State v. New, Appellate Case No. 2011-196489
Decision Date | 10 July 2013 |
Docket Number | Appellate Case No. 2011-196489,Unpublished Opinion No. 2013-UP-315 |
Parties | The State, Respondent, v. Ricky New, Appellant. |
Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Aiken County
Michael G. Nettles, Circuit Court Judge
AFFIRMED
Appellate Defender David Alexander, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General Jennifer Ellis Roberts, both of Columbia, for Respondent.
Ricky New appeals his convictions of armed robbery and assault and battery, arguing the trial court erred in admitting DNA evidence obtained in violation of the United States and South Carolina Constitutions. New arguespolice obtained DNA samples from him in violation of the Fourth Amendment because the samples were taken after New was arrested and he did not receive a Schmerber1 hearing to determine if probable cause existed to justify the bodily intrusion. New further argues no probable cause to take the samples existed because at the time, police had not established a DNA profile from the crime scene to compare with his DNA. Finally, New argues the admission of the DNA evidence was not harmless because the only other evidence against him was eyewitness testimony and the recovery of a small amount of money he allegedly stole.
Although the trial court erred in finding there was a "clear indication that relevant evidence [would] be found" at the time New's DNA samples were taken,2 we affirm because we find admission of the DNA evidence was harmless error. See State v. Baccus, 367 S.C. 41, 55-56, 625 S.E.2d 216, 223-24 (2006) ( ). Here, the jury was presented with the testimony of two victims who recognized Newdespite his disguise and described his clothing to police, a surveillance video of the robbery, and a recording of a 911 call in which one of the victims identified New as the robber. Further, the jury heard testimony from an investigator who opined the white towel and glove on New's lawnmower matched the glove and white cloth found at the crime scene. Finally, the DNA test on the towel was inconclusive, and only the gloves were shown definitively to have New's DNA on them. Therefore, even without the DNA evidence, there was competent evidence to conclusively prove New's guilt. See id. at 55, 625 S.E.2d at 223 (2006) (); Taylor v. State, 312 S.C. 179, 181, 439 S.E.2d 820, 821 (1993) .
AFFIRMED.3
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