State v. Gamble, 27307.
| Decision Date | 02 October 2013 |
| Docket Number | No. 27307.,27307. |
| Citation | 405 S.C. 409,747 S.E.2d 784 |
| Court | South Carolina Supreme Court |
| Parties | STATE of South Carolina, Respondent, v. Ervin GAMBLE, Petitioner. Appellate Case No. 2011–192246. |
OPINION TEXT STARTS HERE
Jerry Leo Finney and Stephanie Ruotolo Fajardo, both of The Finney Law Firm, Incorporated, of Columbia, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia, and Solicitor John Gregory Hembree, of North Myrtle Beach, for Respondent.
Ervin C. Gamble (Petitioner) challenges his conviction for heroin trafficking. We reverse.
On September 28, 2008, the Horry County Grand Jury indicted Petitioner for “attempt to distribute heroin” and “trafficking in heroin,” in violation of sections 44–53–110 and –370 of the South Carolina Code, respectively. 1 However, at trial, the State elected to proceed only on the indictment charging Petitioner with trafficking, explaining that this decision rested, at least in part, on the fact that the confidential informant (CI) who provided critical information in the case died prior to trial.
At trial, the State moved to bar reference to the CI, arguing:
[T]he CI is immaterial to the trafficking case. The trafficking case is basically ... that: [Petitioner] drives up into the driveway ... He comes in there. They arrest him—based on the information that they had. And the CI, as you know Your Honor, is deceased. I guess my point is this, that: If we start to talk about the CI, then I think we're going to also have to start to talk about the fact that he's deceased.
Defense counsel conceded that he did not anticipate mentioning the CI, but expressed concern regarding how the State could demonstrate probable cause for the search of Petitioner's vehicle, and his subsequent arrest. The trial court refused to bar reference to the CI in a pre-trial motion, but stated that as the trial ran its course, the court would not “allow the jury to get confused” due to the CI's absence.
As its first witness, the State presented the police officer who arrested Petitioner. The officer testified that, while conducting an investigation into possible drug activity, he received information regarding a drug dealer called “Fats.” Defense counsel objected, arguing:
For this officer to take the witness stand and say that they had gained information about a certain individual named “Fats[,]” that information was gained through hearsay.... He got that information from the [CI] in this case.... It is highly prejudicial if that person is not going to be called as a witness—and we know that he's not—for this witness to say that they had gained information about someone, that's hearsay.
The State argued that the officer did not offer this information for the truth of the matter asserted, but instead to explain the officer's actions. Defense counsel countered that the officer did offer the information for its truth: The trial court held that the officer's testimony explained why police investigated Petitioner and decided to instruct the jury “not to take these statements as being truthful[,] that they are only to consider them to explain why the officer acted in the way he did.” The trial court then issued the following instruction:
The testimony that [the officer] is giving regarding what was told to him by someone else is not being ... given or used under the assertion that the information was correct; or that the information was right. It is only being offered, and can only be considered by you, to explain why [the officer] acted in the way he did. So when he states that he was told something by someone else, whether or not it is true or not true is not your consideration as much as it is to determine or to explain why [the officer] acted in the way he did. So you cannot use it as proof of [Petitioner's] guilt to the extent that you think the truth—or the statement is false[,] only to explain [the officer's] actions.
Following this instruction, the officer's testimony resumed:
The State: Officer ... did you all have a tactical plan you had developed with ... regard to [Petitioner]?
The Officer: Yes, ma‘am, we did.... Myself, along with other agents were in the area.... Planned on ... speaking with a person in regards to ... drugs.
The State: And as a result of that tactical plan, were you at some particular location?
The Officer: Yes ma‘am, we were.
The State: Where were you located?
The Officer: Uh—the exact address?
The State: Yes sir.
The Officer: 72 Offshore Drive in the Murrells Inlet section of Horry County.
....
The State: And at some point, did you make contact with [Petitioner]?
The Officer: Yes ma‘am, that is correct.
The State: And how did that happen?
The Officer: We con—conducted a phone call....
