*1
No. 4071. Appeals Court of of South Carolina.
Heard Nov. 2005. Decided Jan. 2006. Rehearing April Denied *3 Columbia, for Link, Appellant. of West Katherine Carruth McMaster, Deputy Chief Henry Dargan Attorney General McIntosh, Attor- Deputy Assistant John W. Attorney General Elliott, Attorney Assistant Senior Salley W. ney General Attorney Gen- Rapoport, Mark Office Norman General Ariail, of M. Columbia; and Robert eral, Solicitor all of Greenville, Respondent. for
SHORT, J.: possession his convictions appeals Covert
Kevin a school proximity cocaine intent to distribute trial court erred argues in cocaine. Covert due to a defective evidence suppress motion his denying arguments, warrant, closing allowing improper search and remand. form. We reverse an unusual verdict using
FACTS Henderson, present and others were Covert, Charles Kevin searched County police when house Greenville Covert’s the house entered the officers 2002. When September *4 grinder a coffee living in the room with Henderson they found substance, bags plastic small powder containing white instruments, sifting substance, cutting agent, powered white table. A him on a coffee scale, in front of all and an electronic large to him contained the couch next box on phone cell Cocaine, cocaine, grams. 441.50 weighing bag plastic table. Two on the coffee found grams, 22.89 was weighing and 1.62 cocaine, weighing grams 6.47 quantities smaller $1,950 on also found Police also recovered. were grams, Additionally, police floor in front of the couch. found a pistol on a in only person bookshelf. Henderson was the the living- in room. was found a bedroom on the side of Covert other a gun, house. A holster for a 9-mm. and magazine, several adjacent dozen of ammunition rounds were found bed- belonged room that to Henderson.
All the in the individuals house were arrested and charged However, with cocaine. Covert and Henderson of a charged possession were also with weapon during of a Myers commission violent .crime. Donald and Roger Harris, both charged trafficking, pled guilty simple possession suspended and were receive sentences ex- for change testifying Myers for the State. testified he pur- chased cocaine from Covert and Henderson at the house Myers usually numerous times. stated his amount- purchases ed to between one hundred and two hundred dollars each for one three-quarters between and and and grams three one-half grams Myers cocaine. also téstified he had seen both Covert and bagging Henderson cocaine. On September at Myers purchase was the house to from cocaine Covert. Harris also testified he had purchased cocaine from Covert at Henderson their house at least twice a week previous years. two Harris stated Henderson sometimes delivered cocaine to his house. Harris further testified that morning him to September give Covert asked him a ride Atlanta. Harris testified to a they drove bar in Atlanta met where Covert another individual. Covert asked for Harris’s door opener.” “electronic Covert returned about thirty minutes they later and back to Al- drove Greenville. though attempted the State to establish that Harris drove cocaine, Atlanta grams Covert to to obtain over 400 Harris did not during trip. see cocaine arrest, After his gave Covert a statement to the police and purchased admitted he cocaine in Atlanta on September 26. Covert’s statement identifies his connection in Atlanta details the testify activities of the did at trip. Covert trial. motion, On Henderson’s Covert’s statement was redacted to remove all references to Henderson and the edited version into read the record. tried together Covert was with his co-defendant, Henderson, of both charges. convicted Co-
193 for the years concurrent sentences of sentenced to vert was charge. distribution charge years and appeals. now Covert
LAW/ANALYSIS Suppression Evidence I. his motion by denying the trial erred judge
Covert contends faith by exception suppress applying good evidence the warrant was statutory requirement warrant because agree. defective. We cases, court reviews errors appellate
In criminal
trial
findings
factual
of the
only
of law
is bound
Wilson,
5-6,
State v.
unless
345 S.C.
clearly erroneous.
(2001).
admissibility
on
ruling
“A court’s
S.E.2d
absent an abuse of
of evidence will not be reversed on appeal
that results in
legal
discretion or the commission of
error
Adams,
to the defendant.”
prejudice
(Ct.App.2003).
