State v. Brown

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.

Stanford Lavelle
Brown, Appellant.

Appeal From Charleston County

Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No.  2012-UP-063 

Submitted January 3, 2012 – Filed February
8, 2012

AFFIRMED

Deputy Chief Appellate Defender Wanda H.
Carter, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W.
Elliott, and Assistant Attorney General Deborah R.J. Shupe, all of Columbia;
and Scarlett A. Wilson, of Charleston, for Respondent.

PER CURIAM:  Stanford
Lavelle Brown appeals his conviction for trafficking in cocaine base.  He
argues the circuit court erred in admitting (1) his jailhouse telephone
conversations and (2) drug evidence after two witnesses involved in the chain
of custody did not testify at trial and a labeling error was discovered.  We
affirm.[1]

1. We find the circuit
court did not abuse its discretion in admitting several jailhouse telephone
conversations between Brown and a confidant placing Brown at the scene of the
crime.  Specifically, the statements made by Brown are admissions excluded from
the definition of hearsay.  See Rule
801(d)(2)(A), SCRE.  Moreover, the relevant utterances of his confidant were
neither assertions nor offered for their truth.[2]  See Rules 801(a) & (c), SCRE.  All other statements made by Brown's
confidant were harmless in light of Brown's admissions.  See State v.
Liverman, 386 S.C. 223, 233-34, 687 S.E.2d 70, 75 (Ct. App. 2009) (holding
that reversal of a circuit court's ruling to admit or exclude evidence requires
prejudice to the defendant).

2.  We find the circuit
court did not abuse its discretion in admitting the drugs into evidence.  The
absence of two witnesses who handled the drugs is not fatal to the chain of
custody, even in light of remedied clerical errors that occurred earlier in the
chain.

In order to admit drugs into
evidence, the State "must establish a complete chain of custody as far as
practicable."  State v. Sweet, 374 S.C. 1, 6, 647 S.E.2d 202, 205
(2007).  Who had handled the drugs and what was done with them must not be left
to conjecture.  Id.  The South Carolina Supreme Court, however, has
retreated from "inflexible rules regarding the chain of custody and the
admissibility of evidence," giving the circuit court more discretion in
ruling on the admissibility of fungible evidence.  State v. Hatcher, 392
S.C. 86, 94, 708 S.E.2d 750, 754 (2011).  First, each custodian in the chain
need not testify "[w]here other evidence establishes the identity of those
who have handled the [drugs] and reasonably demonstrates the manner of handling
of [them]."  Id. at 91, 708 S.E.2d at 753.  Indeed, "[i]t is
unnecessary . . . that the police account for every hand-to-hand
transfer."  Id. at 94, 708 S.E.2d at 754 (emphasis added) (internal
quotation marks omitted).  Second, as long as the chain is sufficiently
complete, the State need not "negate all possibility of tampering."  Id. at 92, 708 S.E.2d at 753.  Courts, though, will not fill gaps "where there
is a missing link in the chain of possession because the identity of those who
handled the [drugs] was not established at least as far as practicable."  Id. (emphasis removed).

Here, the State identified
each witness who handled the drugs, and only two did not testify.  One witness,
a State Law Enforcement Division (SLED) technician, merely accepted the drugs from
investigators and placed them into the vault.  Another SLED technician merely
served as a go-between, transferring the evidence between vaults, to and from
the analyst, and ultimately back to investigators.  The SLED analyst explained
the role each technician had in handling the drugs and testified she found no
sign of tampering.  Hatcher involved similar procedures at SLED, where evidence
was logged and handled by technicians other than the analyst who performed the
testing.  Id. at 90 n.1, 708 S.E.2d at 752 n.1.  Given the supreme
court's position that these technicians had "fleeting contact with the
evidence," we find the circuit court here properly exercised its
discretion against "unnecessary logistical problems concerning chain of
custody."  Id. at 94, 708 S.E.2d at 754.

We also find the clerical
errors made by investigators were remedied to the extent the drugs remained
properly identifiable.  See id. at 95, 708 S.E.2d at 755 ("The
ultimate goal of chain of custody requirements is simply to ensure that the
item is what it is purported to be.").  Each witness involved in
correcting the errors testified about how they handled the drugs.  Moreover, we
note the evidence shows the remedied errors of the investigators are
unconnected to the SLED technicians' handling of the drugs, and we find the
errors did not necessitate the technicians' testimony.

AFFIRMED.

HUFF, PIEPER, and LOCKEMY,
JJ., concur.

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

[2] Brown also argues the admission of his confidant's
utterances violated his right to confront witnesses.  This issue, however, was
never ruled on by the circuit court and is thus not preserved for our review.  See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693 (2003) ("In
order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the [circuit court].").