State v. Grier, Appellate Case No. 2016-001045

CourtCourt of Appeals of South Carolina
Writing for the CourtMCDONALD, J.
Citation828 S.E.2d 782,427 S.C. 107
Parties The STATE, Respondent, v. Jermaine Demarcus GRIER, Appellant.
Decision Date15 May 2019
Docket NumberOpinion No. 5649,Appellate Case No. 2016-001045

427 S.C. 107
828 S.E.2d 782

The STATE, Respondent,
v.
Jermaine Demarcus GRIER, Appellant.

Appellate Case No. 2016-001045
Opinion No. 5649

Court of Appeals of South Carolina.

Submitted September 19, 2018
Filed May 15, 2019


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

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General William M. Blitch, Jr., and Jennifer Ellis Roberts, all of Columbia; and Solicitor Randy E. Newman, Jr., of Lancaster, all for Respondent.

MCDONALD, J.:

427 S.C. 110

Jermaine D. Grier appeals his conviction for possession of contraband by a county or municipal prisoner, arguing the circuit court erred in denying his motion for a directed verdict and refusing to charge the jury with section 24-3-965 of the South Carolina Code (Supp. 2018), which governs the possession of certain contraband by inmates incarcerated within the South Carolina Department of Corrections. We affirm.

Facts and Procedural History

On November 16, 2015, Officer LaQuentin Smith was preparing to transport Grier from the Lancaster County Detention Center (LCDC) to the Lancaster County Courthouse. As part of the transport process, officers instruct a detainee to place his hands through an opening in his cell door (this opening is generally used to deliver food) for

828 S.E.2d 784

inspection. Officers then handcuff the detainee and ask him to turn around with his back to the door so the officers can wrap a chain around the inmate's waist and secure it.1 Officer Smith testified that when he and two other officers instructed Grier to place his hands through the door slot for inspection, Grier pulled back his left hand and placed it inside his jumpsuit. When Officer Smith again told Grier to place his left hand through the opening, Grier complied. Officer Smith found nothing in Grier's left hand.

After officers finished securing Grier, Officer Smith notified Sergeant Matthew Kennington that he suspected Grier had concealed something in his jumpsuit and needed to be searched. With Sergeant Nicholas Tuley as his witness, Sergeant Kennington searched Grier's jumpsuit and confiscated a twisted metal piece of a pen that appeared to have been sharpened down to the tip.

In February 2016, the Lancaster County Grand Jury indicted Grier for possession of contraband by a county or municipal prisoner under section 24-7-155 of the South Carolina Code (Supp. 2018). Grier's indictment states:

427 S.C. 111
POSSESSION OF CONTRABAND BY COUNTY OR MUNICIPAL PRISONER

That Jermaine Demarcus Grier a prisoner of a county or municipal jail, prison, work camp or overnight lockup facility, did in Lancaster County, South Carolina, on or about November 16, 2015, unlawfully possess a quantity of matter declared by the superintendent of the facility to be contraband, to wit: a sharpened metal piece derived from a writing pen, an illegal weapon, in violation of § 24-7-155, Code of Laws of South Carolina (1976) , as amended .

Section 24-7-155 provides:

It is unlawful for a person to furnish or attempt to furnish a prisoner in any county, municipal, or multijurisdictional jail, prison camp, work camp, or overnight lockup facility with a matter declared to be contraband. It is unlawful for an inmate of a facility to possess a matter declared to be contraband. Matters considered contraband within the meaning of this section are those which are designated as contraband and published by the Department of Corrections as Regulation 33-1 of the Department of Corrections and this regulation must be displayed in a conspicuous place available and visible to visitors and inmates at the facility. The facility manager of a local detention facility, with the approval of the sheriff or chief administrative officer as appropriate, may designate additional items as contraband. Notice of the additional items must be displayed with Regulation 33-1.

Regulation 33-1 of the South Carolina Department of Corrections (2011) sets forth the following list of contraband:

a. Any item which was not issued to the prisoner officially or which cannot be purchased by him or her in the prison canteen.

b. Weapons, any and all firearms, knives of any and all descriptions, clubs, billies or any other article that may be used for offense or defense.

....

e. Keys and locks.

f. Tools of any description not approved for issue to prisoners by the Director.
427 S.C. 112
....

Notice is hereby served on all prisoners and their visitors and any other person that the provisions of § 24-3-950, S.C. Code 1976 will be enforced; and all such persons are urged to observe the law and refrain from violating this section in particular.[2 ]

Grier's jury trial began on May 11, 2016. Pretrial, Grier moved to quash the indictment,3 arguing the evidence he received

828 S.E.2d 785

through discovery suggested the confiscated item found in his jumpsuit was a tool for unlocking handcuffs, not an illegal weapon as set forth in the indictment. Additionally, Grier argued section 24-3-965 of the South Carolina Code (Supp. 2018)4 provided the appropriate charge for possession of contraband other than weapons or illegal drugs and that it vested the magistrate's court with exclusive jurisdiction.

The State responded that Grier was charged under § 24-7-155, for possession of a weapon, not under § 24-3-965. The circuit court denied Grier's motion to quash his indictment.

As its first witness, the State called Captain Larry Deason, who testified that during the booking process, all detainees receive a copy of LCDC's rules and regulations, are asked if

427 S.C. 113

they have any questions, and are required to sign a form on an electronic tablet confirming their receipt of the rules. Captain Deason explained that he and facility director Deborah Home formulated the rules based on statutes, Department of Corrections regulations, and their previous experience relating to the safety and security of officers and inmates. Caption Deason testified that the rules and regulations are compiled in a short handbook, which includes a description of items inmates are allowed to have in their cells and a section defining contraband. Without objection, LCDC's rules and regulations were admitted into evidence. Additionally, R. 33-1, which lists contraband articles, was admitted into evidence without objection.

Sergeant Richard Plyler testified he gave Grier a copy of the rules, which Grier stated he understood before signing the form confirming his receipt. Over Grier's objection, the trial court admitted Grier's signature page into evidence.

As its next witness, the State called Officer Smith. Officer Smith explained the confiscated item "resembled ... the metal piece of the pen that you use to hang on to your pocket or something." When Officer Smith was asked if the confiscated item had any edges, he stated it "[s]eemed like it was sharpened just a little bit." On cross-examination, Officer Smith admitted he told the officer who took the report that it was possible Grier could have used the confiscated item to open his handcuffs. The following colloquy ensued on cross-examination:

Q: Did you describe the object as something he appeared to have been using or attempting to use to unlock his cuffs?

A: We explained to [Grier] that it's possible it could have been used to open his cuffs.

Q: Did you ever make any accusation or suggestions that he was using it as a weapon, or was there ever any attempt to use it as a weapon, or did you tell anybody that you perceived it as a weapon?

A: Well, it could be used as both, as a weapon or as a key the way it was made.

Q: Okay. Do you recall telling anyone that you considered it a weapon?

A: I don't recall.
427 S.C. 114

Sergeant Kennington, the State's final witness, testified that under LCDC's rules and regulations, the confiscated item was an item of contraband and that it could have been used "both as a weapon or something to get a cuff off."

After the State rested its case, Grier renewed his motion to quash the indictment, arguing "the testimony was that it was possible that it could be used as a...

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