State v. King

• Citation: 561 S.E.2d 640,349 S.C. 142
• Decision Date: 25 March 2002
• Docket Number: No. 3467.,3467.
• Court: Court of Appeals of South Carolina
• Parties: The STATE, Respondent, v. Anthony KING, Appellant.

349 S.C. 142

561 S.E.2d 640

The STATE, Respondent, v. Anthony KING, Appellant.

No. 3467.

Court of Appeals of South Carolina.

Heard March 5, 2002.

Decided March 25, 2002.

Assistant Appellate Defender Katherine Carruth Link, of the South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, and Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for respondent.

ANDERSON, Judge:

Anthony King appeals his conviction for possession with intent to distribute crack cocaine, asserting the trial court erred in its rulings regarding: (1) the validity of a search warrant; (2) evidence of prior drug activity and incarceration; and (3) the solicitor's closing argument. We affirm.

FACTS/PROCEDURAL BACKGROUND

On May 25, 1999, King was arrested at a trailer in rural Beaufort County pursuant to a bench warrant in a matter unrelated to this appeal. The arresting officer was John Gobel, a narcotics investigator with the Beaufort County Sheriff's Department and a member of the Drug Enforcement Agency Task Force. According to Officer Gobel, King said he resided at the trailer. The trailer was owned by Frank Harris.

While in jail, King telephoned his mother, who in turn set up a three-way call to Eugenia Kirken. King and Kirken were friends and had known each other for approximately a year. King was unable to reach Kirken; however, he left her a recorded message that purportedly directed her to go to the trailer where he was staying and get his "shit" out. He eventually spoke to her several times expressing the same concern using this terminology.

Kirken interpreted King's statements as a directive to remove crack cocaine belonging to King from the trailer. According to Kirken, King often referred to drugs by the pejorative "shit." During the year they had known each other, Kirken had purchased crack cocaine from King at least twenty times. In addition, Kirken witnessed King selling the drug to others on at least forty occasions. Much of this activity occurred at the trailer referenced by King in his telephone message.

Instead of following King's directive, Kirken contacted Corporal Michael Riley of the Beaufort County Sheriff's Department. Kirken met with Corporal Riley and his supervisor, Staff Sergeant David Rice, and told them of King's message and her knowledge of what King meant.

Though Kirken was once addicted to crack and had a felony record, Corporal Riley and Sergeant Rice considered Kirken's information credible because she was a confidential informant for the Beaufort County Drug Task Force and had provided accurate information in several past investigations. Based on Kirken's information, Corporal Riley and Sergeant Rice obtained a warrant to search the trailer. During their search, deputies discovered 2.7 grams of crack cocaine in the bedroom reportedly used by King. The police found King's South Carolina identification card in the same room.

King was indicted for possession with intent to distribute crack cocaine. He was convicted as charged and sentenced to ten years in prison. This appeal followed.

STANDARD OF REVIEW

An appellate court reviewing the decision to issue a search warrant should "decide whether the magistrate had a substantial basis for concluding probable cause existed." State v. Arnold, 319 S.C. 256, 260, 460 S.E.2d 403, 405 (Ct.App.1995) (citation omitted). This review, like the determination by the magistrate, is governed by the "totality of the circumstances" test. State v. Jones, 342 S.C. 121, 536 S.E.2d 675 (2000). The appellate court should give great deference to a magistrate's determination of probable cause. Id.; see also State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997)

.

LAW/ANALYSIS

I. Validity of Search Warrant

King first contends the trial court erred in admitting evidence seized pursuant to the search warrant because the warrant was based on information from an unreliable informant and was not supported by probable cause. We disagree.

Defense counsel moved in limine to suppress the crack cocaine seized pursuant to the search warrant because the warrant was not supported by probable cause. Counsel argued Kirken was "clearly unreliable" as a confidential informant because she was a convicted felon and crack addict and admitted using cocaine during the time she was working for the Sheriffs Department. Counsel contended this information was not provided to the magistrate and that Kirken gave the Sheriffs Department only general information about where the crack could be found. The trial court denied the motion to suppress the drug evidence, finding the probable cause requirements were met. On appeal, King asserts the trial court erred in admitting the drug evidence because the search warrant was not supported by probable cause. Initially, we question whether this issue is preserved for our review. Although defense counsel made an in limine motion to suppress the introduction of the crack cocaine, counsel did not renew his objection at trial when the crack cocaine was actually entered into evidence. In fact, when the solicitor moved for admission of the drug evidence, defense counsel affirmatively stated, "Without objection." The trial court then admitted the drugs into evidence, noting, "Without objection received into evidence."

