State v. Humphries, 3380.

• Decision Date: 06 August 2001
• Docket Number: No. 3380.,3380.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Claude and Phil HUMPHRIES, Appellants.

346 S.C. 435

551 S.E.2d 286

The STATE, Respondent, v. Claude and Phil HUMPHRIES, Appellants.

No. 3380.

Court of Appeals of South Carolina.

Heard February 7, 2001.

Decided August 6, 2001.

Assistant Appellate Defender Aileen P. Clare, of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh and Assistant Attorney General Melody J. Brown; and Solicitor C. Kelly Jackson, of Sumter, for respondent.

CURETON, Judge:

In this criminal case, Claude and Phil Humphries appeal from their convictions for trafficking marijuana on the grounds that the trial court erred in refusing to compel the State to disclose the identity of its confidential informant and in admitting evidence of other bad acts. We affirm.¹

FACTS/PROCEDURAL BACKGROUND

In October of 1996, the Sumter County Sheriff's Department received a tip that a package containing illegal drugs would be delivered to C & J Automotive from an address in California. Deputies of the sheriffs department intercepted the package while it was en route with the United Parcel Service (UPS). The package, addressed to C & J Automotive, contained approximately 40 pounds of marijuana with a street value of approximately $60,000. Police repackaged the drugs and made a controlled delivery using a South Carolina Law Enforcement Division (SLED) agent disguised as a UPS driver. Phil accepted the package, and stated he was signing for the garage's owner, Claude. Officers then executed a search warrant and seized the package, files, ledgers, and $4,500 in U.S. currency. Both Phil and Claude were present during the search.

The Sumter County Grand Jury indicted the Humphries on charges of criminal conspiracy and trafficking in more than ten, but less than one hundred pounds of marijuana. During their trial on the trafficking charges, the Humphries moved to have the State reveal the identity of the confidential informant. After argument from both sides, the trial court refused to grant the motion, reasoning it did not have enough information to determine whether the State was required to disclose the informant's identity. The trial court also refused to exclude evidence the Humphries had trafficked marijuana on other occasions.

The Humphries were convicted of trafficking in marijuana and each sentenced to twenty-five years imprisonment and required to pay a $25,000 fine. This appeal follows.

LAW/ANALYSIS

I. Confidential Informant

The Humphries argue the trial court erred by refusing to compel the State to disclose its informant's identity. We disagree.

The State is ordinarily privileged from disclosing the name of a confidential informant. State v. Wright, 322 S.C. 484, 472 S.E.2d 642 (Ct.App.1996). However, the State may be compelled to reveal an informant's identity where the informant is either an active participant in a criminal transaction or a material witness to the question of the defendant's guilt or innocence. State v. Batson, 261 S.C. 128, 198 S.E.2d 517 (1973).

In this case, the Humphries put forth three possible grounds for compelling the State to disclose the informant's identity: the informant may have framed or mis-identified the defendants, there was no informant, or the informant was part of the drug transaction. The State asserted the informant was merely a tipster. The court found nothing to support an inference that the informant was anything other than a tipster, but agreed to revisit the issue if during trial it appeared the informant was either an active participant in the crime or a material witness on the issue of guilt or innocence.

The informant in this case merely provided law enforcement with the reasonable suspicion necessary to seize the package destined for C & J Automotive and expose it to a drug dog. Nothing in the record indicates that the informant was present during law enforcement's inspection of the package or its controlled delivery to the garage. Accordingly, we find no error in the trial court's determination that the informant was a mere tipster and its decision to deny the motion to reveal his identity. See State v. Burney, 294 S.C. 61, 362 S.E.2d 635 (1987)

(declining to compel the identification of a "tipster."); State v. Blyther, 287 S.C. 31, 336 S.E.2d 151 (Ct.App.1985) (recognizing that the State is not required to disclose the identity of a "mere tipster").

II. Evidence of Other Trafficking Incidents

The Humphries also argue the trial court erred in admitting prejudicial character evidence prohibited by State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923) "because it was irrelevant and more prejudicial than probative." We agree but conclude the admission was harmless error.

