State v. Liberte

• Court: Court of Appeals of South Carolina
• Decided: July 8, 2003
• Docket: 2003-UP-463
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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The State,        Respondent

v.

Aubin Liberte,        Appellant.

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Appeal From Greenville County
Larry R. Patterson, Circuit Court Judge

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Unpublished Opinion No. 2003-UP-463
Submitted April 7, 2003 – Filed July 8, 2003

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AFFIRMED

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Chief Attorney Daniel T. Stacey, of S.C. Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Chief, State Grand Jury Robert E. Bogan, and Assistant Attorney General Tracey C. Green, all of Columbia, for Respondent.

PER CURIAM:  A jury convicted Aubin Liberte of one count of trafficking in cocaine and one count of conspiracy to traffic cocaine.  Liberte argues the trial court:  (1) lacked subject matter jurisdiction to prosecute him because the indictments against him were not properly before the State Grand Jury; (2) erred in failing to instruct the jury fully on circumstantial evidence; and (3) erred in allowing the jury to use transcriptions of audio tapes admitted into evidence.  We affirm.

FACTS

On October 8, 1996, the State Grand Jury indicted Liberte for conspiracy to traffic cocaine.  Liberte and his co-defendant, William Sims, were tried before a jury and found guilty.  This Court reversed Liberte’s and Sims’s convictions and remanded for a new trial based on improper remarks made by the prosecutor during his closing argument and the trial judge’s failure to grant a mistrial.  State v. Liberte, 336 S.C. 648, 521 S.E.2d 744 (Ct. App. 1999).  

On November 9, 1999, the State Grand Jury returned a superseding indictment for conspiracy to traffic cocaine as alleged in the 1996 indictment as well as an additional count of trafficking in cocaine.  Liberte was tried before a jury in April 2000 and found guilty of both charges. 

During the trial, the State presented the following testimony and evidence.     Following his arrest resulting from the sale of ten ounces of cocaine to a confidential informant, Todd Brank, a convicted drug dealer, agreed to cooperate with the South Carolina Law Enforcement Division (SLED) and set up a drug transaction with his dealer, William Sims.  Brank arranged to meet with Sims at a Greenville restaurant and purchase three kilograms of cocaine.  Prior to this meeting, Brank was equipped with a surveillance wire and a micro cassette recorder to monitor and record the transaction.  The SLED agents also searched Brank and his vehicle to ensure that he did not have any illegal drugs before meeting Sims.  Brank waited for Sims in an empty parking lot at the agreed upon location.  When Sims arrived, Brank noticed that he was not alone in the vehicle.  Liberte, who Brank had never met or purchased drugs from before, was sitting in the passenger seat of Sims’s vehicle.

Sims approached Brank’s vehicle.  Brank informed Sims that he did not have the money for the cocaine but that he would get the money.  According to Brank, Sims returned to his vehicle and retrieved a cardboard box through the passenger window.   He then took the box to Brank’s vehicle.  At this time, Brank heard Liberte say to Sims that Brank could “keep it,” implying that Brank could take the drugs and return with the money later in the afternoon.  After leaving the restaurant, Brank immediately drove to another location to meet with the SLED agents.  They removed the cardboard box from Brank’s vehicle and discovered the box contained three kilograms of cocaine.

During this time, several agents followed Sims and Liberte.  When Sims and Liberte stopped at a nearby restaurant, Sims contacted Brank to inform him of where he could meet them with the drug money.  Instead of sending Brank into the restaurant, Agents Skip Whitmire and Ben Moore went in and approached Sims and Liberte.   Agent Whitmire told them he wanted to discuss the drug transaction that just took place.  Several other agents then transported Sims and Liberte to a local hotel where both Sims and Liberte gave statements.  In his statement, Liberte admitted to being in the vehicle when Sims met Brank.  Liberte, however, informed the agents that the cardboard box Sims gave to Brank was already in Sims’s vehicle when he got into the vehicle.  Liberte denied having any knowledge that Sims was delivering drugs to Brank.

A search of Liberte’s person revealed several items, including an identification card that listed New York as Liberte’s residence; a paper with notations for “Amtrak,” “$151,” and “4:30 a.m.;” a paper with notations for “Greyhound,” “Penn Station,” “departs 2:10 p.m;” a paper with several names and phone numbers, including Sims’s phone number and a number for the Ramada Inn; and a phone card.  Based on their investigation, the agents believed these notations corresponded with Liberte’s travel arrangements immediately before the drug transaction.

