State v. Andrews

Page 808

479 S.E.2d 808

324 S.C. 516

The STATE, Respondent, v. Ralph A. ANDREWS, Appellant.

No. 2582.

Court of Appeals of South Carolina.

Heard Oct. 8, 1996.

Decided Oct. 28, 1996.

Rehearing Denied Jan. 24, 1997.

Assistant Appellate Defender, Robert M. Dudek, S.C. Office of Appellate Defense, Columbia, for Appellant.

Attorney General, Charles Molony Condon, Deputy Attorney General, John W. McIntosh, Assistant Deputy Attorney General, Salley W. Elliott, and Senior Assistant Attorney General, Harold M. Coombs, Jr., Columbia; and Solicitor, George M. Ducworth, Anderson, for Respondent.

ANDERSON, Judge:

Appellant claims the trial judge erred by (1) allowing into evidence taped recordings of his telephone conversations with a confidential informant and (2) giving a burden-shifting jury instruction on the charge of possession with intent to distribute marijuana. We affirm in part and reverse in part.

FACTS/PROCEDURAL BACKGROUND

In 1994, Harold Johnson agreed to work as a confidential informant for the Anderson County Sheriff's Department after he was arrested for purchasing drugs from an undercover operative. At the request of law enforcement, Johnson arranged a meeting with Appellant, who allegedly was his supplier, in order to set up a controlled drug purchase. Deputies provided Johnson with money to make the drug buy and followed Johnson to his meeting with Appellant at a Conoco service station.

The deputies observed Appellant give Johnson a clear baggie containing "green plant material" in exchange for money from Johnson. Johnson turned the baggie and its contents over to the deputies. Appellant was stopped by the officers after he left the service station and the money supplied by law enforcement was found in his possession. Appellant accompanied the officers back to his residence, and during a subsequent search of his barn, the officers discovered scales, cash stored in a mayonnaise jar, a calculator, clear plastic baggies, green plant material stored in plastic baggies, and metal boxes containing plant residue. At trial, the plant material was identified as marijuana.

Appellant was convicted of distribution of marijuana and possession of marijuana with intent to distribute. He was sentenced to 10 years in prison for distribution, and 10 years, concurrent, for possession with intent to distribute marijuana. He was fined $10,000 on each conviction.

ISSUES

1. Did the trial judge err in admitting into evidence taped telephone conversations between Appellant and confidential informant Harold Johnson?

2. Did the trial judge's charge on possession with intent to distribute marijuana constitute a burden-shifting instruction?

LAW/ANALYSIS

1. TAPED COMMUNICATIONS.

Appellant contends the trial judge erred in admitting into evidence taped recordings of telephone conversations between himself and confidential informant Harold Johnson. We disagree.

On May 20, 1994, the Anderson County Sheriff's Department taped several telephone calls that Johnson made to Appellant's residence at its request. Johnson gave the police permission to tape the calls.

Defense counsel objected to the introduction of the recorded calls, arguing the recording violated Appellant's expectation of privacy as well as the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510 et seq. (1970 and Supp.1996). This Act governs the interception of wire, oral, and electronic communications. The trial judge overruled the objection and the taped conversations were played for the jury.

Although the Act generally prohibits the interception of certain communications, section 2511(2)(c) of the Act specifically provides:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

18 U.S.C.A. § 2511(2)(c) (Supp.1996).

The introduction of Appellant's telephone conversations with Johnson does not violate his right to privacy under either the Fourth Amendment of the United States Constitution or article I of the South Carolina Constitution. U.S. Const. amend. IV; S.C. Const. art. I, § 10.

The federal courts have unanimously held that where one party to a conversation consents to the call being taped, there is no violation of the Fourth Amendment. State v. Pulido, 68 Wash.App. 59, 841 P.2d 1251 (App.1992). See United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453, 459 (1971) ("If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case."), quoted in State v. Thompson, 332 N.C. 204, 420 S.E.2d 395, 400 (1992) (defendant's Fourth Amendment rights were not violated by introduction of tape recordings made by police of telephone conversations between informant and defendant, even if informant was acting at behest of police in making telephone calls).

