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2011-UP-406 - State v. Ward

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Jerry Lee Ward, Appellant.


Appeal From Cherokee County
Roger L. Couch, Circuit Court Judge


Unpublished Opinion No. 2011-UP-406
Submitted August 15, 2011 – Filed August 29, 2011   


AFFIRMED


Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor Barry J. Barnette, of Spartanburg, for Respondent.

PER CURIAM:  Jerry Lee Ward appeals his convictions for attempted armed robbery, kidnapping, and assault with intent to kill, arguing the circuit court erred in refusing to dismiss the indictments because of the State's failure to preserve potentially exculpatory evidence.  We affirm.[1]

An appellate court only reviews errors of law in criminal cases and is bound by the circuit court's findings of fact unless they are clearly erroneous and unsupported by the evidence.  State v. Williams, 386 S.C. 503, 509, 690 S.E.2d 62, 65 (2010).  In order to establish a due process violation arising from the State's failure to preserve evidence, a defendant must "demonstrate (1) that the State destroyed the evidence in bad faith, or (2) that the evidence possessed an exculpatory value apparent before the evidence was destroyed and the defendant cannot obtain other evidence of comparable value by other means."  State v. Cheeseboro, 346 S.C. 526, 538-39, 552 S.E.2d 300, 307 (2001); see also State v. Jackson, 302 S.C. 313, 315, 396 S.E.2d 101, 102 (1990).

We hold the circuit court did not err in denying Ward's motion to dismiss.  First, Ward presents no evidence or even an argument that the videotape was destroyed in bad faith.  Second, we find the videotape did not possess an apparent exculpatory value before it was destroyed.  Only the investigating officer reviewed the videotape, and he testified that static on the videotape prevented him from identifying the people in the frame.  The review neither convinced him that the videotape would help in the identification of the assailant nor made him question the victim's allegations.  Indeed, the victim testified that the crimes occurred in the convenience store's cooler—away from the security cameras' view.  Ward's argument that the videotape "clearly could have possessed" an exculpatory value before it was destroyed does not "satisfy the standard of constitutional materiality."  Arizona v. Youngblood, 488 U.S. 51, 56 n.* (1988) ("The possibility that the [evidence] could have exculpated [the defendant] if preserved or tested is not enough to satisfy the standard of constitutional materiality . . . .").  Moreover, Ward had the ability to cross-examine the investigating officer about what he saw on the videotape and whether the actions of the people on it were consistent with Ward's account of the facts.  See California v. Trombetta, 467 U.S. 479, 490 (1984) (suggesting cross-examination as a method to mitigate the absence of potentially exculpatory evidence by "rais[ing] doubts in the mind of the factfinder").  We find Ward's due process rights were not violated.  Accordingly, the decision of the circuit court is

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.