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26446 - State v. Roach

THE STATE OF SOUTH CAROLINA
In The Supreme Court


The State, Petitioner,

v.

Kenneth Roach, Respondent.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal From York County
 John C. Hayes, III, Circuit Court Judge


Opinion No. 26446
Heard January 8, 2008 - Filed March 10, 2008  


VACATED IN PART; AFFIRMED IN PART


Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Solicitor Thomas E. Pope, of York, for Petitioner.

Chief Appellate Defender Joseph L. Savitz, III, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Respondent.

PER CURIAM:  Kenneth Roach was convicted of multiple drug offenses and sentenced to an aggregate term of thirty years in prison.  Roach appealed to the Court of Appeals, arguing the trial court erred by admitting hearsay testimony in violation of the Confrontation Clause and by improperly allowing an in-court identification.  The Court of Appeals upheld the trial judge’s ruling on the in-court identification but found that the admission of the allegedly hearsay testimony violated the Confrontation Clause.  However, the Court of Appeals determined the admission of the testimony was harmless error and affirmed Roach’s convictions.  State v. Roach, 364 S.C. 422, 613 S.E.2d 791 (Ct. App. 2005).  We granted the State’s petition to review whether the allegedly hearsay testimony was improperly admitted at trial.

At oral argument before this Court, Roach’s counsel admitted that the State was correct in asserting that the hearsay issue was not properly preserved for appellate review.  We therefore hold that the hearsay issue should not have been addressed by the Court of Appeals.  Hendrix v. Eastern Distrib., Inc., 320 S.C. 218, 464 S.E.2d 112 (1995) (issue not preserved for review before the Court of Appeals should not have been addressed and thus portion of opinion was vacated by Supreme Court).  Accordingly, we affirm Roach’s convictions in result only and vacate the portion of the Court of Appeals’ opinion that addresses the hearsay issue.

VACATED IN PART; AFFIRMED IN PART.

TOAL, C.J., MOORE, WALLER, PLEICONES, JJ., and Acting Justice J. Michelle Childs, concur.