DocketNumber： 2008-UP-249
Filed Date： 5/7/2008
Status： Non-Precedential
Modified Date： 10/22/2024
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Herbert Lee Bell, Appellant.
Appeal From Sumter County
Clifton Newman, Circuit Court Judge
Unpublished Opinion No. 2008-UP-249
Submitted May 1, 2008 Filed May 7, 2008
AFFIRMED
Appellate Defender Lanelle C. Durant, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor C. Kelly Jackson, of Sumter, for Respondent.
PER CURIAM: Herbert Lee Bell (Bell) appeals his conviction of trafficking in crack cocaine in an amount of more than two hundred grams but less than four hundred grams. We affirm.[1]
FACTS
In late 2003, police obtained information about possible illegal drug activity in a trailer at 5595 Panola Road (5595) in Pinewood, in Sumter County. Based on this information, the police sent a confidential informant wearing a wire to 5595 on November 12 to purchase drugs. The informant purchased a quantity of crack cocaine (crack) from Reggie Robinson (Robinson). The next day, an informant returned to 5595 and purchased another quantity of crack from Alexander Lewis (Lewis). On November 20, the informant made another purchase of crack in 5595 from Robinson. On November 25, the informant purchased more crack inside 5595 from Robinson.
As a result of their investigation and the prior buys, the police obtained a search warrant for 5595 on November 26. Before the warrant was executed, the police sent the informant back on December 4 to confirm the presence of drugs. The informant went to 5595 in the morning, but there was no answer at the door. The informant returned to the car where the police were waiting. As they drove off down the road, Lewis walked out of another residence across the street at 5650 Panola Road (5650). The informant got out of the car and talked with Lewis on the driveway of 5595. Lewis told the informant to return at another time. The informant returned to 5595 around eleven oclock, but again nobody was home. Lewis came out of 5650 and told him to return at two oclock. Around two oclock, the informant returned and purchased crack inside 5595 from Lewis.
A few hours later, the police executed the search warrant for 5595. Lewis was seized inside the trailer and Robinson was apprehended as he tried to flee out the back door. The police subsequently set up a reverse-sting and arrested numerous individuals who came to 5595 to purchase drugs. They soon ran out of space to park the buyers cars, so they ceased the operation.
During the search of 5595, the police found a chair by the window near the door. There was a small sliding match box on the window sill with crack inside. A walkie-talkie was near the chair. An aspirin bottle with crack and a jar of crack were seized in a bedroom. There was a marijuana pipe in the bedroom with trace amounts of crack in it. The total weight of the crack from 5595 was 74.32 grams. There was no furniture in the trailer other than the chair near the door and a mattress on the floor of the bedroom. The bathroom was not functional. Officer Angela Barger testified the trailer doesnt look like its actually a lived in residence. It just appears to be used solely for the purpose of narcotics. An electric bill under the name Racheka Michelle Bell was found in the kitchen. An appointment card and a medical receipt for Lewis were found in the kitchen. A cash ticket for Bell from a furniture store for a roll-away bed was also found in the kitchen.
While the police were at 5595, other officers proceeded to 5650 to investigate. Bell answered the door. He agreed to accompany them across the street to 5595. The police subsequently obtained a search warrant for 5650.
Pursuant to the search of 5650, the police seized a chair by the window in the living room with a clear view of 5595. There was no other furniture inside except for a television and a video game system. They found a scanner, binoculars, and a walkie-talkie nearby. The kitchen had no dishes, food, or anything which indicated somebody lived in the residence. The police discovered a half-gallon mason jar in the dishwasher in the kitchen, one third to one half full of crack. The jar contained 227.03 grams of crack. There were also assorted glassware and paraphernalia inside the dishwasher used to make crack. There was crack residue on the items. The walkie-talkies at 5650 and 5595 were set to the same channel. The police found an insurance card for Bell in a drawer in the kitchen. An application for pretrial intervention for Robinson was also inside the drawer. Rental agreements for 5595 to Alexander Lewis and for 5650 to Michael Lewis, dated November 1, 2003, were found in the living room. An electric bill to Michael Lewis was found in a bedroom. The mason jar found in 5650 was dusted for fingerprints. Robinson and Bells fingerprints were found on it.
Bell was served with arrest warrants for manufacturing crack and trafficking in crack on December 5, 2003. Bell was released on a $70,000 surety bond, and he signed a bond sheet wherein under the heading ACKNOWLEDGEMENT BY THE DEFENDANT, it indicates: I understand and have been informed that I have a right and obligation to be present at trial, and should I fail to attend the court, the trial will proceed in my absence.