At this point, the State interrupted the officer, presumably to prevent him from running afoul of the trial court's ruling:
The State: I don't want you—I don't want you to tell us what you did. I want you to tell me if you happened to come into contact with [Petitioner].
The Officer: Yes ma‘am, we came in ... contact with [Petitioner]. He arrived at the location of 72 Offshore Drive. At that time he was arrested on a separate charge. Upon ... being placed under arrest he was searched.... Located on his person ... was an amount of ... brown powdered substance which subsequently field tested for ... heroin.... Located in his vehicle, in the center console of the vehicle, was also ... additional amount of ... brown powdered substance that field tested positive for heroin.
Following this testimony, the State requested the trial court admit the seized drugs into evidence. Defense counsel objected:
The foundation has not been laid.... We don't know about—He's going to testify that after an arrest on a separate charge, a search ... I don't know if there is a basis for that arrest. I don't know what the charge was. I don't know if there was a consent to search. I know there wasn't a consent to search. And I don't believe that under the Constitution as provided by the 4th Amendment 2 ... the law of search and seizure ... they have the right to enter this into evidence at this time.
The trial court overruled defense counsel's objection, and admitted the drugs into evidence.
The jury found Petitioner guilty of “trafficking in heroin,” and defense counsel moved for a judgment notwithstanding the verdict and requested a new trial. Defense counsel argued:
There is a total lack of evidence in this case for the basis of the arrest. There's no evidence in the record that the arrest was lawful or unlawful.... There is no evidence in the record—or even what [Petitioner] was being arrested for; just that he was arrested, and that a search subsequent to that arrest brought about these drugs. There is no indicia of probable cause; no indication of reasonable suspicion for the arrest. If you cannot find that there is probable cause for the arrest—then we believe that it should be found that it did not exist. And therefore, judgment should not be granted against my client.
The trial court denied the motion, and sentenced Petitioner to twenty-five years' imprisonment. The court of appeals affirmed Petitioner's conviction in an unpublished opinion. State v. Gamble, Op. No. 2011–UP–095 (S.C.Ct.App. Mar. 10, 2011). This Court granted Petitioner's request for a writ of certiorari.
I. Whether the trial court erred in admitting narcotics evidence over Petitioner's objection that the State failed to provide the proper foundation.
II. Whether the trial court erred in denying Petitioner's motion for a new trial.
In criminal cases, this Court only reviews errors of law. State v. Jacobs, 393 S.C. 584, 586, 713 S.E.2d 621, 622 (2011). “[T]he admission of evidence is within the discretion of the trial court and will not be reversed by this Court absent an abuse of discretion.” State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000) (citing State v. Smith, 337 S.C. 27, 34, 522 S.E.2d 598, 601 (1999)). “An abuse of discretion occurs when the trial court's ruling is based on an error of law.” Id. (citing Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000)).
I. Admission of Heroin
Petitioner argues that the trial court erred in admitting the seized heroin into evidence. We agree, as the State failed to demonstrate that the drugs were seized as part of a legally permissible search and seizure. 3
The Fourth Amendment prohibits unreasonable search and seizure, and requires that evidence seized in violation of the Amendment be excluded from trial. State v. Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2002) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). “Warrantless searches and seizures are unreasonable absent a recognized exception to the warrant requirement.” State v. Brown, 401 S.C. 82, 89, 736 S.E.2d 263, 266 (2012) (citation omitted). These exceptions include the following: (1) search incident to a lawful arrest; (2) hot pursuit; (3) stop and frisk; (4) automobile; (5) plain view; (6) consent; and (7) abandonment. Id. The prosecution bears the burden of establishing probable cause as well as the existence of circumstances constituting an exception to the general prohibition against warrantless searches and seizures. State v. Moore, 377 S.C. 299, 309, 659 S.E.2d 256, 261 (Ct.App.2008). “Probable cause is defined as a good faith belief that a person is guilty of a crime when this belief rests upon such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise.” Wortman v. City of Spartanburg, 310 S.C. 1, 4, ...
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...circumstances constituting an exception to the general prohibition against warrantless searches and seizures." State v. Gamble , 405 S.C. 409, 416, 747 S.E.2d 784, 787 (2013). "The touchtone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expect......
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