State v. Habersham

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.

Jujuan Andre Habersham, Appellant.

Appellate Case No. 2014-002706

Appeal From Beaufort County
D. Craig Brown, Circuit Court Judge

Unpublished Opinion No. 2017-UP-103
Submitted January 1, 2017 – Filed March 8, 2017

AFFIRMED

James Arthur Brown, Jr., of Law Offices of Jim Brown,
P.A., of Beaufort, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia, and Solicitor Isaac McDuffie Stone, III, of
Bluffton, all for Respondent.

PER CURIAM: Jujuan Andre Habersham appeals his convictions of possession
of a firearm by a person convicted of a crime of violence, possession of a weapon
during a violent crime, armed robbery, and attempted armed robbery. On appeal,
Habersham argues the trial court erred by failing to dismiss the charges because the
State suppressed and failed to preserve evidence of a lineup, which he contends
was exculpatory evidence. We affirm1 pursuant to Rule 220(b), SCACR, and the
following authorities:

To the extent Habersham argues the State failed to preserve the lineup and the trial
court improperly applied Arizona v. Youngblood,2 we find the argument
unpreserved for appellate review because Habersham did not raise the argument to
the trial court.3 See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94
(2003) ("Issues not raised and ruled upon in the trial court will not be considered
on appeal."); id at 142, 587 S.E.2d at 694 ("A party may not argue one ground at
trial and an alternate ground on appeal."). As to his argument that the State
suppressed the lineup, we find the trial court properly denied the motion to dismiss
because it found the State disclosed the lineup in time for Habersham to effectively
use it at trial. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (providing the

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
2
488 U.S. 51 (1998).
3
Even if this issue were preserved, we find this argument to be without merit. To
establish a due process violation based on the State's failure to preserve evidence, a
defendant must demonstrate "the State destroyed the evidence in bad faith
or . . . 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." State v. Cheeseboro, 346 S.C. 526, 538-39, 552 S.E.2d 300, 307
(2001). At most, Habersham established the police negligently failed to preserve
the lineup, which is insufficient to establish bad faith. See State v. Reaves, 414
S.C. 118, 127-28, 777 S.E.2d 213, 218 (2015) (rejecting defendant's argument bad
faith could be established when "the police's actions in failing to preserve evidence
were so egregious as to constitute misconduct," and noting even if it accepted the
argument, the record contained no indication the "flaws [in investigation] were the
product of more than mere negligence"); Cheeseboro at 539, 552 S.E.2d at 307
(finding the defendant failed to demonstrate the State destroyed evidence in bad
faith because although "there [was] evidence of lack of care, there [was] no
evidence of an intentional destruction of relevant evidence"). Further, Habersham
could have obtained evidence of comparable value by cross-examining the victims
and the investigator about the lineup. See State v. Hutton, 358 S.C. 622, 632, 595
S.E.2d 876, 882 (Ct. App. 2004) (finding the defendant could obtain other
evidence of comparable value by other means because the trial court allowed
thorough cross-examination of the witness about the destroyed evidence).
suppression of evidence favorable to the accused "violates due process where the
evidence is material to either the guilt or to punishment"); State v. Kennerly, 331
S.C. 442, 453, 503 S.E.2d 214, 220 (Ct. App. 1998) (noting evidence is not
material under Brady if disclosed in time for its effective use at trial); State v.
Geer, 391 S.C. 179, 192, 705 S.E.2d 441, 448 (Ct. App. 2010) (finding no due
process violation when the State's late disclosure of the evidence did not impair the
accused's ability to present a defense).

AFFIRMED.

WILLIAMS, THOMAS, and GEATHERS, JJ., concur.