580 S.E.2d
trial,
Henderson moved to
During the
Covert and
on the basis that
suppress
during
evidence seized
search
26, 2002, the
the search was conducted on September
although
28, 2002
signature
September
is dated
magistrate’s
and the date of
magistrate’s
itself. The
signature
warrant
only
separate pages
on two
September
appear
trial,
Timothy Conroy testified
Detective
During
affidavit.
search warrant on
magistrate sign
that he did
see
that night
didn’t
probably
sign
and that “most
she
26th
her on
other occasion
brought
and that
back to
some
was
section
defective under
finding
warrant was
sign.” Upon
(2003),
trial judge
17-13-140 of
South Carolina Code
exception to the Fourth Amendment’s
good
ruled a
faith
statutory
exclusionary rule should
South Carolina’s
apply
all
suppress
motion to
requirement
denied the
warrant
26 search.
during the September
evidence obtained
First,
must determine whether the warrant was
we
after the
days
dated two
signature
because the
defective
of the South Car
conducted. Section 17-13-140
search was
only
that a warrant shall be “issued
olina
states
Code
municipal judi-
the magistrate,
to before
upon affidavit sworn
officer,
cial
of a court of
establishing
record
grounds for the
Though
warrant.”
statute does not
specifically require that the
it
signed,
requires
warrant
Sanders,
be “issued.”
Davis v.
Courts
other states have also
held search warrant
signed
must be
it
because
confirmation that
magis
trate determined the facts
in the
support
asserted
affidavit
probable
Surowiecki,
v.
finding
cause.1 In State
184 Conn.
95,
798,
(1981),
440 A.2d
799
Supreme
Connecticut
Court
held that a warrant is not
signature
“issued” without a lawful
on
by
the search warrant
the person authorized to
it.
issue
The court reached this
though
conclusion even
no
there was
sign
doubt the
judge intended
the search
and
warrant
failed
to do
so because
a “mere
Id.
oversight.”
at 798. There are
also several public policy considerations to support
require
ment that
be signed
warrant
to a
it
prior
search:
im
presses upon the
magistrate
importance
his action in
warrant;
issuing
discourages
it
police
by
misconduct
dictat
ing
reasonably
that officers can not
rely
an unsigned
Courts
other
have
Kelley
states
made the same
v.
determination:
State,
402,
1975);
State,
Ala.App.
(Crim.App.
55
233
316 So.2d
v.
Martin
Commonwealth,
Byrd
344
(Fla.Dist.Ct.App.1976);
So.2d 248
v.
261
1953);
(Ky.Ct.App.
Carignan,
S.W.2d 437
F.Supp.
United States v.
286
Hentkowski,
(Mass.Dist.Ct.1967);
People
284
Mich.App.
v.
154
(1986);
Fleming,
N.W.2d 255
v.
Mo.App.
State
227 S.W.2d
(1950);
Williams,
(1991);
57 Ohio St.3d
In South in the federal prohibition from the is and distinct separate seizures. searches and unreasonable against state constitutions Const, IV; (2003); amend. see U.S. Ann. 17-13-140 S.C.Code fact, Supreme I, In as the South Carolina art. S.C. Const. Carolina 17-13-140 South recognized, has section Court than requirements imposes stricter warrant actually Code Jones, 121, provisions. See constitutional (2000). Therefore, good the Leon 678 536 S.E.2d must to this case and we applicable not exception faith is exception faith good there ais determine whether Carolina. requirement South statutory warrant 541, 559, 510 Sachs, S.E.2d S.C. In State a good found (1975), of South Carolina Court Supreme seized of evidence the introduction permits exception faith 17-13- under section that is defective to a pursuant warrant have made if the officers Code 140 of the South Carolina requirement. affidavit comply with attempt faith good misstat- on contained Sachs, the officers relied the affidavit that such misstate- however, court determined facts; ed “necessary ments in affidavit were hazards” encountered when federal and in a effort joint state authorities search a good-faith comply satisfied attempt affidavit with the Id. relating search warrants. 110, 112-13, McKnight,
In State v. S.E.2d (1987), orally upon the officers recited the facts which based, the warrant was but no affidavit was ever executed. result, As a the court found that there was no faith good effort statute; however, to comply with the the court declined to a good exception decide there is faith whether officers who execute search reliance objectively reasonable on a ultimately warrant that found to invalid. Id. at S.E.2d at 473. instant case falls somewhere between the cases of McKnight and Sachs. This is not a case of the “necessary hazards” of a warrant as in the case obtaining and it comply Sachs is not a failure to with the statutory requirement Here, warrant as in MeKnight. the officers failed notice that either not magistrate did sign September warrant on 26 or that signature warrant itself September misdated as the search while was on September conducted 2002.2 The officers could have itself; discovered either error at simply looking the warrant therefore, we find faith good there was no effort to comply with the statute. find
Because we the warrant was defective and the good faith exception requirement warrant does not case, apply this must if finally we determine the admission of the evidence found with the defective warrant constituted error. harmless “Error is where it harmless could reason Reeves, ably affected the result of have the trial.” State v. *8 (1990). 191, 193-94, 391 S.E.2d Generally, appellate courts will not set aside to convictions due insubstan Davis, tial error the State v. affecting result. 364, 409, (Ct.App.2005). S.E.2d The violation found in this case cannot be seen as harmless error because of the exclusion evidence could affected reasonably have the any magistrate signed 2. The did not Slate offer evidence the the 26, 2002, September magistrate warrant on testify and the did not at trial. of cocaine of the amount and the issue of the trial result this case. central issue was a by Covert allegedly possessed Trafficking Statute II. by submitting erred the judge claims
