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2005-UP-015 - State v. Carter

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

David Carter,        Appellant.


Appeal From Lancaster County
Paul M. Burch, Circuit Court Judge


Unpublished Opinion No. 2005-UP-015
Submitted December 1, 2004 – Filed January 13, 2005


AFFIRMED


Senior Assistant Appellate Defender Wanda P. Hagler, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General  Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor John R. Justice, of Chester, for Respondent.


PER CURIAM:  David Carter appeals his conviction for armed robbery, arguing the circuit court (1) lacked subject matter jurisdiction because Carter’s indictment was insufficient; (2) erred in admitting evidence allegedly obtained unlawfully through a warrantless search; and (3) erred in allowing the State to make remarks in its closing statement that were allegedly prejudicial against Carter.  We affirm.

FACTS

Carter and an acquaintance, Marvin Thompson, were charged with armed robbery in connection with the June 28, 2002, robbery of the Stop and Shop convenience store in Lancaster.

The day after Carter was incarcerated on the charges, he asked a sheriff’s deputy to procure some papers from his home.  He specifically instructed the deputy to go to the home, enter through its unlocked back door, and go down the hall and through the kitchen to the living room, where a black bag was located that contained the papers Carter sought.  The deputy complied, and while walking through the kitchen saw a handwritten “stick up” note stating “I got a gun.  Put all of the money in the bag or I will shoot you.  Then lay on the floor.”  The deputy retained the note as evidence.  At trial, Carter sought to suppress the “stick up” note, claiming it was seized through an illegal search of his home.  The court allowed the “stick up” note in evidence. 

Thompson pled guilty prior to Carter’s trial, and in so doing implicated Carter in the robbery.  Thompson subsequently, however, retreated from his guilty plea statements implicating Carter.  Thompson was willing to testify for Carter—that Carter was not involved in the armed robbery—but he was concerned the State would retaliate against him for his change in position.  The State informed the trial court that it had no intention of retaliating against Thompson, and in this regard, the State granted Thompson immunity from perjury.  Thompson did testify for Carter and claimed Carter had not been involved in the robbery.  In its closing statements, the State suggested that Thompson, in light of the grant of immunity, had nothing to lose in testifying for his friend, Carter. Carter’s counsel interrupted the State’s argument and disagreed with the State’s use and characterization of the grant of immunity to Thompson, stating “Your Honor, [the State] mischaracterized that totally about what he had to lose if Your Honor remembers back to yesterday, that’s, in fact, not the case.”   The court allowed the State to continue its argument.

Carter was convicted on the armed robbery charge.  This appeal followed.      

DISCUSSION

I.       Subject Matter Jurisdiction

Carter first argues the indictment was insufficient to confer subject matter jurisdiction because the it cited the incorrect statutory subsection and also failed to specifically alleged a “carrying away” of property.  We disagree.

“An indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon.”  State v. Adams, 354 S.C. 361, 374, 580 S.E.2d 785, 791 (Ct. App. 2003).  “The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.”  Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995).  “[I]n viewing the sufficiency of an indictment we must look at the issue with a practical eye in view of the surrounding circumstances.”  State v. Gunn, 313 S.C. 124, 130, 437 S.E.2d 75, 78 (1993).

Here, the caption twice stated Carter was indicted for “§ 16-11-0330(B)  ARMED ROBBERY.”  At trial, the parties agreed that the indictment incorrectly referred to subsection (B) of section 16-11-330, which addresses “attempted armed robbery,” instead of subsection (A), which addresses “armed robbery.”  See S.C. Code Ann. § 16-11-330 (1976).   The court allowed the State to amend the typographical error at trial over Carter’s objection.  We find that this minor alteration merely corrected a typographical error.  See S.C. Code Ann. § 17-19-100 (2003).

Additionally, the indictment stated:

That David Carter did in Lancaster County on or about June 28, 2002, while armed with a deadly weapon, to wit:  pistol, feloniously take from the person or presence of STOP AND SHOP such goods or monies being described herein as follows:  money with intent to deprive the owner permanently of such property.

Carter argues the indictment fails because it does not include the words “carrying away” to demonstrate the requisite element of asportation, which means “taking of an object with felonious intent.”  Locke v. State, 341 S.C. 54, 57, 533 S.E.2d 324, 325 (2000).  However, we find that the indictment’s language stating “feloniously take from the person or presence of” the store inherently includes the element of asportation.  See Id. at 56, 533 S.E.2d at 325 (“Indictment language ‘taking of goods and/or monies from the person or presence of’ alleged the substance of asportation . . . was sufficient because asportation merely meant the taking of an object with felonious intent”).

Viewing this indictment with a practical eye and considering the surrounding circumstances, we find it sufficiently apprised Carter of the specific crime for which he was charged.  In particular, we note the indictment stated he was charged with “ARMED ROBBERY” and included the statute, albeit with a typographical error concerning the subsection which the court was entitled to correct.  Furthermore, the body of the indictment included the details of the circumstances Carter was called upon to defend and alleges the substance of the crime charged, including the requisite element of asportation.  Thus, we find the indictment sufficient to confer subject matter jurisdiction.

II.      Admission of Evidence

Carter argues the court erred in allowing the “stick up” note into evidence because it was seized pursuant to a warrantless search.  We disagree, for we find evidence to support the trial judge’s findings.  State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000) (the standard of review in Fourth Amendment search and seizure cases is limited to determining whether any evidence supports the trial court’s findings, and the appellate court may reverse only where there is clear error). 

“[O]bjects falling within the plain view of a law enforcement officer who is rightfully in position to view these objects are subject to seizure and may be introduced in evidence.”  State v. Brown, 289 S.C. 581, 588, 347 S.E.2d 882, 886 (1986).  Here, Carter admittedly asked the officer to enter his home, specifically the kitchen area, where the note was left open on a table.  Concerning the conspicuous nature of the kitchen table, Carter acknowledged that anyone present in his kitchen, including law enforcement, would see “anything” on his table.  These facts satisfy the plain view exception to the warrant requirement.  State v. Abdullah, 357 S.C. 344, 349, 592 S.E.2d 344, 352-53 (Ct. App. 2004) (plain view exception to warrant requirement requires that the initial intrusion be lawful, the discovery of the evidence be inadvertent, and the incriminating nature of the evidence be immediately apparent). 

III.    The State’s Closing Statement

Carter alleges the circuit court erred in permitting the State to make a comment questioning the motive of Thompson, the co-defendant witness who had pled guilty, been granted immunity, and then testified favorably toward Carter.

In the present case, Carter’s counsel asserted, “Your Honor, [the State] mischaracterized that totally about what he had to lose if Your Honor remembers back to yesterday, that’s, in fact, not the case.”  This interruption of the State’s closing statement can hardly be said to constitute a specific objection or a request for relief.   Even assuming counsel’s statement may properly be construed as an objection, there is clearly no request for relief.  Accordingly, we find the issue unpreserved for appellate review.  See State v. Black, 319 S.C. 515, 521, 462 S.E.2d 311, 315 (Ct. App. 1995) (“The proper course to be pursued when counsel makes an improper argument is for opposing counsel to immediately object and to have a record made of the statements or language complained of and to ask the court for a distinct ruling thereon”); State v. Patterson, 324 S.C. 5, 17, 482 S.E.2d 760, 766 (1997) (holding a “general objection that does not specify the particular ground on which the objection is based is insufficient to preserve a question for review”). 

AFFIRMED.

HUFF, KITTREDGE, and BEATTY, JJ., concur.