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State v. Trapp

Court of Appeals of South Carolina

May 24, 2017

The State, Respondent,
Toaby Alexander Trapp, Appellant. Appellate Case No. 2014-002358

          Heard December 6, 2016

         Appeal From Newberry County Eugene C. Griffith, Jr., Circuit Court Judge

          Dietrich André Lake, of The Lake Law Firm, of Columbia, for Appellant.

          Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia; and Solicitor David Matthew Stumbo, of Greenwood, for Respondent.

          WILLIAMS, J.

         In this criminal appeal, Toaby Trapp appeals his conviction for trafficking crack cocaine, arguing the circuit court erred in (1) admitting drug evidence when the State failed to establish a strict chain of custody; (2) admitting testimonial evidence in violation of the Confrontation Clause; (3) failing to grant a Franks v. Delaware[1] hearing and subsequently refusing to suppress evidence obtained as a result of the invalid search warrant; and (4) admitting Trapp's alleged confession without a Jackson v. Denno[2] hearing when the totality of circumstances demonstrated Trapp's statements were involuntary and thus inadmissible. We affirm.


         On October 8, 2011, Trapp called police when he discovered someone had burglarized his home and stole $7, 000 in cash from a shoebox in his bedroom closet. During the burglary investigation, crack cocaine was discovered in Trapp's bedroom. A search warrant was executed and other contraband was seized from his home. Trapp was not arrested that evening but was eventually charged and later indicted by a grand jury for trafficking crack cocaine.

         A two-day jury trial was conducted from October 30-31, 2014. Prior to trial, Trapp moved to suppress the drug evidence based upon an insufficient chain of custody and an invalid search warrant. Trapp also moved to suppress his alleged confession pursuant to Jackson v. Denno. At the conclusion of the pre-trial hearing, Trapp moved to continue the trial. After hearing arguments from both parties on the respective issues, the circuit court denied all of Trapp's motions.

         At trial, the State first called Deputy Brad Epps of the Newberry County sheriff's department to testify regarding his involvement that evening. Deputy Epps was the first officer to respond to the scene. Deputy Epps stated he immediately called Investigator Robert Spreng once he confirmed Trapp's home had been burglarized. Once Investigator Spreng arrived, Deputy Epps recollected that Investigator Spreng took photographs of the incident location and assisted in documenting evidence. During Investigator Spreng's investigation, Deputy Epps followed him into Trapp's bedroom where they noticed a large amount of crack cocaine in a pill bottle. Deputy Epps confirmed he personally observed the pill bottle but admitted he failed to notate this observation in his police report. According to Deputy Epps, the details in his report pertained only to the burglary.

         The State then called Captain Robert Dennis to testify. Captain Dennis stated he arrived last on the scene after being contacted by Investigator Spreng. Captain Dennis testified he arrived at Trapp's residence "maybe five or six minutes" before Investigator Nick Bouknight returned with a search warrant.[3] According to Captain Dennis, he entered Trapp's residence and observed the pill bottle on Trapp's bedroom dresser. After searching the remainder of Trapp's home, Captain Dennis questioned Trapp. Captain Dennis stated Trapp was handcuffed at that time as part of their "investigative detention." According to Captain Dennis, he read Trapp his Miranda rights, and Trapp agreed to waive his rights. Captain Dennis then recounted that Trapp admitted there was crack in the pill bottle but stated he had forgotten it was in his bedroom and was merely heeding the police dispatcher's instructions not to re-enter his house or disturb its contents prior to police responding to the burglary.

         After talking to Trapp, Captain Dennis stated he signed off on the return to the search warrant, logged in the time he received the search warrant, and personally documented the items seized from the residence. Captain Dennis affirmed that Investigator Bouknight, as the narcotics officer for the sheriff's department, personally seized and handled all the drug evidence at Trapp's residence in the presence of both Investigator Spreng and himself. Specifically, Captain Dennis recounted the following inventory was listed in the return and taken pursuant to the search warrant: (1) pictures of the incident location taken by Investigator Spreng; (2) two plastic bags containing a white, solid substance located on the floor in front of the dresser in the master bedroom; (2) a pill bottle on the master bedroom dresser containing a white, solid substance; (3) a CD case scale; (4) a spoon and razor blade with residue; and (5) a straw.