Since no objection was renewed at the time the evidence was offered, the matter is not preserved for appeal. See State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001)

("In most cases, `[m]aking a motion in limine to exclude evidence at the beginning of trial does not preserve an issue for review because a motion in limine is not a final determination. The moving party, therefore, must make a contemporaneous objection when the evidence is introduced.'") (citation omitted); see also State v. Mitchell, 330 S.C. 189, 193 n. 3, 498 S.E.2d 642, 644 n. 3 (1998) ("We have consistently held a ruling in limine is not final, and unless an objection is made at the time the evidence is offered and a final ruling procured, the issue is not preserved for review.") (citation omitted); State v. Floyd, 295 S.C. 518, 521, 369 S.E.2d 842, 843 (1988)

("We caution Bench and Bar that these pretrial motions are granted to prevent prejudicial matter from being revealed to the jury, but do not constitute final rulings on the admissibility of evidence.") (emphasis added); State v. Gagum, 328 S.C. 560, 564-65, 492 S.E.2d 822, 824 (Ct.App.1997) ("Because a ruling in an in limine motion is not final, the losing party must renew his objection at trial when the evidence is presented in order to preserve the issue for appeal.") (citations omitted); cf. State v. Burton, 326 S.C. 605, 486 S.E.2d 762 (Ct.App. 1997)

(noting the general rule that a court's ruling on in limine motion is not a final decision, but applying State v. Mueller and holding where objection is made during trial and there are no intervening witnesses before the disputed testimony, the decision is final and the objection need not be renewed);

State v. Mueller, 319 S.C. 266, 460 S.E.2d 409 (Ct.App.1995) (holding objection to use of prior convictions for impeachment purposes was preserved where motion was made during trial, rather than during an in limine proceeding, and no evidence was received between the ruling and the disputed testimony).

In Forrester, our Supreme Court noted a defendant's in limine motion to suppress evidence should be renewed at trial to preserve the issue for review, but found the defendant's objection to admission of crack cocaine evidence was preserved in that particular case based on Mueller because the trial court's ruling was obtained immediately prior to the admission of the drug evidence. Id. at 642-43, 541 S.E.2d at 840 (emphasis added). These circumstances are not present in King's case. Thus, King was required to renew his in limine motion.

Adverting to the merits, we find no error in the trial court's admission of the drug evidence and its determination regarding the validity of the search warrant.

A magistrate may issue a search warrant only upon a finding of probable cause. State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997); see also S.C.Code Ann. § 17-13-140 (1985) (providing search warrants may be issued "only upon affidavit sworn to before the magistrate ... establishing the grounds for the warrant.").

This determination requires the magistrate to make a practical, common-sense decision of whether, given the totality of the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Bellamy, 336 S.C. 140, 519 S.E.2d 347 (1999); State v. Philpot, 317 S.C. 458, 454 S.E.2d 905 (Ct.App.1995); State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (Ct.App.1994).

Sergeant Rice completed a form affidavit in support of the search warrant. In response to the question asking the affiant to state the reason for the belief that the property sought was on the subject premises, Sergeant Rice answered as follows:

In that on 5-26-99 BCSO DTF officers received information from a BCSO C.I., who has proven reliable on at least 1 occasion in the past. The C.I. was contacted by Anthony "Jazz" King, a resident of the premises described above. King is currently incarcerated in the Beaufort County Detention Center. King advised the C.I. that he did not want BCSO to get his "shit" and to make arrangements to get the items out of the residence. King is known to the C.I. and to DTF officers as being active in illicit narcotics activity. The C.I. confirmed to DTF officers that King's referral to "shit" meant narcotics, probably cocaine[,

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