State v. Anderson

• Decision Date: 09 March 1995
• Docket Number: No. 2334,2334
• Citation: 318 S.C. 395,458 S.E.2d 56
• Parties: The STATE, Respondent, v. John C. ANDERSON, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 56

458 S.E.2d 56

318 S.C. 395

The STATE, Respondent, v. John C. ANDERSON, Appellant.

No. 2334.

Court of Appeals of South Carolina.

Heard March 9, 1995.

Decided April 17, 1995.

Rehearing Denied May 23, 1995.

Chief Attorney Daniel T. Stacey, SC Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Sr. Asst. Atty. Gen. Harold M. Coombs, Jr., and Asst. Atty. Gen. Rakale B. Smith, Columbia, and Sol. Dudley Saleeby, Jr., Florence, for respondent.

GOOLSBY, Judge:

John C. Anderson was indicted for driving under suspension (DUS), driving under the influence of intoxicating liquors (DUI), and violation of the Habitual Traffic Offender Act. A jury found him guilty on all three charges. The issue on appeal involves the question of whether the trial court erred in denying Anderson's motion to sever his habitual traffic offender charge. We affirm.

On March 21, 1993, Trooper Ben Hicks testified he observed Anderson, who was driving a late model station wagon, make a right turn out of a side road, cut the turn too sharp, and drive a short distance on the shoulder of the road towards Trooper Hicks with the station wagon's high beam headlights on; Trooper Hicks turned his patrol car around and put his blue lights on to signal Anderson to pull over; Anderson's station wagon was weaving and its speed was about ten to fifteen miles per hour; Anderson pulled over at a convenience store about 3/4 mile from the point that he entered the road; Trooper Hicks asked Anderson for his driver's license and for his bill of sale because the station wagon had no license tag; Anderson did not have either of these documents; Trooper Hicks asked Anderson to step out of the station wagon and produce some kind of identification and Anderson, at length, produced a valid State of South Carolina identification card; Trooper Hicks noted "there was something obviously wrong with [ ] Anderson. A strong odor of alcoholic beverage [was] upon his person and in [his] automobile.... [H]e was unsteady on his feet, couldn't find his I.D. card for me, and I felt like he was obviously under the influence of alcohol."; Trooper Hicks arrested Anderson for driving under the influence; Trooper Hicks found a pint bottle of liquor with an open seal under the driver's seat of Anderson's station wagon; Anderson's license was at that time under suspension; and Anderson took a breathalyzer test that registered his blood alcohol level at 0.19.

Anderson testified he cut the right turn too sharp because he was trying to avoid a hole in the road; he was driving his pregnant daughter home because she was feeling dizzy and therefore not able to walk the distance to her house; he had only had two drinks earlier that evening; and he did not blow into the breathalyzer machine.

Anderson argues the trial court erred in denying his motion to sever the habitual traffic offender charge from the DUS and DUI charges. He maintains that a single trial on all three charges brought evidence of prior convictions before the jury and deprived him of a fair trial on the DUS and DUI charges because the jury could have been prejudiced by its knowledge of his prior convictions for those two offenses.

The allegedly prejudicial evidence that the solicitor offered at Anderson's trial to prove the habitual traffic offender violation was a letter to Anderson from the South Carolina Highway Department that notified Anderson he had been declared a habitual traffic offender and showed a record of the traffic violations involving prior DUS and DUI charges that resulted in the habitual traffic offender suspension. See S.C.Code Ann. § 56-1-1030 (Supp.1993) (detailing the requirements for habitual traffic offender suspension).

Under South Carolina law, a motion for severance is addressed to the discretion of the trial court. The trial court's ruling will not be disturbed on appeal absent an abuse of discretion. State v. Thompson, 279 S.C. 405, 308 S.E.2d 364 (1983).

Different misdemeanors can be joined in the same indictment and tried together if they (1) arise out of a single chain of circumstances, (2) can be proved by the same evidence, (3) are of the same general nature, and (4) no real right of the defendant will be jeopardized. City of Greenville v. Chapman, 210 S.C. 157, 41 S.E.2d 865 (1947). ¹ The charges against Anderson unquestionably meet the first three requirements because the three charges arose out of the same traffic stop. From evidence obtained as a result of this traffic stop, the jury found Anderson was driving under the influence, driving with a suspended license, and driving while his license was suspended under the Habitual Traffic Offender Act.

