Cutner v. State

• Decision Date: 28 April 2003
• Docket Number: No. 25644.,25644.
• Citation: Cutner v. State, 354 S.C. 151, 580 S.E.2d 120 (S.C. 2003)
• Court: South Carolina Supreme Court
• Parties: Antoine CUTNER, Petitioner, v. STATE of South Carolina, Respondent.

354 S.C. 151

580 S.E.2d 120

Antoine CUTNER, Petitioner, v. STATE of South Carolina, Respondent.

No. 25644.

Supreme Court of South Carolina.

Submitted April 17, 2002.

Decided April 28, 2003.

Chief Attorney Daniel T. Stacey, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General B. Allen Bullard Assistant Attorney General David Spencer, of Columbia, for Respondent.

Chief Justice TOAL:

Antoine Cutner ("petitioner") appeals his conviction, claiming the trial court lacked subject matter jurisdiction over the charge of possession with intent to distribute marijuana within proximity of a school, and that the trial court erred by allowing evidence that indicated petitioner was a dealer of crack cocaine. We affirm in part, reverse in part.

Factual/Procedural Background

Petitioner was convicted, after a trial in his absence, of possession with intent to distribute ("PWID") marijuana and PWID marijuana within proximity of a school. Two days later, petitioner pled guilty to other charges and was sentenced on those charges. His sealed sentence was opened and he was sentenced to ten years imprisonment for PWID marijuana and five years imprisonment, to be served consecutively, for PWID marijuana within proximity of a school. No direct appeal was taken.

Petitioner filed for post-conviction relief. After a hearing, the PCR court issued an order dismissing the PCR application without prejudice and granting petitioner a belated direct appeal under White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). Petitioner raises the following issues on appeal.

I. Whether the trial court lacked subject matter jurisdiction over the charge of PWID marijuana within proximity of a school?

II. Whether the trial court erred by permitting evidence that petitioner was a dealer of crack cocaine?

Law/Analysis

I. Subject Matter Jurisdiction

Before trial, the State moved to amend the indictment regarding the charge of PWID marijuana within proximity of a school. The indictment read:

That ANTOINE CUTNER did in Richland County on or about March 30, 1998, distribute, sell, purchase, manufacture, or unlawfully possess with intent to distribute, a controlled substance, to wit: marijuana, while in, on, or within a one-half mile radius of the grounds of a public or private elementary, middle or secondary school; a public playground or park; a public vocational or trade school or a technical educational center; or a public or private college or university, to wit: Ridgewood Missionary Baptist Church.

(emphasis added). The State, claiming a scrivener's error, requested the indictment be amended to read "to wit: Eau Claire High School and/or Ridgewood/Babcock Center."

Petitioner's counsel argued against the amendment stating the amendment would change the nature of the offense charged.¹ The trial court overruled petitioner's objection, stating petitioner was placed upon sufficient notice as to the charge he was facing.

Petitioner claims the trial court erred by granting the State's motion to amend the indictment to show the drugs were possessed within proximity of Eau Claire High School, rather than Ridgewood Baptist Church, as set forth in the indictment.

A circuit court has subject matter jurisdiction if: (1) there has been an indictment which sufficiently states the offense; (2) there has been a waiver of the indictment; or (3) the charge is a lesser-included charge of the crime charged in the indictment. Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001) (citing Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998)). "The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet." Id. (quoting Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995)) (emphasis added by Brown).

Under South Carolina Code Ann. § 17-19-100 (1985), the trial court "may amend the indictment ... if such amendment does not change the nature of the offense charged." Generally, amendments are permitted for the purposes of correcting an error of form, such as a scrivener's error. State v. Jones, 211 S.C. 319, 45 S.E.2d 29 (1947). Otherwise, if the defendant objects to an amendment on grounds that the amended indictment would change the nature of the offense, the trial judge is obligated to inform the parties of the necessity of reindictment or obtain a waiver of presentment from the defendant. Hopkins v. State, 317 S.C. 7, 10, 451 S.E.2d 389 (1994).

