The State v. Burgess
| Citation | 712 S.E.2d 1,393 S.C. 396 |
| Decision Date | 20 April 2011 |
| Docket Number | No. 4823.,4823. |
| Court | Court of Appeals of South Carolina |
| Parties | The STATE, Respondent,v.Lawrence BURGESS, Appellant. |
OPINION TEXT STARTS HERE
Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R.J. Shupe, Office of the Attorney General, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.FEW, C.J.
In Lawrence Burgess's appeal from his conviction for possession of crack cocaine with intent to distribute, we consider the validity of a multijurisdictional narcotics enforcement agreement, the admissibility of an arresting officer's employment records, and the circumstances under which a trial judge must charge “mere presence.” We find no error and affirm.
On March 2, 2006, officers on the Lexington County Narcotics Enforcement Team (NET) executed a search warrant for drugs at a trailer on Two Notch Road in Batesburg, South Carolina. When Agent Bill Laney and Officer Emmitt Gilliam pulled into the driveway, they saw Burgess and another individual standing by a trailer which was not the target of the search warrant. They then saw Burgess “run around the back side of the trailer and flee.” Gilliam ran around the other side of the trailer “to cut him off.” Gilliam got to within five to six feet of Burgess and told him to stop and put his hands up. He then saw Burgess drop an empty pill bottle with no top. Gilliam testified “the pill bottle had crack residue in it.” Laney backtracked Burgess's steps to where Burgess had been standing and located a pill bottle top and pieces of crack cocaine on the ground. Burgess denied owning or dropping the pill bottle. He was arrested and indicted for possession with intent to distribute crack cocaine in violation of South Carolina Code section 44–53–375 (Supp.2010), based on the crack found by Laney.
At the time of the arrest, Gilliam was a police officer with the Batesburg–Leesville Police Department. The arrest occurred outside of the Batesburg–Leesville town limits. However, Gilliam was acting with NET, which has jurisdiction for all of Lexington County pursuant to a Multijurisdictional Drug Enforcement Unit Agreement (NET Agreement) signed by the police chief of the Batesburg–Leesville Police Department.
Burgess alleged Gilliam lacked authority to make an arrest outside the Batesburg–Leesville town limits, and made a pre-trial motion to dismiss the charge. He argued the NET agreement did not comply with the statutes authorizing such extra-territorial jurisdiction. The trial judge denied the motion because he found the agreement valid, and therefore that Gilliam had authority to make the arrest.
After the ruling on the validity of the NET agreement, but before opening statements, the State made a motion in limine to exclude Gilliam's employment records. The trial judge sustained the objection and told Burgess's counsel: “If you, depending on how the case goes, decide you want to get into that bring it to the court's attention....” During Gilliam's testimony, Burgess sought to cross-examine him about why he was no longer with the NET and to introduce the employment records. The records outline three incidents, spanning from approximately March 2006 until February 16, 2007, in which Gilliam disagreed with other officers about the use of confidential informants, used profanity, and threatened to harm another officer. The judge refused to admit the records.
After the jury charge, Burgess requested the trial judge charge the jury on “mere presence.” Relying on State v. Peay, 321 S.C. 405, 410–11, 468 S.E.2d 669, 672–73 (Ct.App.1996) and State v. Ballenger, 322 S.C. 196, 199–200, 470 S.E.2d 851, 854 (1996), the judge denied the request, and stated:
The jury found Burgess guilty, and the judge sentenced him to three years in prison.
In September 2001, eleven law enforcement agencies in Lexington County entered into an agreement creating the NET. The agreement states it is made pursuant to South Carolina Code sections 23–1–210 (1981) (amended 2007) and 23–1–215 (1987) (amended 2007).1 The agreement states its purpose as follows:
[T]he parties ... consent and agree to span the geopolitical boundaries of all areas of Lexington County to the fullest extent allowed under South Carolina law for the express purpose of investigating the illegal use of controlled substances and related crimes by creating this Lexington County Multi–Agency Narcotics Enforcement Team[.]The Batesburg–Leesville police chief signed the agreement. The State put into evidence a videotape of the August 13, 2001 Batesburg–Leesville town council meeting at which “the chief of police informed council of that pending matter between the solicitor and the town of Batesburg/Leesville forming a multi-jurisdictional agreement for continued narcotics work in Lexington County.” A town council member testified the police chief had “the advice and consent to enter into this agreement of town council.”
