State v. Breeze

Decision Date23 July 2008
Docket NumberNo. 4430.,4430.
PartiesThe STATE, Respondent, v. Elbert W. BREEZE, Appellant.
CourtSouth Carolina Court of Appeals

McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Christina J. Catoe, Office of the Attorney General, all of Columbia; and Solicitor Robert Mills Ariail of Greenville, for Respondent.

WILLIAMS, J.:

In this criminal case, we affirm the trial court's determination that Elbert Breeze (Breeze) properly waived his Miranda1 rights. We also affirm the trial court's decision not to charge the jury that an adverse inference could be suggested from the State's failure to preserve the marijuana.

FACTS

Officer Michael Collier (Collier) of the South Carolina Highway Patrol was observing a driver's license checkpoint in Greenville County, South Carolina. Collier observed Breeze approach the checkpoint, abruptly stop, and jerk his car into a driveway without using a turn signal. Collier approached Breeze and requested Breeze provide his driver's license. In response to this request, Breeze "took off running."

Collier chased Breeze, pushed him to the ground, and ordered him to remain down. Breeze got up, and Collier responded by using pepper spray on him. Breeze still managed to get up and run. Collier again chased and pushed Breeze to the ground. This series of events occurred a few more times until additional officers arrived to assist Collier. Breeze was once again sprayed with pepper spray, subdued, and arrested. After Breeze was placed in handcuffs, officers offset the effects of the pepper spray by decontaminating Breeze with an aerosol water bottle.

After Breeze's arrest, Officer Johnny Black (Black) of the South Carolina Highway Patrol informed Breeze of his Miranda rights. Subsequently, Breeze was searched based on a search incident to the arrest. This search revealed a substance, which was later tested to be marijuana. The total weight of the marijuana was 394.34 grams. After being informed of his Miranda rights, Breeze admitted to the officer the marijuana belonged to him. Breeze stated he ran because he "had five bags of marijuana in his pockets...."

Breeze argued he did not freely and voluntarily waive his right to remain silent. The trial court found the State had proved Breeze "voluntarily and intelligently gave up his rights and that his statement was voluntary."

Prior to trial, the State informed Breeze the marijuana had been destroyed. Breeze asked the trial judge to charge the jury with the following: "When a party loses or destroys evidence, an inference may be drawn that the destroyed or lost evidence would have been adverse to that party." The trial judge denied this request.

Following a jury trial, Breeze was convicted of possession of marijuana with intent to distribute and resisting arrest. Breeze was sentenced to seven years for the possession with intent to distribute charge and one year for the resisting arrest charge. The sentences were to run consecutively. This appeal follows.

STANDARD OF REVIEW

In criminal cases, this Court reviews errors of law only. State v. Miller, 375 S.C. 370, 378, 652 S.E.2d 444, 448 (Ct.App.2007). Thus, we are bound by the trial court's factual findings unless they are clearly erroneous. Id.

LAW/ANALYSIS

Breeze makes three arguments on appeal. First, he argues the trial court committed error when it refused to suppress his statement to the police. Second, he claims the trial court committed error by not allowing him to argue that the destruction of the marijuana was a violation of his right to a fair trial under the Due Process Clause. Third, Breeze contends the trial court erred in refusing to instruct the jury that an adverse inference could be made from the State's failure to produce the marijuana. We address each argument in turn.

A. Breeze's statement

Breeze initially contends the trial court improperly determined his statement was voluntary. We disagree.

The process for ascertaining whether a statement is voluntary is bifurcated because the process involves determinations by both the trial judge and the jury. Id. at 378-79, 652 S.E.2d at 448. Initially, the trial judge must conduct an evidentiary hearing2 in the absence of the jury. Id. At this phase of the proceedings, the State must show the statement was voluntarily made by a preponderance of the evidence. Id. If the trial court determines the State has met its burden, the statement is submitted to the jury where its voluntariness must be established beyond a reasonable doubt. Id.

