State v. Humphries , 346 S.C. 435 ( 2001 )

CURETON, Judge:

In this criminal case, Claude and Phil Humphries appeal from their convictions for trafficking marijuana on the grounds that the trial court erred in refusing to compel the State to disclose the identity of its confidential informant and in admitting evidence of other bad acts. We affirm.¹

FACTS/PROCEDURAL BACKGROUND

In October of 1996, the Sumter County Sheriffs Department received a tip that a package containing illegal drugs would be delivered to C & J Automotive from an address in California. Deputies of the sheriffs department intercepted the package while it was en route with the United Parcel Service (UPS). The package, addressed to C & J Automotive, contained approximately 40 pounds of marijuana with a street value of approximately $60,000. Police repackaged the drugs and made a controlled delivery using a South Carolina Law Enforcement Division (SLED) agent disguised as a UPS driver. Phil accepted the package, and stated he was signing for the garage’s owner, Claude. Officers then executed a search warrant and seized the package, files, ledgers, and $4,500 in U.S. currency. Both Phil and Claude were present during the search.

The Sumter County Grand Jury indicted the Humphries on charges of criminal conspiracy and trafficking in more than ten, but less than one hundred pounds of marijuana. During their trial on the trafficking charges, the Humphries moved to have the State reveal the identity of the confidential informant. After argument from both sides, the trial court refused to grant the motion, reasoning it did not have enough information to determine whether the State was required to disclose the informant’s identity. The trial court also refused to exclude evidence the Humphries had trafficked marijuana on other occasions.

The Humphries were convicted of trafficking in marijuana and each sentenced to twenty-five years imprisonment and required to pay a $25,000 fine. This appeal follows.

LAW/ANALYSIS

I. Confidential Informant

The Humphries argue the trial court erred by refusing to compel the State to disclose its informant’s identity. We disagree.

The State is ordinarily privileged from disclosing the name of a confidential informant. State v. Wright, 322 S.C. 484, 472 S.E.2d 642 (Ct.App.1996). However, the State may be compelled to reveal an informant’s identity where the informant is either an active participant in a criminal transaction or a material witness to the question of the defendant’s guilt or innocence. State v. Batson, 261 S.C. 128, 198 S.E.2d 517 (1973).

In this case, the Humphries put forth three possible grounds for compelling the State to disclose the informant’s identity: the informant may have framed or mis-identified the defendants, there was no informant, or the informant was part of the drug transaction. The State asserted the informant was merely a tipster. The court found nothing to support an inference that the informant was anything other than a tipster, but agreed to revisit the issue if during trial it appeared the informant was either an active participant in the crime or a material witness on the issue of guilt or innocence.

The informant in this case merely provided law enforcement with the reasonable suspicion necessary to seize the package destined for C & J Automotive and expose it to a drug dog. Nothing in the record indicates that the informant was present during law enforcement’s inspection of the package or its controlled delivery to the garage. Accordingly, we find no error in the trial court’s determination that the informant was a mere tipster and its decision to deny the motion to reveal his identity. See State v. Burney, 294 S.C. 61, 362 S.E.2d 635 (1987) (declining to compel the identification of a “tipster.”); State v. Blyther, 287 S.C. 31, 336 S.E.2d 151 (Ct.App.1985) (recognizing that the State is not required to disclose the identity of a “mere tipster”).

II. Evidence of Other Trafficking Incidents

The Humphries also argue the trial court erred in admitting prejudicial character evidence prohibited by State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923) “because it was irrelevant and more prejudicial than probative.” We agree but conclude the admission was harmless error.

Initially, we address the State’s contention that this issue is not preserved for appellate review. Prior to trial, the defense made a motion in limine to exclude evidence of other drug trafficking by the Humphries as being improper evidence of other bad acts and violative of State v. Lyle. The State opposed the motion by arguing the evidence was admissible to show a common plan or scheme. After hearing the proposed evidence, the trial court ruled in limine for the State. In its ruling, the court stated to defense counsel: “I am sure that you take exception to that ruling and I will tell you that your position is protected without the necessity of further objection on forward.” The evidence was later admitted without objection during the Humphries’ trial.

