State v. Gamble

Justice PLEICONES.

I respectfully dissent. The majority holds that the record in this case is devoid of any evidence that the police had probable cause to seize the drug evidence presented at trial. In my view, petitioner prevented the introduction of evidence on the issue of probable cause and should not be permitted to benefit from his deliberate avoidance of a suppression hearing on the issue. Thus, I respectfully dissent.

The record in this case shows that some pretrial discussions took place regarding the effect the confidential informant’s death had on the case, although the substance of those discussions does not appear in the record. It can, nonetheless, be inferred from the record that petitioner was contesting the introduction of the drug evidence as lacking a foundation because the State would be unable to establish probable cause for the initial arrest due to the unavailability of the confiden*421tial informant. Upon questioning, petitioner specifically declined to make a suppression motion before trial. During trial, he objected to the introduction of the drug evidence. At the conclusion of the State’s case, petitioner made a directed verdict motion, arguing that the State had failed to present evidence of probable cause for petitioner’s arrest. Although the State offered to present its evidence for probable cause in a hearing outside the presence of the jury, petitioner made no request for such a hearing, arguing only that the State had failed to establish probable cause. At oral argument before this Court, petitioner argued that the judge’s failure to conduct the hearing in response to the State’s offer was error.

I disagree. The defendant’s failure to request a hearing outside the presence of the jury to determine whether probable cause existed for the arrest constitutes a concession that the evidence is competent. See State v. Rankin, 3 S.C. 438, 448 (1872) (defendant’s failure to object to evidence is a concession of its competency); State v. Blassingame, 271 S.C. 44, 47-48, 244 S.E.2d 528, 530 (1978) (“Whenever evidence is introduced that was allegedly obtained by conduct violative of the defendant’s constitutional rights, the defendant is entitled to have the trial judge conduct an evidentiary hearing out of the presence of the jury at this threshold point to establish the circumstances under which it was seized.”); State v. Patton, 322 S.C. 408, 411, 472 S.E.2d 245, 247 (1996) (to be entitled to such a hearing, the defendant must state specific grounds on which he objects to admission of evidence). Petitioner repeatedly declined to avail himself of the opportunity to test the State’s evidence of probable cause in a suppression hearing.8

*422Thus, to the extent the record fails to establish probable cause for petitioner’s arrest, it is of petitioner’s doing. State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984)(defendant cannot complain of an error induced by his own conduct); State v. Winestock, 271 S.C. 473, 474, 248 S.E.2d 307, 307-308 (1978) (burden is on appellant to present sufficient record from which appellate court can determine whether trial court committed error). The majority shifts the burden to the State to place evidence of probable cause in the record contrary to well-established law that the defendant must challenge admissibility of evidence offered by the State. Likewise, the majority’s comparison of the evidence in this record with the evidence in a case in which a suppression hearing was conducted is entirely inappropriate. See State v. Freiburger, 366 S.C. 125, 133, 620 S.E.2d 737, 741 (2005) (discussing officer’s testimony at in camera hearing). The majority rewards petitioner’s default, whether intentional or unintentional, with a reversal of his conviction.

Moreover, in this case the arresting officer testified without objection that petitioner was arrested and that in searches incident thereto a brown powdered substance that field tested positive for heroin was discovered on petitioner’s person and in his car. Because the drugs themselves were cumulative once the officer’s testimony had been admitted without objection, their admission was harmless even if improper. State v. Johnson, 298 S.C. 496, 499, 381 S.E.2d 732, 733 (1989); State v. Rice, 375 S.C. 302, 332, 652 S.E.2d 409, 424 (Ct.App.2007), overruled on other grounds by State v. Byers, 392 S.C. 438, 710 S.E.2d 55 (2011) (finding admission of documentary evidence harmless even if improper because cumulative to testimony admitted for same purpose).

Thus, I respectfully dissent.

. It may be that petitioner sought to avoid a hearing outside the presence of the jury where neither the hearsay rule nor the right to confront adverse witnesses would apply. See State v. Pressley, 288 S.C. 128, 131, 341 S.E.2d 626, 628 (1986) (approving use of hearsay evidence in a hearing before a judge to determine the admissibility of evidence); State v. Burney, 294 S.C. 61, 62, 362 S.E.2d 635, 636 (1987) (State not required to reveal name of confidential informant unless an active participant in the criminal transaction). Indeed, petitioner implicitly recognized the existence of evidence of probable cause in his attempt to argue it was inadmissible: “We know that they made ... an arrest for attempt to distribute.... That ... arrest was based on hearsay from an informant that’s not here to testify today.”