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State v. Davis

Court of Appeals of South Carolina

March 29, 2017

The State, Respondent,
v.
Clyde Bowen Davis, Appellant. Appellate Case No. 2013-002207

          Heard December 6, 2016

         Appeal From Greenville County Letitia H. Verdin, Circuit Court Judge

          Ryan Lewis Beasley, of Greenville, for Appellant.

          Attorney General Alan McCrory Wilson, Assistant Deputy Attorney General Samuel Creighton Waters, Assistant Attorney General Joshua Richard Underwood, and Assistant Attorney General James Clayton Mitchell, III, all of Columbia, for Respondent.

          WILLIAMS, J.

         Clyde Bowen Davis appeals his conviction for conspiracy to traffic 100 grams or more but less than 200 grams of methamphetamine, arguing the circuit court erred in (1) refusing to dismiss Count II of the superseding indictment, (2) failing to find the State abused the grand jury process, (3) failing to find the State withheld material, exculpatory evidence, (4) admitting an unduly suggestive out-of-court identification, and (5) admitting an investigator's testimony that included hearsay from a confidential informant (CI). We affirm.

         FACTS/PROCEDURAL HISTORY

         From 2009 to 2011, law enforcement officials were involved in "Operation Icehouse, " a complex, interagency investigation into the sale of methamphetamine in upstate South Carolina. During the operation, investigators used CIs to make controlled purchases of the drug from suspected dealers, and they soon learned Michael Robinson was selling methamphetamine he had purchased from either Amy Brock or Nicholous "Nick" Dendy.[1]

         In September or October 2010, Investigator Chad Ayers and another officer with the Greenville County Sheriff's Office met with Brock at her Greenville home. Brock admitted she had been buying methamphetamine from Dendy after meeting him through Robinson. During a typical deal, Brock told the investigators that Dendy would either come inside her home or meet her outside in the driveway. After giving money to him, Brock alleged Dendy would take it to a silver car, which she believed was being driven by Dendy's cousin, and retrieve the methamphetamine for her. Brock stated that, although she never learned his name, she had seen Dendy's cousin in his car when she met Dendy in the driveway to buy methamphetamine.

         About a month after their first visit, Investigator Ayers and another officer returned to Brock's home. They showed her a color photograph of Clyde Davis from a copy of his South Carolina Department of Motor Vehicles (DMV) driving record and folded down any identifying information. When Investigator Ayers asked Brock who the man was, she identified him as Dendy's cousin. Then, on or around September 8, 2010, South Carolina Law Enforcement Division (SLED) Agent Brunson Ashley Asbill had a CI complete a controlled purchase of methamphetamine from Davis at Davis's home.

         On December 13, 2011, the state grand jury returned a superseding indictment against Davis relating to his alleged involvement in the sale of methamphetamine.[2]Count I accused Davis of conspiracy to traffic 100 grams or more but less than 200 grams of methamphetamine in violation of subsection 44-53-375(C)(3) of the South Carolina Code (Supp. 2016), in Greenville and Pickens counties with Dendy, Brock, Robinson, Sekerchak, and Byers. Count II alleged Davis distributed methamphetamine in Greenville County in violation of subsection 44-53-375(B) of the South Carolina Code (2010) (amended 2016), on or around September 8, 2010.

         During pretrial motions, Davis moved to dismiss the superseding indictment, arguing the state grand jury had no subject matter jurisdiction and the State presented no evidence amounting to probable cause on Count II. Additionally, Davis filed a motion to sever Count I from Count II of the indictment and a Brady v. Maryland[3] motion, alleging the State failed to disclose information relating to the CIs in the investigation. Davis also moved to suppress Brock's out-of-court identification of Davis, arguing the identification process was unduly suggestive.

         At the motions hearing, the circuit court denied Davis's motion to dismiss the superseding indictment; however, the State consented to Davis's motion to sever the charges and agreed to proceed only on Count I for conspiracy to traffic methamphetamine. Additionally, the court denied Davis's Brady motion. After conducting a Neil v. Biggers[4] hearing, the court also denied Davis's motion to suppress Brock's out-of-court identification of Davis.

