State v. Burgess

• Decision Date: 02 July 2014
• Docket Number: No. 27405.,27405.
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Lawrence BURGESS, Petitioner. Appellate Case No. 2011–194288.

408 S.C. 421

759 S.E.2d 407

The STATE, Respondent,

v. Lawrence BURGESS, Petitioner.Appellate Case No. 2011–194288.

No. 27405.

Supreme Court of South Carolina.

Heard Oct. 16, 2013.

Decided July 2, 2014.

Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Deputy Attorney General Deborah R.J. Shupe, all of Columbia; Solicitor Donald V. Myers, of Lexington, for Respondent.

Justice BEATTY.

Lawrence Burgess was convicted of possession of crack cocaine with intent to distribute and sentenced to three years in prison and ordered to pay a $25,000 fine. The Court of Appeals affirmed. State v. Burgess, 393 S.C. 396, 712 S.E.2d 1 (Ct.App.2011). Following the denial of his petition for rehearing, Burgess petitioned this Court for a writ of certiorari to review the decision. We granted the petition to analyze whether: (1) the multi-jurisdictional drug-enforcement agreement, which formed the purported basis of the arresting officer's authority to arrest Burgess outside of the officer's territorial jurisdiction, satisfied the statutory prerequisites to constitute a valid agreement; and (2) Burgess should have been permitted to cross-examine the arresting officer with his personnel records pursuant to Rule 608(c) of the South Carolina Rules of Evidence. Although we find the Court of Appeals correctly affirmed Burgess's conviction, we disagree with the court's conclusion regarding the multi-jurisdictional drug-enforcement agreement. Accordingly, we affirm as modified.

I. Factual/Procedural History

On March 2, 2006, officers with the Lexington County Narcotics Enforcement Team (NET) executed a search warrant for a trailer at 7120 Two Notch Road in Batesburg, South Carolina, which had been the site of several controlled drug buys. When Agent Billy Laney of the Lexington County Sheriff's Department and Officer Emmitt Gilliam of the Batesburg–Leesville Police Department pulled into the driveway, they saw Burgess and another individual standing by a trailer that was not the target of the search warrant. The officers then witnessed Burgess run around the back of the trailer. Officer Gilliam ran around the other side of the trailer “to cut him off.” When Officer Gilliam got within five to six feet of Burgess, he commanded him to stop and put his hands up. Officer Gilliam placed Burgess under arrest and handcuffed him with the assistance of Agent Eric Kirkland of the Lexington County Sheriff's Department. Agent Laney “backtracked” Burgess's steps to where Burgess had been standing and discovered a pill bottle top and pieces of crack cocaine on the ground. The substance found on the ground was chemically tested and determined to be 5.67 grams of crack cocaine. As a result, a Lexington County grand jury indicted Burgess for possession of crack cocaine with intent to distribute.

In a pre-trial hearing, Burgess moved to dismiss the charge for lack of jurisdiction. Burgess asserted that Officer Gilliam lacked authority to arrest Burgess in an area outside the officer's territorial jurisdiction of the Batesburg–Leesville town limits. Although the State maintained that the Lexington County Multi–Agency Narcotics Enforcement Team Agreement (NET Agreement) conferred authority for extra-territorial jurisdiction, Burgess disputed its validity on the ground it failed to comply with the statutory prerequisites of sections 23–1–210¹ and 23–1–215 ² of the South Carolina Code.

Initially, Burgess argued that section 23–1–215 was the controlling statute because it provides authority for the institution of “agreements between multiple law enforcement jurisdictions.” Because the governing bodies of Batesburg–Leesville and Lexington County were not provided written notice of the NET Agreement's execution as required by subsection (E) of section 23–1–215, Burgess claimed the agreement was invalid. Additionally, Burgess asserted that section 23–1–210 did not apply to the NET Agreement as that section is limited “to the temporary transfer of an officer.” In the alternative, he argued that the agreement did not comply with section 23–1–210 because it was executed by law enforcement officers and not by “council members.”

In response to Burgess's motion, the State presented a copy of the NET Agreement that was entered into by eleven law enforcement agencies in Lexington County ³ on September 18, 2001.⁴ The NET Agreement, which referenced sections 23–1–210 and 23–1–215,⁵ stated in relevant part:

WHEREAS, it is the desire and intent of the parties to evidence their joint undertaking for the provision of mutual assistance in criminal narcotics investigations by the creation and operation of a multi-jurisdictional task force within Lexington County.

