony from the victim, Dianne Williams
that "[i]t wasn't quite dark," the victim further testified that it was around 8:00 p.m.
when the burglary occurred and she called 911 immediately afterward. When Martin
testified to establish his defense of alibi, he stated that it was "good and dark" around
8:00 p.m. Chief Jared Goldman, of the Saluda County Sheriff's Office, testified he
arrived on the scene at 8:05 p.m., shortly after the burglary occurred, and that "[i]t
was dark at that time." The trial court took judicial notice of the times for sunset and
twilight on December 13, 2013, which, according to the U.S. Naval Observatory
Astronomical Application Department, were 5:19 p.m. and 5:49 p.m., respectively.
Furthermore, Williams' husband corroborated that it was dark when the burglary
occurred.

4. We find Martin's argument that the solicitor's opening and closing statements
so infected the trial with unfairness that they made his resulting conviction a denial
of due process is not preserved because Martin did not object to the solicitor's
statements. See State v. Webb, 389 S.C. 174, 183–84, 697 S.E.2d 662, 667 (Ct. App.
2010) ("In order to preserve an error for appellate review, a defendant must make a
contemporaneous objection on a specific ground." (quoting State v. Blalock, 357
S.C. 74, 79, 591 S.E.2d 632, 635 (Ct. App. 2003))); see also State v. Franklin, 318
S.C. 47, 58, 456 S.E.2d 357, 363 (1995) (finding the appellant's argument regarding
the solicitor's closing argument was not preserved because the appellant did not
object to the closing argument at trial).

5. We find Martin's argument that the trial court's cumulative errors require
reversal of his conviction is not preserved because he did not raise the argument to
the trial court. See Garner, 389 S.C. at 66, 697 S.E.2d at 617 ("[I]n order for an
issue to be preserved for appellate review, it must have been raised to and ruled upon
by the trial [court.]"); id. ("[A]rguments raised for the first time on appeal are not
preserved for [appellate] review[.]"); see also State v. Beekman, 405 S.C. 225, 236–
37, 746 S.E.2d 483, 489 (Ct. App. 2013) (finding the cumulative error doctrine must
be raised to and ruled upon by the trial court for it to be preserved for appellate
review).

AFFIRMED.1

GEATHERS, MCDONALD, and HILL, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.