State v. Clute

• Decision Date: 08 October 1996
• Docket Number: No. 2588,2588
• Citation: 324 S.C. 584,480 S.E.2d 85
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Randy Ray CLUTE, Appellant. . Heard

Page 85

480 S.E.2d 85

324 S.C. 584

The STATE, Respondent, v. Randy Ray CLUTE, Appellant.

No. 2588.

Court of Appeals of South Carolina.

Heard Oct. 8, 1996.

Decided Nov. 4, 1996.

Rehearing Denied Dec. 31, 1996.

Certiorari Denied May 27, 1997.

Stephen P. Groves, Charleston; and Reese I. Joye, Jr. and John L. Drennan, North Charleston, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General G. Robert DeLoach, III, Columbia; and Solicitor Ralph J. Wilson, Conway, for respondent.

CURETON, Judge:

Randy Ray Clute was convicted of driving under the influence, second offense. The circuit court ordered him to pay a $3,000 fine and sentenced him to one year imprisonment, suspended upon payment of the fine plus costs, four years probation, and thirty days public service. Clute appeals. We affirm.

Facts

On April 23, 1994, Officer Hess of the Georgetown Police Department stopped Clute's vehicle after observing Clute driving erratically. Hess testified that when he approached the vehicle, he noticed a strong odor of alcohol and Clute immediately stated, "I, I know I had too much." Prior to arresting Clute and without reading him his Miranda rights, Hess had Clute perform a series of field sobriety tests. According to Hess, Clute failed the sobriety tests, including the horizontal gaze nystagmus test (HGN). Further, Clute's eyes appeared glassy and there was a strong odor of alcohol about his person. Hess arrested Clute for driving under the influence and transported him to the police department. At the station, Hess videotaped Clute performing the field sobriety tests again. Clute refused to take the breathalyzer test.

At a pretrial hearing, Clute moved to suppress any statements he made during the stop and field sobriety tests on the ground he was subjected to custodial interrogation without being read the Miranda warnings. The trial court denied the motion. At trial, the State sought to prove Clute had a previous out of state conviction for driving under the influence through a copy of Clute's South Carolina driving record and a notice of suspension from the South Carolina Highway Department. Clute argued this evidence was not sufficient to prove a previous conviction under S.C.Code Ann. § 56-5-2980 (1991). The trial court found the driving records admissible over Clute's objection. Clute moved to preclude Hess from testifying as an expert witness concerning the HGN test. The trial court denied the motion and qualified the officer as an expert witness. Clute also moved to suppress the videotape Hess made of him performing field sobriety tests while at the police station. The judge admitted the videotape over Clute's objection.

Discussion

I.

On appeal, Clute argues the trial court should have found he was subjected to custodial interrogation during the administration of the field sobriety tests and should therefore have been apprised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He further argues that because he was not apprised of these rights, the trial court should have found that any statements he made during the administration of the tests were inadmissible. We disagree.

In Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988), the United States Supreme Court held that a motorist is not in custody during the performance of field sobriety tests, and is therefore not entitled to a recitation of constitutional rights prior to the tests. Furthermore, the Court found that a motorist's response to questions about his drinking are admissible despite the lack of Miranda warnings. Id. at 10, 102 S.Ct. at 206-207. Likewise, in State v. Peele, 298 S.C. 63, 378 S.E.2d 254 (1989), the South Carolina Supreme Court held that a roadside field sobriety test did not constitute detainment sufficient to rise to the level of custodial interrogation. Id.

Because we find nothing extraordinary about the circumstances surrounding the administration of the roadside field sobriety tests in this case, we hold the trial court properly found Clute was not "in custody" for purposes of Miranda during the administration of the sobriety tests.

II.