Our analysis of Gilliam's authority to arrest Burgess begins with the premise that “[t]he jurisdiction of a municipal police officer, absent statutory authority, generally does not extend beyond the territorial limits of the municipality.” State v. Harris, 299 S.C. 157, 159, 382 S.E.2d 925, 926 (1989); see S.C.Code Ann. § 5–7–110 (2004) (). However, there are exceptions to this general rule, including the two statutes listed as authority for creating the NET agreement: section 23–1–210, allowing the temporary transfer of an officer to another municipality or county; and section 23–1–215, providing for agreements between multiple law enforcement jurisdictions for criminal investigation.2
The trial judge ruled the NET agreement valid under section 23–1–210, which provides in part:
(A) Any municipal or county law enforcement officer may be transferred on a temporary basis to work in law enforcement 3 in any other municipality or county in this State under the conditions set forth in this section, and when so transferred shall have all powers and authority of a law enforcement officer employed by the jurisdiction to which he is transferred.
(B) Prior to any transfer as authorized in subsection (A), the concerned municipalities or counties shall enter into written agreements stating the conditions and terms of the temporary employment of officers to be transferred. The bond for any officer transferred shall include coverage for his activity in the municipality or county to which he is transferred in the same manner and to the same extent provided by bonds of regularly employed officers of that municipality or county.
(C) Agreements made pursuant to subsection (B) shall provide that temporary transfers shall in no manner affect or reduce the compensation ... of transferred officers and such officers shall continue to be paid by the county or municipality where they are permanently employed....
The judge found the NET Agreement complied with section 23–1–210 because “there is nothing in here ... that would prohibit either a county or a municipality or a town from authorizing in some way the chief of police or the sheriff to enter into such agreements.”
An action involving the interpretation of a statute is an action at law, which we review de novo. Town of Summerville v. City of North Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008). We agree with the trial judge that the NET agreement meets the requirements of section 23–1–210. First, the concerned municipalities and county entered into a written agreement to create multijurisdictional law enforcement authority. Second, the agreement complies with the requirements of 23–1–210, such as stating the employment conditions and maintaining compensation from permanent employment. Finally, the officers acting with the NET were transferred to it on a temporary basis.
Nevertheless, Burgess argues the agreement fails to provide jurisdiction under 23–1–210 for two reasons. First, Burgess argues “Gilliam was not temporarily transferred but rather he was involved in an investigation focused on a case and location.” We disagree. Even if Gilliam had been transferred for only this one investigation, it was still a temporary transfer. Second, Burgess argues the Batesburg–Leesville police chief who signed the agreement lacked the authority to enter into it under section 23–1–210. We agree with the trial judge's determination that nothing in the statute “would prohibit either a county or a municipality or a town from authorizing in some way the chief of police or the sheriff to enter into such agreements.” The Batesburg/Leesville police chief informed the town council of the agreement before its execution, and the council gave him the authority to enter into it.
The supreme court's recent opinion in State v. Boswell, 391 S.C. 592, 707 S.E.2d 265 (2011), does not change this analysis. In Boswell, the court applied section 23–20–50(A) of the South Carolina Code (2007) to a multijurisdictional agreement entered into between the Calhoun County and Lexington County Sheriffs' Departments pursuant to the Law Enforcement Assistance and Support Act.4 Id. at 601–03, 707 S.E.2d at 270–71. The court held the agreement was invalid because it was “not voted on by the county council” as required by section 23–20–50(A) of the Act. Id. at 602, 707 S.E.2d at 270.
Burgess did not argue to the trial court and does not argue on...
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State v. Burgess
...distribute and sentenced to three years in prison and ordered to pay a $25,000 fine. The Court of Appeals affirmed. State v. Burgess, 393 S.C. 396, 712 S.E.2d 1 (Ct.App.2011). Following the denial of his petition for rehearing, Burgess petitioned this Court for a writ of certiorari to revie......