June 6, 2012 South Carolina published opinions

Supreme Court

State v Tapp

Tapp was convicted of rape and murder. On appeal, among other assignments of error, he argued that the state’s expert testimony was improperly admitted. During the appeal, the South Carolina Supreme Court issued a decision requiring all expert testimony be evaluated for reliability prior to its admission. The Court of Appeals held the trial court must make this determination before qualifying an expert and remanded Tapp’s case for a new trial. On discretionary review, the Court, 4-1, reversed. The majority held the objection to the expert’s evidence was preserved and that the trial court erred by leaving reliability determinations for the jury. The majority clarified that the reliability determination is to be made after the expert is qualified and before the testimony is presented to the jury. As to Tapp’s case, the majority held that the improperly admitted evidence did not bolster any of the key factual determinations of whether Tapp’s semen was in the victim, whether an innocent explanation existed for Tapp’s semen being in the victim and whether Tapp’s jailhouse confessions were credible. Therefore, the admission of evidence was harmless and the conviction as affirmed. The dissent argued the improperly admitted evidence went to the heart of the case and a new trial was required.

State v Liverman

Liverman was convicted of two counts of murder. On appeal, he argued that a witness who identified him on the night of crime did so due to an improperly suggestive show up procedure where he was taken from a police car and shown to the witness. The trial court held South Carolina precedent did not require a hearing where the identifying witness knows the accused. However, it required the identifying witness to testify as to the basis of his knowledge and the circumstances of the show up. It allowed the show up identification both because the identifying witness knew Liverman and under the circumstances, the show up was not overly suggestive. The Court of Appeals affirmed. The Court affirmed in result. It first noted that south Caronia’s rule allowing the admission of identification evidence without a hearing when the witness knows the accused is no longer good law based on recent United States Supreme court authority requiring a hearing for all identifications possibly tainted by state arranged suggestive procedures. The court also held the trial court did not provide a full hearing as required. However, based on the witness’s knowledge of Livermore, the extensive cross examination and other evidence presented at trial, the Court held admission of the show up identification was harmless.

Court of Appeals

Major v Hartsville

Major tripped as a result of stepping in a hole on Hartsville property. She sued the city for failure to fill the hole in. While Hartville admitted its agents knew trucks cu the corner where the hole was, it denied any evidence existed that agents were on constructive notice that the specific hole existed. The trial court agreed and granted summary judgment. The panel, 2-1, affirmed. It noted that there was no evidence that any agent of the city saw the hole or any other evidence about how long the hole had existed or any other evidence which put the city on constructive notice about the specific hole rather than the likelihood that trucks cutting the corner create depressions and holes. The dissent argued the majority adopted an actual notice standard and the evidence in the record showed that agents of Hartsville knew about the ruts, holes and depressions caused by the trucks cutting the corner and had field in several previous holes and were monitoring the corner to ensure no problems resulted because of the ruts or holes. Thus, the dissent argued there was a scintilla of evidence that constructive notice existed and would have remanded for trial.

Hammer v Hammer

Husband filed a declaratory judgment action seeking a declaration that the parties’ settlement agreement was void. The circuit court held that the family court had exclusive jurisdiction to enforce the settlement agreement and dismissed for lack of subject matter jurisdiction. The panel affirmed finding wife raised the subject matter jurisdiction argument properly by including it in her answer and by filing a memorandum, the settlement agreement did not specifically deny the family court from enforcing it and that South Carolina statute vests the family court with jurisdiction to enforce settlement agreements and its own orders. The panel noted the agreement was adopted by the family court in several orders.

State v McEachern

McEachern was convicted of drug trafficking offenses. On appeal, she raised four arguments. The panel rejected all four and affirmed. First, the panel held that McEachern opened the door for cross examination about her civil forfeiture of money in her pocketbook by testifying on direct that none of the money was drug money. She was allowed to explain why she agreed to forfeit the money and the judge struck closing argument based on the forfeiture. Second, the panel found evidence of McEachern’s provision of money to a codefendant’s jail account was relevant and the closing argument based on that evidence was proper. Third, the solicitor during McEachern’s cross examination indicated “we have heard” that she sold drugs to certain people. The trial court issued a curative instruction and allowed questions about dealing drugs to a limited group of people. The panel found the instruction cured any error and that a mistrial was not required under the circumstances. It found no error in allowing the questions about drug dealing as harmful evidence was elicited and that no new trial was required for failure to produce the people alleged to have purchased drugs from Mcechern. Finally, the panel found no error or set of errors existed to justify a new trial.

Buist v Buist

Husband appealed the property division, child custody and child support wards in the parties divorce decree. The panel affirmed in part and reversed in part. The panel found the family court had failed to assign fair market value to several martial assets and debts. It therefore vacated the property division and remanded for appropriate findings. The panel affirmed the child custody and visitation holding the living conditions, support form grandparents and efforts to deal with the child’s learning disability supported the award of primary custody to wife and that the changes to the visitation schedule between the temporary and permanent schedule were for the child’s benefit. The panel reversed an order requiring child support be paid through the clerk’s office. The panel finally held an issue related to attorney fees was unpreserved.

State v Ramsey

Ramsey was issued a ticket for criminal domestic violence. The alleged criminal acts were not committed in the presence of a law enforcement officer. After a previous dismissal was reversed by the South Carolina Supreme Court, Ramsey moved to dismiss on the grounds that the ticket did not give the magistrate jurisdiction over him. The magistrate agreed and dismissed. The panel affirmed. It held that SC Code 56-7-15(A) allows jurisdiction in magistrate’s court by issuance of a ticket for offenses committed in the presence of a law enforcement officer. As that did not occur here, dismissal was appropriate. The panel rejected an argument that “freshly committed” crimes should be covered by the statute as “freshly committed” crimes are those done outside the presence of a  law enforcement officer and the statute requires commission in the presence of an officer. The panel also rejected an argument that the Supreme Court ruling required jurisdiction be recognized as it dealt with a different issue.

State v Golston

Golston was charged with aggravated domestic violence. He requested a charge for simple domestic violence and self defense. The trial court only charged self defense and the jury convicted Golston of aggravated domestic violence. The panel; affirmed holding that the evidence presented only supported an aggravated charge as the victim had her face so swollen her son could not recognize her, she could not open her eyes for several days, the treating physicians order CT scans and later determined the victim had permanent injuries to her eyes. The panel summarily affirmed on sufficiency of the indictment and a motion to suppress evidence seized during a search incident to arrest.

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