Covert in written jury trafficking statute text of the actual agree. form. We Carolina; however, of law in question South
This is a novel in South Car- judges trial practice, as a common historically, form in written actual text of statute given olina have not New York has ruled jury. Appeals The Court of to to ‘absolute precondition’ counsel is an of defense “consent ‘ques- a statute because jury the text of furnishing statuto- pertinent concerning which sections may tions arise ” Sanders, People jury.’ given material should be ry 517 N.E.2d N.Y.S.2d N.Y.2d omitted). Therefore, sub- (citations judge’s find that the we because was in error of the statute the actual text mission of being jury. given consent to did not Covert’s counsel AND REMANDED. REVERSED ANDERSON, J., opinion. in a separate concurs GOOLSBY, J., separate opinion. in a dissents
ANDERSON, J., opinion): (concurring separate in a of the and sentence the conviction I VOTE to reverse trial for new because to remand appellant submitting judge circuit committed error egregious jury. trial copy OF ERROR PRESERVATION them back and sent charged circuit judge After the deliberations, asked begin room to from the State or exceptions there were whether defense. Yes, Covert]: sir. It’s [counsel
Mr. Warder object to. now sent beginning We’ve procedure I’m provides— with a statute that out they-— Did The Court: *9 ways Warder: —four to—
Mr. I meant to take all those The Court: up papers. Go get those papers Every gave Sir, from them. I paper them. go ahead. Yes, sir.
Mr. Warder: We have verdict form that in And, course, parts. essence breaks the statute down choices, gives it them four different all to guilty. ñnd him know, figure gave You I if every- we body enough choices, if long enough we broke it down twenty ways we could have fifteen or somebody find guilty. just highly prejudicial. And I think that’s really know, I’d like to send a sheet out that had
You innocence, presumption proof, and the burden of it have all broken down in they one line sentences so check, through you could read do ñnd that on each of way mean, them? it’s a of highlighting the case to I likely make it somebody more that will sooner or later yes. check a And it highly prejudi- seems to me that it’s cial.
It me seems to like the form in keep itself tends to going high until probability somebody there’s a that will they’re supposed think one of the four. They to find things, they’re have four asked for an amount four jury’s times. And I think that going to think that they’re supposed to fill one of them in and write an amount in. And I just just prejudicial. think it’s —I honor, Mr. Abdalla: Your I’d like be heard on that. My is position just I’d rather have the indictment sent back as is with the way thought we’ve—I’ve always it was or guilty just And guilty. my position, that’s your honor. Well, we can’t do The Court: that because the has to determine the amount. just So we can’t send the indict- your exceptions. I ments in. note I don’t think by split- ting it out into four is doing anything but it making easier for the They’re understand. going still have every this, bit it. And like I case can’t conceive a jury deliberating without having copy the statute. It’s very that frequently copy in, is sent back or portion some charge they request in writing, sometimes entire charge sent back writing. know, charge You I’ve heard the entire Mr. Warder: sent, selecting I’ve of a being but never heard empha- they so would be want to send back parts *10 And I— sized. Well, I’m to them not that it’s explained
The Court: I’ve help it’s them understand. trying emphasizing, Warder; understand, I that’s— Mr. but object to I them back —I don’t bring The Court: Now don’t know, that, telling you them back them bringing out has anything find them unless the State guilty can’t they beyond a reasonable doubt. particular charge that proven be in their minds I don’t see how there can doubt But that fact. And, honor, record, I’ve just
Mr. Abdalla: for the your objections. in on Mr. joined Warder’s Well, All it verdict form right. The seems the Court: way But it’s anybody suit but me. that’s doesn’t of corrections going couple back. I’m to make going I and that ago made at the bench a few minutes that we And I it. going through was explained jury while at it to we’ve done you gentlemen I’ll let look be sure then And then I’ll it sent back. I send it back. have that before be at ease minutes. we’ll few So recess) court in (Whereupon that we changes All made the right. I have The Court: you form. If either one of want about to verdict talked Warder, has it the has it. Mr. look at bailiff that into them the definition asked I send already statute, the form. print Well, I mean— Mr. Warder: objection. I your And note
The Court: to them. we took it all when predictable Mr. Warder: —it’s Well, good. I think it’s proper. think it’s The Court: it’s—I I it it. not to do than to do So I think would worse objection. your overrule if an that preservation rule states general
“The
of issue
below,
not be
upon
it will
not raised and ruled
issue was
Passmore,
appeal.”