While Liberte was being transported from the restaurant to the hotel, he attempted to destroy a piece of paper with a hotel room number written on it.  When Agent Whitmire questioned him about the hotel room, Liberte stated he had rented room number 221 at the Ramada Inn.  Liberte consented to a search of the hotel room as well as his apartment.  Several agents went to the hotel room, but discovered the correct room number was 225.   A man named “Bouzy” answered the door to room 225.  Bouzy consented to a search of the room.  During the search, the agents discovered a brown sack inside a drawer.  The sack contained 250 grams of cocaine.  Bouzy denied the cocaine belonged to him.  Agents also discovered two bags in the room, which Bouzy indicated belonged to Liberte.  The luggage contained an electronic organizer that listed both Bouzy and Sims’s telephone numbers.   

Liberte did not testify at trial.  The jury convicted him of trafficking in cocaine and conspiracy to traffic cocaine.  The trial judge sentenced him to twenty-seven years imprisonment for each charge.  The sentences were to be served concurrently.  Liberte appeals.

DISCUSSION

I.                   Subject Matter Jurisdiction

Liberte argues the trial court erred in failing to grant his motion to quash the superseding indictment.  He contends the court was without subject matter jurisdiction to prosecute him because the indictment was invalid.  He asserts the procedure for issuing the superseding indictment was in violation of the jurisdictional limitations provided by the State Grand Jury Act, specifically sections 14-7-1630(C) and 14-7-1690. [1]   He claims the statute was violated in the following respects:  (1) the investigation lasted beyond the statutorily proscribed two-year term; and (2) the investigation was transferred from one state grand jury to a subsequent state grand jury. 

In a pre-trial hearing on March 24, 2000, defense counsel for Sims and Liberte moved to quash the superseding indictment.  Counsel asserted the defendants were being prosecuted for more charges than which they had originally been indicted and tried.  Counsel for the State informed the court that he had petitioned for the presiding judge of the State Grand Jury to re-open the case after it was remanded and that this motion had been granted.

In response to counsel’s arguments, the court referred to the November 10, 1999 order of the circuit court judge who presided over the 1999 State Grand Jury.  This order stated in pertinent part:

The State Grand Jury of South Carolina returned a True Bill of Superseding Indictment in the above case on November 10, 1999.  The Superseding Indictment is within the authority of the State Grand Jury and is otherwise in accordance with the provisions of the State Grand Jury Act, found in S.C. Code Ann. §§ 14-7-1600 to –1820 (Law. Co-op. 1976).

The judge held he could not overrule another circuit court judge’s order.  After a motion to sever was granted, counsel for Liberte raised this issue again immediately prior to trial. The judge reiterated his prior ruling.

Recently, this Court addressed the same issue in State v. Follin, 352 S.C. 235, 573 S.E.2d 812 (Ct. App. 2002), cert. denied (May 30, 2003).  In Follin, the State Grand Jury began investigating the matter in 1997.  The investigation against Follin was presented to different panels of the State Grand Jury.  In 1998, the State Grand Jury heard evidence in the case, but was discharged in 1999 before issuing an indictment.  Subsequently, the 1999 State Grand Jury indicted Follin for criminal conspiracy.  On January 11, 2000, the State Grand Jury issued a superseding indictment that charged Follin with criminal conspiracy, larceny by trick, embezzlement, obtaining goods and services by false pretenses, receiving stolen goods, and obstruction of justice.  Id. at 242-43, 573 S.E.2d at 816.  Ultimately, a jury convicted her of aiding and abetting embezzlement, conspiracy, and obtaining goods and services by false pretenses.  Id. at 239, 573 S.E.2d at 814.  On appeal, Follin raised several issues, including the assertion that the court lacked subject matter jurisdiction because the indictments were invalid.  Follin argued the State Grand Jury was without power to issue the indictments against her because the investigation lasted longer than two years and was transferred from one State Grand Jury to two subsequent State Grand Juries in violation of the governing statute.  Id. at 242, 573 S.E.2d at 815-16.  

This Court rejected Follin’s argument, holding “the State Grand Jury has subject matter jurisdiction to issue indictments in factual scenarios involving: (1) an investigation lasting longer than two years; or (2) an investigation transferred from one State Grand Jury to a subsequent State Grand Jury.”  Id. at 247, 573 S.E.2d at 818.