[Since] no one has a constitutionally protected expectation that the person to whom he voluntarily reveals incriminating information will keep it secret, the consensual interceptions permitted under this provision [18 U.S.C.A. § 2511(2)(c) ] do not offend the Fourth Amendment. See United States v. Quintana, 508 F.2d 867, 872 n. 3 (7th Cir.1975). See also United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122 [1125-26], 28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408 [413-14], 17 L.Ed.2d 374 (1966).

United States v. Hodge, 539 F.2d 898, 905 (6th Cir.1976), cert. denied sub nom., Robertson v. United States, 429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536 (1977). Accord United States v. Dowdy, 479 F.2d 213 (4th Cir.) (tapes of private conversations admissible where one of the parties to the conversation has consented to the surveillance), cert. denied, 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56 (1973); Roller v. McKellar, 711 F.Supp. 272 (D.S.C.1989) (Omnibus Crime Control and Safe Streets Act and the Fourth Amendment do not protect parties to intercepted conversation who speak with no legitimate expectation of privacy; no violation occurs when a party to a conversation consents to its interception); State v. Pecina, 184 Ariz. 238, 908 P.2d 52 (App.1995) (both federal law, 18 U.S.C. § 2511(2)(c), and state statutes permit evidence of telephone wiretap made by police when one or more parties to conversation has consented to the wiretap; informant's placement of call with knowledge it will be recorded is typically sufficient to establish consent); State v. Canon, 212 Mont. 157, 687 P.2d 705 (1984) (court order not necessary to monitor a telephone conversation where one party consents, even if that party is a police informant).

Since Johnson was a party to the conversations and gave his consent to the recording, the tape was admissible. Cf. Mays v. Mays, 267 S.C. 490, 229 S.E.2d 725 (1976) (holding 18 U.S.C.A. § 2511(2)(d), which provides a similar exception for parties not acting under color of law, "makes it clear that one party to a telephone conversation may lawfully tape the conversation without the other's knowledge or permission and subsequently disclose it."). In Mays, the husband's private investigator telephoned one of the wife's witnesses and recorded their conversation. The South Carolina Supreme Court found the judge erred in excluding the taped conversation because the investigator was a party to the conversation and had consented to the recording. Similarly, Johnson's permission in the case sub judice vitiates any claims by Appellant of an unlawful interception or a violation of his expectation of privacy under the United States Constitution, and we further find there was no violation of Appellant's rights under South Carolina law. Therefore, we affirm the trial judge's ruling in this matter and hold that the taped conversations between Appellant and Johnson were properly admitted into evidence.

2. BURDEN-SHIFTING INSTRUCTION.

Appellant next contends that the trial judge's instruction that possession of more than 28 grams or one ounce of marijuana was "prima facie evidence" of guilt of possession with intent to distribute marijuana was error because it shifted the burden of proof to Appellant. We agree.

The offenses of (1) possession with intent to distribute marijuana and (2) distribution of marijuana are prohibited by S.C.Code Ann. § 44-53-370(a)(1) (Supp.1995). In subsection (d)(3) of that statute, the legislature provides for a permissive inference to be considered by the jury in evaluating guilt or innocence in cases where the defendant possesses a certain quantity of marijuana:

(d) A person who violates subsection (c) with respect to:

(3) possession of more than ... twenty-eight grams or one ounce of marijuana ... is prima facie guilty of violation of subsection (a) of this section.

S.C.Code Ann. § 44-53-370(d)(3) (Supp.1995).

During his instruction to the jury on the charge of distribution of marijuana, the trial judge stated in pertinent part:

I further charge you that marijuana is a controlled substance under our Code of Laws in South Carolina. This section [S.C.Code Ann. § 44-53-370(a)(1) (Supp.1995) ] then makes it unlawful for any person to distribute marijuana. I further charge you that possession of 28 grams or one ounce of marijuana is prima facie evidence that the subsection that I just read to you was violated. This inference is simply an evidentiary fact to be taken into consideration by you, the jury, along with other evidence in the case, and given such weight as you the jury determines it should receive. The elements of this offense, possession with intent to distribute [sic], must be proved and established by the State beyond a reasonable doubt in order for you to find the defendant gui...