Our role when reviewing a trial court's ruling concerning the admissibility of a statement upon proof of its voluntariness is not to reevaluate the facts based on our view of the preponderance of the evidence. Id. Rather, our standard of review is limited to determining whether the trial court's ruling is supported by any evidence. Id. Thus, on appeal the trial court's findings as to the voluntariness of a statement will not be reversed unless they are so erroneous as to show an abuse of discretion. Id. With this is mind, we now turn our attention to the trial court's determination that Breeze's statement was voluntary.

The Fifth Amendment to the United States Constitution provides, "No person shall be ... compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V.3 The Fifth Amendment's right against self-incrimination was made applicable to the individual states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) ("We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States.").

Based on the Fifth Amendment's protection against self-incrimination, the United States Supreme Court announced, "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards...." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Before the accused is subjected to custodial interrogation, he or she must be informed of the right to remain silent; any statement made may be used as evidence against him or her; the right to the presence of an attorney; and if he or she cannot afford an attorney one will be appointed prior to questioning. State v. Kennedy, 325 S.C. 295, 303, 479 S.E.2d 838, 842 (Ct.App.1996).

However, the Fifth Amendment does not act to provide a uniform prohibition against the taking of any and all statements made by a suspect to law enforcement officials. Miller, 375 S.C. at 379-80, 652 S.E.2d at 449. Volunteered exculpatory or inculpatory statements arising from custodial interrogation are not barred by the Fifth Amendment. Id. The test of voluntariness is whether a suspect's will was overborne by the circumstances surrounding the given statement. Id. at 384, 652 S.E.2d at 451. In making this determination, the trial court must examine the totality of the circumstances surrounding the statement. Id.

In the present case, Breeze maintains his statement was not voluntary because his statement occurred shortly after a physical altercation caused by his resisting arrest. At the Jackson v. Denno hearing, the trial court heard testimony from Officer Black that Breeze acknowledged his understanding of his rights by an "affirmative nod of the head and grunted, uh-huh." Black further testified Breeze was informed he had the option to answer any or all the questions or answer none of the questions. When asked whether he wished to cooperate, Breeze once again nodded his head up and down and grunted "uh-huh."

Black stated Breeze admitted the marijuana belonged to him. According to Black, Breeze stated he ran because he "had five bags of marijuana in his pockets." Black added Breeze was not threatened in any way to make a statement. Additionally, prior to being questioned, the officers offset the effects of the pepper spray by decontaminating Breeze with an aerosol water bottle.

Conversely, Breeze did not contradict Black's testimony with respect to the issue of whether the statement was voluntary. Breeze did not state the pepper spray made him less capable of understanding and waving his Miranda rights. Nor did Breeze assert he was coerced into making the statements. Faced with Black's undisputed testimony the trial court concluded the State had showed that Breeze voluntarily made the statement.

Based upon Black's testimony, we cannot conclude the trial court's ruling is unsupported by any evidence. See Miller, 375 S.C. at 387-88, 652 S.E.2d at 453 (upholding the trial court's determination of voluntariness because the trial court had the opportunity to listen to the testimony, assess the demeanor and credibility of witnesses and weigh evidence accordingly when defendant's attorney testified defendant was coerced into making a statement by a promise of a lenient sentence but where three law enforcement officials and an assistant attorney general denied any promise of lenience). We next turn our attention to Breeze's second and third issues on appeal.

B. Due Process and jury charge

Prior to trial, Breeze was informed the marijuana in question was inadvertently destroyed. Due to this destruction of evidence, Breeze contends the trial court's decision not to allow him to argue the evidence was destroyed as a result of the State's mistake was a violation of his right to a fair trial under the Due Process Clause. Additionally, Breeze contends the trial court erred in refusing to instruct the jury that an adverse inference could be drawn from the State's failure to produce the marijuana. We disagree.

The State does not have an...

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