WHEREAS, the parties as set out above, by and through their representatives affixing their signatures below, consent and agree to span the geopolitical boundaries of all areas of Lexington County to the fullest extent allowed under South Carolina law for the express purpose of investigating the illegal use of controlled substances and related crimes by creating this Lexington County Multi–Agency Narcotics Enforcement Team [.]

....

1. SCOPE OF SERVICES

It is agreed that the law enforcement agency parties shall assign, on a temporary basis, officers to participate in the Lexington County Multi-jurisdictional Drug Enforcement Unit for the duration of this agreement or until this agreement is rescinded as set forth herein.

2. TERM AND RENEWAL

This agreement is effective as to each party at the date and time of signing and will automatically renew one year from the above date unless a party exercises its right to terminate as further described herein.

3. VESTING OF AUTHORITY AND JURISDICTION

To the fullest extent permitted by the Constitution and statutes of this State, officers assigned under this agreement and so transferred shall be vested with authority, jurisdiction, rights, immunities, and privileges to include the authority to execute criminal process and the power of arrest as any other duly commissioned officer of any other party.

....

10. RESPONSIBILITY TO RESPECTIVE GOVERNING BODIES

Each party is responsible for any notice, reporting, or approval requirements to their respective governing body as may be required under South Carolina law.

11. OFFICERS ASSIGNED

Each party agrees to designate and transmit in writing, the names of those individuals assigned to perform duties under this agreement to the other parties. Upon receipt, such is to be made a part of and is incorporated by reference into this agreement.

In explaining the agreement, the State showed that it was signed by Chief Wallace Oswald on behalf of the Town of Batesburg–Leesville. According to the State, Chief Oswald entered into the NET Agreement based on the advice and consent of the Batesburg–Leesville Town Council (Town Council). The State introduced a videotape of an August 31, 2001 Town Council meeting during which Chief Oswald informed Town Council of “that pending matter between the solicitor and the town of Batesburg[-]Leesville forming a multi-jurisdictional agreement for continued narcotics work in Lexington County.”

The State also introduced minutes from the January 8 and December 10, 2002, Lexington County Council (County Council) meetings through the Clerk of the County Council. The January 8 minutes show County Council considered grant application requests from the sheriff's department for a NET. The December 10 minutes reflect that County Council voted in favor of grant requests regarding additional staff positions in both the solicitor's and sheriff's office to focus on the NET.

In conjunction with the minutes, the State presented testimony from Marguerite Crapps, the mayor pro tem of the Batesburg–Leesville Town Council. When asked whether the Batesburg–Leesville Town Council was “on board with the chief of police [to] enter into this agreement on the behalf of Town Council of Batesburg–Leesville,” Crapps responded, “Yes.”

Lieutenant Byron Snellgrove, who was employed with the narcotics unit of the Lexington County Sheriff's Department, was the NET supervisor at all times relevant to this case. Lieutenant Snellgrove testified Chief Oswald and the Town of Batesburg–Leesville assigned Officer Gilliam, of the Batesburg–Leesville Police Department, to the NET. He then assigned Officer Gilliam to the Batesburg–Leesville area of Lexington County “to take care of cases inside the town limits as well as outside the town limits.” After Officer Gilliam advised Lieutenant Snellgove that “there were drug [sales] going on at 7120 Two Notch Road,” Lieutenant Snellgrove asked Gilliam “to try to make a case or get into that location one way or another.” Lieutenant Snellgrove then requested that Officer Gilliam help with the drug problem at that location pursuant to the NET Agreement.

Based on this evidence, the State contended that the notice requirement of section 23–1–215 was met because both County Council and Town Council had actual notice of the NET Agreement and approved their respective law enforcement agencies' participation in the NET. In contrast to the defense, the State believed the notice provision of section 23–1–215 was “purely ministerial and administrative,” similar to the ten-day notice requirement for the return of a search warrant to the magistrate upon the execution of the search warrant. Thus, the State asserted that section 23–1–215(E) should not be “strictly construed” to require written notice.

Additionally, the State maintained the NET Agreement satisfied the provisions of section 23–1–210. Because the governing bodies had actual notice of the NET Agreement and its terms, the State claimed that chief law enforcement officers were authorized to enter into these agreements “with the advice and consent of county council.” The State...