State v. Freeman, 2356

• Decision Date: 09 March 1995
• Docket Number: No. 2356,2356
• Citation: 319 S.C. 110,459 S.E.2d 867
• Parties: The STATE, Respondent, v. Joseph Delmas FREEMAN and Carroll L. Freeman, Appellants. . Heard
• Court: South Carolina Court of Appeals

Page 867

459 S.E.2d 867

319 S.C. 110

The STATE, Respondent, v. Joseph Delmas FREEMAN and Carroll L. Freeman, Appellants.

No. 2356.

Court of Appeals of South Carolina.

Heard March 9, 1995.

Decided June 12, 1995.

Amended and Refiled June 19, 1995.

E.L. Clements, III, Florence; Edward E. Saleeby, Jr., Hartsville, both of The Saleeby Law Firm; James I. Redfearn, Chesterfield; and South Carolina Office of Appellate Defense, Columbia, for appellants.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Charles W. Gambrell, Jr., and Asst. Atty. Gen. Reginald J. Perry, Columbia, for respondent.

CURETON, Judge.

Joseph Delmas Freeman and Carroll L. Freeman appeal their convictions for numerous marijuana trafficking, manufacturing, and distributing offenses. ¹ They were both sentenced to mandatory twenty-five (25) year imprisonment plus a consecutive five (5) year term for manufacturing marijuana for a total of thirty (30) years. We reverse and remand for a new trial.

While off duty on August 11, 1991, Officer Jerry Allen Cox of the Darlington Police Department along with his brother and brother-in-law were checking for deer stands in the area of Coker Pond near the Darlington/Chesterfield County line. While canvassing this area, they came upon a field of marijuana. Later that night, Officer Cox notified Jerry Thompson of the Governor's RAID Team about the discovery. At approximately 9:00 a.m. on August 20, 1991, Officer Cox, Special Agent Thompson, and Officer Wayne Byrd of the Darlington Police Department returned to the Coker Pond area to investigate. Because the area is densely covered with large trees, vines, and underbrush, Officer Byrd led the way with a machete clearing a path for them to walk through. As they were approaching Coker Pond, Officer Byrd noticed two men squatting behind thick vines and bushes near the marijuana field. Officer Byrd testified he alerted the other two officers someone was ahead and then shouted "hold it," but the two men stood up and ran. The front fleeing man allegedly turned around as he stood up and looked directly at the officers before running. Officers Cox and Byrd later identified him as the Appellant, Joseph Delmas Freeman (Joseph). ² The officers testified that Joseph was approximately 50 feet away from them when he stood up. Although the second suspect could not be positively identified, Officer Byrd testified the other man fit the general description of Appellant Carroll L. Freeman (Carroll), Joseph's younger brother. Neither of the fleeing men was apprehended.

Upon further investigation of the area, the officers found six patches of marijuana plants which were interconnected by man-made paths. Within the six patches, there was a total of 833 marijuana plants. At the entrance to one of the patches were several gardening tools and a trash bag allegedly three-quarters full of newly harvested marijuana leaves. ³ A 1978 Ford Thunderbird registered to Carroll was also found parked across Coker Pond on the Chesterfield County side. Based on these findings, search warrants were obtained on August 20, 1991 for the residences of both Joseph and Carroll Freeman. The search warrants were executed the following morning, on August 21, 1991.

In searching Joseph's residence, the officers found: (1) a clear plastic bag of marijuana located in the attic; (2) marijuana residue in several places including the trunk of a car, an equipment shed, and in two separate locations in a tobacco barn; and (3) three patches of marijuana plants in fields behind the house. At Carroll's residence, the officers found: (1) freshly harvested marijuana in four plastic trash bags some distance behind his home; (2) one-half pound of marijuana and residue in a storage building behind his home; and (3) a set of scales in the woods behind his home. ⁴

Several witnesses also testified at trial regarding marijuana purchases they made from Joseph and Carroll. In their defense, Joseph and Carroll claimed alibis for the August 20th search of the woods. At the time he was purportedly seen in the marijuana field on August 20, 1991 at approximately 9:15 a.m., Carroll claims he was at home with his two year old daughter. Joseph was allegedly at Johnny's Truck Stop in Society Hill, S.C. between 8:00 a.m. and 8:30 a.m. and at the Milling Tobacco Warehouse in Darlington, S.C. between 8:45 a.m. and 9:45 a.m. He provided nine witnesses to prove the alibi.

