State v. Cherry

577 S.E.2d 719, 353 S.C. 263, 2001 S.C. App. LEXIS 21

• Court: Court of Appeals of South Carolina
• Decided: February 12, 2001
• Docket: 3296
• Status: Published

Opinions

STILWELL, Judge:

A jury convicted Yukoto Eugene Cherry for possession of crack cocaine with intent to distribute. The trial court sentenced him to five years imprisonment, imposed a fine of $25,000, and recommended he receive drug abuse treatment while in prison. Cherry appeals. We affirm.

FACTS/PROCEDURAL BACKGROUND

Just before midnight on July 31, 1998, Officer Steven Parker of the Rock Hill Police Department stopped a car driven by Cherry’s sister for two traffic violations. Cherry was a passenger in the back seat. While Officer Parker sat in his patrol car writing citations, another backup officer arrived and saw Cherry’s sister stuff a pistol into a diaper bag. After arresting her, the officers ordered the passengers out of the car to check for additional weapons. Cherry had no weapons, but Officer Parker discovered a small bag containing approximately eight rocks of crack cocaine in his watch pocket. He also seized $822 in cash from Cherry.

Cherry was indicted for possession of crack cocaine with intent to distribute and possession of crack cocaine within proximity of a public park. At the conclusion of the State’s case, the trial court granted Cherry’s motion for a directed verdict on the charge of possession within proximity of a public park. The court denied his motion for a directed verdict on the charge of possession with intent to distribute and the jury found him guilty. Cherry asserts a number of alleged errors on appeal.

DISCUSSION

I. Seating Arrangements

Cherry asserts the trial court erred in denying his request to sit at the table closest to the jury. We disagree.

Immediately after the prosecutor called Cherry’s case, his counsel made a motion for the defense to sit at the table closest to the jury. At the time, the prosecution occupied that table. After entertaining argument from both sides, the court denied Cherry’s request, finding the parties were seated “very appropriately.”

Cherry correctly notes this precise issue was raised on appeal to our supreme court in State v. Com, 215 S.C. 166, 54 S.E.2d 559 (1949). However, his reliance on that case is misplaced. The supreme court reversed the conviction, but specifically declined to address several issues, including the question of whether the defense was improperly required to relinquish the seats closest to the jury. Id. at 172, 54 S.E.2d at 561. We are convinced that nothing in the supreme court’s opinion can be construed as a ruling on that issue.

We find the trial court did not abuse its discretion in refusing to allow Cherry to occupy the table closest to the jury. It is tradition and custom in this state that the party with the primary burden of proof sits at the table in closest proximity to the jury. Furthermore, “[t]he general rule in this State is that the conduct of a criminal trial is left largely to the sound discretion of the presiding judge and this Court will not interfere unless it clearly appears that the rights of the complaining party were abused or prejudiced in some way.” State v. Bridges, 278 S.C. 447, 448, 298 S.E.2d 212, 212 (1982). Clearly, the court’s discretion extends to the parties’ seating arrangements. See also State v. Lee, 255 S.C. 309, 313, 178 S.E.2d 652, 654 (1971) (holding court did not abuse its discretion by refusing defendant’s request to remove the victim’s brother from the prosecution’s table). The trial court’s ruling did not prejudice Cherry's rights. His motion was properly denied.

II. Voir Dire Questions

Cherry argues the trial court erred in refusing to ask his proposed voir dire questions. We disagree.

Prior to jury selection, Cherry’s counsel submitted eight written questions which he requested the court ask the potential jurors on voir dire. The questions asked whether the jurors understood the importance of juror honesty; whether they would report a juror who engaged in misconduct; whether they were willing to presume a defendant innocent until proven guilty despite the fact that he had been arrested by the police; whether they believed police officers are more honest than other citizens; whether the defendant’s failure to testify would affect their views of his guilt or innocence; whether they were biased against African-Americans; whether they were biased for or against, any of the attorneys; and whether they had ever had more than $300 on their person. The court denied the request, ruling the questions regarding potential biases involving African-Americans or the attorneys involved were covered by the court’s standard voir dire questions, and that the others were inappropriate.

The questions to be asked on voir dire are provided by S.C.Code Ann. § 14-7-1020 which states in pertinent part:

The court shall, on motion of either party in the suit, examine on oath any person who is called as a juror to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion, or is sensible of any bias or prejudice therein....

S.C.Code Ann. § 14-7-1020 (Supp.2000).

