City of Greer v. Humble

• Decision Date: 27 March 2013
• Docket Number: No. 5108.,5108.
• Court: South Carolina Court of Appeals
• Parties: CITY OF GREER, Respondent, v. Shawn P. HUMBLE, Appellant. Appellate Case No. 2012–207550.

402 S.C. 609

742 S.E.2d 15

CITY OF GREER, Respondent,

v. Shawn P. HUMBLE, Appellant.Appellate Case No. 2012–207550.

No. 5108.

Court of Appeals of South Carolina.

Heard Dec. 13, 2012.

Decided March 27, 2013.

Randall Scott Hiller, of Greenville, for Appellant.

Daniel Roper Hughes, of Duggan & Hughes, LLC, of Greer, for Respondent.

PIEPER, J.

This appeal arises out of Appellant Shawn Humble's driving under the influence (DUI) arrest. On appeal, Humble argues the circuit court erred in reversing the municipal court's dismissal of the DUI charge because (1) the affidavit required by subsection 56–5–2953(B) of the South Carolina Code (Supp.2012) is deficient on its face, and (2) the circuit court ignored the finding of the municipal court that Respondent City of Greer's (the City) efforts to maintain the video recording equipment in an operable condition were not reasonable. We reverse.

FACTS

On February 25, 2011, Humble was pulled over by Officer Jim Williams. Upon Humble's DUI arrest, Officer Williams, the arresting officer, submitted an affidavit certifying that the video recording equipment was inoperable at the time of the arrest and stating that reasonable efforts had been made to maintain the equipment in an operable condition. Specifically, the affidavit provided “[a]t the time of the defendant's arrest, or probable cause determination, the video equipment in the vehicle I was operating was in an inoperable condition and reasonable efforts had been made to maintain the equipment in an operable condition.”

Humble moved to dismiss his DUI charge on the grounds that (1) Officer Williams failed to comply with the video recording requirements of subsection 56–5–2953(B), and (2) Officer Williams' affidavit was insufficient. A hearing was held before the municipal court. Recognizing the affidavit did not state which reasonable efforts had been taken, the City elicited oral testimony from Officer Williams in an attempt to supplement the affidavit. Humble objected to the oral testimony. According to Officer Williams, the video recording system used by the City has an eight-gigabyte memory card and is built into the car mirror. When the video recording system malfunctions, there is no warning and there is no “real-time” indication of a malfunction. Officer Williams testified that the City occasionally has problems with the video recording equipment in the patrol cars and that the protocol when a problem arises is to contact Digital Ally, a company that services video recording equipment for the City. Further, he testified that an officer has no reason to doubt he or she has a recording until the officer attempts to upload the images from the data card. Officer Williams testified that his department contacts Digital Ally every time they have a problem and that he has attempted to remedy the problem with his patrol car. Officer Williams also testified that he had ongoing problems with his patrol car. Humble provided the municipal court with the City's maintenance log. An entry on February 14, 2011, provides:

Caller (Jim Williams) stated that they have been having persistent issues in two of their vehicles ... since they were installed over a year ago. He stated that they are having persistent issues in these 2 cars with mirrors locking up and green screen issues. He stated that 1 of these cars is on its 4th mirror and has had the I/O box replaced and the CF card replaced, problem persists. We have also sent them the RFI chokes and V2 mirrors....

He said they have talked to ITS about sending out a tech to look at the system, but they were told they would have to pay for a service call and didn't feel they should have to pay since the problems were present since day 1. Customer would like someone to come out and identify and fix the problem. Notified Larry Dado who will be contacting ITS. UPDATE: 2/16/2011–LD spoke with Officer Jim Williams @ Greer. I advised that since ITS did not install the unit, they would be willing to come onsite ... however ... they would charge to do.