In reaching this conclusion, we reviewed cases discussing the transfer of investigations to subsequent county grand juries as well as the legislative intent of the State Grand Jury Act.  Based on these authorities, we found: 

[T]he statute does not limit the number of times the State may submit a matter for investigation to the State Grand Jury.  In contrariety, there is clear indication the legislature intended the State to have the ability to resubmit a matter to a subsequent grand jury, especially in cases such as this where the investigation is very complex. 

Id. at 247, 573 S.E.2d at 818.  This Court also recognized this conclusion was supported by applicable federal law and the decisions of other jurisdictions.  Id.

In light of our decision in Follin, we find the November 1999 State Grand Jury had the authority to issue the November 1999 superseding indictment against Liberte even though the 1996 State Grand Jury previously indicted him based on an investigation of the same criminal activity.  Accordingly, the circuit court was vested with subject matter jurisdiction, by means of a valid indictment, to prosecute Liberte for trafficking in cocaine and conspiracy to traffic cocaine.

II.                Jury Instruction

Liberte argues the trial court erred in charging the jury.  Specifically, Liberte contends the court erred in failing to charge the jury that the State must prove each circumstance beyond a reasonable doubt. 

The court provided the jury the following instructions with regard to direct and circumstantial evidence:

[T]here are two types of evidence which are generally presented during a trial, direct evidence and circumstantial evidence.  Direct evidence is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness.  Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of a fact.  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.  You should weigh all of the evidence in the case.  After weighing all the evidence in the case, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find the defendant not guilty.

At the conclusion of the charge, Liberte’s counsel requested a fuller charge on circumstantial evidence.  Specifically, he requested the court to: “go back over the circumstantial evidence charge and make it clear to the jury, because I don’t think it was, that if the State is going to have circumstantial evidence, they have to prove each circumstance beyond a reasonable doubt.”  The court denied Liberte’s request based on the fact that he provided the jury with instructions outlined by our Supreme Court in State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997).  In Grippon, our Supreme Court approved and recommended a jury instruction for direct and circumstantial evidence where a criminal case relies in whole or in part on circumstantial evidence and the court gives a proper reasonable doubt instruction.  Grippon, 327 S.C. at 83-84, 489 S.E.2d at 464; see State v. Graddick, 345 S.C. 383, 388, 548 S.E.2d 210, 212 (2001) (“Grippon recommended a circumstantial evidence charge which emphasizes the lack of distinction between the weight to be given to direct and circumstantial evidence.”).

“‘A jury charge is correct if, when the charge is read as a whole, it contains the correct definition and adequately covers the law.’”  In re McCracken, 346 S.C. 87, 94, 551 S.E.2d 235, 239 (2001) (quoting Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 496, 514 S.E.2d 570, 574 (1999)).  To warrant reversal, a trial court’s refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant.  State v. Hughey, 339 S.C. 439, 450, 529 S.E.2d 721, 727 (2000), cert. denied, Hughey v. South Carolina, 531 U.S. 946 (2000).

Although the additional charge requested by Liberte is a correct statement of the law [2] and, thus, an appropriate jury instruction, this Court has recently held that where the trial court provides the approved Grippon charge there is no error in failing to provide additional instruction with regard to circumstantial evidence.  State v. Cherry, 348 S.C. 281, 287, 559 S.E.2d 297, 299 (Ct. App. 2001), cert. granted (Nov. 7, 2002).   In Cherry, the trial court charged the jury with the recommended charge from Grippon.  At the completion of the jury charge, defense counsel requested the court issue a charge on the difference between direct and circumstantial evidence.  The court declined to re-charge the jury with this request.   On appeal, this Court found the court did not err in instructing the jury on the law of circumstantial evidence.  We recognized that Cherry’s requested instruction was a “legally correct and appropriate jury instruction;” however, we could not “fault the trial court for utilizing a charge recently and specifically approved by the supreme court.”  Id. at 287, 559 S.E.2d at 299.

Here, the trial court charged the jury the language that our Supreme Court approved and, in fact, recommended in Grippon.  Moreover, the court defined reasonable doubt and repeatedly instructed the State had the burden of proving the defendant guilty beyond a reasonable doubt.  Accordingly, we find no error in the trial court’s refusal to charge the instructions requested by Liberte.  See State v. Needs, 333 S.C. 134, 156 n.13, 508 S.E.2d 857, 868 n.13 (1998) (recognizing the Supreme Court has identified “two appropriate ways to charge circumstantial evidence”).