time on
State
considered for
first
568, 583,
(citing
281 (Ct.App.2005)
611 S.E.2d
363 S.C.
Dunbar,
(2003);
Our Mt. supreme L.L.C. v. Town of (2000), explained S.E.2d 716 rationale behind longstanding this rule: preservation requirement this on the
Imposing appellant properly is meant to enable the court to rule after it lower facts, law, has all arguments. considered relevant also requirement party serves as keen incentive for a prepare prevents party a case It from thoroughly. keep- ing intentionally an card up ace his chance— sleeve— accept hope appellate will ace card and, reversal, give opportunity prove via him another *11 his case. (citations 422, omitted); Ellie,
Id. at S.E.2d at 526 724 see also Miccichi, 78, 103, 485, Inc. v. 358 594 S.C. S.E.2d 498 (Ct.App. 2004) (“Without court, an initial ruling by reviewing the trial would simply not be able to evaluate whether the trial error.”). court committed
The rule that an unpreserved issue will not be considered on
appeal does have its
is
exceptions. Foremost
the axiomatic
subject
that lack
principle
jurisdiction
of law
of
matter
may be
anytime,
raised at
for
time
including
the first
on appeal.
State,
355,
(1998);
Carter v.
329 S.C.
form. statute, sent the out now professed, counsel “We’ve interrupted by the statute,” argument before his with a a court selecting had heard of noted he “never court. Counsel empha- so it would be want to send back they the parts know, averred, really like to sénd sheet sized,” I’d “You innocence, and burden of presumption that had the out line sentences so it all down one and have broken proof, each check, you find that on through do they could read them?” exception took
Additionally, attorney Covert’s guilty”: “not option failure to provide verdict form’s choices, if enough know, everybody I if gave we figure “You twenty fifteen or we could have long enough we broke down just highly I think that’s somebody And guilty. find ways to *12 prejudicial.” demon- the trial record of
Lucidly, reading contextual to the format of timely objected both attorney strates Covert’s providing of the procedure form and the jury the verdict judge circuit acknowl- trafficking statute. jury your “... I note again, your exceptions,” “I note edged: observed, “Well, Further, seems judge objection.” way me. But that’s the but anybody form suit verdict doesn’t your I “So overrule pronounced: he Finally, it’s back.” going objection.” Pursuant Rule of the South Carolina Rules Procedure, of Criminal “Counsel not attempt shall to further argue any matter after he has been ruling heard and pronounced.” 18(a), court has been Rule SCRCrimP. My reading transcript leads me to the ineluctable conclu- (1) multiple objections sions counsel raised to the jury (2) statute, verdict form and the submission of the acknowledged Therefore, court objections. and overruled the objections preserved. both are pristinely PREJUDICIAL SUBMISSION OF THE TRAFFICKING
STATUTE TO THE JURY in South Historically jurisprudence, Carolina circuit judges have NOT writing submitted to the trial any portion of jury charge. The circuit committed judge a colossal prejudicial error in the by instant case submitting only the practice statute. This justice defies fairness and by emphasizing ignoring the offense while the basic constitutional guarantees afforded the defendant which were in the jury (1) (2) charge, including: innocence; presumption (3) of proof beyond doubt; burden a reasonable the credibility (4) witnesses; analysis elemental actual charge accused; which defendant right my testify. judgment, submitting the statute to the jury violated to a right Covert’s fair trial. some
Admittedly, permit states to submit charge fact finder for purposes of edification and enlightenment jury deliberations. during Most the states that allow procedure this do so through court rule or statute. law, Louisiana
Under
after
court
charges
“a
jury,
copy
of the written
shall
charge
if
delivered to
such
delivery
is consented to
both the defendant and the state in
open court
not in the presence
but
of the jury.” LSA-C.Cr.P.
801(B)(1). However,
Art.
“No charge shall be reduced to
writing
juror
at of a
request
pursuant
this Article
consent is
unless
obtained from both the defendant and the
open
state
but not
the presence
within
of the jury.”
808. See State v.
LSA-C.Cr.P. Art.
Joseph,
So.2d
Cir.2004) (“With
(La.App.
1016-17
the 2001 amendments arts.
LSA-C.Cr.P.
801 and
it is now statutorily permissi-
*13
the
instruc-
copy
jury
a
written
jury
ble for the
receive
However,
clearly
the use is
during
deliberations.
tions
use
parties.”).
consent of the
upon
conditioned
the
Alabama,
nor
the defendant
the
copy
charges against
a
Neither
room;
go
jury
“given”
instructions shall
written
discretion,
however,
may,
in its
court
provided,
in
jury
complex
to the
case.
charges
submit the written
State,
v.
