UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CECIL H. BARNES,
Plaintiff-Appellant,

v.

DONALD DANNER, Individually and in
                                                                 No. 95-8556
his official capacity as a deputy
sheriff in Aiken County, South
Carolina; CARROL HEATH,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Charles E. Simons, Jr., Senior District Judge.
(CA-93-2806-1-6)

Argued: September 26, 1996

Decided: December 23, 1996

Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Lexious Algernon Rogerson, Jr., Lexington, South Caro-
lina, for Appellant. Michael Stephen Pauley, LIDE, MONTGOM-
ERY, POTTS & MEDLOCK, P.C., Columbia, South Carolina, for
Appellees. ON BRIEF: Vinton D. Lide, LIDE, MONTGOMERY,
POTTS & MEDLOCK, P.C., Columbia, South Carolina, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A deputy sheriff, Donald Danner, entered a bingo hall to arrest
Darlene Loadholt for a violation of law. Danner asked and received
a promise of assistance in locating Loadholt, whom he believed to be
at the hall, from Cecil Barnes, who was the operator of the bingo hall.
Barnes spoke with Loadholt and after the conversation Loadholt left
the bingo hall by the back door.

Suspecting that Barnes had advised Loadholt to escape, Danner
swore out a warrant for Barnes' arrest.

The charges were nolle prossed in state court. The prosecutor
asserted the lack of sufficient dependable witnesses, not a belief in
Barnes' innocence, was the reason for the nolle prosse.

Barnes sued Danner in federal district court under 42 U.S.C.
§ 1983 for wrongful arrest and prosecution. He also appended a state
claim for malicious prosecution.

The 1983 claim raised the question of qualified immunity and
probable cause and was submitted to the jury. The jury found for
Danner and the former sheriff who was also sued. Barnes contends
that the trial judge's jury instructions regarding probable cause and
qualified immunity were improper. Challenges to jury instructions are
reviewed under the abuse of discretion standard. Nelson v. Green
Ford, Inc., 788 F.2d 205, 208 (4th Cir. 1986). When considering an
objection to jury instructions, the court must determine if the jury

                    2
instructions, taken as a whole, fairly state controlling law. Barber v.
Whirlpool Corp., 34 F.3d 1268, 1279 (4th Cir. 1994).

Barnes contends that the trial court erred in its instruction regarding
qualified immunity. He argues, relying on Sevigny v. Dicksey, 846
F.2d 953, 956 (4th Cir. 1988), that the court should have instructed
the jury that an officer is chargeable with knowledge of exculpatory
evidence which he would have discovered had he investigated readily
available sources of information.

We disagree. We have never interpreted Sevigny , which involved
a warrantless arrest, to mean that the police must, to comply with the
Fourth Amendment, investigate all sources of possibly exculpatory
information. This is neither a case of the police pursuing mutually
contradictory theories, nor of the police pursuing charges which
would have been ruled out as flatly unsupportable with readily avail-
able information, but of a police officer seeking an arrest warrant
based upon the statement of one witness whose credibility was in fac-
tual dispute. Danner's failure to investigate further is but one factor
in both the qualified immunity and probable cause questions.

Given that Danner sought an arrest warrant, the question is
"whether a reasonably well-trained officer in[Danner's] position
would have known that his affidavit failed to establish probable cause
and that he should not have applied for the warrant." Malley v. Briggs,
475 U.S. 335, 345 (1986). The District Court's instructions, read as
a whole, properly charged the jury on both qualified immunity and
probable cause, and the jury's verdict indicates that the jury necessar-
ily found the witness credible and Danner's reliance on the witness's
statement therefore reasonable.

Barnes also argues that the trial court's instructions regarding prob-
able cause were improper. However, since we find that Danner was
entitled to qualified immunity, we need not address whether Danner
acted with probable cause. Torchinsky v. Siwinski, 942 F.2d 257, 260
(4th Cir. 1991).

The district court granted a judgment as a matter of law on the state
law claim of malicious prosecution. In order to sustain an action for
malicious prosecution, the plaintiff must establish that the criminal

                     3
proceeding was terminated in his favor. Jordan v. Deese, 452 S.E.2d
838, 839 (S.C. 1995). A nolle prosse may establish that the criminal
proceeding was terminated in the accused's favor, provided it is "en-
tered under circumstances which imply or are consistent with inno-
cence of the accused." McKenney v. Jack Eckerd Co., 402 S.E.2d 887
(1991), overruling Harrelson v. Johnson, 111 S.E. 882 (S.C. 1922).

While the District Court may have erred by holding that the prose-
cutor's subjective beliefs were determinative on whether the nolle
prosse was consistent with Barnes' innocence, this is at most harm-
less error. In addition to the requirement of favorable termination,
other elements of South Carolina's tort of malicious prosecution
include "malice in instituting the proceedings" and "lack of probable
cause." Jordan v. Deese, 452 S.E.2d 838, 839 (S.C. 1995). The jury's
verdict on the federal § 1983 claims necessarily negates one or both
of these elements on the state law claim.

Barnes also has sought retrial complaining of Danner's being per-
mitted to introduce evidence of Barnes' wealth. While that would nor-
mally be reversible error necessitating a new trial, United States v.
Socony-Vacuum Oil Co., 310 U.S. 150, 239 (1940), there is an excep-
tion applicable here where the other party has already introduced evi-
dence of financial condition. Blankenship v. Rowntree, 219 F.2d 597,
598 (10th Cir. 1955).

The plaintiff testified regarding his wealth and business accom-
plishments as general background. He testified that he was in the
banking business for sixteen years. J.A. at 484. In addition, he testi-
fied that he operated a nursing home business and operated and
owned nine roller skating rinks. He also testified that the bingo opera-
tion paid over fifty-five thousand dollars in admission and sales tax
every month. J.A. 486. Hence, although trial courts should avoid
admitting references to wealth, it was not an abuse of discretion for
the district court to admit proof of Barnes' financial condition since
Barnes already introduced such evidence.

Accordingly, the judgment is

AFFIRMED.

                    4