On February 19, 2004, the Sumter County Grand Jury indicted Bell on trafficking in crack cocaine in an amount of more than twenty-eight grams but less than one hundred grams and for trafficking in crack cocaine more than two hundred grams but less than four hundred grams. On March 7, 2006, circuit court Judge Clifton Newman proceeded to trial with a jury against Bell on the trafficking charge of more than two hundred grams but less than four hundred grams. Bells attorney was present and ready for trial, but Bell was not in attendance at the trial. The bailiff called his name from the courthouse step three times, but Bell did not respond and present himself for trial. The two-day trial proceeded in Bells absence.
Detective Allen Dailey explained the amount of crack seized from the mason jar in 5650 is solely something you would find with a seller, its quite a bit of money. Dailey testified the crack was freshly cut for sale. Deputy Trevor Brown testified the police hardly ever find that much crack at one location. Brown further said it was not uncommon for drug dealers to store drugs at one location and then sell them from another location.
Mack McLeod testified he owned both properties. He recalled that shortly before Bells arrest, Bell wanted to purchase 5650. He paid rent in cash for it in November. McLeod said 5595 was rented out by his father (since deceased), but he thought Lewis rented it.
Alexander Lewis testified for the State. Lewis testified he moved to 5595 with Bell, who is his nephew. He stated Bell paid the rent. Lewis said his brother Michael and Robinson also stayed with them on occasion. Lewis testified he sold drugs from the trailer. Lewis said the crack was kept in the jar seized by the police. Lewis claimed he would go through a jar of crack sometimes two times a day. Lewis testified he got the crack from Bell and sold it for him. In return, Lewis got crack for his personal use. Lewis said Bell produced the crack in 5595 and 5650. He stated that Bell had moved to 5650.
Robinson also testified for the State. Robinson said he stayed at 5595 off and on. He and Bell were longtime friends. Robinson testified Bell paid the rent and was there all the time. He said Alexander and Michael Lewis also stayed there. Robinson said he sold drugs from 5595 for Bell. Robinson testified Bell provided the crack and put it in the jars to sell. He said a jar of crack would last about a week, two weeks. Robinson gave Bell the money from the sales. Robinson also testified Bell produced the crack in 5595 and 5650 and they used the walkie-talkies to communicate between the residences.
The jury found Bell guilty, and Judge Newman issued a sentence but sealed it until Bell was present. On June 7, 2006, Judge Steven H. John unsealed the sentence in Bells presence and sentenced Bell to twenty-five years and a fine of $100,000. Bells attorney filed a notice of appeal on June 8, 2006.
ISSUES
1. Did the trial court err in proceeding with Bells trial in his absence?
2. Did the trial court err in not granting a mistrial when the State failed to provide their experts fingerprint report?
STANDARD OF REVIEW
In criminal cases, the appellate court sits to review errors of law only. State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003). We are bound by the trial court's factual findings unless they are clearly erroneous. Id. at 388, 577 S.E.2d at 500-01.
On review, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); State v. Patterson, 367 S.C. 219, 224, 625 S.E.2d 239, 241-242 (Ct. App. 2006). An abuse of discretion occurs when the trial courts ruling is based on an error of law. State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003). In order for an error to warrant reversal, the error must result in prejudice to the appellant. See State v. Beck, 342 S.C. 129, 536 S.E.2d 679 (2000); see also State v. Wyatt, 317 S.C. 370, 453 S.E.2d 890 (1995).
DISCUSSION
I. Trial in absentia
Bell argues the trial court erred by proceeding with his trial in his absence because he alleges the State failed to prove he had notice that his trial would proceed in his absence. We disagree.
Bell signed a bond sheet on December 5, 2003, wherein under the heading ACKNOWLEDGEMENT BY THE DEFENDANT, it indicates: I understand and have been informed that I have a right and obligation to be present at trial, and should I fail to attend the court, the trial will proceed in my absence.
At trial, defense counsel admitted Bell was informed the Friday before that the case was going to be tried. He did not know where Bell was at the time of the trial. Defense counsel then attempted to explain Bells failure to appear. He noted Bell had been given prior notices of trial and he appeared for trial and roll call during several terms of court during the past two years. He surmised there were no assurances it would be different this time. He stated how much assurance can an individual know that their case is actually going to trial if they have been told 2 or 3 times in the past that its going for trial. They show up, and it doesnt. So its like crying wolf . . . . Defense counsel also said Bell had to work and Bell recently told him that he may take a job in New Orleans.