Regarding the fourth requirement, the admission of Anderson's prior convictions for DUS and DUI threatened no real right that Anderson possessed under the particular circumstances. Here, Anderson, as the record reflects and as Anderson's counsel indicated during argument before this court, "attempted to stipulate [to the] jurisdiction [of the trial court] in this case"; however, the solicitor did not agree to so stipulate. This meant that the state had to prove, so far as the DUS and DUI charges were concerned, that the trial court had subject matter jurisdiction of the DUS and DUI charges for which Anderson was then being tried. S.C.Code Ann. § 56-1-460 (Supp.1993); id. § 56-5-2940 (1991); see Tyler v. State, 247 S.C. 34, 145 S.E.2d 434 (1965) (holding an indictment must allege a DUI offense is a second or subsequent offense to show the court's jurisdiction). Indeed, the jury was instructed "[to] limit any consideration of any alleged prior convictions by [sic] the defendant only ... to establish that this Court has the jurisdiction or the right to try this case...." See State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991), cert. denied, 503 U.S. 993, 112 S.Ct. 1691, 118 L.Ed.2d 404 (1992) (when evidence of other crimes is admitted for a specific purpose, the trial court is required to give a limiting instruction to the jury to consider the evidence only for the purpose for which it is offered). Absent a stipulation as to subject matter jurisdiction, Anderson had no real right to object to the admission into evidence of his prior DUS and DUI convictions.

Although the dissent would hold the solicitor was required to agree with Anderson that the court had subject matter jurisdiction once Anderson offered to stipulate that the DUS and DUI offenses were second and subsequent offenses, Anderson himself did not make this argument, neither to the trial court nor to this court; therefore, we cannot, as much as we might wish to do so, hold the solicitor's assent was not required. ² See State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991) (an issue is not preserved for appeal unless it was presented to and ruled on by the trial court); see also State v. Parra, 122 Wash.2d 590, 859 P.2d 1231, 1238 (1993) ("Generally, a stipulation is an agreement between the parties to which there must be mutual assent."); Bourne v Atchison, T. & S.F. Ry. Co., 209 Kan. 511, 497 P.2d 110, 114 (1972) ("A 'stipulation' [is] an agreement, admission or concession made in judicial proceedings by the parties thereto or their attorneys."); 83 C.J.S. Stipulations § 3, at 3 (1953) ("[I]t is essential that [the stipulation] be assented to by the parties or those representing them."); 73 Am.Jur.2d Stipulations § 2, at 536 (1974) ("[U]nless it is clear from the record that the parties assented, there is no stipulation.").

We therefore hold the trial court did not abuse its discretion in denying Anderson's severance motion and Anderson was not prejudiced by the admission into evidence of prior convictions because the trial court gave a sufficient limiting instruction to the jury.

AFFIRMED.

SHAW, J., concurs.

HOWARD, A.J., dissents in a separate opinion.

HOWARD, Judge, dissenting:

The majority concludes the trial judge did not abuse his discretion in refusing the motion to require election of charges upon which the State intended to proceed. While I agree the motion is addressed to the sound discretion of the trial court, I conclude the failure to require election under the circumstances of this case amounted to an abuse of that discretion.

Initially, it must be noted Anderson stipulated his prior DUI and DUS convictions to establish jurisdiction in the General Sessions Court regarding the third offense DUI and DUS charges. Prior to S.C.Code Ann. Section 56-5-2980 (1991), the State was entitled to introduce a defendant's prior convictions for these offenses in order to establish jurisdiction. See State v. Pearson, 223 S.C. 377, 76 S.E.2d 151 (1953). Recognizing the prejudice to the defendant, the legislature enacted 1962 Code § 46-349, now § 56-5-2980, which reads in applicable part, as follows:

[T]he accused may stipulate with the solicitor that the charge constitutes a second or further offense, in which event the indictment shall not contain allegations of prior offenses, nor shall evidence of such prior offenses be introduced.

In this case, the State attempted to circumvent the statute by refusing to "stipulate" to this jurisdictional foundation, but the statute is clear in giving that option to the defendant, not the State. To hold otherwise would render this portion of the statute meaningless, since the State's interest would rarely, if ever, be served by so agreeing.

The State does not assert these prior convictions would have been admissible as past crimes of moral turpitude for impeachment. See State v. Hall, 306 S.C. 293, 411 S.E.2d 441 (Ct.App.1991) (DUI is not a crime of moral turpitude for impeachment purposes). Nor do they argue admissibility under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). Thus, evidence of the prior convictions for driving under the influence and driving under suspension was not admissible, absent the charge for violating the habitual...