State v. Brown

Citation436 S.C. 505,873 S.E.2d 445
Decision Date25 May 2022
Docket NumberAppellate Case No. 2018-000988,Opinion No. 5914
Parties The STATE, Respondent, v. Tammy Dianne BROWN, Appellant.
CourtCourt of Appeals of South Carolina

436 S.C. 505
873 S.E.2d 445

The STATE, Respondent,
v.
Tammy Dianne BROWN, Appellant.

Appellate Case No. 2018-000988
Opinion No. 5914

Court of Appeals of South Carolina.

Heard September 15, 2021
Filed May 25, 2022
Rehearing Denied June 23, 2022


Appellate Defender Adam Sinclair Ruffin, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Jonathan Scott Matthews, both of Columbia; and Solicitor Ernest Adolphus Finney, III, of Sumter, for Respondent.

KONDUROS, J.:

436 S.C. 510

Tammy Dianne Brown appeals her convictions and sentences for felony driving under the influence (DUI) resulting in death and felony DUI resulting in great bodily injury. On appeal, Brown argues the trial court erred in (1) refusing to quash or dismiss the indictments against her because they did not allege the particular traffic violation the State sought to prove as an essential element of each offense; (2) admitting into evidence the blood sample taken from her at the hospital because she was not provided an independent sample and law enforcement did not offer her affirmative assistance; and (3) allowing testimony regarding her blood alcohol level from a sample obtained by law enforcement at the hospital when the collection of the sample was not recorded by video. We affirm.

FACTS/PROCEDURAL HISTORY

On August 30, 2014, around 11:56 p.m., Brown was driving a vehicle involved in a two-car collision in Clarendon County. The driver of the other vehicle died at the scene of the accident, and the passenger of that vehicle was unresponsive but breathing at the scene and was transported to a hospital.

As a result of the accident, a Clarendon County grand jury indicted Brown for felony DUI resulting in death and felony DUI resulting in great bodily injury. Prior to the jury being sworn, Brown "move[d] to dismiss the indictment[s] for reasons concerning the sufficiency of the indictment[s] as it relate[d] to due process." The indictments alleged "while driving a vehicle under the influence of alcohol, drugs, or a combination ... Brown did an act forbidden by law or neglected a duty imposed by law in the driving of said vehicle ... all in violation of [s]ection 56-5-2945" of the South Carolina Code (2018). Brown argued the indictments were required to have "state[d] with particularity the act forbidden by law or duty imposed by law" on which the State planned to rely to support the charges. Brown asserted that because the indictments did not specifically point to the act on which the State would rely,

436 S.C. 511

the indictments were flawed and should be dismissed. The State countered, asserting an indictment's language was sufficient if it tracked the language of a statute and both of Brown's indictments tracked the statute she was charged with violating. The trial court denied Brown's motion to quash or dismiss the indictments, finding that as long as an indictment tracked the language of a statute, it was sufficient and both Brown's indictments tracked the statute.

The trial court conducted a suppression hearing regarding Brown's blood sample and the voluntariness of her statements to law enforcement.1 Trooper Jeffrey Minnix, of the

873 S.E.2d 448

South Carolina Highway Patrol, testified he was the investigating trooper assigned to work the accident. He stated that when he arrived on scene, he activated his body microphone and his camera and went to the truck involved in the accident. Trooper Minnix indicated that an individual with the fire department informed him the driver of the truck was dead on arrival and the passenger was being extricated from the truck. He stated he walked towards Brown's car, which was some distance away, and someone from the fire department informed him Brown was in an ambulance further down the road. He asserted he went to the ambulance and as emergency medical services (EMS) attended to Brown, he spoke with her to determine how the collision occurred. Trooper Minnix recounted his conversation with Brown, stating:

[Brown] told me she [was] coming from a friend's house. At that point in time I [could] smell a strong odor of alcohol[ic] beverage coming from her person. I asked her if she had anything to drink. She said, yes, she had two tequila shots. Then she quickly changed it to, no, she had two wine coolers instead.... I asked her what was in the clear cup in the vehicle at the time. And she said a friend of hers made her a drink to go. She believed it was a wine cooler.... At that point in time EMS was ready to take her to the ER ....