Bells name was then called three times from the courthouse steps, but he did not respond. Bell was thereafter tried in his absence.
To preserve an issue for review there must be a contemporaneous objection that is ruled upon by the trial judge. State v. Johnson, 324 S.C. 38, 476 S.E.2d 681, 682 (1996). The objection should be addressed to the trial judge in a sufficiently specific manner that brings attention to the exact error. State v. Prioleau, 345 S.C. 404, 548 S.E.2d 213, 216 (2001); State v. Funderburk, 367 S.C. 236, 625 S.E.2d 248, 250 (Ct. App. 2006). If a party fails to properly object, the party is procedurally barred from raising the issue on appeal. State v. Pauling, 322 S.C. 95, 470 S.E.2d 106, 109 (1996); see State v. Benton, 338 S.C. 151, 526 S.E.2d 228 (2000) (party may not argue one ground at trial and an alternative ground on appeal); State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994) (to preserve error for appeallate review, a defendant must make a contemporaneous objection on a specific ground); McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 479 S.E.2d 67, 76 (Ct. App. 1996) (noting the appellant failed to point to specific objections and rulings as required by the South Carolina Appellate Court Rules, thus leaving the court to grope in the dark concerning the specific allegations of error); see also State v. Bray, 342 S.C. 23, 535 S.E.2d 636 (2000) (it is error for an appellate court to consider issues not raised to it).
Although Bells counsel objected to the trial in Bells absence, he did not specifically object on the ground that Bell was not adequately warned the trial would proceed in his absence if he failed to appear. Instead, defense counsel merely attempted to mitigate Bells failure to appear, although he admitted Bell had notice of the trial. Because there was no objection to the trial in Bells absence on the ground alleged on appeal, the issue is not preserved for appellate review.
Bells argument also fails on the merits. Although the Sixth Amendment of the United States Constitution guarantees the right of an accused to be present at every stage of his trial, this right may be waived. State v. Bell, 293 S.C. 391, 360 S.E.2d 706, 711 (1987); Ellis v. State, 267 S.C. 257, 227 S.E.2d 304, 605 (1976). Rule 16 of the South Carolina Rules of Criminal Procedure provides:
[A] person indicted for misdemeanors and/or felonies may voluntarily waive his right to be present and may be tried in his absence upon a finding by the court that such person has received notice of his right to be present and that a warning was given that the trial would proceed in his absence upon a failure to attend the court.
However, a waiver of such an important right is permitted only in limited circumstances. Aiken v. Koontz, 368 S.C. 542, 629 S.E.2d 686, 689 (Ct. App. 2006). Therefore, before a defendant may be tried in absentia, the trial judge must determine a defendant voluntarily waived his right to be present at trial, making findings of fact on the record the defendant (1) received notice of his right to be present and (2) was warned the trial would proceed in his absence. Id.
It is well-settled a bond form that provides notice that a defendant can be tried in absentia may serve as the requisite notice. State v. Goode, 299 S.C. 479, 385 S.E.2d 844, 846 (1989); State v. Fairey, 374 S.C. 92, 646 S.E.2d 445, 449-50 (Ct. App. 2007); Koontz, 629 S.E.2d at 689-90.
In Koontz, the defendant was arrested for driving with a suspended license, and when he posted bond the day after arrest, he was provided an order specifying methods and conditions of release. Id., 629 S.E.2d at 689. The defendant also signed a form entitled Acknowledgment by Defendant, which read I understand and have been informed that I have a right and obligation to be present at trial and should I fail to attend the court, the trial will proceed in my absence. Id. Thus, this Court held Koontz was warned a failure to appear would result in a trial in his absence and he understood the warning and obligation by signing the acknowledgment.
In Fairy, the defendant signed a similar bond sheet in 1998. His original indictment was dismissed, but he was indicted for the same crime in 2001, and the 1998 bond was reinstated in 2002 by court order. This Court held the 1998 bond was in effect and thereby served as notice to the defendant that he would be tried in his absence if he failed to appear.
In the present case, Bell admits he signed the bond two years before his trial and shortly after his arrest. Bell contends he did not know whether he was going to have a trial, because the case was called for trial several times before and it did not go to trial. Bell argues he appeared at prior times and his having to appear at every term of court interfered with his ability to hold a steady job. Bell notes defense counsel did not state that he informed him the trial would proceed without him. Bell states there was no evidence he read the bond form when he signed it or even that he could read. His arguments are without merit.