The trial court has the responsibility to focus the scope of voir dire examination as described in section 14-7-1020. Wilson v. Childs, 315 S.C. 431, 438, 434 S.E.2d 286, 291 (Ct.App.1993). “After the statutory questions have been asked and answered, any further examination of [the jury] on voir dire must be left to the discretion of the trial judge, which is subject to review only for abuse thereof.” State v. Bethune, 93 S.C. 195, 199, 75 S.E. 281, 282 (1912). As a general rule, “the trial court is not required to ask all voir dire questions submitted by the attorneys.” Wall v. Keels, 331 S.C. 310, 317, 501 S.E.2d 754, 757 (Ct.App.1998). It appears Cherry’s proposed questions were designed to establish a juror profile and to influence those jurors who would be selected rather than to uncover bias. Cherry does not argue that the court failed to ask the statutorily required questions. We are confident the court met the requirements of section 14-7-1020 and find no abuse of discretion in its refusal to ask the additional questions.

III. Batson Motion

Next, Cherry maintains the trial court erred in its denial of his Batson1 motion. We disagree.

After jury selection, Cherry moved to quash the jury, arguing the State used its peremptory challenges in a racially discriminatory manner by striking non-whites. The assistant solicitor responded that the three strikes Cherry complained of were exercised against persons with criminal convictions for assault and battery, passing fraudulent checks, and driving under the influence. The court found those reasons racially neutral and asked if Cherry had any evidence that the stated reasons were mere pretext.

Cherry’s counsel asked to conduct additional voir dire to determine whether any member of the jury had been convicted of the same offenses. After the court denied that request, the assistant solicitor offered the defense an opportunity to look at the NCIC background checks performed on each juror. Although defense counsel indicated he wanted to examine those documents, it does not appear he did so immediately as offered. The assistant solicitor then informed the court that none of the seated jurors had a record of the criminal convictions in question, and the court announced the reports would be made a part of the record. The parties dispute whether this was ever done. In a post trial motion, Cherry argued that because the NCIC reports dated the day of jury selection were not immediately admitted into the record, the court’s order that those specific reports become part of the record was an impossibility.

The trial court must hold a Batson hearing when members of a cognizable racial or gender group are struck and the opposing party requests a hearing. State v. Haigler, 334 S.C. 623, 629, 515 S.E.2d 88, 90 (1999). During the hearing, the proponent of the peremptory strikes must present a racially neutral explanation. Id.; State v. Adams, 322 S.C. 114, 124, 470 S.E.2d 366, 372 (1996). Once this is done, the burden shifts to the strike’s opponent to show the reason or reasons given were merely pretextual. Haigler, 334 S.C. at 629, 515 S.E.2d at 91; Adams, 322 S.C. at 124, 470 S.E.2d at 372. Thus, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Adams, 322 S.C. at 124, 470 S.E.2d at 372 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). If “the record does not support the solicitor’s stated reason upon which the trial judge has based his findings, however, those findings will be overturned.” State v. Tucker, 334 S.C. 1, 9, 512 S.E.2d 99, 103 (1999).

We agree with the trial court that the reasons the assistant solicitor offered to explain the strikes were facially race-neutral. Thus, the burden shifted back to Cherry to prove pretext. He offered no evidence of pretext and thus simply failed to meet his burden. The record supports the State’s explanations for the strikes. Moreover, we are not persuaded to reverse the court’s ruling because the proper documents bearing certain dates were never admitted into the record. The record reflects the State offered Cherry an opportunity to review the exact documents it used to strike the jurors and that he failed to seize this opportunity. Furthermore, the court’s ruling that the State’s explanations were race-neutral is supported by the assistant solicitor’s statement as an officer of the court, which the court accepted and which Cherry has not proven false or pretextual. See, e.g., State v. Patterson, 307 S.C. 180, 182-83, 414 S.E.2d 155, 157 (1992) (noting the trial court’s findings regarding purposeful discrimination rest largely upon its evaluation of the prosecutor’s credibility and are afforded great deference).

IV. Evidence

Cherry also challenges the trial court’s admission of the video tape of his arrest as well as the money and drugs seized from his person during the arrest. We find no abuse of discretion.

The decision to admit or exclude evidence is within the trial court’s sound discretion, and its ruling will be not be disturbed unless an abuse of discretion is shown. State v. Tucker, 319 S.C. 425, 428, 462 S.E.2d 263, 265 (1995). Additionally, to warrant reversal, the defendant must show the erroneous admission resulted in prejudice. State v. Thompson, 305 S.C. 496, 502, 409 S.E.2d 420, 424 (Ct.App.1991).

A. Arrest Tape

Officer Parker’s patrol car was equipped with a camera which records both audio and video. During his testimony, the State attempted to show the original video tape containing Cherry’s arrest to the jury. Although the State had previously given the defense a tape of the arrest, Cherry objected on the ground that he had not been given an opportunity to view the original tape. Defense counsel explained: “we would need an opportunity to see [what the original portrays] before we pass on it.” After a bench conference, the court admitted the tape into evidence over Cherry’s objection. When the State then attempted to publish the tape to the jury, Cherry insisted that the court reporter play it in its entirety. The record reflects the tape was played in its entirety, although Cherry now questions the record’s accuracy on this point.

