State v. Sawyer

763 S.E.2d 183, 409 S.C. 475, 2014 S.C. LEXIS 180

• Court: Supreme Court of South Carolina
• Decided: November 5, 2013
• Docket: Appellate Case No. 2011-201206; No. 27393
• Status: Published

Opinions

Justice PLEICONES.

The Court granted the State’s petition for a writ of certiorari to review an unpublished Court of Appeals decision that affirmed the circuit court’s suppression of respondent’s breath test results and video in this prosecution for driving under the influence (DUI). State v. Sawyer, 2011-UP-263, 2011 WL 11734636 (S.C. Ct.App. filed June 7, 2011). We affirm, holding that a videotape from the breath test site that lacks the audio portion of the reading of Miranda rights and the informed consent law did not satisfy the requirements of S.C.Code Ann. § 56-5-2953(A)(2) (2006).¹

FACTS

In September 2007, respondent was taken to the Spartan-burg County Jail by Deputy Evett, who picked him up following a traffic stop made by Lt. Woodward. Evett, a certified Data Master operator, placed respondent in the “subject test area” which is a room that adjoins the Data Master room. The rooms are separated by a glass panel. The deputy retrieved some forms from the Data Master room and then appeared to read respondent his Miranda rights and the implied consent information. Both respondent and Deputy Evett signed the forms. There are separate audio and video recording devices in both the subject test area and in the breathalyzer room. In this case, the audio device in the subject test area did not function.

Respondent moved to suppress the evidence relating to the breath test site alleging the videotape did not meet the requirements of S.C.Code Ann. § 56-5-2953(A). Section (A) required that a person charged with DUI have his conduct at both the incident site and the breath test site videotaped. Subsection (A)(2) provided:

The videotaping at the breath site:

(a) must be completed within three hours of the person’s arrest for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 or a probable cause determination that the person violated Section 56-5-2945, unless compliance is not possible because the person needs emergency medical treatment considered necessary by licensed medical personnel;

(b) must include the reading of Miranda rights, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the test;

(c) must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;

(b) must also include the person’s conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer administers the breath test, the person’s conduct during the twenty-minute pretest waiting period must be videotaped.

The circuit court first held that the videotape itself must be excluded because “the videotape has no audio of the conversations between the testing officer and [respondent] concerning such matters as his Miranda warnings, the explanation of implied consent or other matters that may have been discussed between them.” The judge held that evidence other than the videotape could be used, citing § 56-5-2953(B).

On respondent’s motion for reconsideration, the circuit court clarified that it was suppressing not only the videotape, but also any evidence or testimony that respondent was offered and/or took a breath test, as well as the results of that test. The court noted the State had supplied an “exigency” affidavit, seeking to invoke the provisions of § 56 — 5—2953(B) that provides “Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge ... if the arresting officer submits a ... sworn affidavit that it was physically impossible to produce the videotape because ... exigent circumstances existed.” (emphasis supplied). The judge held “an exigency” required an emergency situation, or one requiring immediate attention or remedy, and found that since the State did not even know of the audio malfunction for several months after respondent’s test, there was no exigent circumstance here. The court also noted the affidavit was not prepared by the arresting officer, Lt. Woodward, as required by the statute, but rather by Deputy Evett, the breath test administrator,

In the direct appeal, the State argued first that since a videotape was produced, no consideration of Deputy Evett’s “exigency” affidavit was necessary.² The State also argued that any defects in the audio portion of the tape went to its weight, not its admissibility, and that all the statute required was a video, which it produced. Alternatively, the State argued the trial judge should not have relied on the “exigency” exception, but that instead he should have admitted the evidence based upon a different part of § 56-5-2953(B), which permits the court to consider “other valid reasons” for the lack of a videotape based upon the “totality of the circumstances.” This “totality of the circumstances” argument was not preserved for appeal as it was not ruled upon in either the circuit court’s original order or in its amended order. E.g. State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013) fn. 3.

Following the Court of Appeals’ decision affirming the trial court’s suppression of all evidence obtained at the breath test site, the State sought a writ of certiorari. In its petition, the State made two arguments:

I. The Court of Appeals erred in affirming the trial court’s suppression of the video recording of the breath test site, testimony or evidence that a breath test was offered or administered, and the results of Respondent’s breath test.

II. The Court of Appeals erred in refusing to reverse the trial court’s decision based on the totality of the circumstances pursuant to Section 56-5-2953(B) of the South Carolina Code.

State’s petition for a writ of certiorari to the Court of Appeals (filed November 18, 2011) (C-TRACK Appellate Case No. 2011-201206).

On January 9,2013, the Court granted certiorari on the first question but denied certiorari on the second. S.Ct. Order dated January 9, 2013 (C-TRACK Appellate Case No. 2011-201206).³

ISSUE

Did a breath test site video that did not include audio demonstrating that Miranda warnings were given, that the individual was informed that he was being videotaped, or that he has the right to refuse the breath test meet the requirements of § 56-5-2958(A) as it existed in September 2007?