Ordinarily, an evidentiary ruling in limine is not final, thus the opposing party must object to the introduction of the evidence at trial in order to preserve the objection for appellate review. State v. Mitchell, 330 S.C. 189, 498 S.E.2d 642 (1998). In this case, the trial court indicated its ruling in limine was final and instructed the defense that it need not object to the evidence when it was introduced at the time of the admission. For this reason, the issue is preserved notwithstanding the Humphries’ failure to raise an objection at trial. See State v. Wilson, 337 S.C. 629, 524 S.E.2d 411 (Ct.App.1999), rev’d on other grounds by, State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (holding that a contemporaneous objection to the introduction of testimonial evidence was not required to preserve the issue for appellate review where the trial court made its final evidentiary ruling following an in camera hearing); see also State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994) (excusing the failure to make a contemporaneous objection where the judge’s comments are such that any objection would be futile).

As to the merits, during the in limine hearing, the State offered the testimony of a former C & J employee, Jeff Seruya. Seruya testified that during his employment he was instructed not to open certain packages delivered to C & J. Seruya became suspicious about the packages due to the heavy traffic of “undesirable people” through the garage and his perception that C & J was under police surveillance. Acting on his suspicions, Seruya secretly opened one of the packages and found that it contained marijuana. He then decided to leave his employment “because things were getting too hot around there.” Sometime after Seruya left C & J, Claude and Phil were arrested and charged with the instant offense.

Seruya also testified in limine that a few days after Claude and Phil’s arrest, Claude contacted him and asked if he would take delivery of an Airborne Express package.² Seruya testified that Ray, Claude’s acquaintance, delivered a box to his home and told him the box belonged to Claude. Shortly after the delivery, Seruya was arrested and the box, containing approximately twenty pounds of marijuana, was opened by law enforcement officers. With officers listening in, Seruya then telephoned Claude and asked him to come and retrieve his box. Claude agreed and arrived with another man to collect it.

Dexter McGee, a narcotics investigator with the sheriff’s department, also testified in limine for the State, but provided a slightly different explanation of Seruya’s arrest. Investigator McGee indicated his office learned from the Drug Enforcement Agency (DEA) that a package containing marijuana was being shipped to Seruya’s residence via Airborne Express. Acting on the tip, the sheriffs department performed a controlled delivery of the package, arrested Seruya, and then had him call C & J. Claude answered the phone and said he would come get the box later in the day. Claude and Peter Jenkins, a C & J employee, later picked up the box.

At trial, Seruya testified that during his employment with C & J he was instructed to not open certain packages which came from California. However, he did not testify, as he had in limine, that he opened one of the packages against those instructions and found marijuana. As to the box delivered to his house, Seruya testified at trial that it arrived wrapped in plain brown paper without a packing list, as had the suspect packages he saw at C & J. However, unlike the C & J packages, the box contained no stickers or labels indicating who it was for, where it was destined, or from where it originated. He testified that the box was for Claude, but did not explain how he knew it was for him or where the box carné from. Seruya also claimed to have opened the box, found marijuana inside, and called Claude to come and retrieve it. Seruya described how Claude and Peter Jenkins arrived at his home and how Claude waited in the car as Peter came inside and retrieved the box.

McGee did not testify to the latter transaction at trial. The State offered no evidence at trial concerning Seruya’s arrest or that his call to Claude was monitored by the police. In its brief, the State concedes “[t]he trial judge’s ruling on the admissibility of Seruya’s testimony was based upon the in camera testimony of Seruya and McGee.”³ The Humphries argue that all evidence regarding the post-arrest delivery of a package to Seruya’s house was improperly admitted under Lyle.