Initially, we address the State's contention that this issue is not preserved for appellate review. Prior to trial, the defense made a motion in limine to exclude evidence of other drug trafficking by the Humphries as being improper evidence of other bad acts and violative of State v. Lyle. The State opposed the motion by arguing the evidence was admissible to show a common plan or scheme. After hearing the proposed evidence, the trial court ruled in limine for the State. In its ruling, the court stated to defense counsel: "I am sure that you take exception to that ruling and I will tell you that your position is protected without the necessity of further objection on forward." The evidence was later admitted without objection during the Humphries' trial.

Ordinarily, an evidentiary ruling in limine is not final, thus the opposing party must object to the introduction of the evidence at trial in order to preserve the objection for appellate review. State v. Mitchell, 330 S.C. 189, 498 S.E.2d 642 (1998). In this case, the trial court indicated its ruling in limine was final and instructed the defense that it need not object to the evidence when it was introduced at the time of the admission. For this reason, the issue is preserved notwithstanding the Humphries' failure to raise an objection at trial. See State v. Wilson, 337 S.C. 629, 524 S.E.2d 411 (Ct.App.1999),

rev'd on other grounds by, State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (holding that a contemporaneous objection to the introduction of testimonial evidence was not required to preserve the issue for appellate review where the trial court made its final evidentiary ruling following an in camera hearing); see also State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994) (excusing the failure to make a contemporaneous objection where the judge's comments are such that any objection would be futile).

As to the merits, during the in limine hearing, the State offered the testimony of a former C & J employee, Jeff Seruya. Seruya testified that during his employment he was instructed not to open certain packages delivered to C & J. Seruya became suspicious about the packages due to the heavy traffic of "undesirable people" through the garage and his perception that C & J was under police surveillance. Acting on his suspicions, Seruya secretly opened one of the packages and found that it contained marijuana. He then decided to leave his employment "because things were getting too hot around there." Sometime after Seruya left C & J, Claude and Phil were arrested and charged with the instant offense.

Seruya also testified in limine that a few days after Claude and Phil's arrest, Claude contacted him and asked if he would take delivery of an Airborne Express package.² Seruya testified that Ray, Claude's acquaintance, delivered a box to his home and told him the box belonged to Claude. Shortly after the delivery, Seruya was arrested and the box, containing approximately twenty pounds of marijuana, was opened by law enforcement officers. With officers listening in, Seruya then telephoned Claude and asked him to come and retrieve his box. Claude agreed and arrived with another man to collect it.

Dexter McGee, a narcotics investigator with the sheriff's department, also testified in limine for the State, but provided a slightly different explanation of Seruya's arrest. Investigator McGee indicated his office learned from the Drug Enforcement Agency (DEA) that a package containing marijuana was being shipped to Seruya's residence via Airborne Express. Acting on the tip, the sheriff's department performed a controlled delivery of the package, arrested Seruya, and then had him call C & J. Claude answered the phone and said he would come get the box later in the day. Claude and Peter Jenkins, a C & J employee, later picked up the box.

At trial, Seruya testified that during his employment with C & J he was instructed to not open certain packages which came from California. However, he did not testify, as he had in limine, that he opened one of the packages against those instructions and found marijuana. As to the box delivered to his house, Seruya testified at trial that it arrived wrapped in plain brown paper without a packing list, as had the suspect packages he saw at C & J. However, unlike the C & J packages, the box contained no stickers or labels indicating who it was for, where it was destined, or from where it originated. He testified that the box was for Claude, but did not explain how he knew it was for him or where the box came from. Seruya also claimed to have opened the box, found marijuana inside, and called Claude to come and retrieve it. Seruya described how Claude and Peter Jenkins arrived at his home and how Claude waited in the car as Peter came inside and retrieved the box.

McGee did not testify to the latter transaction at trial. The State offered no evidence at trial concerning Seruya's arrest or that his call to Claude was monitored by the police. In its brief, the State concedes "[t]he trial judge's ruling on the admissibility of Seruya's testimony was based upon the in camera testimony of Seruya and McGee."³ The Humphries argue that all evidence regarding the post-arrest delivery of a package to...