He confirmed he had not advised Brown of her Miranda2 rights at that time because she was not in custody. He recalled

436 S.C. 512

Brown had several scrapes and scratches but needed to be brought to the hospital to ensure she had no internal trauma. Trooper Minnix asserted he stayed at the scene, finished his investigation, and then went to the hospital to speak with Brown again. He testified that at the hospital, Brown told him the accident occurred because the individuals in the truck were attempting to pass someone and they hit her head on. He confirmed that at the time Brown told him this, she still had not been placed under arrest and therefore had not been advised of her Miranda rights. Trooper Minnix stated that after Brown recounted her story, she was placed under arrest for felony DUI and advised of her Miranda rights and her implied consent rights. He asserted although Brown had previously agreed to give a blood sample, after she was placed under arrest, she no longer wanted to provide a sample and became "belligerent" and started yelling. Trooper Minnix testified Brown appeared to understand the rights as they were read to her and continued to speak after she had been advised of those rights. He stated Corporal Jennifer Paige Dubose, also with South Carolina Highway Patrol and with him at the hospital, left to obtain a search warrant for Brown's blood and urine samples. He confirmed the search warrant was obtained and blood and urine samples were taken from Brown. Trooper Minnix testified the blood sample was taken in his presence and the urine sample was taken in Corporal Dubose's presence.

On cross-examination, Trooper Minnix stated that although he had turned his body microphone on when he arrived at the scene, the microphone did not record his conversation with Brown because his vehicle was too far away. He confirmed Brown initially told him she had two tequila shots but she then stated she had two wine coolers instead. He stated he did not conduct a field sobriety test at the scene because Brown was in the back of an ambulance and EMS wanted to transport her to the hospital. He testified he did not offer Brown additional affirmative assistance to obtain an independent blood sample because she was at the hospital. He asserted because Brown was already at the hospital, she only needed to ask the nurse to provide her with an independent sample.

436 S.C. 513

On recross-examination, Trooper Minnix identified the implied consent form he read to Brown and acknowledged Brown refused to sign the form.

Corporal Dubose testified she was Trooper Minnix's training officer and arrived at the scene of the vehicle collision with him. Corporal Dubose stated Trooper Minnix informed her he smelled alcohol coming from Brown

873 S.E.2d 449

and Brown admitted she had been drinking and the amount of alcohol she had consumed. Corporal Dubose asserted that when she and Trooper Minnix initially spoke to Brown at the hospital, Brown was not in custody at the time because she wanted to confirm that Brown was impaired by alcohol. Corporal Dubose averred they both made the determination Brown was impaired. Corporal Dubose recalled that once they read Brown her implied consent rights, Brown became irritated and refused to voluntarily provide a blood sample. Corporal Dubose confirmed she secured the search warrant to obtain Brown's blood sample. Corporal Dubose indicated two vials of blood and one container of urine were obtained from Brown. Corporal Dubose testified Brown never verbalized a request to have someone conduct an independent test of her blood or asked for assistance in obtaining an independent test. Corporal Dubose acknowledged that on the South Carolina Law Enforcement Division (SLED) urine/blood collection report (the collection report), the line that stated "a blood sample is requested by the subject for an independent test" had a check mark beside it. However, Corporal Dubose stated Angela Floyd, the phlebotomist who took the samples, checked the box by mistake. Corporal Dubose reiterated Brown did not verbalize any request to have an independent test conducted on her blood. Corporal Dubose testified that to her knowledge, Brown never contacted highway patrol again to inquire whether or not she could have an independent analysis performed on her blood sample.

Brown testified the person who drew her blood at the hospital told her she could get a sample of her blood and she said "okay." She stated she wanted her own sample because she did not really trust the...

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