State v. Whitener

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.

Calvin Eugene Whitener, Appellant.

Appellate Case No. 2021-001232

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

Unpublished Opinion No. 2024-UP-143
Submitted April 1, 2024 – Filed May 1, 2024

AFFIRMED

Dayne C. Phillips, of Price Benowitz LLP, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Ambree Michele Muller, both of
Columbia; and Solicitor David M. Stumbo, of Newberry,
all for Respondent.

PER CURIAM: Calvin Eugene Whitener appeals his conviction for trafficking
cocaine, 28 grams or more, but less than 100 grams, first offense, and his sentence
of twenty-five years' imprisonment. On appeal, Whitener argues the trial court
erred in (1) admitting the drugs found in his pants following a pat down search, (2)
admitting a statement he made to the officer immediately after the pat down
search, and (3) refusing to grant a mistrial when the State's comments during
opening statement were unduly prejudicial and improperly shifted the burden of
proof. We affirm pursuant to Rule 220(b), SCACR.

1. The trial court did not err in admitting the drug evidence because, under the
totality of the circumstances, there was sufficient reasonable belief the defendant
was armed and dangerous to conduct a pat down search. See State v. Frasier, 437
S.C. 625, 634, 879 S.E.2d 762, 767 (2022) ("In order to prolong or exceed the
scope of a stop beyond the initial traffic violation, law enforcement must have
reasonable suspicion that criminal activity may be afoot."); Robinson v. State, 407
S.C. 169, 182, 754 S.E.2d 862, 868 (2014) ("[R]easonable suspicion requires there
be an objective, specific basis for suspecting the person stopped of criminal
activity."); Frasier, 437 S.C. at 635, 879 S.E.2d at 767 ("This inquiry involves the
totality of the circumstances, and '[c]ourts must give due weight to common sense
judgments reached by officers in light of their experience and training.'"); State v.
Provet, 405 S.C. 101, 109, 747 S.E.2d 453, 457 (2013) ("The officer's observations
while conducting the traffic stop may create reasonable suspicion to justify further
search or seizure."); State v. Banda, 371 S.C. 245, 253, 639 S.E.2d 36, 40 (2006)
("[B]ecause of the 'indisputable nexus between drugs and guns,' where an officer
has reasonable suspicion that drugs are present in a vehicle lawfully stopped, there
is an appropriate level of suspicion of criminal activity and apprehension of danger
to justify a frisk of both the driver and the passenger in the absence of other factors
alleviating the officer's safety concerns." (quoting State v. Butler, 353 S.C. 383,
391, 577 S.E.2d 498, 502 (Ct. App. 2003))).

2. The trial court did not err in admitting the statement Whitener made to law
enforcement following the pat down because the questioning did not exceed the
bounds of a valid Terry search. See State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d
216, 220 (2006) ("In criminal cases, the appellate court sits to review errors of law
only. This Court is bound by the trial court's factual findings unless they are
clearly erroneous." (internal citation omitted)); State v. Barksdale, 433 S.C. 324,
330, 857 S.E.2d 557, 560 (Ct. App. 2021) ("The decision to admit or exclude
evidence is within the sound discretion of the trial court."); id. at 332, 857 S.E.2d
at 561 ("Whether an individual is in 'custody' is determined based on the totality of
the circumstances surrounding the interrogation, including 'the location, purpose,
and length of interrogation, and whether the suspect was free to leave the place of
questioning.'" (quoting State v. Medley, 417 S.C. 18, 25, 787 S.E.2d 847, 851 (Ct.
App. 2016))); State v. Smith, 329 S.C. 550, 559, 495 S.E.2d 798, 803 (Ct. App.
1998) (finding an officer's question about the nature of contents he immediately
knew to be drugs without excessive manipulation after they were felt during a pat
down "did not exceed the permissible bounds of a Terry search").

3. Even if comments in the State's opening argument were prejudicial to Whitener,
the trial court issued an adequate curative instruction immediately after the State
completed its argument and advised the jury numerous times of the State's burden
of proof; therefore, we hold the trial court acted within its discretion in denying
Whitener's motion for a mistrial based on the State's problematic remarks. See
State v. Simpson, 325 S.C. 37, 43, 479 S.E.2d 57, 60 (1996) ("The granting of a
mistrial is a matter within the sound discretion of the trial judge, and his decision
will not be disturbed on appeal absent an abuse of discretion amounting to an error
of law."); State v. Harris, 382 S.C. 107, 117, 674 S.E.2d 532, 537 (Ct. App. 2009)
("A mistrial should only be granted when absolutely necessary, and a defendant
must show both error and resulting prejudice in order to be entitled to a mistrial.");
Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166-67 (1998) ("The
relevant question is whether the solicitor's comments so infected the trial with
unfairness as to make the resulting conviction a denial of due process."); State v.
Cooper, 334 S.C. 540, 554, 514 S.E.2d 584, 591 (1999) (finding that any potential
prejudice caused by the solicitor's comments was cured by the trial court's
immediate curative instruction and the jury charge following closing arguments).

AFFIRMED. 1

WILLIAMS, C.J., KONDUROS, J., and LOCKEMY, A.J., concur.

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