Wright
21.1.
740 So.2d
Alabama RCRP Rule
See
(Ala.Crim.App.1999).
require that written
The
Rules of Criminal Procedure
Ohio
to the
“The
shall reduce
provided
jury.
court
instructions
audio, electronic,
or make an
or
writing
its final instructions to
instructions,
at least one
recording
provide
other
of those
jury
to the
for
recording
or
of those instruction
copy
written
deliberations,
preserve
those instructions for
during
use
30(A);
R.
see
v. Kersey,
Ohio
Rule
record.”
Crim.
(1997).
N.E.2d
App.3d
Ohio
Procedure, “The
Virginia
the West
Rules of Criminal
Under
jury
to the
may
court
show the written instructions
the jury
instructions to
jury
take
written
permit
Lutz,
30;
P.
183 W.Va.
room.”
of Cr.
see State
W.Va.Rules
(1988).
395 S.E.2d
that state’s
succinctly
The
in Arkansas is
declared
law
State,
Ark.
The Penal Code California deliberation, court shall Upon jury retiring copy of a written jury availability of the advise discretion, provide at its may, instructions. The given. copy the written instructions jury with However, requests supply copy if the the court instructions, supply the court shall the written a copy. 1093(f) (West 2004). §
CaLPenal Code is: rule Minnesota Giving Instructions. The court its shall discretion instruct after jury either before or are arguments court, at the completed except, discretion preliminary *14 instructions not be repeated. may need instructions be in the the writing copy discretion of court a bemay to the room jury jury taken when the retires delibera- for tion. Proc., 26.08, 18(4),
Rules Crim. rule subd. 27A M.S.A. Louisiana, 'Alabama, Ohio, Arkansas, Unlike West Virginia, California, Minnesota, there is no court rule or statute Carolina gives South which a the discretion to submit to jury the written My the copies charge. research reveals no from the appellate case entities in South Carolina their placing imprimatur approbation upon practice. this Florida, In circumstances, certain
Under
it is reversible
for
error
the
court
trial
to
the
provide
jury
copy
only portion
with
instructions;
jury
of the
if
court provides
the trial
the jury
any
instructions,
with
written
it must provide
jury
with
State,
all of the
v.
instructions. Van Loan
Bouchard 847 So.2d (Fla.App. State, According to Jewell 624 N.E.2d (Ind.App. Dist.1993): Indiana,
In
accepted
practice
jurors
not to
allow
to take the written
with them
jury
instructions
into the
State],
[(Ind.1982)].
room. Cornett
See also Denton v.
Pursuant to statute New any deliberation, At time during its the jury may request the court for further instruction or information respect with law, any or substance of to to the content respect evidence, pertinent other matter respect any trial or with Upon such re- case. jury’s consideration the court must direct that the returned quest, and, and counsel people after notice to both the courtroom defendant, defendant, of the presence for and in the as or instruction requested such information give must parties court deems With the consent proper. instruction with upon request further statute, give also respect may the court discretion, which, in its copies of text proper. deems 2002). People (McKinney N.Y.Crim. Proc. Law 310.30 Johnson, 981-82, 615 N.E.2d 81 N.Y.2d 599 N.Y.S.2d (N.Y.1993), York held: Appeals the Court of New Division because Appellate We affirm the order of *15 of “copies any of the text prohibits giving CPL 310.30 of to a without consent deliberating jury statute” Here, objected complying parties. expressly defendant charge entire jury’s with the to receive the request material. statutory included textual writing, which jury to deliberating fact that 310.30 allows a The CPL or information the court further instruction “request * * * * * * pertinent matter respect with author- jury’s impliedly consideration of the case” does as the ize Inasmuch specific prohibition. an override of statutory instruction included forbidden entire written material, correctly concluded Appellate textual Division providing the trial court committed reversible error {see, objection material over defendant’s 982, 873, v. 76 N.Y.2d 560 N.Y.S.2d People Taylor, Nimmons, [(1990)]; 72 N.Y.2d v. People N.E.2d 882 [(1988)]; Owens, People 530 N.Y.S.2d 526 N.E.2d [(1987)]). 509 N.E.2d 69 N.Y.2d 516 N.Y.S.2d Sanders, of 70 N.Y.2d People The New York case (1987), point. particularly N.E.2d 1330 N.Y.S.2d ruled the Sanders, of New York Appeals In the Court precondition’ counsel is ‘absolute “consent of defense ‘ques- because the text a statute furnishing jury statuto- concerning pertinent sections tions arise which may ” ry material should be given jury.’ Sanders at N.E.2d 1330. rule,
Because South Carolina applicable has no statute or I to reverse ground vote Covert’s conviction on the that submis- only trafficking sion of statute to the jury tainted fairness his trial.