Cherry argues the court erred in denying his request to view the original tape before admitting it into evidence. He maintains its admission prejudiced him because it shows Officer Parker making other traffic stops which could have biased the jury in favor of Officer Parker.²

Although the tape depicts events defense counsel did not have an opportunity to review prior to trial, we do not find the court abused its discretion in admitting it into evidence. Moreover, even though much of the tape does not involve Cherry’s case and is therefore irrelevant, we believe it did not prejudice him. Furthermore, it appears the State only intended to play the portion of the tape containing Cherry’s arrest. The tape was admitted into evidence only after Cherry’s counsel suggested it be admitted into evidence rather than simply marked for identification. Furthermore, it was then played in its entirety only upon his counsel’s demand. Cherry will not be heard to complain of an error of his own creation. State v. Babb, 299 S.C. 451, 455, 385 S.E.2d 827, 829 (1989) (noting a party cannot be heard to complain of an error his own conduct induced).

B. Money Seized from Cherry

Officer Parker seized $322 in mostly twenty dollar bills from Cherry during his arrest. Cherry attempted to suppress the money in a motion in limine, arguing it was irrelevant. The State argued the money was relevant to show Cherry intended to sell the crack on his person because crack is commonly sold for $20 per rock. The court decided to refrain from ruling on the admissibility until after it heard the testimony. When Officer Parker began to testify about the money, Cherry objected and the court overruled his objection. Cherry now argues that ruling was error.

We first address the State’s argument that this issue is not preserved because Cherry made only a general objection to the officer’s testimony. In light of his earlier motion in limine, we believe the nature of Cherry’s objection was contextually apparent and this issue is therefore preserved. Rule 103, SCRE (timely objection on a specific ground is necessary if the specific ground is not apparent from the context).

We do, however, agree with the State that the money was properly admitted. Cherry was charged with possession of crack cocaine with the intent to distribute. Evidence is relevant, and therefore admissible, when it tends to make the existence of a fact in controversy more or less probable than it would be without the evidence. Rule 401, SCRE. The money was relevant to the contested question of whether Cherry intended to distribute the crack rocks in his possession. In light of the officer’s testimony regarding the price of crack rocks, the $322 in mostly twenties was some indication that Cherry had sold crack earlier in the evening and thus, its admission into evidence tended to make the allegation he intended to distribute the crack in his watch pocket more probable. The money was properly admitted.

C. Crack Cocaine Seized from Cherry

The defense also made a motion in limine to suppress the crack cocaine Officer Parker found in Cherry’s watch pocket, arguing it was obtained pursuant to an unlawful search and seizure. Cherry argued the officer conducted an improper stop of the vehicle and thus any search of its passengers was also improper. After hearing a proffer from the officer, the court ruled the drugs were admissible. Cherry now argues the court erred in admitting the drugs because Officer Parker’s testimony, that he immediately knew upon touching the outside of Cherry’s watch pocket that it contained narcotics, was not believable because he also testified he thought the box of cigars he felt in another of Cherry’s pockets might be a weapon. Because this argument is different from the one Cherry raised to the trial court, it is not preserved for our review. State v. Byram, 326 S.C. 107, 113, 485 S.E.2d 360, 363 (1997) (holding a party may not assert one ground at trial and another on appeal).³

V. Directed Verdict

Cherry argues the trial court improperly refused his motion for a directed verdict on the charge of possession with intent to distribute because there was no evidence he intended to distribute the crack cocaine. We disagree.

When considering a motion for a directed verdict in a criminal case, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Burdette, 335 S.C. 34, 46, 515 S.E.2d 525, 531 (1999); State v. Morgan, 282 S.C. 409, 411, 319 S.E.2d 335, 336 (1984). It has been recently held that this remains true even when the State relies exclusively on circumstantial evidence. State v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127 (2000). Some cases have held that if the State presents any evidence which reasonably tends to prove the defendant’s guilt, or from which the defendant’s guilt could be fairly and logically deduced, the case must go to the jury. Burdette, 335 S.C. at 46, 515 S.E.2d at 531; State v. Poindexter, 314 S.C. 490, 493, 431 S.E.2d 254, 255-56 (1993). Other cases indicate that where the evidence is circumstantial, there must be substantial circumstantial evidence which reasonably tends to prove the guilt of the accused or from which his guilt may be fairly and logically deduced. State v. Martin, 340 S.C. 597, 602, 533 S.E.2d 572, 574 (2000) (citing State v. Williams, 321 S.C. 327, 468 S.E.2d 626 (1996)). Still other cases indicate some distinction between direct evidence and circumstantial evidence in considering whether a directed verdict should be granted. State v. Patterson, 337 S.C. 215, 232, 522 S.E.2d 845, 853 (Ct.App.1999) (“If there is any direct evidence or any substantial circumstantial evidence which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced, an appellate court must find the case was properly submitted to the jury.” (emphasis added)) (citing State v. Johnson, 334 S.C. 78, 512 S.E.2d 795 (1999)). If the trial court must make a determination that the circumstantial evidence is substantial, that would seem to require a weighing of the evidence which, of course, all cases agree, is forbidden.