Evidence of other crimes or bad acts is inadmissible to prove a person’s character or guilt for the charged offense unless the evidence tends to establish, inter alia, a common scheme or plan. See Rule 404(b), SCRE; State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001); Lyle, 125 S.C. 406, 118 S.E. 803. The common scheme or plan exception requires “a close degree of similarity or connection” between the other bad act or crime and the charged offense. State v. Timmons, 327 S.C. 48, 52, 488 S.E.2d 323, 325 (1997). A general similarity between the offenses is not enough; “some connection between the crimes is necessary.” Id. at 52, 488 S.E.2d at 325. .

Evidence of other crimes must be put to a rather severe test before admission. The acid test of admissibility is the logical relevancy of the other crimes. The trial judge must clearly perceive the connection between the other crimes and the crimes charged. Further, other crimes which are not the subject of conviction must be proven by clear and convincing evidence.

State v. Cutro, 332 S.C. 100, 103, 504 S.E.2d 324, 325 (1998) (citations omitted).

Our supreme court addressed the common plan or scheme exception within the context of a drug trafficking prosecution in State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995). The Raffaldt court reviewed the admission of testimony about the defendant’s prior drug dealing as it related to the charged offense of trafficking in cocaine. The cocaine at issue came to the defendant from New York via a series of transactions which began when Mr. Jiminez brought the cocaine into South Carolina and gave it to Mr. Kelly, who, along with Mr. Burchett, then delivered the cocaine to the defendant, who paid Kelly for the drugs. After retaining a portion of the money, Kelly then paid Jiminez. Id. At trial, Burchett testified he had purchased marijuana and cocaine from the defendant on several occasions in the year preceding the commission of the charged offense. Burchett also testified that he had set up other cocaine deals between Kelly and the defendant prior to the charged offense. Id.

The trial court held that the testimony concerning the defendant’s prior drug dealing was admissible under the common plan or scheme exception because it was not only “quite similar to” the charged offense, but it also “gave rise to” his connection with Kelly and Burchett, who facilitated the transaction between the defendant and Jiminez. Id. at 114, 456 S.E.2d at 392. Because the prior trafficking was the genesis of the charged offense, the court found sufficient similarity and connection to employ the common plan or scheme exception.

In keeping with Raffaldt, this court has refused to employ the common plan or scheme exception for prior drug transactions which were similar to the charged offense and involved the same actors, but were otherwise unconnected.

In State v. Carter, 323 S.C. 465, 476 S.E.2d 916 (Ct.App.1996), this court rejected the use of the exception to introduce testimony concerning a prior drug transaction where the defendant was tried on a single charge of distribution. “[T]estimony of a prior drug sale using a similar sales technique is not relevant to prove a single charge of distribution.” Id. at 468, 476 S.E.2d at 918. In Carter, the defendant was arrested for selling crack cocaine to an informant on January 18th. At trial, the informant testified that he agreed to participate in the defendant’s arrest because the police had arrested him on January 14th after he had left the defendant’s house with crack, which he claimed to have purchased from the defendant. This court held the evidence was inadmissible, reasoning:

There is no legal connection between these two purchases sufficient to come within the framework of the common scheme or plan exception. Indeed, the purpose of the State’s use of the evidence appears ... [to have been] to convince the jury that because Carter sold crack cocaine to [the informant] on January 14 th, he was selling crack eocaine on January 18th. This is the precise type of inference prohibited by Lyle.

Id. at 468, 476 S.E.2d 916, 476 S.E.2d at 918. The court further stated that if the trial court “does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected.” Id. at 469, 476 S.E.2d at 919 (quoting State v. Lyle, 125 S.C. 406, 417, 118 S.E. 803, 807 (1923)).