JURY VERDICT FORM statute, addition to the submission I find prejudicial error in the court’s form. verdict form utilized by verdict the circuit as read follows: Trafficking I. in Cocaine you unanimously find,
Do beyond reasonable doubt that Kevin Paul Covert: sold, manufactured, cultivated, 1. Knowingly delivered, purchased or brought into this state 10 or grams more of cocaine?
YES_ NO_ _ yes, If many grams? how 2. Provided financial assistance or otherwise aided abet- sell, manufacture,
ted attempted conspired to culti- vate, deliver, purchase or bring into this state 10 grams or more of cocaine?
YES_ NO_ _ yes, If many grams? how knowingly Was in actual or constructive possession grams or more of cocaine? *16 YES_ NO_ _ yes, many If how grams?
4. Knowingly to become in or attempted actual construc- possession
tive grams or more of cocaine? YES_ NO_ _ yes, If many how grams?
II. with Possession Intent to Distribute Cocaine NO,
If your answer to all four of the above questions is this question: then answer find, that unanimously beyond reasonable doubt youDo intent to distribute less possessed Kevin Paul Covert than 10 of cocaine? grams
YES_ NO_ Simple III. Possession of Cocaine 1 through to all your questions If five of above answer NO, then this question: 4 and II is answer unanimously pos- find that Paul Covert you Do Kevin sessed cocaine?
YES_ NO_ Proximity
IV. III, your questions except If answer above Cocaine, YES, then this Simple Possession answer question: doubt, unanimously that you beyond
Do find reasonable a radius of one half the above conduct occurred within elementary, mile or grounds public private middle, secondary public playground park, or or or school or or trade school technical educational public vocational center; university? or public private college or a YES_ NO_ view, provided verdict form should have my This finding the defendant NOT GUILTY.
specific option Court, v. 544 S.E.2d Myers, State 344 S.C. observed, (Ct.App.2001), preferred practice possible
It is the submit however, guilty” jury; the law verdict of “not pre- evidence charged must be determined from the Somerset, 220, 221, 276 S.C. 277 S.E.2d sented. State 485, 486, (1981); Rogers, State v. 275 S.C. (1980). A should be instructed that S.E.2d guilty,” especially “not where one verdict it can reach is charged Griggs, the crime of a serious nature. 315-16, (stating 192 S.E. charge trial in his instructed where the it must guilt had as to appellant’s if it a reasonable doubt if no error the trial find him not there is reversible guilty, *17 jury then fails to tell the that “not is one guilty” render). it verdict could added.)
(Emphasis Myers the “trial clear judge’s cogent found prejudice instructions ameliorated emanat- jury possible from the failure to ‘not ing guilty’ include the verdict form.” Id. contradistinction to the “clear and judge’s cogent jury Myers, instructions” in judge’s jury instructions this failed case to immunize the verdict form due to improper prejudicial submitting act of trafficking statute jury. only Not was the inundated many ways could find the defendant the defective form guilty, verdict Therefore, guilty” omitted the “not option. charg- judge’s practice compounded of ing prejudice the verdict form rather than it. ameliorating
“A denial due process of occurs a when defendant a criminal trial is denied the fundamental fairness essential to concept justice.” Hornsby, omitted). (1997)(citation 484 S.E.2d I find the circuit judge’s overemphasis ways could find Covert guilty and the underemphasis concomitant funda- Covert’s mental and constitutionally rights encouraged the guaranteed again jury, again, to find the defendant guilty. The result in the instant is that excessively encouraged case to find the guilty, defendant the trial unfair. rendering Co- deprived vert was of due process Accordingly, law. I VOTE REVERSE the conviction and RE- sentence and MAND a trial. new
GOOLSBY, (dissenting): J. I would affirm the judgment below and for that reason I write separately.
