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,

Maurice Tyrone Porter, Appellant.

Appeal From Florence County
James E. Brogdon, Jr., Circuit Court Judge

Unpublished Opinion No. 2005-UP-457
Submitted June 1, 2005 – Filed July 19, 2005

AFFIRMED

Acting Chief Attorney Joseph L. Savitz, III, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Edgar Lewis Clements, III, of Florence, for Respondent.

PER CURIAM: Maurice Porter appeals his conviction for voluntary manslaughter, arguing the trial court erred in admitting evidence of two statements Porter made in front of Arthur Niles, a jailhouse informant, while incarcerated. Porter contends Niles elicited incriminating statements from him while acting as a government agent, violating Porter’s right to counsel. We affirm.[1]

FACTS

Porter was arrested for the murder of Shamell Simmons and placed in lockup at the Florence County Detention Center. While at the detention center, Porter met Arthur Niles, an inmate detained on federal charges. Niles and Porter were housed in the maximum segregation (max seg) section of the detention center.

Porter allegedly made the first statement to Niles and a third prisoner. Niles testified the third prisoner asked Porter: “What you locked up for?” Porter told him he was charged with murder. The third prisoner then asked Porter if he “did it,” and Porter responded that he “did it but they don’t have no evidence.”

Thereafter, Niles contacted Darrin Yarborough, the law enforcement officer investigating Porter’s case. Attempting to negotiate a deal on his own charges, Niles talked to Yarborough and informed him of Porter’s statement. Yarborough told Niles that he needed more information. Yarborough also indicated he would notify the federal authorities of Niles’ assistance if Niles could obtain more information.

Subsequently, Niles and Porter were moved to the “C pod” area of the detention center. Detainees in the “C pod” were given more liberties than those housed in max seg, including expanded outside recreation time.

The second statement was allegedly made as Niles and Porter were outside talking and cleaning the recreation area. Niles attempted to elicit a more thorough confession from Porter by telling him, “if you really did it just confess your sin and God’s the only one [c]an forgive you.” Porter then “broke down,” and Niles recounted that Porter told him the following:

It was at night. He said when he got over there they was talking and he was kind of—the conversation started like, he was asking her, ‘Why you put me back on child support when I give you money every chance I get?’ And that conversation led from one thing to another. Then before he know it they was arguing and fighting. And he say he was choking her and then he was choking her and he turned her loose she collapsed to the floor. He was telling her, ‘Get up. Get up.’ She wouldn’t move so he panicked. He said his first thought was to take her to the hospital and he’s searching for the keys and he found the keys on some table in there. Then he took her to the car and he’s driving. He say he couldn’t take her to the hospital because he realized she was dead so he went into Darlington or to go into Darlington - - I’ve never been to Darlington so I don’t really know. And it’s this bridge. He took her down there, throw her under the bridge. He came back to the crib or to the house.

Niles contacted Yarborough and informed him of Porter’s second statement. Yarborough agreed to notify the federal authorities of Niles’ cooperation.

A jury convicted Porter of the lesser-included offense of voluntary manslaughter, and the trial court sentenced him to 25 years imprisonment.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). We are bound by the trial court’s factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000). This same standard of review applies to preliminary factual findings in determining the admissibility of evidence. Wilson, 345 S.C. at 6, 545 S.E.2d at 829. On review, we are limited to determining whether the trial judge abused his discretion. See State v. Rochester, 301 S.C. 196, 200, 391 S.E.2d 244, 247 (1990).

LAW/ANALYSIS

Porter argues the trial court erred in admitting Niles’ testimony regarding the statements and Yarborough’s testimony about his meetings with Niles. Porter contends Niles was acting as a government agent at the time he elicited incriminating statements from Porter, violating Porter’s right to counsel. We disagree.

Although we question whether Porter adequately preserved this issue for appeal, Porter’s conviction is otherwise affirmable. See State v. Hoffman, 312 S.C. 386, 393, 440 S.E.2d 869, 873 (1994) (stating a contemporaneous objection is necessary to preserve an issue for appellate review).

The Sixth Amendment right to counsel applies to communications between an accused and agents of the government deliberately eliciting incriminating statements. U.S. Const. amend. VI; Massiah v. United States, 377 U.S. 201, 206 (1964). In United States v. Henry, the court found three factors relevant in determining whether a fellow inmate was an agent of the government, deliberately eliciting incriminating statements: 1) whether the informant was acting as an informant for the government; 2) whether the informant was ostensibly no more than a fellow inmate; and 3) whether the accused was in custody at the time. 447 U.S. 264, 270 (1980).

In Henry, the government paid an accused’s fellow inmate to obtain incriminating statements about a crime. Id. at 266. The inmate was allegedly told to be alert to any statements made by Henry but not to initiate conversation or question Henry regarding the crime. Id. at 268. The court in Henry nonetheless held that intentionally creating a situation likely to induce an accused to make incriminating statements without the assistance of counsel was sufficient to constitute a violation of the accused’s right to counsel. Id. at 274.

In this case, we need not determine whether Porter’s right to counsel was violated regarding admission of the second statement because we find the admission of the first statement, which was made prior to any contact between Niles and Yarborough, did not violate Porter’s right to counsel, and admission of the second statement was cumulative to the first statement. At the time Porter made his first statement, Niles was not acting as a government agent. The information Niles related to Yarborough regarding Porter’s first statement was not gleaned in contravention of Porter’s right to counsel. Niles merely heard Porter’s statements and opportunistically reported them to the officer investigating Porter’s case.

Assuming, without so finding, that Niles was acting as a government agent and deliberately elicited the second statement from Porter, we find no error in its admission. The admission of improper evidence is harmless where it is cumulative to other evidence. State v. Braxton, 343 S.C. 629, 635, 541 S.E.2d 833, 836 (2001). Evidence concerning Porter’s second statement was merely cumulative to Niles’ testimony regarding the first statement. Therefore, the decision of the trial court is

AFFIRMED.

ANDERSON, STILWELL, and WILLIAMS, JJ., concur.

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