Carter relied heavily on State v. Campbell, 317 S.C. 449, 454 S.E.2d 899 (Ct.App.1994). In Campbell, the defendant was charged with distributing crack cocaine. The defendant was arrested at the home of an informant who, in cooperation with the police, had summoned the defendant by “beeping” him. Id. The defendant arrived at the informant’s home with three yellow rocks which appeared to be crack cocaine; however, the substance was never positively identified because the defendant retrieved the rocks from the police during the arrest and swallowed them. Id. At trial, the informant testified he originally purchased crack from the defendant on the street, but that the defendant had given him a beeper number to facilitate subsequent transactions. Id. The informant claimed that prior to the arrest, he had used the same beeper number on several occasions to summon the defendant who would then arrive at his home and sell him crack. Id. This court held “testimony ... of prior drug sales utilizing a similar sales technique” was insufficient to meet the common plan or scheme exception. Id. at 451, 454 S.E.2d at 901. Specifically, the court stated:

The methodology of prior sales is not relevant to prove this transaction.... By introducing the prior bad acts, the State was not trying to prove a common scheme but to convince the jury that because Campbell sold crack cocaine in the past, he was selling crack cocaine on this occasion. This is precisely the type of inference that Lyle prohibits.

Id. at 451, 454 S.E.2d at 901.⁴

In this appeal, the Humphries do not appeal the requirement that the other bad acts be established by clear and convincing evidence. Thus, we may not consider the sufficiency of the evidence regarding whether or not the prior bad acts were proven by clear and convincing evidence. See State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (concluding an appellate court does not review a trial court’s ruling on the admissibility of other bad acts by determining de novo whether the evidence rises to the level of clear and convincing; if there is any evidence to support the admission of the bad act evidence, the trial court’s ruling will not be disturbed on appeal).

The Humphries do argue in this appeal that even if the bad act evidence was otherwise admissible, it was not relevant or probative to show they trafficked in marijuana on October 1, 1996. The Humphries were convicted of a single act of drug trafficking because a package of marijuana of sufficient weight to satisfy the statutory definition of trafficking, addressed to C & J, was mailed from California and delivered to C & J. To the extent that Seruya testified about the arrival of other, similar packages from California during the tenure of his employment with C & J, that testimony would appear to fall within the ambit of the common plan or scheme exception. However, Seruya’s testimony concerning the delivery of marijuana to his home on Claude’s behalf without other identifying similarities to the C & J deliveries is not sufficiently relevant or probative to warrant its admission into evidence under the common plan or scheme exception. At most, Seruya’s testimony suggests that after Claude and Phil’s arrest, they enacted another scheme to traffic in drugs. The new trafficking scheme was not sufficiently connected to the earlier scheme to warrant its introduction at trial pursuant to the common scheme or plan exception.

Based on this Court’s reasoning in Carter and Campbell, the evidence of the subsequent bad acts in this case does not have the requisite connection to the charged offense to meet the common plan or scheme exception. Furthermore, Raffaldt is distinguishable from the instant action in that the other bad acts at issue in Raffaldt were not only “quite similar” to the charged offense, but also “gave rise” to that offense. Such a connection was not present in Carter and Campbell which, at best, merely involved the same parties undertaking similar transactions. The instant action is even further removed from Raffaldt because Seruya’s trial testimony did not indicate the delivery to his home was sufficiently similar to the deliveries to C & J. Seruya never indicated he was involved with any of the packages delivered to C & J, whereas he was a direct participant in the delivery to his house. Furthermore, Seruya’s description of the box delivered to his home is markedly different from his description of the packages received at C & J. Such discrepancies between the transactions in the instant action defeat both the similarity prong found in Carter, Campbell, and Raffaldt as well as the connection prong in Raffaldt.

Having concluded the trial court erred in admitting evidence of the subsequent delivery of marijuana to Seruya’s home, we now consider whether that error requires reversal or whether the admission may be considered harmless error. See State v. Berry, 332 S.C. 214, 503 S.E.2d 770 (Ct.App.1998) (concluding improper admission of evidence of other bad acts is subject to harmless error analysis). To make that determination we must look to the other evidence admitted at trial to determine whether the Humphries’ guilt is conclusively proven by competent evidence, such that no other rational conclusion could be reached. See State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989).

