800 S.E.2d 138
S.C. Ct. App.2017Background
- Clyde B. Davis was indicted (superseding indictment) on Count I: conspiracy to traffic 100–<200 grams of methamphetamine (with five co-conspirators); Count II (distribution on Sept. 8, 2010) was later dismissed, rendering challenges to it moot.
- Investigation (Operation Icehouse) used confidential informants (CIs) and controlled buys; multiple cooperating co-defendants (Brock, Dendy, Robinson, Sekerchak, Byers) testified for the State that Davis supplied methamphetamine to Dendy and others.
- Brock identified Davis from a single photograph (DMV photo) as “Dendy’s cousin” after prior interviews; the court conducted a Neil v. Biggers hearing and admitted the out‑of‑court ID.
- SLED Agent Asbill testified that a CI returned with ~3.5 grams of methamphetamine from a controlled purchase at Davis’s residence; Asbill had been parked out of view and could not personally identify voices on the wired recording.
- Davis moved to dismiss, for Brady relief, to suppress the identification, and to exclude Asbill’s testimony; the trial court denied relief, Davis was convicted on the conspiracy charge, and appealed.
Issues
| Issue | Davis's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Whether Count II should be dismissed for lack of grand jury jurisdiction/multi‑county significance | Count II lacked multi‑county significance and grand jury lacked jurisdiction | Count II was properly presented; in any event Count II was later dismissed | Moot (Count II dismissed after appellate filing) |
| 2. Abuse of grand jury process | Grand jury was abused by false or misleading testimony (photo ID procedure; alleged extra controlled buy) | Grand jury proceedings presumed regular; issues were not preserved as raised differently on appeal | Not preserved/moot; no relief granted |
| 3. Brady/due process — failure to disclose exculpatory evidence about CI transactions | State suppressed material evidence showing the CI did not complete a transaction with Davis (which would undercut probable cause/conspiracy) | State had no such discovery (transaction aborted); the only completed CI buy was the one at issue | Brady claim denied—defendant failed to show suppression or materiality |
| 4. Admissibility of Brock’s out‑of‑court ID (Neil v. Biggers) | Single‑photo show‑up was unduly suggestive; identification unreliable (drug use, limited attention, no prior description) | Identification was confirmatory; Brock had multiple close‑range sightings and high certainty | Trial court didn’t abuse discretion; ID admitted |
| 5. Admissibility of Agent Asbill’s testimony re: CI controlled purchase (hearsay and Confrontation Clause) | Testimony recounting the CI’s statements that he purchased drugs at Davis’s home was hearsay and testimonial, violating Crawford | Testimony was harmless and consistent with other evidence; not a repetition of the CI’s words | Admission of that portion was hearsay and violated confrontation rights, but error was harmless beyond a reasonable doubt |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (prosecution must disclose exculpatory/impeaching evidence)
- Neil v. Biggers, 409 U.S. 188 (two‑prong test for exclusion of suggestive identifications)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause bars testimonial out‑of‑court statements absent prior cross‑examination)
- Delaware v. Van Arsdall, 475 U.S. 673 (harmless‑error framework for Confrontation Clause violations)
- State v. Liverman, 398 S.C. 130 (factors for assessing reliability of suggestive identifications)