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,

Lloyd Wright, Appellant.

Appeal From Charleston County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2011-UP-363
Submitted April 1, 2011 – Filed June 30, 2011

AFFIRMED

Appellate Defender LaNelle Cantey DuRant, 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 Harold M. Coombs, Jr., all of Columbia; Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.

PER CURIAM: While investigating a potential "open-air" illegal drug market, the Charleston Police Department, in conjunction with the Federal Bureau of Investigation (FBI), conducted an undercover operation in September of 2007. On September 17, Investigator Karen Springmeyer, operating undercover, drove to an area known as Athens Court. She noticed several "subjects," one of whom told her to pull down a side street. There, a man, allegedly Lloyd Wright, approached her vehicle, and she told him she wanted to buy some crack. The man reached in the car and handed her the drugs, and she paid him $50.00 in "marked money" the FBI provided for the the operation. Springmeyer then returned to her unit and delivered the crack to Investigator Seabrook, the case agent.

Three weeks later, Wright was arrested for the drug transaction. The marked money was never recovered. Wright was tried for distribution of cocaine base and distribution of cocaine base within a close proximity of a school, and he was convicted of both charges. The trial court sentenced him to life without the possibility of parole. This appeal followed.

STANDARD OF REVIEW

In criminal cases an appellate court sits to review errors of law only. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).

LAW/ANALYSIS

Wright's alleges the trial court erred in failing to strike Hurteau's testimony because he lacked personal knowledge. We disagree. Wright specifically indicated to the trial court that the basis for his objection was Rule 612, SCRE, which provides the following:

If a witness uses a writing to refresh memory for the purpose of testifying, either—

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Here, the trial court permitted, and the State did not prevent, Springmeyer's and Seabrook's reports to be marked as exhibits and allowed Wright the opportunity to review the documents and cross-examine Hurteau on them. Accordingly, we see no grounds to allege error under Rule 612.[1]

Wright further argues the State violated Rule 5, SCRCrimP,[2] and Brady v. Maryland[3] in failing to provide a copy of the "operational plan." We disagree.

Rule 5 provides in pertinent part:

Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects ... which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial[] . . . .

Rule 5(a)(1)(C), SCRCrimP.

Similarly, Brady holds that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. To establish such a due process violation, an accused must demonstrate "(1) the evidence was favorable to the accused, (2) it was in the possession of or known to the prosecution, (3) it was suppressed by the prosecution, and (4) it was material to guilt or punishment." State v. Gibson, 334 S.C. 515, 524, 514 S.E.2d 320, 324 (1999) (footnote omitted).

Here, the State argued it neither had knowledge of nor possession of such a plan. Likewise, the trial court found there had been no showing the operational plan was in the State's possession, the State had suppressed it, or the State failed to disclose it. The evidence supports these findings. Similarly, nothing in the record supports Wright's contention that the document, which Hurteau testified was for the purpose of protecting the public, the officers, and the suspects during the investigation, was material or exculpatory. Accordingly, the trial court did not err.

Wright lastly argues the drug evidence should have been suppressed because the State failed to properly establish the chain of custody. We disagree. "[A] party offering into evidence fungible items such as drugs or blood samples must establish a complete chain of custody as far as practicable." State v. Sweet, 374 S.C. 1, 6, 647, S.E.2d 202, 205 (2007). The determination of whether the State has established the chain of custody as far as practicable depends on the unique facts of each case. State v. Hatcher, Op. No. 26950 (S.C. Sup. Ct. filed Mar. 21, 2011) (Shearouse Adv. Sh. No. 10 at 82-83). "Testimony from each custodian of fungible evidence . . . is not a prerequisite to establish a chain of custody sufficient for admissibility." Sweet, 374 S.C. at 7, 647 S.E.2d at 206 (citing State v. Taylor, 360 S.C. 18, 27, 598 S.E.2d 735, 739 (Ct. App. 2004)). "Where other evidence establishes the identity of those who have handled the evidence and reasonably demonstrates the manner of handling of the evidence, our courts have been willing to fill gaps in the chain of the custody due to an absent witness." Id. "[W]here all individuals in the chain are, in fact, identified and the manner of handling is reasonably demonstrated, it is not an abuse of discretion for the trial judge to admit the evidence in the absence of proof of tampering, bad faith or ill-motive." Hatcher, Op. No. 26950, at 81.

In this case, the essence of Wright's argument is (1) Seabrook failed to sign the evidence sheet and as a result Wright was unaware Seabrook was in the chain of custody until the time of trial and (2) Joe Lelama, the evidence technician who signed the evidence into the evidence room, did not testify.

In this case, although Seabrook forgot to sign the evidence sheet, he testified that he delivered the evidence in a sealed package to the Charleston Police Department's evidence lock box. Similarly, although Lelama did not testify, Hinton testified that Lelema received the evidence on September 20, 2007, based on his recognition of Lelama's initials on the property sheet and evidence tag. Then, Susan Moody testified she retrieved the evidence from the evidence room, signed it out, and transported it to the laboratory for analysis. Finally, laboratory manager Elizabeth Wiggins-Mitchell testified she received the sealed evidence bags, tested the evidence, determined it was cocaine base, and replaced it into a new sealed container bearing her initials. Moreover, she identified this sealed container, which bore her initials, in court. Accordingly, we find the trial court did not abuse its discretion in admitting the evidence.

CONCLUSION

The ruling of the trial court is

AFFIRMED.

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

[1] Wright argues Hurteau's testimony should also have been striken under Rule 602, SCRE. Notwithstanding that Wright specifically clarified to the trial court the basis for his objection was Rule 612, the trial court noted that Hurteau had personal knowledge by virtue of being at the scene during the controlled buy. We agree and note that any defect in his memory was for the jury to weigh.

[2] We note that although Wright did not make a precise objection based on Rule 5, at the outset of his motion before the trial court he did note that the operational plan "was not provided in discovery[] . . . [and that he] believe[d] it was discoverable."

[3] 373 U.S. 83 (1963).