The municipal court granted Humble's motion to dismiss, finding that Officer Williams' affidavit “was deficient on its face, and that the supplemental testimony did not cure the deficiency.” Specifically, the municipal court determined Officer Williams' testimony demonstrated that the City reacts quickly to each malfunction, but that “the City only reacts.” The municipal court also found that there was no evidence showing any steps taken by the City to keep the video recording equipment operable or “indicating the system is maintenance free, and therefore in need of no maintenance.” As to the activity log, the municipal court recognized that Officer Williams asked the manufacturer to send someone to fix the problem, but that “[t]he log indicates the City did not wish to pay for the on-site visit. The visit did not occur.” The court further found that the City “may not have known the precise cause of the problem; but the City knew of an on-going problem, specifically with the camera in the vehicle at the incident site. I found that to be unreasonable.”

The City appealed to the circuit court, arguing that section 56–5–2953 does not require routine or scheduled maintenance to constitute reasonable efforts to maintain the video recording equipment in an operable condition. A hearing was held before the circuit court, and the circuit court found that as a matter of law the municipal court narrowly construed the statute and erred in dismissing the case. This appeal followed.

STANDARD OF REVIEW

In a criminal appeal from the municipal court, the circuit court does not review the matter de novo; rather, the court reviews the case for preserved errors raised by appropriate exception. S.C.Code Ann. § 14–25–105 (Supp.2012); Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 341, 713 S.E.2d 278, 282 (2011). In criminal appeals from the municipal court, the circuit court is bound by the municipal court's findings of fact if there is any evidence in the record which reasonably supports them. See Rogers v. State, 358 S.C. 266, 269 n. 1, 594 S.E.2d 278, 279 n. 1 (Ct.App.2004). The appellate court's review in criminal cases is limited to correcting the order of the circuit court for errors of law. City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007). Moreover, “[q]uestions of statutory interpretation are questions of law, which are subject to de novo review and which we are free to decide without any deference to the court below.” State v. Whitner, 399 S.C. 547, 552, 732 S.E.2d 861, 863 (2012).

LAW/ANALYSIS

Humble argues the circuit court erred in reversing the municipal court's dismissal of Humble's DUI charge because the affidavit required by subsection 56–5–2953(B) is deficient on its face. We agree.

Initially, we note that the record before this court consists of the municipal court's return, the transcript of oral arguments before the circuit court, the circuit court's order, Officer Williams' affidavit, and the City's maintenance log. No tape or transcript from the municipal court is included in the record on appeal. Additionally, neither party challenged the accuracy of the return in reciting the factual findings of the municipal court. Thus, we base our review upon those facts in the municipal court's return. See State v. Brown, 358 S.C. 382, 387, 596 S.E.2d 39, 41 (2004) (stating it is error for an appellate court to consider facts not included in the magistrate's return).

The City argues Humble did not raise the issue of the deficient affidavit to the circuit court; thus, the City argues the issue is unpreserved. However, Humble objected to the municipal court's supplementation of the affidavit by oral testimony and moved to dismiss his charge because the affidavit is deficient. The municipal court ruled that the affidavit is deficient on its face, and the City did not appeal this finding. Furthermore, at the hearing before the circuit court, the City conceded the affidavit is deficient on its face. See State v. Bryant, 372 S.C. 305, 315–16, 642 S.E.2d 582, 588 (2007) (stating an issue conceded in the trial court could not be argued on appeal). Additionally, Humble explained to the circuit court that he objected to the supplementation of the affidavit, that the affidavit is deficient on its face, and that the City failed to appeal the municipal court's finding that the affidavit is deficient. For the foregoing reasons, we find Humble's issue is preserved for review.

Having determined the issue is preserved for review, we must next determine whether the affidavit is deficient on its face. “All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute.” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010) (quotation marks omitted). The court should look to the plain language of the statute when interpreting a statute. Binney v. State, 384 S.C. 539, 544, 683 S.E.2d 478, 480 (2009).

Effective February 10, 2009, the legislature amended the affidavit requirement of subsection 56–5–2953(B). See Act No. 201, 2008 S.C. Acts 1684. Prior to the amendment, the statute only required an officer to state reasonable efforts had been made to maintain the equipment in an operable condition. SeeS.C.Code Ann. § 56–5–2953(B) (2006) (“Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal ... if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the arrest ... was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment in an operable condition....” (emphasis added)). The amended statute, applicable to this case, now requires an officer to state which reasonable efforts had been made to maintain the...