State v. Sweet, 26344.

• Court: United States State Supreme Court of South Carolina
• Citation: 647 S.E.2d 202
• Decision Date: 11 June 2007
• Docket Number: No. 26344.,26344.
• Parties: The STATE, Respondent, v. Tony T-juan SWEET, Appellant.

647 S.E.2d 202 The STATE, Respondent,
v.
Tony T-juan SWEET, Appellant. No. 26344. Supreme Court of South Carolina. Heard April 18, 2007. Decided June 11, 2007.

[647 S.E.2d 203]

Deputy Chief Attorney for Capital Appeals Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney

[647 S.E.2d 204]

General Norman Mark Rapoport, all of Columbia, and Solicitor Robert M. Ariail, of Greenville, for Respondent.

Chief Justice TOAL:

A jury found Tony T-Juan Sweet ("Appellant") guilty for offenses related to the distribution and possession of crack cocaine within the proximity of a school. On appeal, Appellant alleges that the trial court erred in admitting evidence with a defective chain of custody, and commenting on the facts of the case in the presence of the jury. We reverse Appellant's distribution convictions and remand.

FACTUAL/PROCEDURAL BACKGROUND

In June 2003, the Greenville police department arranged for a confidential informant to purchase drugs from Appellant at a local motel. Police officers searched the informant and his car for drugs before following him to the motel where the officers maintained video surveillance of the motel parking lot. The officers also wired the informant so that the transaction could be monitored. Officers watched as the informant met Appellant outside the motel and then accompanied Appellant inside a motel room. Although they did not visually witness what occurred inside the motel room, the officers testified to hearing only the informant's and one other voice through the informant's wire. Likewise, video surveillance did not observe anyone entering or exiting the motel room during that time.

When the confidential informant left the motel, officers followed him back to the police station where he handed over 0.21 grams of crack cocaine from the apparent drug purchase. Meanwhile, back at the motel, waiting officers arrested Appellant when he exited the room and attempted to leave on his bicycle. Upon searching Appellant, officers found a plastic bag containing 4.27 grams of crack cocaine.

At trial, the State sought to admit both the drugs received from the informant and the drugs seized in the search of Appellant. Appellant objected to the introduction of the evidence, arguing that since the informant was unavailable to testify at trial, the State had not established a proper chain of custody. The trial court overruled Appellant's objection, stating that the evidence showing the drugs came from Appellant was "circumstantial . . . [a]t a minimal.¹" The court denied Appellant's subsequent motion for a mistrial based on this remark.

A jury convicted Appellant of distribution of crack cocaine, distribution of crack cocaine within the proximity of a school,² possession of crack cocaine with intent to distribute, and possession of crack cocaine with intent to distribute with in the proximity of a school. The trial court sentenced Appellant to consecutive sentences of fifteen years and five years for the distribution charges, and concurrent sentences of fifteen years and ten years on the possession charges. This appeal followed.

This case was certified to this Court from the court of appeals pursuant to Rule 204(b), SCACR. Appellant raises the following issues for review:

I. Did the trial court err in admitting drug evidence obtained from the informant because the chain of custody was defective?

II. Did the trial court err in failing to direct a mistrial after commenting in the presence of the jury that the State had established by "circumstantial evidence at a minimum" that Appellant sold the drugs being offered into evidence?

STANDARD OF REVIEW

Decisions regarding the admissibility of evidence and whether to grant or deny a mistrial are within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006); State v. Stanley, 365 S.C. 24, 33, 615 S.E.2d 455, 460 (2005). An abuse of discretion

647 S.E.2d 205

occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law. Pagan, 369 S.C. at 208, 631 S.E.2d at 265.

LAW/ANALYSIS I. Chain of custody

Appellant argues that the trial court erred in admitting evidence of drugs purchased by an unknown confidential informant because the chain of custody was defective. We agree.

As a preliminary matter, the State argues that this issue is not preserved for appeal because Appellant did not renew his objection to this evidence at the time the evidence was introduced. To properly preserve an issue for review there must be a contemporaneous objection that is ruled upon by the trial court State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d 520, 523 (2005).

In this case, the State sought to admit two pieces of drug evidence at trial: the drugs that the informant allegedly purchased from Appellant and turned over to the police upon arriving back at the station (State's Exhibit No. 2); and the drugs which police seized from Appellant incident to his arrest in the motel parking lot (State's Exhibit No. 1). The State's first attempt to admit drug evidence came during the testimony of the officer who received the drugs from the informant back at the police station. When the State moved to admit these drugs, i.e., State's Exhibit No. 2, defense counsel...