         Trapp objected to any testimony from Captain Dennis regarding Investigator Bouknight's role in the chain of custody for the drug evidence.[4] Outside the presence of the jury, Captain Dennis proffered testimony regarding office policy for the collection and storage of drug evidence as well as its submission to the South Carolina Law Enforcement Division (SLED). After extensive arguments regarding the propriety of Captain Dennis's testimony, the court stated, "And I think the State barely gets by it, but they get by it and it gives [Trapp] the opportunity to argue your weight or credibility of the chain but not admissibility. I'm going to allow it."

         Captain Dennis then acknowledged that Investigator Bouknight was also the narcotics evidence custodian, and as part of his duties as custodian, he completed an evidence log-in form and a Form B/Rule 6 form (Form B) to certify the chain of physical custody of the drug evidence. Captain Dennis stated the Form B was produced by SLED and certifies which officer seized the evidence, the type of arrest, and from whom the evidence was seized. Captain Dennis then enumerated the items listed by Investigator Bouknight on the Form B for transport to SLED as follows: "(1) plastic bag containing a quantity of cookie-like substance; (2) plastic baggie containing a quantity of white cookie substance; (3) orange pill bottle containing a quantity of white cookie substance; (4) scale containing a quantity of white residue on it; (5) spoon with a quantity of white residue on it; (6) quantity of white residue." Captain Dennis went on to read Bouknight's affirmation that he received this evidence on October 9, 2011, and delivered "the above-described substance or container to SLED in substantially the same condition as when [he] received it" on October 21, 2011. When questioned by Trapp, Captain Dennis could not explain the discrepancy in items on the return to the search warrant and the Form B, stating he had no knowledge what happened to the razor blade and straw that were seized from Trapp's residence but were not submitted to SLED for testing.

         In addition to Deputy Epps and Captain Dennis, [5] the State called Lynn Black, a forensic chemist with SLED, who testified regarding the chain of custody from the sheriff's department to SLED. Black stated Selena Kinard, a forensic technician at SLED, received drug evidence from Investigator Bouknight on October 21, 2011, logged in the evidence, placed a bar code on it for identification within the lab, and immediately transferred it to SLED's secure storage room. Black also testified SLED's policy was to return evidence if it appeared to have been tampered with prior to delivery.

         On October 25, 2011, Patricia Crooks, a forensic technician at SLED, transferred the evidence from the secured storage room to Black for testing. Black stated that within the best evidence kit were four unsealed manila envelopes and two plastic Ziploc bags.[6] Black affirmed that she had no knowledge of what happened to the drug evidence between its seizure at Trapp's residence and its delivery to SLED. After she tested the substances, Black testified she placed the items into another plastic bag that she heat-sealed, bar-coded, dated, and initialed.

         Trapp did not present a case or testify at trial. The jury found Trapp guilty of trafficking crack cocaine. Trapp moved for judgment notwithstanding the verdict (JNOV) and a new trial, and the circuit court denied both of these motions. Because it was Trapp's third offense, the circuit court sentenced Trapp to a mandatory minimum of twenty-five years imprisonment and issued a mandatory fine of $50, 000. This appeal followed.


         "In criminal cases, the appellate court sits to review errors of law only." State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). Therefore, an appellate court "is bound by the [circuit] court's factual findings unless they are clearly erroneous." State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases." Wilson, 345 S.C. at 6, 545 S.E.2d at 829. "The admission of evidence is within the discretion of the [circuit] court and will not be reversed absent an abuse of discretion." State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). "An abuse of discretion occurs when the conclusions of the [circuit] court either lack evidentiary support or are controlled by an error of law." State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006).


         I. Chain of Custody

         Trapp first contends the circuit court erred in admitting the drug evidence because the State failed to establish a strict chain of custody. We disagree.

