State v. McKown
Decision Date | 07 July 2010 |
Docket Number | 2010-UP-352 |
Parties | State of South Carolina, Respondent, v. Douglas McKown, Appellant. |
Court | South Carolina Court of Appeals |
UNPUBLISHED OPINION
Heard April 15, 2010
Appeal from York County, Paul M. Burch, Circuit Court Judge
Jack B. Swerling, of Columbia, and Katherine Carruth Goode, of Winnsboro, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, for Respondent.
Douglas McKown appeals his conviction and sentence for unlawful possession of a prescription drug, arguing the trial court erred in denying his motion to suppress and admitting certain evidence at the suppression hearing. McKown also challenges the admission of expert testimony concerning the nature of the prescription drug and the trial court's denial of a directed verdict on the prescription drug charge. We affirm.
The circumstances surrounding this case stem from evidence seized from McKown's home pursuant to the execution of a search warrant. In furtherance of the search warrant, police submitted an affidavit outlining various reports of drug activity involving McKown and his former girlfriend, Erin Jenkins. The warrant affidavit also included details of a controlled buy of illegal drugs set up by police with Jenkins approximately seventy-two hours before the issuance of the warrant.
Based on the information in the affidavit, the magistrate issued the search warrant for McKown's home on May 6, 2006. When the warrant was executed on May 12, 2006, Jenkins answered the door. During the search, police found cocaine in several locations within the home, including a bedroom containing both men's and women's clothing. Police also seized one-half of a pill alleged to be Viagra. McKown was not inside the home when the warrant was executed.
On July 20, 2006, McKown was indicted on charges of conspiracy unlawful possession of a controlled substance, distribution of a controlled substance, and unlawful possession of a prescription drug. Prior to trial, defense counsel moved to suppress the evidence seized in the search, arguing the warrant was not supported by probable cause. Defense counsel also maintained the affidavit contained false and misleading information concerning where Jenkins was living at the time of the controlled buy. Specifically, counsel alleged that Jenkins had moved out of McKown's residence and that the affiant knowingly failed to disclose this information to the magistrate.
Following argument on the motion, the State sought to call Jenkins as an additional witness to address McKown's claim of misrepresentation in the affidavit. Defense counsel objected arguing the State could not call another witness after the parties rested their evidence and the witness could not supplement the information contained in the affidavit. The trial judge allowed Jenkins to testify over defense counsel's objection. Her testimony revealed that at the time of the controlled buy, she had signed a lease on another residence and had moved out of McKown's home; however she testified she still came back to McKown's home and stayed with him three or four nights per week. Specifically when asked to estimate the amount of time she had spent between McKown's residence and the other residence, Jenkins stated "I would say fifty/fifty." Following closing arguments, the trial judge denied the motion to suppress and allowed the State to introduce the evidence seized in the search.
At trial, the State elicited testimony from Officer Marvin Brown, the affiant and supervisor on the night of the controlled buy. Officer Brown testified that cocaine and one-half of a Viagra pill was found in McKown's home. Cynthia Mitchum, a chemist in the drug analysis department of the York County Sheriff's Department, testified she analyzed the substances seized in the search that were alleged to be cocaine. She did not, however, conduct a chemical analysis of the pill alleged to be Viagra. Her identification of the substance alleged to be Viagra was based on a comparison of the pill to a tablet in a controlled substance book referred to as the PDR, or the Physicians' Desk Reference. [1] Defense witnesses Kevin Bolin, William Bolin, Neal Mitchell, and Michael Howe each testified that McKown purchased Viagra during a recent trip to Costa Rica.
Defense counsel moved for a directed verdict on the unlawful possession of a prescription drug charge on the basis that no foundation had been laid and no chemical analysis had been conducted. The trial judge denied the motion, and the jury returned a guilty verdict on the charge. McKown was acquitted on the remaining charges and sentenced to one year in prison, suspended upon the service of one year of probation. This appeal followed.
"In criminal cases, the appellate court sits to review errors of law only." State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). This Court is bound by the trial court's factual findings unless the findings are clearly erroneous. Id. A trial court's ruling on the admission or exclusion of evidence will not be disturbed on appeal absent an abuse of discretion. State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48 (2006). Searches based on warrants will be given judicial deference to the extent that an otherwise marginal search may be justified if it meets a realistic standard of probable cause. State v. Bennett, 256 S.C. 234, 241, 182 S.E.2d 291, 294 (1971).
On appeal, McKown maintains the trial court committed reversible error in: (1) denying his motion to suppress the evidence seized from his residence; (2) admitting additional evidence at the suppression hearing; (3) admitting expert testimony concerning the nature of the prescription drug; and (4) denying his motion for a directed verdict on the prescription drug charge. We affirm.
1. As to whether the trial court erred in denying the motion to suppress: We conclude the search warrant affidavit provided the magistrate with a sufficient basis for finding probable cause to issue the search warrant. Specifically, the details in the affidavit pertaining to the events taking place seventy-two hours prior to the issuance of the warrant namely the circumstances of the controlled buy, presented a fair probability that drugs and other contraband would be found at the residence. See State v. Dupree, 354 S.C. 676, 691, 583 S.E.2d 437, 445 (Ct. App. 2003) ( ); United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005) () (internal quotations omitted); United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) (). Furthermore, the information in the affidavit concerning various reports of drug activity involving McKown and Jenkins formed the basis of an ongoing police investigation which, when coupled with the information pertaining to the last seventy-two hours of that investigation, established a probable continuing course of drug activity. See State v. Thompson, 363 S.C. 192, 207, 609 S.E.2d 556, 564 (Ct. App. 2005) ( ); Dupree, 354 S.C. at 690, 583 S.E.2d at 444 (). Accordingly, the trial court did not err in denying the motion to suppress, and the evidence seized as a result of the search was properly admitted at trial. [2] See State v. Dunbar, 361 S.C. 240, 246, 603 S.E.2d 615, 618-19 (Ct. App. 2004) ().
2. As to whether the trial court erred in admitting additional evidence at the suppression hearing: At the in camera hearing on the motion to suppress, the State was permitted, over defense counsel's objection, to reopen the matter and call Jenkins as a witness to testify as to whether she was living at McKown's residence at the time the warrant was issued. We find no abuse of discretion in the trial judge's decision to allow the State to present the testimony as a means of refuting defense counsel's argument concerning the falsity of the affiant's statement. Such evidence is pertinent to a Franks review. See State v. Humphery, 276 S.C. 42 43, 274 S.E.2d 918, 918 (1981) (...
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