State v. Ostrowski
Decision Date | 24 November 2021 |
Docket Number | Opinion No. 5872,Appellate Case No. 2018-000423 |
Citation | 435 S.C. 364,867 S.E.2d 269 |
Parties | The STATE, Respondent, v. Jonathan Stanley OSTROWSKI, Appellant. |
Court | South Carolina Court of Appeals |
William G. Yarborough, III, and Lauren Carole Hobbis, of William G. Yarborough III, Attorney at Law, LLC, of Greenville, for Appellant.
Attorney GeneralAlan McCrory Wilson and Assistant Attorney GeneralJonathan Scott Matthews, both of Columbia; and Solicitor Kevin Scott Brackett of York, all for Respondent.
Jonathan Ostrowski(Appellant) was convicted in 2018 of: (1) trafficking methamphetamine, (2) possession of a weapon during the commission of a violent crime, (3) possession of a handgun by a person convicted of a crime of violence,1 and (4) possession of a handgun with the serial number obliterated.He challenges his convictions on seven grounds, ranging from a motion to suppress to improper jury instructions.We reverse Appellant's convictions on methamphetamine trafficking and possession of a weapon during the commission of a violent crime;2 affirm his convictions for possession of a handgun by a person convicted of a crime of violence and possession of a handgun with the serial number obliterated; and remand for a new trial on the reversed convictions.
On the morning of January 25, 2017, while officers with the York County Multijurisdictional Drug Enforcement Unit("MDEU") and Drug Enforcement Agency-Columbia ("DEA") were surveilling 162 Bailey Avenue in Rock Hill, they saw Alexandria Peters3("Peters") exit the home, where she sporadically stayed.Peters, who was subject to an arrest warrant for prescription drug charges, drove to a nearby bank; law enforcement arrested her there.
Authorities then requested a search warrant for 162 Bailey Avenue.Peters allegedly told officers that there was marijuana at the home.4Additionally, in an affidavit in support of the request for a warrant, an officer assigned to the MDEU swore that "[o]fficers of the YCMDEU and the US Drug Enforcement Administration have been conducting an ongoing investigation of Jonathan Ostrowski in reference to narcotic violations."
A law enforcement officer later conceded that when Peters was apprehended, the officers had—in the words of Ostrowski's counsel—"no evidence that there was any type of drug distribution from [Ostrowski's] residence."Bond Judge Tanesha Lonergan authorized the warrant.Officers searched the home and found a glass pipe, packaging materials, tin foil with methamphetamine, 20 dose units of Alprazolam, a .32 caliber gun and ammunition, at least one digital scale, sandwich bags, a glass pipe with marijuana, methamphetamine, and possibly an LG cell phone.5The methamphetamine was found "in the right front pants pocket from a pair of men's Columbia pants sized 38[,] which were on a shelf in a make shift closet/makeup room," according to a case summary by MDEU."The room and shelves contained both male and female clothing."
At trial, one officer characterized the area as Ostrowski called it "an open area" accessible to the kitchen and living room.
Later that afternoon, the Chester County Sheriff's Office arrested Ostrowski in Great Falls.Law enforcement confiscated an LG cell phone from Ostrowski and obtained a warrant for the contents of the phone.
Ostrowski was indicted for trafficking more than 28 grams of methamphetamine, possession of a weapon during the commission of a violent crime, possession of a handgun by a person convicted of a crime of violence, and possession of a handgun with the serial number obliterated.
At trial, Ostrowski moved to suppress the evidence found at the Bailey Avenue residence, alleging in part that the search warrant was based on a misleading or false affidavit.The circuit court denied the motion.6
Later, the State attempted to have Investigator Hugh Leland Harrelson, a police officer then with the MDEU, "qualified as an expert in methamphetamine packaging, distribution, paraphernalia, and valuation."Investigator Harrelson was involved in the search of the Ostrowski residence following Peters's arrest.Ostrowski objected.The circuit court declined to qualify Investigator Harrelson; however, the circuit court ruled that Investigator Harrelson "can testify about what he saw, he can testify about the way the house was; he can testify about what he found it in, he can testify about what a pipe looks like, he can testify about what a sandwich bag is and the significance of a sandwich bag."The circuit court stated that The circuit court later indicated:
Much of Investigator Harrelson's subsequent testimony was given over objections from Ostrowski, including statements that a box of razor blades could be used "[t]o cut up drugs into smaller amounts" and that "sandwich baggies are commonly used to package drugs."Investigator Harrelson was also asked to "summarize the contents of the house and what it meant to you."He responded: "Clearly somebody who was using, and also selling methamphetamine, due to the methamphetamine pipes, and digital scales used to weigh out drugs, and also the sandwich baggies and tin foil used also to package drugs for sale to another individual."
The court later heard testimony from Investigator Michael Ryan King, also with the MDEU.Investigator King was never offered or qualified as an expert.Investigator King testified, frequently over objection, about the meaning of certain code words in the drug trade.For example, he testified that "clear" is a word for "methamphetamine."He also characterized some text messages sent or received by a phone linked to Ostrowski.For example, he testified about one message: "No green means no marijuana, just clear, which means I don't have any marijuana, all I have is meth."
During Investigator King's testimony, the State sought to admit several text messages to and from the phone seized from Ostrowski.7Ostrowski moved to exclude the text messages as evidence about other bad acts under Rule 404(b), SCRE.The State offered two reasons for allowing the text messages to come in.First, the State noted that the relevant Code section on trafficking allowed multiple avenues of proving trafficking in addition to the weight of the drugs, and the evidence would go to intent on the other methods of trafficking.Second, the State said the evidence was relevant to prove "intent to control the disposition" of the methamphetamine as part of its case.In response, Ostrowski argued that the state's case was primarily based on possession of the statutorily sufficient amount of methamphetamine to trigger trafficking charges;8 that evidence Ostrowski was dealing drugs might lead the jury to conclude that he owned the methamphetamine on improper grounds; and that "any [ ]probative value that [the text messages] have ... would be far substantially outweighed by the danger of unfair prejudice ...."The circuit court allowed the text messages into evidence, finding that they were "clear and convincing to me at least, as well as logically relevant to the issue at hand," and that the messages were "prejudicial to the defendant" but "substantially [ ]probative to the State's case."9Those admitted included:
(All errors sic ).
Ostrowski testified in his own defense and admitted to being a drug addict.He answered affirmatively when asked by the State whether his "drug of choice is methamphetamine."Ostrowski also testified that he sometimes had as many as a dozen people—some of them also drug addicts—stay at the residence.When asked by defense counsel whether he would "classify [his] house as a party house," Ostrowski answered affirmatively.Ostrowski also admitted to owning the pipes and other paraphernalia found in the home, but denied owning the bag of methamphetamine found in the residence or trafficking in drugs.
The State and Ostrowski had the following exchange about the clothing found in the dressing room area:
After the presentation of evidence and closing arguments, during the charge to the jury, the circuit court gave the following instructions:
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Rule 702. Testimony by Experts
...officials are not permitted to offer opinions other than those that could otherwise be offered by lay witnesses." State v. Ostrowski, 435 S.C. 364, 384-85, 867 S.E.2d 269, 279 (Ct. App. 2021). "However, in limited circumstances, law enforcement officers are allowed to draw on their experien......
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Rule 701. Opinion Testimony by Lay Witnesses
...with FRE "The South Carolina and federal rules on lay opinion testimony are identical in all meaningful respects." State v. Ostrowski, 435 S.C. 364, 387, 867 S.E.2d 269, 280 (Ct. App. 2021). Drug Trade Officer Opinion "Courts have frequently held that law enforcement officers can offer thei......