State v. Carter, No. 25266.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOORE, Justice.
• Citation: 544 S.E.2d 835,344 S.C. 419
• Decision Date: 26 March 2001
• Docket Number: No. 25266.
• Parties: The STATE, Respondent, v. Robert B. CARTER, Petitioner.

344 S.C. 419
544 S.E.2d 835

The STATE, Respondent,
v.
Robert B. CARTER, Petitioner

No. 25266.

Supreme Court of South Carolina.

Heard February 6, 2001.

Decided March 26, 2001.

Rehearing Denied April 26, 2001.

344 S.C. 420

C. Rauch Wise, of Greenwood, for petitioner

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy General Robert E. Bogan, and Senior Assistant Attorney General Charles H. Richardson, all of Columbia; and Solicitor J. Gregory Hembree, of Conway, for respondent.

344 S.C. 421

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

MOORE, Justice.

We granted a writ of certiorari to review the Court of Appeals' unpublished opinion affirming petitioner's convictions for first degree burglary, kidnaping, first degree criminal sexual conduct, possession of a weapon during the commission of a violent crime, and unlawful use of a telephone.¹ Petitioner claims the State failed to establish a sufficient chain of custody for the admission of a blood sample used to match his DNA with evidence found at the scene. We affirm.

FACTS

Victim lived alone in the owner's apartment of a small motel in Myrtle Beach. She testified that about 5:30 a.m. on December 3, 1994, she awoke to find a man on top of her in her bed. He put a pillowcase over her head and threatened to kill her while holding a cold metal instrument under her jaw that she thought was a gun. After giving her a choice between fellatio or intercourse, the assailant put his penis in Victim's mouth under the pillowcase. When he became dissatisfied with her performance, he masturbated into her mouth and insisted she swallow the semen. He then tied her up and left the apartment.

After freeing herself, Victim found a pocket-knife on her living room floor which she gave to police along with the pillowcase and the clothing she was wearing at the time of the assault. She did not see her assailant's face and could give police no identification.

About six weeks later, on the afternoon of January 14, 1995, Victim received a telephone call from an unidentified male who asked her, "Have you woken up with any [penises] in your mouth lately?" Victim recognized the voice as that of her assailant. She received a similar call ten days later in the early morning hours of January 24. On February 1, she received a third call that she recorded. She also traced the caller's telephone number.

344 S.C. 422

When Victim took this information to police, she listened to the recording with Detective Starr. Detective Starr told her the call came from a phone booth outside a nearby motel, the Lighthouse, and asked if she knew anyone living there. Victim recalled that petitioner, whom she knew because she was friendly with his parents,² was living at the Lighthouse. She then identified the voice on the tape as petitioner's

At trial, the State introduced the testimony of two police officers who saw petitioner in the vicinity of the phone booth outside the Lighthouse at approximately the time the third phone call was made. In addition, the State's expert testified that semen³ was found on the pillowcase given to police which matched petitioner's DNA as indicated by the blood sample taken from him before trial.

Petitioner's blood sample was drawn pursuant to a consent order requiring him to submit to blood and saliva sampling. Petitioner was escorted by police to the hospital where Dr. Proctor supervised the taking of blood and saliva samples which he testified were placed in a kit supplied by SLED. This kit was a cardboard box that had styrofoam containers in it to hold the glass tubes of blood. Dr. Proctor sealed the kit with a type of security tape that cannot be pulled off without leaving obvious signs of tampering.

Deputy Johnson, who witnessed the sampling,⁴ transported the taped kit to the Myrtle Beach Police Department and gave

344 S.C. 423

it to Detective Baker who gave it to the evidence custodian, Doug Britton. Officer Lail picked up the kit from Britton and transported it to SLED for testing. The kit was still taped when Lail gave it to SLED agent McKay

Inexplicably, when Agent McKay opened the kit, it contained only the two tubes of petitioner's blood and no saliva sample. McKay broke down the kit and put the tubes of blood in a heat-sealed pouch with an I.D. bar code on it and placed the pouch in a secure refrigerator.

SLED analyst Reinhart retrieved the sealed pouch from the refrigerator for...