III.             Jury’s use of transcripts of tape

Liberte argues the trial court erred in overruling his objection to the jury’s use of transcripts of tapes admitted into evidence.  He asserts “the providing of the transcript placed undue emphasis upon the critical state’s contention in this case,” which “impermissibly bolstered the state’s evidence.”   He specifically points to the words “keep it,” referencing the three kilos of cocaine, as being attributed to him.  We find this issue is not preserved for our review.

During trial, the State played audiotapes of Brank purchasing the cocaine from Sims.  The State presented an enhanced version of the tape as well as the original version. The State’s witness testified he enhanced the tape by eliminating the background noises.  The trial court allowed the State to provide the jury with transcripts of the tapes to read while they were listening to the tapes during the trial.  The court did not permit the jury to use the transcripts during deliberations.

At trial, Liberte objected to the use of the transcripts on the ground the tapes were the best evidence of what was said in the recorded conversation.  Liberte requested the jurors “be instructed that that’s the State’s interpretation of the tape, because we do differ on some of the things - - -.”  The court overruled Sims’s objection, stating “As I understand it, y’all have had a chance to look at the transcript and listen to the tapes.  If there’s anything different on there, and you want to point it out to me, I’ll--the State--the tapes would be the best evidence.”

Liberte at no time made any statements or presented any argument regarding any discrepancy on the tape.  Furthermore, Liberte did not make any argument that the use of the transcripts would bolster the State’s version of the contents of the tapes.  Accordingly, we will not consider these arguments on appeal.  See State v. Dickman, 341 S.C. 293, 534 S.E.2d 268 (2000) (holding a party may not argue one ground at trial and an alternate ground on appeal); State v. Perez, 334 S.C. 563, 514 S.E.2d 754 (1999) (holding issues not raised to and ruled upon in the trial court will not be considered on appeal). 

Even if this issue were properly preserved, the trial court did not abuse its discretion in allowing the jury to review the transcripts during the trial while the tape was being played.  See State v. Gulledge, 277 S.C. 368, 287 S.E.2d 488 (1982) (holding trial court abused its discretion in permitting the jury to take a transcript of a tape into the jury room because it unduly emphasized that evidence); see also State v. Brazell, 325 S.C. 65, 480 S.E.2d 64 (1997) (stating trial court has considerable latitude in ruling on admissibility of evidence and its decision will not be disturbed absent prejudicial abuse of discretion).   Significantly, the court did not allow the jury to use the transcripts during the deliberations.  The court also instructed the jury regarding their role in finding facts based on the evidence introduced at trial.  In terms of the accuracy of the transcripts, Brank acknowledged it is “a true and accurate reflection” of what was recorded on the tapes.  The State’s witness who enhanced the tape also testified he did not add anything to the tape.  

CONCLUSION

Based on the foregoing analysis, Liberte’s convictions are

AFFIRMED.

CONNOR, ANDERSON and HUFF, JJ., concur.

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[1]   Section 14-7-1630(C) provides:

(C) The impaneling judge, after due consideration of the petition, may order the impanelment of a state grand jury in accordance with the petition for a term of twelve calendar months.  Upon petition by the Attorney General, the then chief administrative judge of the judicial circuit in which a state grand jury was impaneled, by order, may extend the term of that state grand jury for a period of six months but the term of that state grand jury, including any extension thereof, shall not exceed two years.

S.C. Code Ann. § 14-7-1630(C) (Supp. 2002).

Section 14-7-1690 provides:

Once a state grand jury has entered into a term, the petition and order establishing same may be amended as often as necessary and appropriate so as to expand the areas of inquiry authorized by the order or to add additional areas of inquiry thereto.  The procedures for amending this authority are the same as those for filing the original petition and order.

S.C. Code Ann. § 14-7-1690 (Supp. 2002); see also S. C. Code Ann. §§ 14-7-1600 to –1820 (Supp. 2002) (the “State Grand Jury Act”).

[2]   Liberte’s request to charge is based on our Supreme Court’s language in State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989).  The Edwards charge distinguishes between direct and circumstantial evidence.  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.’”  (quoting State v. Littlejohn, 228 S.C. 324, 328, 89 S.E.2d 924, 926 (1955))).