The State v. Geer, Opinion No. 4760

CourtCourt of Appeals of South Carolina
Writing for the CourtGEATHERS, J.
PartiesThe State, Respondent, v. Shirley Mae Geer,Appellant.
Decision Date24 November 2010
Docket NumberOpinion No. 4760

The State, Respondent,
Shirley Mae Geer, Appellant.

Opinion No. 4760

In The Court of Appeals

Heard May 19, 2010
Filed November 24, 2010

Appeal from Greenwood County
John C. Hayes, III, Circuit Court Judge


Appellate Defender M. Celia Robinson, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General A. West Lee, all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for Respondent.

GEATHERS, J.: Shirley Mae Geer appeals her conviction for possession of crack cocaine. Geer asserts the trial court erred by (1) failing to dismiss the charges against her or to grant a continuance in order to give her time to request and review exculpatory evidence withheld by the State that was favorable to her defense; (2) denying her motion to quash the indictment on the ground of selective prosecution; (3) denying her motion to suppress drug evidence seized as the result of an unreasonable, warrantless, beneath-the-skin search that was unsupported by probable cause; and (4) denying her motion to suppress the drug evidence because the State failed to present a sufficient chain of custody. We affirm.


At approximately 11:30 p.m. on the night of September 9, 2007, Officer Byrd and Officer Crisp responded to a dispatch call directing them to Butler Street (a dead-end street) in Greenwood County. Upon arriving at the location, they found Michael Leon Parks standing outside of his vehicle and Geer seated in the vehicle on the front, passenger seat. Officer Byrd began to question Parks about his reason for being at the location, and he determined that Parks was being dishonest. Officer Byrd continued to question Parks. After Officer Byrd told Parks that it would be in his best interest to be honest, Parks admitted that he had given Geer two rocks of crack cocaine in exchange for her performance of oral sex and that Geer had put the rocks in her mouth. Relying on Parks' assertion, Officer Byrd approached Geer and asked her to open her mouth. When Geer complied, Officer Byrd discovered two off-white, rock-like substances underneath her tongue. Officer Byrd then asked Geer to spit the rocks onto the hood of his patrol car, and she complied. He then scooped the rocks into a manila envelope and secured the envelope in the patrol car.

Before making any arrests, the officers telephoned their supervisor. Thereafter, they decided not to arrest Parks because the situation would embarrass his girlfriend and family and would cause him embarrassment at work. Instead, they gave him a courtesy summons for solicitation of prostitution. The officers also discussed how Parks was going to get home. They could not allow him to drive because he did not have a valid driver's license. This conversation was recorded on an audiotape from the patrol car and later stored at the Greenwood County Police Department. Geer, however, was arrested, taken into custody, and charged with prostitution and possession of crack cocaine. Even though Parks admitted to distributing the crack cocaine to Geer, he was not charged with distribution of crack cocaine, and the charge against him for solicitation of prostitution was dismissed at the request of Officer Byrd. The charge against Geer for prostitution was also dismissed, and she proceeded to trial on the charge of possession of crack cocaine.

After Geer was arrested, Officer Byrd took the manila envelope containing the crack cocaine rocks to the Greenwood City Hall, where a field test was performed on them. After the substance was tested and weighed, it was placed in a "best bag"1 with an assigned control number, documented, and put into the evidence locker. The evidence was then taken from the locker by Officer Ed Suddeth and transferred to the control evidence room. A few days later, Officer Suddeth took the evidence to the South Carolina Law Enforcement Division (SLED) to be analyzed. From the time Officer Suddeth removed the evidence from the evidence locker until he turned it over to the SLED log-in area to be placed in a vault, the seal on the best bag was intact and the chain of custody logs were signed.