         The case was called for a jury trial in Greenville County on September 17, 2013. During the two-day trial, each of Davis's alleged co-conspirators-all having pled guilty to various related charges-testified for the State in exchange for a recommendation for a lesser sentence. The State began its "historical case, " of what law enforcement coined as the "Greenville Conspiracy, " with testimony from two CIs involved in purchases of methamphetamine from Robinson, Sekerchak, Byers, and Dendy, and from a cooperating defendant in a separate trafficking conspiracy who had bought methamphetamine from Sekerchak and Brock.

         Byers, one of Brock's suppliers, testified he met Davis one time through his cousin's boyfriend in a vehicle at a local car wash. While Byers sat in the back seat, he claimed Davis gave approximately one gram of methamphetamine to his cousin's boyfriend in the driver seat. Byers said his cousin's boyfriend then passed the drugs back to him, which he later resold.

         Sekerchak testified he and his brother purchased methamphetamine from Brock and Dendy on numerous occasions, which they would resell. Sekerchak stated he waited in the car while his brother went into Brock's house to give them the money. According to Sekerchak, Davis drove up in either a black Honda or silver Dodge Charger and Dendy came outside to exchange the money for methamphetamine. Sekerchak stated Dendy and Brock sometimes mentioned they had to wait on Davis to deliver the drugs.

         Robinson testified he purchased an "eight-ball, " or 3.5 grams, of methamphetamine a week from Dendy, which he resold to others for about a year. During that period, Robinson also said he bought about 1.5 grams of methamphetamine from Brock every week. Robinson maintained he never met Davis.

         Brock testified she bought between a "half-eighth" to a quarter ounce, or approximately 7.0 grams, of methamphetamine up to several times a week from Dendy and his cousin from spring 2010 to October or November 2010. She stated she was able to see the person in a silver car on numerous occasions because roughly half of the deals occurred in her driveway during daylight hours. When the State showed Davis's DMV driving record to Brock in the courtroom, she reaffirmed her prior identification of Davis as Dendy's supplier.

         Dendy testified he sold between 3.0 and 3.5 grams of methamphetamine, which he got from Davis, to Robinson on at least fifteen occasions. Dendy stated he first met Brock during a visit to Robinson's home. After they developed a buyer-seller relationship, Dendy stated he would go to Brock's house to collect her money and then call Davis to bring the amount of methamphetamine that Brock requested. Dendy testified Brock asked for a quarter ounce of the drug nine to ten times and an eight-ball five to six times. When Davis arrived, Dendy said he would go out to meet him and exchange the money for methamphetamine. Dendy confirmed that Brock would sometimes come outside next to where he and Davis completed the transactions. On cross-examination, Dendy admitted Davis was not his cousin.

         Last, the State called Agent Asbill, the SLED investigator who initiated the CI's undercover purchase of methamphetamine from Davis. When the State began to elicit testimony from Agent Asbill about the CI's purchase, Davis made multiple objections that such testimony was inadmissible hearsay from a nontestifying witness and violated his confrontation rights. The circuit court overruled the objections, stating Agent Asbill could testify about his personal observations and experiences during the controlled purchase.

         During his testimony, Agent Asbill did not reveal the CI's identity to the jury. Agent Asbill testified that he and another officer searched the CI, placed a transmitting device on him, and gave him documented government money. Thereafter, Agent Asbill stated that, while he was parked at a nearby school, the CI went to Davis's residence on Dobb Street, spent a period of time there, and received a phone call. Agent Asbill also noted he saw a silver Chrysler 300 in the area, but he did not see who was driving the car. The State then requested a bench conference outside the jury's presence to discuss its desire to ask Agent Asbill if he could identify the voices in the CI's wired recording of the controlled purchase. After Agent Asbill informed the circuit court that he could not determine who was speaking in the recording, the State conceded the issue. Once the jury returned, the following colloquy took place:

The State: We were discussing a controlled purchase against the target Clyde Davis. What were the results of that controlled purchase?
Agent Asbill: The confidential informant returned to us with a purchase of methamphetamine.
The State: And how much methamphetamine was it?
Agent Asbill: Approximately 3.5 grams.
The State: And was that paid for with documented government ...

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