         As an initial matter, the State argues Trapp waived any argument regarding the sufficiency of the chain of custody because Trapp did not contemporaneously object when the forensic chemist, Lynn Black, presented her results at trial. Because the State is required to establish the chain of custody prior to admitting drug evidence, the State contends Trapp's failure to object to the results of the SLED analysis effectively waived any complaints on appeal regarding the chain of custody and the ensuing admission of the drug evidence.

         "To [properly] preserve an issue for review[, ] there must be a contemporaneous objection that is ruled upon by the [circuit] court." State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d 520, 523 (2005). However, once the court has an opportunity to rule on an issue, and does so, it is unnecessary for trial counsel to continually renew the same objection. See Bennett v. State, 383 S.C. 303, 308, 680 S.E.2d 273, 275 (2009) (finding it unnecessary for trial counsel to renew his objection to continuing objectionable testimony when the circuit court had already ruled on the issue).

         During trial, Trapp challenged the admission of the drug evidence based upon an incomplete chain of custody on several occasions prior to Black's testimony. Specifically, Trapp objected to the State's line of questioning with Captain Dennis, arguing the State was trying to "backdoor" chain of custody evidence for the drugs through Captain Dennis because Investigator Bouknight had passed away. Trapp argued Investigator Bouknight was the only individual who could testify as to the condition of the drugs prior to their delivery to SLED, and without Bouknight's testimony, the chain was incomplete. The circuit court acknowledged Trapp's objection, stating, "All right. All right. Enough, I understand your argument." When the State then asked the court, "Didn't in his opening [Trapp say] we're not going to contest the fact that it's crack cocaine?, " Trapp responded that agreeing to testimony about the type of drug that was seized from Trapp's home was a "totally different argument" from the chain of custody argument before the court. Further, during Black's testimony, Trapp again reiterated that he was not objecting to the identification of the drugs as crack cocaine; rather, he was objecting to the "admissibility of the actual drugs into evidence" based upon an incomplete chain of custody. We find these objections, and the court's rulings on the objections, to sufficiently preserve this issue for this court's review.

         On the merits, we find the State presented sufficient evidence to reasonably demonstrate a complete chain of custody. A party offering into evidence fungible items such as drugs or blood samples must establish a complete chain of custody as far as practicable. Benton v. Pellum, 232 S.C. 26, 33, 100 S.E.2d 534, 537 (1957). When an analyzed substance has passed through several hands, the identity of individuals who acquired the evidence and what was done with the evidence between the taking and the analysis must not be left to conjecture. Id. at 33-34, 100 S.E.2d at 537. Accordingly, if the identity of each person handling the evidence is established, and the manner of handling is reasonably demonstrated, the circuit court does not abuse its discretion in admitting the evidence absent proof of tampering, bad faith, or ill-motive. State v. Taylor, 360 S.C. 18, 25, 598 S.E.2d 735, 738 (Ct. App. 2004).

         "Testimony from each custodian of fungible evidence, however, is not a prerequisite to establishing a chain of custody sufficient for admissibility." State v. Sweet, 374 S.C. 1, 7, 647 S.E.2d 202, 206 (2007). "Whe[n] other evidence establishes the identity of those who have handled the evidence and reasonably demonstrates the manner of handling of the evidence, our courts have been willing to fill gaps in the chain of custody due to an absent witness." Id. "The ultimate goal of chain of custody requirements is simply to ensure that the item is what it is purported to be." State v. Hatcher, 392 S.C. 86, 95, 708 S.E.2d 750, 755 (2011).

         Considering these factors, we find the circuit court did not abuse its discretion in finding the State established a sufficient chain of custody. Specifically, Captain Dennis was present at the incident location and observed all the items that were seized from Trapp's residence. Further, Captain Dennis signed the return to the search warrant and testified under oath that Investigator Bouknight collected these items at the scene and placed them in manila envelopes for transport to the secured evidence locker at the sheriff's department. Captain Dennis went on to testify how drug evidence was routinely handled at the sheriff's department, stating that, as evidence custodian, Investigator Bouknight would have placed the items inside a best evidence kit prior to storing ...

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