Notwithstanding the outcome of the prior roll calls in this case, Bell appeared as required. Clearly, he demonstrated knowledge of his obligation to appear under the terms of the bond. Bells decision on this particular occasion to ignore the notice of trial, simply because he thought the outcome would be similar, does not excuse his failure to appear. As in Fairey and Koontz, Bells signature on the acknowledgment served as a warning he would be tried in his absence if and when his case was called for trial and he failed to appear. Bell clearly understood such a warning and waived his right to be present. Bells other arguments go to the credibility of the evidence. The trial judges findings were supported by the record and should not be disturbed.
II. States fingerprint expert
Bell argues the trial court erred in not granting a mistrial when the State failed to provide the fingerprint report. Bell contends he was prejudiced because he was unable to cross-examine the expert thoroughly or appropriately without the report and the defense did not have the opportunity to hire its own expert to examine the report. We disagree.
SLED Agent Edward Porter was qualified as an expert in fingerprint analysis and comparison. Porter testified he received the backers from the mason jar. At this point, defense counsel requested a brief side bar, and counsel conferred with the trial judge. Porter then testified he compared the fingerprints lifted from the mason jar with known fingerprints of Bell, Robinson, and Lewis. Porter was able to match one of Bells fingerprints on the jar and two of Robinsons fingerprints. On cross-examination, Porter testified he sent a report of his findings to law enforcement.
After the State rested its case four witnesses later, defense counsel requested a mistrial. He argued he had not previously received the report despite his pretrial discovery request. Defense counsel said Bell was prejudiced by not having the report, because counsel could not use it in cross-examination and he did not have the opportunity to hire an expert to examine the report.
The trial judge denied the mistrial. He initially noted that although we had a side bar, there was no objection to Porters testimony. The trial judge further determined the failure to turn over the report was harmless because the defense was not surprised. He noted defense counsel made a pretrial motion to suppress testimony about fingerprints.
This issue is not properly preserved. To preserve an issue for appellate review, a contemporaneous objection must be made when the evidence is offered. See State v. Mitchell, 330 S.C. 189, 498 S.E.2d 642, 644 n.3 (1998) (Unless an objection is made at the time the evidence is offered and a final ruling made, the issue is not preserved for review.); State v. Johnson, 324 S.C. 38, 41, 476 S.E.2d 681, 682 (1996) (Appellant made no contemporaneous objection at trial and did not raise this issue at any point during trial. Consequently, this issue is not preserved for review.). It well-settled a failure to contemporaneously object to the introduction of evidence claimed to be prejudicial cannot be later bootstrapped by a motion for a mistrial. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981); State v. Moultrie, 316 S.C. 547, 451 S.E.2d 34 (Ct. App. 1994); State v. Wilkins, 310 S.C. 81, 425 S.E.2d 68 (Ct. App. 1992); see also State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004) (a contemporaneous objection is required to preserve error for appellate review); State v. Atchison, 268 S.C. 588, 235 S.E.2d 294 (1977) (if a party fails to make a proper contemporaneous objection to the admission of evidence, he cannot later raise the issue by a motion for a mistrial).
Although Bell requested a side bar during the testimony of the States fingerprint expert, the trial judge clearly noted there was no objection made at the time of the admission of the fingerprint evidence. An objection was not made until the close of the States case four witnesses later when Bell moved for a mistrial. Bells objection was untimely.
Assuming arguendo that defense counsel timely objected to the States fingerprint expert off-the-record, he was nevertheless required to immediately set forth the ground for the objection on the record to preserve it for appellate review. His failure to do so here precludes review. See York v. Conway Ford, Inc., 325 S.C. 170, 480 S.E.2d 726, 728 (1997) (an objection made in an off-the-record conference but not placed on the record does not preserve the issue for appellate review); Hundley v. Rite Aid of S.C., Inc., 339 S.C. 285, 529 S.E.2d 45, 57 (Ct. App. 2000) (motions must be made on the record to be preserved for review by an appellate court).
In any event, Bells argument is without merit. The power of a court to declare a mistrial ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes stated into the record by the trial judge. State v. Simmons, 352 S.C. 342, 573 S.E.2d 856, 862 (Ct. App. 2002); see also State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct. App. 1999) (a mistrial should only be granted in cases of manifest necessity and with the greatest caution for very plain and obvious reasons). The granting of a motion for a mistrial is an extreme measure which should be taken only where an incident is so grievous the prejudicial effect can be removed in no other way. State v. Beckham, 334 S.C. 302, 513 S.E.2d 606 (1999); State v. Adams, 354 S.C. 361, 580 S.E.2d 785, 793 (Ct. App. 2003).