Over Joseph's objection that the search warrant was defective since it was never executed as required by S.C.Code Ann. § 17-13-140 (1976), evidence was admitted at trial regarding eighteen separate items found at Joseph's residence and tested by S.L.E.D. chemist Carlotta Stackhouse. Stackhouse's report of her analysis of the seized items does not identify and weigh each item separately nor indicate the location where the item was found. Instead, it simply combines the weight of several different samples of evidence submitted for analysis. Of the eighteen items connected to Joseph, all but two tested positive as marijuana or residue.

Before the case went to the jury, Joseph again moved that all physical evidence found at his home be suppressed due to the State's failure to comply with the statutory requirements regarding the return to the search warrant. This motion was denied, and the jury found both defendants guilty of numerous counts of marijuana trafficking, manufacturing, and distribution. Both Joseph and Carroll appeal.

I. Search Warrant

On appeal, Joseph first argues the search warrant was invalid because it was never properly executed and returned; thus, the trial judge erred in admitting the evidence found at his residence. The State produced only a copy of the search warrant and a copy of the return which was not sworn to or signed by the issuing judge. The trial judge admitted the evidence over Joseph's objection, and ordered the State to produce the properly executed return at a later time. The record reveals, however, that this was never done. Nevertheless, the trial court concluded:

[I]t was properly issued, and it was issued by me. The original is not here. You introduced a copy of the search warrant, which is in the record and a copy of the return. You will note that that return is duly signed by--I think it was Mr. Eddie Gordon ... [t]o the extent that it needs an endorsement by me, I'd do that at this time. Regardless of that, I do not think that the insufficiency of that signature at this time would preclude the jury's consideration of the evidence adduced by that search warrant ... Now the search warrant and the return speak for themselves....

Relying on State v. Wise, 272 S.C. 384, 252 S.E.2d 294 (1979), the State maintains Joseph was not prejudiced by the use of a copy of the search warrant to substitute for the original. In Wise, the Supreme Court held that a warrant not returned to the issuing judge within ten (10) days as required by statute due to administrative error does not void an otherwise perfectly valid warrant in the absence of a showing of prejudice to the defendant.

Joseph's attack on the legality of the search warrant, however, is not limited to an assertion that the State failed to fulfill the ministerial requirement of returning the warrant to the issuing judge within the ten day period prescribed by law. Rather, his challenge is more broadly based and encompasses, albeit in general terms, an assertion that the unsigned, unsworn copy of the return was never properly executed or completed and was therefore legally defective. Moreover, Joseph maintains there is no way to look at the copy of the return and match those items listed with the 18 different samples analyzed by Stackhouse. Therefore, Joseph asserts, the prejudice from the State's complete failure to produce the original search warrant and a signed, sworn return to it is manifest error in light of the State's inability to link the items allegedly seized from his residence to Stackhouse's analysis of the 18 separate items. ⁵ We agree.

S.C.Code Ann. § 17-13-140 (1976) requires a warrant to be executed and returned within ten days after it is dated. Although the State contends and the trial judge ruled that the warrant was properly returned within ten days but the original was misplaced so a copy was allowed to be substituted, the record is simply devoid of sufficient information upon which to draw that conclusion. In the posture in which this record has reached us, there is no evidence that the return was ever made. As stated by a Maryland appellate court in Giles v. State, 271 A.2d 766, 767 (Md.App.1970):

A valid search warrant properly executed, may produce evidence sufficient to convict a person accused of a crime. A defective and invalid search warrant produces confusion, waste and injustice, to an accused or to society, or to both.

Here, as argued by counsel for Joseph, it is possible that the warrant was neither properly executed nor returned within the prescribed time, and is, thus, void. We think it is impossible for the trial judge to have determined, as a matter of law, that the search warrant was legally proper when he, the judge who issued the warrant, had no recollection of receiving or signing the original return, was never provided with a sufficient explanation concerning the location of the original warrant, and never had the opportunity to review the original return. ⁶ Whether the warrant was lawful or not, of course, is a matter of law for the determination of the trial judge, a function which he manifestly cannot perform unless he reviews the warrant in light of the objections made to it, or if the warrant is shown to be unavailable for proper reasons, by considering secondary evidence of its existence and contents. See Campofreda v. Maryland, 15 Md.App. 693, 292 A.2d 703 (1972) (holding that absent sufficient explanation that the original search warrant was lost or destroyed, it was improper to accept a 'copy' in lieu of the original...