State v. Boyd, 0619
| Decision Date | 22 October 1985 |
| Docket Number | No. 0619,0619 |
| Citation | 341 S.E.2d 144,288 S.C. 206 |
| Parties | The STATE, Respondent, v. Phillip L. BOYD, Appellant. . Heard |
| Court | South Carolina Court of Appeals |
W. Gaston Fairey, and W. Frank Cantrell, Columbia, for appellant.
Atty. Gen. T. Travis Medlock and Asst. Atty. Gen. Harold M. Coombs, Jr., Columbia, and Sol. William T. Jones, Greenwood, for respondent.
Phillip Boyd, who elected to be tried by the judge without a jury, was convicted of possession of marijuana with intent to distribute. Boyd had been previously convicted in 1975 for possession of marijuana, hashish and certain prescription pills, amounts of which were simultaneously in his possession at the time of his arrest; based on the 1975 convictions, Boyd was sentenced as a third offender. We affirm the conviction, but reverse and remand for sentencing as a second offender.
At the time of his arrest, Boyd was driving a large recreational type Ford van vehicle with a Texas license tag on it; but he had no title registration certificate for the van. A highway patrolman stopped him for speeding; there was an odor of alcohol about him and the patrolman then arrested him for DUI. Upon investigation it was found that the license tag was issued for another vehicle and that Boyd's driver's license was issued under false pretenses. After the arresting officer called another patrolman, the van was moved to a safer location and what the officers described as an inventory search of the van was begun which disclosed a large amount of marijuana. Upon discovering the marijuana, the remaining patrolman turned the vehicle over to the Sheriff of Abbeville County who had jurisdiction in this drug related matter.
Boyd moved to sequester the State's witnesses on the grounds that their testimony was interrelated. The solicitor identified the roles of the two highway patrolmen involved in the arrest and the trial judge concluded that while the witnesses' testimony might overlap, Boyd would not be benefited by the sequestration and he then denied the motion.
At issue on appeal are whether (1) the trial judge erred in refusing to sequester the witnesses, (2) the inventory search and resulting discovery of the marijuana violated Boyd's Fourth Amendment rights and (3) Boyd was properly sentenced as a third offender.
Sequestration of witnesses is a matter of discretion for the trial judge. State v. Harris, 275 S.C. 463, 272 S.E.2d 636 (1980). While an order excluding witnesses is rarely withheld when applied for by either party in good faith, a party is not generally entitled to sequestration as a matter of right. A motion for sequestration may be refused if the trial judge, in the exercise of his discretion, feels that there are not sufficient grounds to grant the motion. State v. Jackson, 265 S.C. 278, 217 S.E.2d 794 (1975). In the case before us, the trial judge was fully apprised of the circumstances of the case and concluded that there was no prejudice shown by Boyd to support the motion. Under these circumstances we hold there was no error. State v. Jackson, supra.
We also conclude that there was not an unconstitutional search of the vehicle. Inventory searches are legal under certain circumstances set forth in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and State v. Lemacks, 275 S.C. 181, 268 S.E.2d 285 (1980); we think these cases are controlling and reject the contention that the search of the automobile was violative of Boyd's constitutional rights under the Fourth Amendment to the United States Constitution.
We are presented with a novel question by Boyd's argument that in determining the number of offenses for the purpose of imposition of sentence, the trial judge should have treated as one Boyd's two prior convictions because they arose out of a single incident in which he was found in possession of two controlled substances and sentenced separately for each.
The General Assembly adopted in the case of habitual offenders Boyd's thesis that where a conviction on two or more counts arising out of acts committed in the course of a single incident has been entered, the conviction should count as only one for the purposes of sentencing in a subsequent and separate conviction. Section 17-25-50, Code of Laws of South Carolina (1976), provides:
In determining the number of offenses for the purpose of imposition of sentence, the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the...
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