1. Covert maintains the trial court in denying erred his motion to due to suppress evidence what Covert claims awas defective warrant and in faith applying good to a exception statutory requirement. warrant 26, 2002, September
On Timothy Greenville Detective Con- after sworn roy, being truth, to tell magistrate applied magistrate for warrant the search authorizing Conroy Covert’s residence. The affidavit submitted provided warrant application for a search his support the property searched and premises to be description of *18 one- incorporated an attached application also sought. His the facts on which he set presented affidavit that page, second - The of search warrant. forth cause for issuance the probable Conroy the of September signatures of date and its attachment. appear on the affidavit magistrate the Conroy testified in camera trial, the Later, at Covert’s the search war- his affidavit and issued magistrate reviewed officers, the also testified he and other Conroy rant. hand, immediately executed affidavit and search warrant An officer other at Covert’s residence. the search warrant 2002; September return howev- signed than the on Conroy warrant, the er, bears magistrate signed, the search which the i.e., 2002. day, September date of the following his the seized from suppress moved to evidence Covert warrant, to pointing the search evidence residence pursuant the the that on prior appears the search occurred date that the sign the failed claiming magistrate search warrant and however, court, trial The prior warrant its execution. search, above and as basing as noted upheld holding, its discusses, good a faith fully more on Judge opinion Short’s exception.3 court, trial I no need and the see Judge Short
Unlike good exception a faith should of whether question address the magistrate’s the issuing in an instance where applied than those on appearing a date later signature reflects in the ground appearing and the return. Another affidavit court.4 trial judgment record supports court, objection, a court later admitted as 3. The trial over Covert's however, log magistrate; warrant maintained exhibit search sufficiency ruling regarding change did its earlier the trial court the search warrant. Arnold, (Ct.App.1995) S.E.2d 403 319 S.C. See State SCACR, 220(c), appeals to affirm on (holding allows Rule I’On, record); also L.L.C. v. Town any ground appearing in the see Pleasant, (2000) (holding under Rules Mt. S.E.2d SCACR, 220(c), 208(b)(2) prevailing party in the respondent, a a as court, appellate may appeal any reasons the additional trial raise regardless reasons of whether affirm the trial court court should validity of the search depend warrant did not either a date upon appearing magistrate’s signature above nor there upon being signature judicial officer. issuing in the Nothing governing statute issuance search war- Carolina, (2003),5 rants in § South S.C.Code Ann. 17-13-140 Judge as himself acknowledges, “specifically Short require[s] Moreover, that signed.” warrant be nothing [search] dated, requires it to be matter. Here, magistrate either wrote an incorrect date on the signed warrant when she it or failed to sign the warrant when it, signed she issued but then and dated the warrant after the most, officer returned it. At the omission of the date and signature or of the date when magistrate issues search warrant, more, without constitutes a ministerial defect does not affect validity.6 held, its And as this court has *19 court, presented by
were
provided
to or ruled on
the
respon-
trial
the
sustaining grounds appear
dent's additional
appeal).
in the record on
provides
5. Section
part
17-13-140
in relevant
as follows:
Any magistrate
jurisdiction
having
...
over
area
the
where the
located,
sought
property
may
issue a search warrant to search for
any
drugs
possessed
and seize ...
...
.. ’.
...
in violation of
the laws of this State....
A
only
warrant
issued
upon
hereunder shall be issued
affidavit
magistrate
sworn
establishing
grounds
to before the
...
the
for the
magistrate
If
grounds
warrant.
the
...
is satisfied that the
for the
application
exist,
probable
exist or that there is
they
cause to believe that
identifying
he
property
naming
shall issue a warrant
the
and
or
describing
person
place
or
to be searched.
Smith,
6. See State v.
562
(Ind.Ct.App.1990) (noting
N.E.2d 428
search warrant
explicit requirement
statute contained no
issuing magistrate sign a
search warrant
order to
it
validate
and
holding
issuing
sign
the failure
judge
to
a search warrant
not
did
magistrate
invalidate the
when
probable
warrant
found
cause and
it;
intended
issue
signature
to
concluded
addition of a
task);
86,
Pellegrini,
was a ministerial
Commonwealth v.
405 Mass.
(1989) (holding
N.E.2d 514
judge
sign
a failure of a
a
warrant was a
ministerial error that did not invalidate the warrant in the
absence
a
statutory requirement
issuing judge,
constitutional or
that the
without
warrant);
exception, sign
County
a
Attorney
search
see also Yuma
v.
McGuire,
14,
(1973) (stating
109 Ariz.
512 P.2d
15-16
even where
“[wjarrants
required magistrate's signature,
the statute
a
and
affi
they
davits on which
are based must
way
be read
a common-sense
technically”
holding
rather than
magistrate's
a
inadvertent failure
sign
oversight
a search warrant was an
that did not invalidate the
not invalidate an
valid search
ministerial error will
otherwise
under section 17-13-140.7
warrant
I add
final note
the search warrant. Covert
regarding
one
to meet
not
warrant otherwise failed
argue
does
search
not
standards. He does
statutory
either constitutional8
signed
judge
support
of the warrant
warrant where
affidavit
by
probable
cause and thus intended
and considered the existence
warrant);
give legal
People v.
effect to the issuance of the
his action to
Court,
Cal.Rptr.
