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State v. Pulley

Supreme Court of South Carolina

June 6, 2018

The State, Respondent,
v.
Timothy Artez Pulley, Appellant. Appellate Case No. 2015-002206

          Heard March 27, 2018

          Appeal From Laurens County Donald B. Hocker, Circuit Court Judge.

          Clarence R. Wise, of Greenwood, for Appellant.

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

          BEATTY CHIEF JUSTICE.

         Timothy Pulley appeals his conviction for trafficking cocaine base (cocaine) of ten grams or more, but less than twenty-eight grams in violation of section 44-53-375(C)(1) of the South Carolina Code (2018). Pulley alleges the trial court erred in: (1) charging a permissive inference that knowledge and possession of a substance may be inferred when the substance is found on the property under the defendant's control; (2) failing to charge the jury that the State must prove a complete chain of custody; (3) failing to suppress the cocaine due to an incomplete chain of custody; (4) failing to suppress the cocaine due to an invalid inventory search; (5) finding the cocaine was seized pursuant to a valid search incident to arrest; and (6) failing to require the State to open fully on the law and the facts of the case in closing argument and reply only to arguments of Pulley's defense counsel.[1] We find the trial court erred in concluding the State established a complete chain of custody. Accordingly, we reverse Pulley's conviction and sentence.

         I. Factual/Procedural History[2]

         On Saturday, June 22, 2013, Pulley picked up his girlfriend's vehicle from a local paint shop. Early the next morning, Officers Brewer and Craven, of the Laurens Police Department (the Department), initiated a traffic stop to cite Pulley for a speeding violation. Both officers-driving separately-activated their blue lights[3] and followed Pulley until he eventually parked in the McDonald's parking lot. After stopping, Pulley immediately exited the vehicle and closed the door. At that time, Craven recognized Pulley from a prior incident and knew that he was driving under suspension (DUS). The officers asked Pulley for identification and he responded he did not have a license. As a result, the two officers attempted to place Pulley under arrest for DUS. After a struggle, the officers eventually handcuffed Pulley and placed him into Brewer's patrol car. During the struggle Pulley's pants came off. Before returning the pants to Pulley, the officers searched them and found marijuana.

         Although the Department did not have a policy outlining the procedures for towing vehicles from private property, the officers determined the vehicle should be towed because the traffic violation occurred on a public highway and Pulley was arrested. Thus, the officers conducted an inventory search of the vehicle. Before the tow truck arrived, and upon opening the driver's side door, the officers located a yellow grocery bag on the floor behind the driver's seat. Inside the yellow grocery bag, the officers found three clear plastic bags that, combined, contained 16.5 grams of cocaine.

         A grand jury indicted Pulley for trafficking cocaine. Prior to trial, Pulley moved to suppress the drug evidence discovered during the inventory search on the basis that the officers were not authorized to tow the vehicle from the private parking lot and failed to follow the Department's inventory procedures.

         At the suppression hearing, [4] Craven admitted that the vehicle was not impeding traffic in the McDonald's parking lot, but that it was standard procedure to tow vehicles where the lone occupant was arrested. Additionally, Craven testified he did not list the drugs on the "towed vehicle report" because they were not personal items and were instead listed on the incident report property list. However, Craven acknowledged that the tow truck driver did not sign the report, as is customary, and admitted he did not complete the inventory report form until he returned to the Department and filled out the report the best he could from memory.

         The trial court denied the motion to suppress on the grounds that the speeding violation created probable cause to stop the vehicle and, after Pulley was arrested for DUS, the marijuana the officers found on Pulley's person provided the justification for the officers to search the car, [5] without a warrant, incident to arrest. The trial court noted that he did not consider the situation to be an inventory search and, even if he did, the fact that the tow truck operator's signature was missing would not have invalidated the search.

         During trial, Craven explained to the jury that after the cocaine was discovered, the "[drugs] were placed in evidence inside the Laurens Police Department." Next, Officer Brewer testified that he did not take the cocaine from the scene. According to Brewer's recollection, Craven "took possession" of the drugs, however, Brewer could not remember "how the drugs got from [the scene] to the patrol office."

         At the time of the incident, John Stankus was the evidence custodian for the Department. Stankus testified that he retrieved the cocaine from the lockbox and that the chain of custody form indicated Craven was the officer that placed the cocaine in the lockbox. However, the chain of custody form suggested that Stankus received the cocaine from Craven in person. In response, Stankus admitted the form was incorrect, but maintained it was standard procedure to write "in person" in the space provided that asks whether the custodian received the evidence by mail or in person.

         Maribeth McCormick, a forensic scientist in the drug analysis department of the South Carolina State Law Enforcement Division (SLED), testified that she received the cocaine from the Department. After McCormick began testifying, but before stating the results of her analysis, defense counsel argued that the State failed to establish a chain of custody in regards to the cocaine. Thereafter, the following colloquy took place:

Trial Court: Solicitor would you agree . . . we have no testimony from the time of the [cocaine] on Brewer's car [to] ...

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