State v. Hurd, 2604
| Citation | 325 S.C. 384,480 S.E.2d 94 |
| Decision Date | 06 November 1996 |
| Docket Number | No. 2604,2604 |
| Parties | The STATE, Respondent, v. James Dennis HURD, Appellant. . Heard |
| Court | Court of Appeals of South Carolina |
Randall S. Hiller, Greenville; and Deputy Chief Attorney Joseph L. Savitz, II, of the South Carolina Office of Appellate Defense, Columbia, for Appellant.
Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Columbia; and Solicitor Joseph J. Watson, Greenville, for Respondent.
James Dennis Hurd appeals his convictions for possession of burglary tools and criminal conspiracy to commit burglary. We reverse and remand.
At approximately 5 a.m. on February 12, 1994, several deputies from the Greenville County Sheriff's Office responded to a burglary in progress at a Burger King restaurant. After arriving at the restaurant, two of the deputies searched the restaurant and discovered evidence of forcible entry as well as an attempt to open the restaurant safe. One of the deputies remained with the manager at the restaurant while the second deputy began to search the nearby area in his patrol car. A third deputy searched the general vicinity of the Burger King on foot before he also began cruising nearby streets in his patrol car.
Shortly after the second deputy left the Burger King, he noticed two men wearing dark clothing and hoods walking on the road adjacent to a nearby cinema. The deputy questioned the two men, who approached the patrol car slowly with one man approximately fifteen feet in front of the other. The first man was unable to give a street address despite his claim that they were walking home from a friend's house. The deputy continued to question the first man about the location of his home. After the first man again responded vaguely to the questions, the deputy decided to conduct a pat-down search for weapons. Both men were wearing backpacks, and when the deputy frisked the first man, he heard metal or glass sounds within the backpack. The deputy then told both men to put their hands on the rear of the patrol car. The second man refused and ran. At that moment, the third deputy was approaching the cinema and took control of the first man while the second deputy began a foot pursuit of the second man. When the first deputy heard about the foot pursuit over the radio, he proceeded to the parking lot of the nearby cinema, arriving shortly behind the third deputy. Unfortunately, the second deputy fell and could not apprehend the second man. Both the second and the third deputies testified that they did not get a good enough look at the second man to identify him.
While the second deputy was chasing the fleeing suspect, the first and third deputies continued the pat-down search of the first man. They also noticed the metallic sounds coming from the objects within the backpack, so they opened it to search for weapons. Inside, the two deputies discovered a hammer, a crowbar, a flashlight, a screwdriver, an axe handle, and a set of keys. They seized these items as evidence and placed the first man, identified as Raymond Eichler, under arrest for possession of burglary tools. Eichler was then taken to the Burger King, but the manager was unable to identify him. Eichler did admit to the deputies during this time that he had arrived in a blue Pontiac Firebird which was parked nearby. The deputies eventually found the vehicle parked within a roadway, and used the keys from Eichler's backpack to enter and conduct an inventory search before they had the car towed. Underneath the driver's seat, the deputies found a wallet containing Hurd's Georgia driver's license, Hurd's North Carolina identification card, some money, and a speeding ticket issued to Hurd in Lancaster County approximately four hours earlier. These items were seized.
The deputies then took Eichler to the police station, where he gave a statement. In the statement, Eichler declared that he and Hurd drove to Greenville, obtained a map, and left the car on foot with a number of tools in order to burglarize a theater. He stated that Hurd was the person who ran when the deputy approached. This statement was witnessed by both the first and third deputies as well as a magistrate. A few hours later, Eichler gave another statement to an investigator in which he asserted the same story, and he also added that Hurd was wearing dark clothes with a hooded sweatshirt. The second statement was only witnessed by the investigator. Eichler recanted these statements at trial.
A jury convicted Hurd of both criminal conspiracy and possession of burglary tools. Hurd appeals on a number of grounds but we only address those necessary to this decision.
Hurd claims that the trial court should have excluded the items found in the Firebird because the inventory justification was a mere pretext. We hold that Hurd failed to preserve the issue for appeal. It is axiomatic that a defendant must make a contemporaneous objection on a specific ground in order to preserve an evidentiary issue for appeal. See, e.g. State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993); State v. Smicklevich, 268 S.C. 411, 234 S.E.2d 230 (1977).
At one point during trial, defense counsel objected "on the grounds that apparently the vehicle was searched without sufficient probable cause, without the obtaining of a warrant, and without consent." At that time the solicitor stated:
Your Honor, at this time I'm just having these marked as exhibits for identification purposes....
Later in the trial, the third deputy testified that he performed an inventory search of the car because it was parked within the roadway and needed to be towed. At that point, the following occurred:
( [DEFENSE COUNSEL] nodded his head; no verbal response.)
THE COURT: Go ahead.
Clearly, Hurd failed to object to the introduction of the items into evidence; in fact, Hurd's counsel stated that he was "not so sure" that he would have an objection once the deputies gave the...
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