(holding
Superior
Cal.App.3d
a
magistrate’s
sign
require
not
inadvertent failure to
a search warrant did
thereto);
pursuant
Spaulding,
suppression
State v.
of evidence seized
(1986) (holding
judge
a
made
239 Kan.
granting codefendant, a mistrial when the lawyer Covert’s Henderson, Charles made factually an apparently incorrect statement regarding closing Covert during argument.
In his closing argument, Henderson’s counsel attacked Harris, Myers Donald credibility Roger both of whom testified about buying cocaine from Covert and Henderson. Counsel pointed Myers’s police statements to the said the first time Myers implicated Myers Henderson was after “get jail received a free out of card.” Counsel this followed Covert[,] assertion the remark with to Mr. “[ajccording he confirmed that ... Roger had been buying cocaine [Harris] from him years” Myers’s for two and that statement didn’t “mention conspiracy Mr. Henderson him.” Covert objected, arguing this undermined Covert’s credibility because counsel had mentioned Henderson’s involvement counsel’s statement created impression jury’s mind Covert had been police dishonest with the he gave when his statement to them following his arrest. Covert’s criminal involvement with Henderson had earlier been redacted from Covert’s published statement to police.
Covert refused an trial offer for a curative instruction and on a insisted mistrial. question whether to grant motion for deny
mistrial rests within the sound discretion of the trial court9 whose decision will not be on appeal disturbed absent an abuse of discretion to an amounting error of law.10
The trial court did not abuse its discretion in this instance.
The reference to
was an isolated
Covert
one and
directed to Covert’s
but
guilt,
veracity of Myers.
Moreover, evidence
guilt
as
Covert’s
the context of the
entire record was overwhelming, particularly since he admit-
Dawkins,
(1989).
9. State 297 S.C.
3. Covert the solici- closing argument of objection his the sustaining tor. objection to the a general counsel for Covert offered
After effectively sus- the trial court closing argument, solicitor’s “Yes, need you sir. I think objection, the saying, tained moved to the of Covert neither move on to facts the case.” the nor objectionable portion argument of solicitor’s strike the Having gotten for a curative instruction mistrial. moved for, complain now.12 he asked Covert cannot what forms special 4. about the verdict complains also Covert the trial court to given by trafficking the copies offense of in connection with its jury charge regarding contained no statements trafficking. The forms He proof. claims innocence and burden presumption guilty suggesting materials had the effect of these written the jury. verdict to Indeed, the trial court’s oral prejudice. no
Covert suffered instructions, challenge, removed Covert did which on account may Covert have suffered possible prejudice the forms and copies use Moreover, abundantly clear the trial court made statute.13 Hamilton, (Ct.App.2001) 11. v. 344 S.C. 543 S.E.2d See State appellate alleged error in the context of (noting will review an may analysis error where record and affirm under harmless entire grounds by overwhelming guilt), on other evidence of overruled there is (2005). Gentry, v. 363 S.C. 610 S.E.2d State Patterson, See, 482 S.E.2d e.g., v. 324 S.C. 12. State closing argu- (holding alleged impropriety of solicitor's preserved where trial court sustained an ment was not review counsel, not move to strike or objection by counsel did defense but McFadden, instruction); request a curative State preserved (noting for review (Ct.App.1995) no error S.E.2d 61 objection testimony the trial court sustained defense counsel's where testimony). made no further motion strike and counsel (Cl.App.2001) Myers, 544 S.E.2d See prevent (concluding special form did not jury's use of a verdict light of trial court’s finding guilty in jury from the defendant not instructions). that a “not guilty” verdict was possible one of the *22 verdicts it could return regard charge, to each notwith- standing special verdict form not have the did words “not guilty” it. for printed upon copy As of the trafficking juror, given each it merely provided infor- additional mation regarding offense with which Covert was charged served aid the reaching proper verdict.
5. Regarding Covert’s argument cumulative effect requires conviction, errors a reversal of his issue not preserved for even appeal, assuming presence of “errors.” The issue was neither raised nor ruled on by the trial case, errors, court.14 the purported says which Covert involve the closing arguments and the written materials given are jury, insufficient to warrant a new trial weighed when against the evidence of guilt, particularly Covert’s when his statement police is considered.
I would affirm.
Heard Feb. 2006. Decided Feb. 2006. Rehearing April Denied Adams, 361, 380, 14. State v. S.E.2d (Ct.App. 2003) ("Arguments upon not raised to or ruled the trial court are review.”). preserved appellate