Clearly, there is undisputed evidence, without reference to the subsequent bad act evidence, that conclusively proves the Humphries’ guilt as to the indicted offense. Along with other evidence, there was Seruya’s testimony of the delivery of similar packages from California and the Humphries’ directive forbidding him from opening those packages; law enforcement’s interception of one of the packages from California that contained forty pounds of marijuana; the controlled delivery of that package to a garage operated by the Humphries; the acceptance of the package by Phil Humphries, and the search of the garage and the discovery of $4,500 that tested positive for marijuana. We hold that the erroneous admission of the bad acts evidence did not unfairly prejudice the Humphries in view of Seruya’s unchallenged testimony that there had been other packages, similar to the package the Humphries were convicted for receiving, that had been delivered to C & J.

CONCLUSION

Although the trial court properly allowed the State to withhold the confidential informant’s name, it erred by admitting evidence of the subsequent drug delivery to Seruya’s home. Nevertheless, we hold that there is overwhelming evidence of the Humphries’ guilt without reference to the erroneously admitted evidence and accordingly affirm the convictions.

AFFIRMED.

HUFF, J. concurs. ANDERSON, J., concurs in result only in a separate opinion

1 . This case was previously affirmed in an unpublished opinion. State v. Humphries, 2000-UP-336 (Ct.App.2000). It is now being considered on the grant of the Humphries’ petition for rehearing.

2 . Although Seruya testified in limine only that "Mr. Humphries” contacted him about the Airborne Express package, it appears from his trial testimony that he was referring to Claude.

3 . This case illustrates the difficulty inherent in issuing a final evidentiary ruling before the evidence is offered at trial. Seruya’s trial testimony varied so markedly from his pre-trial testimony as to suggest that the trial court may have ruled differently had it considered only the former. Nevertheless, we must review the trial court’s evidentiary ruling in light of the evidence actually admitted at trial, not what was offered before trial. See State v. Nelson, 331 S.C. 1, 5 n. 4, 501 S.E.2d 716, 718 n. 4 (1998) (suggesting an appellate court should review evidentiary rulings based on the evidence entered at trial rather than the evidence presented at a motion in limine hearing). A motion in limine seeks a pretrial evidentiary ruling to prevent the disclosure of potentially prejudicial matter to the jury. State v. Hill, 331 S.C. 94, 501 S.E.2d 122 (1998). A pretrial ruling in limine is not final; unless an objection is made at the time the evidence is offered and a final ruling procured, the issue is not preserved for review. State v. Mitchell, 330 S.C. 189, 498 S.E.2d 642 (1998). Under the posture of this case, we must presume the Humphries objected to the evidence at issue and the trial court overruled the objection.

4 . But cf. State v. Moultrie, 316 S.C. 547, 451 S.E.2d 34 (Ct.App.1994). In Moultrie, the defendant was charged with possession of marijuana with intent to distribute. The police, acting on information from an informant, observed eight people standing around the defendant’s car while it was parked in front of his house. When the police approached, they saw marijuana on the ground near the defendant’s car. The defendant was arrested. At trial, the court allowed the informant to testify that the defendant had a practice of selling drugs from a bag which he kept either under his car or in the woods near his house.

On appeal, the defendant argued the evidence should have been excluded under Lyle. This Court held the issue was not preserved as no objection was made at the trial. However, the Court concluded that the evidence was admissible under the Lyle common plan or scheme exception to prove the existence and nature of the defendant’s drug trafficking scheme and was probative of his conduct with respect to the crime for which he was on trial. In so holding, the Court stated, the defendant’s "mode of operation” in previous drug deals • "bore an extraordinary similarity to the evidence [the police] discovered on the night of [the defendant’s] arrest and tended to show the nature and content of [the defendant’s] previous drug dealing.” Id.