Supreme Court Seal
Supreme Court Seal
South Carolina
Judicial Department
26684 - State v. Dicapua

In The Supreme Court

The State, Respondent,


Jeremiah Dicapua, Petitioner.


Appeal From Horry County
J. Michael Baxley, Circuit Court Judge

Opinion No. 26684
Heard February 3, 2009 - Filed July 13, 2009


Appellate Defender Robert M. Pachak, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Salley W. Elliott; Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor John Gregory Hembree, of Conway, for Respondent.

JUSTICE KITTREDGE:  As a result of a videotaped sting operation, Jeremiah Dicapua was convicted and sentenced for distribution of crack cocaine and possession with intent to distribute crack cocaine.� On the day following sentencing, the trial court sua sponte vacated the jury�s verdict and ordered a new trial on the basis of perceived weaknesses in the videotape evidence, even though the tape was admitted without objection.� Moreover, the trial court ruled that the videotape could not be admitted in evidence in the new trial.� The State appealed, contending the sua sponte grant of a new trial constituted legal error warranting reversal.

Because Dicapua waived any direct challenge to the videotape by consenting to its admission, the court of appeals reversed the trial court�s sua sponte, new trial order and reinstated the sentence.� State v. Dicapua, 373 S.C. 452, 455-56, 646 S.E.2d 150, 152 (Ct. App. 2007).� We granted a writ of certiorari.� We affirm.


The Horry County Police Department and the Myrtle Beach Police Department conducted a drug sting in a hotel.� One hotel room was a control room where the officers observed the suspects and the informant.� The adjoining hotel room served as the transaction room, which was set up with separate video and audio recording devices.� On the day in question, the audio equipment malfunctioned.

The hotel room was initially searched by the police for drugs, and the informant was searched as well.� The informant was given one hundred and eighty dollars in marked money by the police.� The informant and another woman in the hotel room were arrested earlier that day for prostitution.

The informant briefly left the room and reentered with Dicapua.� The informant counted out the money and placed it on the bed.� Next, Dicapua counted the money and appeared to drop something on the bed.� The informant then placed an unknown substance in her pocket.� After the police entered the transaction room, the police searched Dicapua and found drugs.� The police also located drugs on the informant for a total of 2.4 grams of crack cocaine.� Dicapua admitted the informant gave him one hundred and sixty dollars.

Dicapua was tried for and convicted of distribution of crack cocaine and possession with intent to distribute crack cocaine.� At trial, Dicapua did not object to the admission of the videotape.� Following the State�s case, Dicapua made multiple motions: for a dismissal and a mistrial due to the lack of a link between the drugs found on the informant and Dicapua, for a directed verdict due to the �totality� of the State�s case, and for dismissal due to entrapment.� Notably, these motions did not refer to the admission of the videotape.

Following the jury�s guilty verdicts, Dicapua moved to set aside the verdict as there was no evidence Dicapua intended to sell additional drugs and �the objections and request going back to the [informant], the chain, and all those things.�� Again, these motions did not implicate the admission of the videotape.� The trial court sentenced Dicapua to thirty months for both charges to run concurrently.

The next day the trial court sua sponte ordered a new trial because of concerns about the videotape.� The trial court additionally ordered, �it is the decision of this Court to suppress the introduction of the videotape in any new trial to be had on the charges.�[1]� The State served its notice of appeal.� The trial court subsequently held a hearing to supplement the record and further explain its decision.[2]

The State appealed the trial court�s sua sponte order.� The court of appeals reversed.� State v. Dicapua, 373 S.C. 452, 456, 646 S.E.2d 150, 152 (Ct. App. 2007).� The court of appeals majority found an abuse of discretion by the trial court�s granting of a new trial for a waived issue, the admission of the videotape.� Id. at 455, 646 S.E.2d at 152.� One panel member of the court of appeals concurred, addressing the matter of appealability.� Id. at 457, 646 S.E.2d at 153.� This Court granted Dicapua�s petition for certiorari.


We first address the threshold matter of appealability. ��The State may only appeal a new trial order if, in granting it, the trial judge committed an error of law.�� State v. Johnson, 376 S.C. 8, 10, 654 S.E.2d 835, 836 (2007).� To determine if an error of law occurred, it is necessary to examine the merits of the case.� Id. at 11, 654 S.E.2d at 836.� We find an error of law occurred when the trial court granted a new trial on the basis of evidence admitted with Dicapua�s consent.� Because of the error of law, the matter is appealable.

We now turn to the legal issue which resolves this case�may a trial court in a criminal case sua sponte order a new trial on a ground not raised by a party?� We answered this question �no� in the context of a civil proceeding in Southern Railway Co. v. Coltex, Inc., 285 S.C. 213, 214, 329 S.E.2d 736, 736 (1985) (�The sole issue is whether a trial judge ex mero motu[3] can grant a new trial on a ground not raised by a party. �We hold he cannot.�).[4]� We hold the same result must follow in a criminal case.[5]� Moreover, to affirm the grant of a new trial on a waived issue in a criminal case would lend this Court�s imprimatur to a trial court�s impromptu grant of post conviction relief.

By consenting to the admission of the videotape evidence, Dicapua waived any direct challenge to the admission of the evidence.� Concomitantly, the trial court lacked authority to grant relief on the basis of a ground not raised by Dicapua.� We hold the granting of a new trial sua sponte on a ground waived by a party is an error of law.



[1]  Counsel for Dicapua conceded at oral argument that it was error to preemptively suppress the videotape at a new trial.

[2]  Because the filing of the appeal deprived the trial court of jurisdiction, we may not consider the trial court�s post-appeal explanation.

[3]  Ex mero motu is a synonymn for sua sponte.� Black�s Law Dictionary 596 (7th ed. 1999).

[4]  As in the case at hand, in Southern Railway, Southern waived the ground on which the trial court sua sponte granted a new trial.� 285 S.C. at 215-16, 329 S.E.2d at 737-38.� Specifically, the trial court in Southern Railway stated that �[t]his new trial is not granted on the grounds as contended by [Southern] . . . .� �Id. at 215, 329 S.E.2d 737. �In reversing the sua sponte grant of a new trial, we held �Southern waived the right to claim the omitted charge was error by not objecting to its omission at the trial level.� Therefore, the omitted charge was not properly before the trial court, the Court of Appeals, or this Court.� �Id. at 216, 329 S.E.2d at 737-38.

[5]  We acknowledge Rule 59(d), SCRCP, allows a civil trial court to order a new trial within ten days of the entry of judgment for �any reason for which [the trial court] might have granted a new trial on motion of a party.�� We further acknowledge that when a civil trial court exercises its discretionary right to sit as a thirteenth juror and grants a new trial when the verdict is contrary to the evidence, its decision will be upheld if there is any evidence to support it. �Southern Railway, 285 S.C. at 216, 329 S.E.2d at 738.