SLED Officer Larry Zivkovitch, a drug analyst, retrieved the best bag from the log-in area on October 31, 2007, and on November 28, 2007, he performed an analysis on its contents.2 The initial spot test indicated that there was a possibility that the substance was cocaine. Officer Zivkovitch then ran a second, instrument-based test used by scientists (an FTIR test)3 on the substance, and it was positively identified as cocaine base, commonly known as crack. After Officer Zivkovitch analyzed and weighed the substance, he placed it in a heat-sealed bag with his initials underneath the heat seal and returned it to the evidence log-in area to await its transfer by the Greenwood Police Department.

Geer's trial was held on February 28, 2008, in Greenwood County. The trial lasted one day, and the jury returned a verdict of guilty on the charge of possession of crack cocaine. As a result of her conviction, Geer was sentenced to two years' incarceration, suspended upon two years' probation with substance abuse counseling and random drug and alcohol testing, and a $500 fee was imposed upon her for the use of the public defender. This appeal followed.


The issues on appeal are: (1) whether the trial court erred in denying Geer's motion for a continuance; (2) whether the trial court erred in denying Geer's motion to quash the indictment, asserting selective prosecution by the State; (3) whether the trial court erred in denying Geer's motion to suppress the drug evidence, asserting that it was obtained through an unconstitutional, warrantless search; and (4) whether the trial court erred in denying Geer's motion to suppress the drug evidence because the State failed to present a sufficient chain of custody.


"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). Thus, an appellate court "is bound by the trial court's factual findings unless they are clearly erroneous." Id. "This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases." State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). "This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence." Id.


I. Motion for Continuance

Geer argues the trial court erred when it denied her motion for a continuance because evidence was withheld by the State until the day before trial. We disagree.

"The granting of a motion for a continuance is within the sound discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion." State v. Yarborough, 363 S.C. 260, 266, 609 S.E.2d 592, 595 (Ct. App. 2005). "An abuse of discretion arises from an error of law or a factual conclusion that is without evidentiary support." State v. Irick, 344 S.C. 460, 464, 545 S.E.2d 282, 284 (2001); see also State v. Funderburk, 367 S.C. 236, 239, 625 S.E.2d 248, 249-50 (Ct. App. 2006) ("An abuse of discretion occurs when the trial court's ruling is based on an error of law."). Even if there was no evidentiary support, "[i]n order for an error to warrant reversal, the error must result in prejudice to the appellant." State v. Preslar, 364 S.C. 466, 473, 613 S.E.2d 381, 385 (Ct. App. 2005); see also State v. Wyatt, 317 S.C. 370, 372-73, 453 S.E.2d 890, 891 (1995) (stating that error without prejudice does not warrant reversal). "[R]eversals of refusal of continuance are about as rare as the proverbial hens' teeth." State v. Lytchfield, 230 S.C. 405, 409, 95 S.E.2d 857, 859 (1957).

In addressing the merits of Geer's motion for a continuance, we first analyze her contention that the State withheld evidence that was favorable to her defense until the eve of trial in violation of Rule 5, SCRCrimP. Rule 5(a)(1)(C), SCRCrimP, states in part:

Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects... which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial....
In the present case, the evidence presented to Geer by the State the evening before the trial was an audiotape of the arrest. According to Rule 5, SCRCrimP, if the evidence was considered "material to the preparation of [her] defense... and intended for use by the prosecution as evidence in chief at the trial," Geer had a right to possession and review of the audiotape. Geer argued "under the solicitor's program, the State was required to provide all discovery at the initial appearance or provide a list of things that were outstanding," but the record does not indicate that Geer requested that the State provide any evidence as required under Rule 5.

Geer was arrested and charged with possession of crack cocaine on September 9, 2007, but her trial was not held until February 28, 2008. She had ample time to request and receive discovery information before the eve of trial. Geer did not request any information regarding the night of her arrest but relied upon the State's production of the audiotape on the eve of trial. Geer has not shown that the discovery of information contained on the audiotape was a denial of evidence that was material to the preparation of her defense, thereby rising to the level of a Rule 5 violation. Further, the audiotape provided evidence that served to inculpate rather than exculpate her. That is, the...

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