Clearly, the trial judge should grant a directed verdict motion when the evidence merely raises a suspicion that the accused is guilty. Martin, 340 S.C. at 602, 533 S.E.2d at 574 (citing State v. Irvin, 270 S.C. 539, 243 S.E.2d 195 (1978)). It is equally clear, however, that on appeal from the denial of a motion for directed verdict, this court must view the evidence in the light most favorable to the State. Burdette, 335 S.C. at 46, 515 S.E.2d at 531.

The State submitted testimony that Cherry’s arrest occurred in a high crime area known for violence and drug activity. Cherry had a small bag containing approximately eight rocks of crack cocaine on his person. He had no crack pipe or other drug paraphernalia with him indicating the crack was for his personal consumption. He did, however, have $322 cash on his person in mostly twenty dollar bills. Officer Parker testified a single rock of crack cocaine is typically sold for twenty dollars. Viewing this evidence in the light most favorable to the State, as we must, and without passing on the weight of the evidence, the combination of these factors constitutes evidence which would reasonably tend to prove Cherry intended to distribute the crack cocaine and, thus, justifies the trial court’s decision to submit the case to the jury for its determination.⁴

VI. Circumstantial Evidence Instruction

During its jury charge, the trial court issued the circumstantial evidence instruction recently approved and recommended by our supreme court in State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997). After the jury was charged, defense counsel requested the court issue Judge Ervin’s charge on the difference between direct and circumstantial evidence. Tom J. Ervin, Ervin’s South Carolina Requests to Charge-Criminal § 3-4 (1994). The court refused to recharge the jury as requested.

We note that Judge Ervin’s model charge on circumstantial evidence is similar to the traditional language our supreme court approved in State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989). The traditional charge distinguishes between direct and circumstantial evidence, whereas the new charge adopted in Grippon specifically states there is no legal distinction between the two types of evidence. Compare Edwards, 298 S.C. at 275, 379 S.E.2d at 889 (“[E]very circumstance relied upon by the State [must] be proven beyond a reasonable doubt; and ... all of the circumstances so proven be consistent with each other and taken together, point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.”), with Grippon, 327 S.C. at 83-84, 489 S.E.2d at 464 (“The law makes absolutely no distinction between the weight or value to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence.”). Although the supreme court noted in Grippon, 327 S.C. at 82, 489 S.E.2d at 463, and reiterated in State v. Needs, 333 S.C. 134, 156 n. 13, 508 S.E.2d 857, 868 n. 13 (1998), that the traditional Edwards charge is still a legally correct and appropriate jury instruction, we cannot fault the trial court for utilizing a charge recently specifically approved by the supreme court. It obviously is a correct statement of the law of circumstantial evidence. “The judge properly instructs the jury if he adequately states the applicable law. A jury charge which is substantially correct and covers the law does not require reversal.” State v. Ezell, 321 S.C. 421, 425, 468 S.E.2d 679, 681 (Ct.App.1996) (citation omitted). We find no error.

CONCLUSION

Because all three judges of the panel are in agreement on Issues I through IV, two of the three judges of the panel are in agreement as to Issue V, and two, albeit different, judges of the panel are in agreement on Issue VI, Cherry’s conviction for possession of crack cocaine with intent to distribute is

AFFIRMED.

HOWARD, J., concurs in part and dissents in part in a separate opinion. SHULER, J., concurs in part and dissents in part in a separate opinion.

1 . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

2 . The original tape and the copy containing only Cherry’s arrest which the State provided to defense counsel before trial are among the exhibits on file in this case. The original tape shows numerous stops Officer Parker made over several days.

3 . In any event, this evidence was admissible under the "plain feel doctrine,” which permits the warrantless seizure of items an officer immediately identifies by touch as contraband during a pat-down search. See State v. Smith, 329 S.C. 550, 561, 495 S.E.2d 798, 804 (Ct.App.1998) (applying the plain feel doctrine).

4 . We have not factored in nor considered the presence of the pistol in the vehicle because the trial judge, in analyzing whether to submit the case to the jury, specifically stated that he did not consider it in his deliberations.