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
The State, Respondent,
Charles Allen Henderson, Appellant.
James C. Williams, Jr., Circuit Court Judge
Unpublished Opinion No. 2006-UP-037
Submitted December 1, 2005 – Filed January 18, 2006
REVERSED AND REMANDED
Assistant Appellate Defender Aileen P. Clare, 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 David A. Spencer, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.
PER CURIAM: Charles Henderson appeals his convictions for possession with intent to distribute cocaine in proximity of a school and trafficking in cocaine. Henderson argues the trial court erred by denying his motion to suppress evidence due to a defective search warrant and by using four separate verdict forms. We reverse and remand.
Charles Henderson, Kevin Covert, and others were present in Covert’s house in
All the individuals in the house were arrested and charged with trafficking in cocaine. However,
At trial, Myers testified he purchased cocaine from
I. Suppression of Evidence
In criminal cases, an appellate court reviews errors of law only and is bound by factual findings of the trial court unless clearly erroneous. State v.
During the trial,
First, we must determine whether the warrant was defective because the signature was dated two days after the search was conducted. Section 17-13-140 of the South Carolina Code (2003) states that a warrant shall be “issued only upon affidavit sworn to before the magistrate, municipal judicial officer, or judge of a court of record establishing the grounds for the warrant.” Though the statute does not specifically require that the warrant be signed, it requires that it be “issued.” In Davis v. Sanders, 40 S.C. 507, 19 S.E. 138 (1894), “[our supreme] court held that the warrant was not ‘issued’ as required by law, and conferred no authority on the sheriff to make the arrest, because the magistrate did not sign at the foot as he intended to do, and because he did not intend the indorsement on the back as his signature of the warrant.” Du Bose v. Du Bose, 90 S.C. 87, 90, 72 S.E. 645, 646 (1911). Therefore, a warrant is not issued until signed by an appropriate magistrate, municipal judicial officer, or judge of a court of record. See 77-370 S.C. Op. Att’y Gen. 295 (1977) (stating a warrant is properly issued only when signed by the magistrate and only upon a sworn affidavit). Thus, the warrant in this case was defective because there was no evidence that the magistrate signed the warrant before the search was conducted and the signature on the warrant is dated two days after the search was conducted.
Courts of other states have also held a search warrant must be signed because it is the confirmation that the magistrate determined the facts asserted in the affidavit support a finding of probable cause. In State v. Surowiecki, 440 A.2d 798, 799 (Conn. 1981), the Connecticut Supreme Court held that a warrant is not “issued” without a lawful signature on the search warrant by the person authorized to issue it. The court reached this conclusion even though there was no doubt the judge intended to sign the search warrant and failed to do so because of a “mere oversight.”
Having found the warrant was defective because the signature was dated two days after the search was conducted; we must next determine whether the good faith exception to the Fourth Amendment’s exclusionary rule should apply to
In State v. Sachs, 264 S.C. 541, 559, 216 S.E.2d 501, 510 (1975), the Supreme Court of South Carolina found a good faith exception permits the introduction of evidence seized pursuant to a warrant that is defective under section 17-13-140 of the South Carolina Code if the officers have made a good faith attempt to comply with the affidavit requirement. In Sachs, the affidavit the officers relied on contained misstated facts; however, the court determined that such misstatements in an affidavit were “necessary hazards” encountered when federal and state authorities search in a joint effort and the affidavit satisfied a good-faith attempt to comply with the statute relating to search warrants.
In State v. McKnight, 291 S.C. 110, 112-13, 352 S.E.2d 471, 472 (1987), the officers orally recited the facts upon which the warrant was based, but no affidavit was ever executed. As a result, the court found that there was no good faith effort to comply with the statute; however, the court declined to decide whether there is a good faith exception for officers who execute a search with objectively reasonable reliance on a warrant that is ultimately found to be invalid.
Since we find the warrant was defective and the good faith exception to the warrant requirement does not apply in this case, we must finally determine if the admission of the evidence found with the defective warrant constituted harmless error. “Error is harmless where it could not reasonably have affected the result of the trial.” State v. Reeves, 301 S.C. 191, 193-94, 391 S.E.2d 241, 243 (1990). Generally, appellate courts will not set aside convictions due to insubstantial error not affecting the result. State v. Davis, 364 S.C. 364, 409, 613 S.E.2d 760, 784 (Ct. App. 2005). The violation found in this case cannot be seen as harmless error because exclusion of the evidence could have reasonably affected the result of the trial and the issue of the amount of cocaine allegedly possessed by
II. Verdict Form
Henderson contends the trial judge erred by creating four separate special verdict forms for the single charge of trafficking because it unfairly emphasized guilt and gave the jury four separate opportunities to convict him of a single charge. We disagree.
At the close of the case, the judge drafted a special verdict form for each defendant with interrogatories consisting of a statement followed by a choice of “yes” or “no” as to the trafficking charge and the lesser-included charges of possession with intent to distribute and simple possession.
This is a novel question of law in
REVERSED AND REMANDED.
ANDERSON, J., (dissenting in part and concurring in part in RESULT ONLY):
I adhere to my dissenting and concurring opinion in State v. Covert, Op. No. 4071 (S.C. Ct. App. Filed Jan. 17, 2006). The latter case involved an appeal by the appellant’s co-defendant and raised issues relating to the search warrant and the special verdict forms. I VOTE to reverse.
GOOLSBY, J. (concurring and dissenting): I adhere to the views expressed in my dissenting opinion in State v. Covert, Op. No. 4071 (S.C. Ct. App. Filed Jan. 17, 2006), both as to the issue of the search warrant and as to the issue of the special verdict form.
I would affirm.
 We decide this case without oral argument pursuant to Rule 215, SCACR.
 Courts in other states have made the same determination: Kelley v. State, 316 So.2d 233 (Ala. Crim. App. 1975); Martin v. State, 344 So.2d 248 (Fla. Dist. Ct. App. 1976); Byrd v. Commonwealth, 261 S.W.2d 437 (Ky. Ct. App. 1953); United States v. Carignan, 286 F.Supp. 284 (Mass. Dist. Ct. 1967); People v. Hentkowski, 397 N.W.2d 255 (Mich. Ct. App. 1986); State v. Fleming, 227 S.W.2d 106 (Mo. Ct. App. 1950); State v. Williams, 565 N.E.2d 563 (
 The State did not offer any evidence that the magistrate signed the warrant on September 26, 2002, and the magistrate did not testify at trial.
 The State argues that