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, 573 S.E.2d at 862; see also State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999) (a mistrial should not be granted unless absolutely necessary; to receive a mistrial, a defendant must show error and resulting prejudice). The less than lucid test is therefore declared to be whether the mistrial was dictated by manifest necessity or the ends of public justice. State v. Prince, 279 S.C. 30, 301 S.E.2d 471, 472 (1983). Whether a mistrial is manifestly necessary is a fact specific inquiry. State v. Rowlands, 343 S.C. 454, 539 S.E.2d 717, 719 (Ct. App. 2000).
The decision to grant or deny a mistrial is within the sound discretion of the trial judge. State v. Thompson, 352 S.C. 552, 575 S.E.2d 77 (Ct. App. 2003). The trial judges decision will not be overturned on appeal absent an abuse of discretion amounting to an error of law. State v. Harris, 340 S.C. 59, 530 S.E.2d 626 (2000); State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998); see also State v. Arnold, 266 S.C. 153, 157, 221 S.E.2d 867, 868 (1976) (the general rule of this state is that the ordering of, or refusal of a motion for mistrial is within the discretion of the trial judge and such discretion will not be overturned in the absence of abuse thereof amounting to an error of law).
Rule 5 of the South Carolina Rules of Criminal Procedure governs the disclosure of evidence in criminal cases. Applicable in this case are those provisions of Rule 5 which require the disclosure of certain documents, tangible objects, and reports of examinations and tests, that are within the possession, custody or control of the prosecution, and which are material to the preparation of the defendants defense or are intended for use by the prosecution as evidence in its case-in-chief. Rules 5(a)(1)(C) & (a)(1)(D), SCRCrimP. Evidence is deemed material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689, 693 (1996); see also State v. Kennerly, 331 S.C. 442, 503 S.E.2d 214, 220 (Ct. App. 1998) (definition of material for purposes of Rule 5 is the same as definition used in the Brady context), affd, 337 S.C. 617, 524 S.E.2d 837 (1999). Any omission must be evaluated in the context of the entire record. State v. Wilkins, 310 S.C. 81, 425 S.E.2d 68, 70 (Ct. App. 1992). Absent a showing of prejudice suffered by the defendant, such that he is deprived of a fair trial, reversal is not required. State v. Trotter, 322 S.C. 537, 473 S.E.2d 452 (1996).
Even if the State failed to comply with Bells Rule 5 request, the trial judge had the discretion to provide a proper remedy. The exercise of this discretion will not be disturbed on appeal absent an abuse of discretion. State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984); State v. Davis, 309 S.C. 56, 419 S.E.2d 820 (Ct. App. 1992). It is well-settled that if a party fails to comply with the rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. Rule 5(d)(2); see State v. Salisbury, 330 S.C. 250, 498 S.E.2d 655 (Ct. App. 1998), affd as modified, 343 S.C. 520, 541 S.E.2d 247 (2001).
However, this Court need not determine here whether the report in question should have been disclosed, since the trial judge properly determined Bell showed no prejudice. The record clearly shows defense counsel was aware of the fingerprint evidence, as indicated by his pretrial motion to suppress it as the fruit of an illegal arrest. At no time, however, did the defense request a continuance or a recess to review the written report or to obtain other experts to refute the findings once it was disclosed. See State v. Davis, 309 S.C. 56, 419 S.E.2d 820 (Ct. App. 1992) (trial judges denial of the suppression of defendants oral statements because the statements were not disclosed in a timely manner was upheld where the defendant did not request a continuance or recess to review the prosecutions file); see also State v. Mitchell, 330 S.C. 189, 498 S.E.2d 642 (1998) (issue not preserved when defense counsel indicated he might need a recess but never actually requested one). Defense counsel was further able to thoroughly cross-examine the States fingerprint expert. Bell has failed to demonstrate there is a reasonable probability the result would have been different had the report been disclosed to him earlier. There was no prejudice and Bell was not deprived of a fair trial. There was no abuse of discretion in the denial of a mistrial motion. Davis, 419 S.E.2d at 825; see State v. Thompson, 276 S.C. 616, 281 S.E.2d 216 (1981) (the States failure to disclose does not warrant reversal unless the defendant is deprived of a fair trial).
CONCLUSION
The trial court did not err in proceeding with Bells trial in his absence and in not granting a mistrial when the state failed to provide their experts fingerprint report. Accordingly, the order of the circuit court is
AFFIRMED.
ANDERSON, HUFF and KITTREDGE, JJ., concur.
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.