ANALYSIS

The State argues that the statute only required that the individual’s “conduct” be recorded, and that conduct under the statute has been defined by the Court of Appeals as “one’s behavior, action or demeanor.” Murphy v. State, 392 S.C. 626, 709 S.E.2d 685 (Ct.App.2011). Thus, the State contends that only video of the individual is necessary to satisfy the statute. We disagree.

In Mmphy, the incident site video did not capture a full length image of the individual as she attempted field sobriety tests. Mmphy held that the video adequately reflected the individual’s behavior. Here, however, we are concerned not with the defendant’s conduct but with the content of the statutorily required warnings. At the breath test site, the videotape must record the individual’s conduct during the twenty-minute waiting period [§ 56-5-2953(A)(2)(d) ] and the action of the breathalyzer operator conducting the test [§ 56-5-2953(A)(2)(c) ]. Silent tape of this conduct would be acceptable under Mmphy. However, the statute required a videotape not merely of the individual’s conduct while being read his Miranda and informed consent rights, but also that it “must include” “the reading of Miranda rights” and “the person being informed that he is being videotaped, and that he has the right to refuse the test.” § 56-5-2953(A)(2)(b). A silent video simply cannot meet these statutory requirements.'⁴

The State argues that this defect in the videotape goes only to its weight, not its admissibility. Here we are concerned with a statute which governs the admissibility of certain evidence. Compare e.g. S.C.Code Ann. § 19-1-180 (Supp.2012) (certain hearsay statements made by children admissible in family court if statute’s terms complied with). In § 56-5-2953(B), the General Assembly specified:

Nothing in this section may be construed as prohibiting the introduction of other evidence in the trial of a [DUI charge]. Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of [charges] if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the ... breath test device [sic] was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment ... and certifying there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the videotape because the person needed emergency medical treatment, or exigent circumstances existed____

Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances....

Section 56-5-2953(B) (2006).

While defects in evidence do not generally affect admissibility, as the State maintains, the Court has interpreted the statute to require strict compliance with Section (A) as a prerequisite for admissibility, unless an exception in Section (B) applies. City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007); see also State v. Elwell, 403 S.C. 606, 743 S.E.2d 802 (2013). The General Assembly is presumed to be aware of this Court’s interpretation of a statute, and where that statute has been amended, but no change has been made that affects the Court’s interpretation, the legislature’s inaction is evidence that our interpretation is correct. E.g. McLeod v. Starnes, 396 S.C. 647, 723 S.E.2d 198 (2012). While the General Assembly has amended § 56-5-2953 following our Suchenski decision, nothing in the amended statute alters our holding that failure to comply with the statute’s terms renders the evidence inadmissible.⁵

As explained above, we declined certiorari to consider whether the circuit court might have admitted the flawed tape under § 56-5-2953(B)’s “totality of the circumstances” exception, and we have determined this tape did not satisfy § 56-5-2953(A). The Court of Appeals properly affirmed the circuit court’s suppression order. City of Rock Hill v. Suchenski, supra.6

CONCLUSION

The Court of Appeals’ decision is

AFFIRMED.

HEARN and BEATTY, JJ., concur. TOAL, C.J., dissenting in a separate opinion in which KITTREDGE, J., concurs.

1 . Subsection A of this statute was rewritten by 2008 Act No. 201, §11, effective February 10, 2009 or when new equipment is installed. Essentially, the statute no longer requires the test to be conducted within 3 hours, and eliminates the requirement that the video include the reading of Miranda rights at the breath test site.

2 . We note that, assuming it was error to consider this affidavit, the State was the party that introduced it. It is well-settled that a party cannot complain of an error it induced. E.g. State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984).

3 . While the dissent would find the scope of the circuit court’s suppression order too broad, there is no challenge to the breadth of that order on certiorari.

4 . Contrary to the dissent's contention that the video shows respondent being read his Miranda warnings, being told the matter was videotaped, and being informed of his right to refuse, all that the video shows is the officer's lips moving. As for respondent’s failure to challenge the contents of the officer's warnings, at this juncture the sole issue before the circuit court was whether the silent video complied with the statute. Further, respondent has not conceded the adequacy of the officer’s statements, as reflected in his briefs which refer to the ''alleged warnings.” Finally, "bad faith” and "bad motive” are irrelevant here.

5 . The dissent maintains that a prejudice analysis is appropriate whenever evidence is obtained without frill compliance with statutory requirements, citing State v. Odom, 382 S.C. 144, 676 S.E.2d 124 (2009) (actually involving violation of executive agreements); State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (2002); State v. Chandler, 267 S.C. 138, 226 S.E.2d 553 (1976); State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975). As we have explained, these decisions are inapposite since, unlike 56-5-2953, they involve statutes where the General Assembly did not specify the remedy for the State's failure to comply. Suchenski, supra.

6 . The only arguable error of law was the circuit court’s failure to dismiss the charges once it determined that the State did not produce a videotape meeting the requirements of (A) and that it did not meet any of the exceptions in (B). Suchenski, supra; Elwell, supra. Respondent, however, did not appeal the circuit court’s denial of his request that the charges be dismissed.