In the case at hand, amending the indictment from "to wit: Ridgewood Missionary Baptist Church" to state "to wit: Eau Claire High School and/or Ridgewood/Babcock Center" is not a scrivener's error. Ridgewood Missionary Baptist Church, Eau Claire High School, and Ridgewood/Babcock Center are all entities within a one-half mile radius of where petitioner was arrested, but only the schools make petitioner eligible for the additional penalties under South Carolina Code Ann. § 44-53-445 (2002). Section 44-53-445 does not separately criminalize distributing marijuana within proximity of a church, but the statute does create a separate offense for distributing marijuana within proximity of a school. As such, amending the indictment to name Eau Claire High School and/or Ridgewood/Babcock Center changes the nature of the offense.

Counsel for petitioner objected to the amended indictment, which the trial court overruled. Since the amendment was not the result of a scrivener's error and defense counsel objected, the trial court only had two options under Hopkins: reindictment or waiver of presentment. The court pursued neither option to correct the defective indictment, and consequently it lost its subject matter jurisdiction. Thus, petitioner's conviction for PWID within the proximity of a school must be reversed.

II. Crack Cocaine Evidence

Petitioner argues the trial court erred by permitting evidence indicating he was a dealer of crack cocaine.

After receiving a tip, Investigator Wendell Harris and several other officers went to a wooded area in search of a person suspected of dealing drugs. Investigator Harris observed a known crack cocaine user exiting the woods where the suspect was alleged to be. Before Harris exited the car in which he was riding, he saw a person fitting the description of the suspect and recognized the person to be petitioner. Upon exiting the car, he saw petitioner "turn to run and ... observed a black-like bag in his hand as he made the turn."

Harris testified petitioner ran a few feet into the woods with the bag before dropping it. He chased petitioner through the woods and by the time he reached the other side, another officer had apprehended petitioner. Petitioner indicated he had been in the woods to cut firewood. An officer later emerged from the woods with the bag Harris saw petitioner drop and a beeper. The bag had been located approximately fifteen feet into the wooded area. Inside the bag were plastic baggies, containing approximately 37 grams of marijuana, and a small scale.

The officer who located the bag and beeper asked to whom the beeper belonged. Petitioner indicated the beeper was his, but the bag was not. The beeper had been found within a few feet from the bag. During trial, Investigator Harris testified that while chasing petitioner, he observed petitioner "pulling out what appeared to be white-like rocks and throwing them to the left and to the right." He also testified "[biased on [his] experience, no doubt [petitioner] was getting rid of crack cocaine." At this point, defense counsel objected. Following an off-the-record bench conference, the trial court instructed the jury:

... this defendant upon this indictment is charged with possession with intent to distribute a quantity of marijuana, to which charge he has pled not guilty. There is some testimony here about crack cocaine. This defendant is not charged with possession of crack cocaine, he is not charged with crack cocaine in any way whatsoever, so do not consider any testimony relative to crack cocaine. That is simply not an issue in this case.

Following the instruction, Harris was again asked about observing petitioner throwing out white objects without objection by defense counsel. The solicitor then questioned Harris about the fact that petitioner was not charged with crack cocaine and that crack cocaine was not found at the scene. The following also occurred during Harris' direct examination:

Question: Speaking of not being able to find the crack cocaine on the ground and all this concern about children, because children were out at 4 o'clock when the defendant was selling drugs; correct?

Answer: That's correct.

Question: All right. You even lost your—

Defense counsel: Objection ... [t]here is no allegation the defendant was selling drugs.

Solicitor: He says it in his statement.... I withdraw the question....

The court: Withdraw the question.... Sustained.

On cross-examination, defense counsel asked why the case summary and the incident report prepared by Harris did not mention "seeing [petitioner] reach into his waistband and throw crack cocaine on the ground." Harris stated he did not include that information because it was irrelevant. Counsel then asked Harris if it was irrelevant, why he mentioned it in his trial testimony. Harris dodged this question. The questioning continued:

Question by defense counsel: ... you thought you saw him throw crack cocaine on the ground and you didn't go back there and try to find it, you just left it there for anybody to find, kids can walk back there and get crack cocaine on the ground?

Answer: No, we tried to recover it, but due to the density of the woods and you talking about [sic] micrograms of crack, it would be almost impossible to locate.

Prior to trial, pet...