Clute also argues the trial court erred in failing to make a specific finding as to whether the statements he made during the traffic stop were voluntary. In support of this contention, Clute cites several cases setting forth the proposition that a defendant need not establish custody in order to be entitled to a hearing on the issue of voluntariness pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). See e.g., State v. Silver, 314 S.C. 483, 431 S.E.2d 250 (1993); State v. Creech, 314 S.C. 76, 441 S.E.2d 635 (Ct.App.1994). Initially, we note Clute makes no argument on appeal that the trial court denied his motion for a Jackson v. Denno hearing. Moreover, the argument Clute presents on appeal is not the precise argument he made at trial. Although Clute referred the trial court to, among others, the holdings of State v. Silver andState v. Creech, he mentioned the cases only in relation to his argument that he was "in custody" at the time of the statements for purposes of Miranda. Cf. State v. Silver, 314 S.C. 483, 431 S.E.2d 250 (1993), aff'g as modified307 S.C. 326, 414 S.E.2d 813 (Ct.App.1992) (holding it was error to consider defendant's voluntariness argument on appeal as a Jackson v. Denno situation where defendant moved for an in camera hearing at trial on the issue of custody and whether he had received Miranda warnings rather than on the issue of voluntariness). Moreover, after the trial court ruled that Clute was not in custody for purposes of Miranda, Clute failed to request a specific ruling as to the voluntariness issue pursuant to Jackson v. Denno. The issue is therefore not preserved for appeal. See State v. Pierce, 263 S.C. 23, 207 S.E.2d 414 (1974) (in order to preserve an error for appeal, a defendant must object and ask for a ruling); State v. Bailey, 253 S.C. 304, 170 S.E.2d 376 (1969) (objection must be on specific ground); see also State v. Hudgins, 319 S.C. 233, 460 S.E.2d 388 (1995) (a party cannot argue one ground below then argue another on appeal); State v. Silver, 314 S.C. 483, 431 S.E.2d 250 (ground asserted on appeal must be supported by objection raised at trial).

III.

Clute further argues the trial court erred in ruling that it was harmless error to introduce the videotaped field sobriety tests taken after he was in police custody because no Miranda warnings were given prior to the videotaping. Clute argues the videotaped statements of him reciting the alphabet were highly prejudicial and their impact on the jury was great enough to warrant a mistrial. We disagree.

In determining whether an error is harmless, the test is whether there is a reasonable probability that the statements contributed to the defendant's conviction of the crime, or if the defendant's statements were merely cumulative. State v. Bernotas, 277 S.C. 106, 283 S.E.2d 580 (1981). Where challenged evidence does not prejudice the defendant because it was merely cumulative to independent and overwhelming evidence of guilt, the court will not set aside the conviction. State v. Newell, 303 S.C. 471, 401 S.E.2d 420 (Ct.App.1991). Even an error of constitutional magnitude may be harmless if, considering the entire record on appeal, the reviewing court finds beyond a reasonable doubt that the error did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The State concedes the audio portion of the videotaped field sobriety tests wherein Clute recites the alphabet was improperly admitted over Clute's objection. See Pennsylvania v. Muniz, 496 U.S. 582, 604 n. 17, 110 S.Ct. 2638, 2652 n. 17, 110 L.Ed.2d 528 (1990) (holding that drunk driving suspect's counting at officer's request during the field sobriety tests conducted while suspect was in custody qualified as a response to "custodial interrogation" within the meaning of Miranda. However, the court did not determine whether the verbal response was "testimonial" in nature). Nevertheless, we agree with the trial court the error was harmless in light of the other evidence of Clute's guilt. The videotaped evidence is cumulative to Officer Hess's properly admitted testimony regarding Clute's inability to recite the alphabet. Officer Hess's testimony as to Clute's performance on the other field sobriety tests was also properly admitted. Furthermore, having viewed the videotape, we agree with the trial court that the physical, nontestimonial evidence on the videotape outweighs any prejudice from the recitation of the alphabet inasmuch as Clute is visibly intoxicated on the videotape. See Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (Fifth Amendment privilege against self-incrimination protects accused from being compelled to give evidence of testimonial or cumulative nature but not from being compelled to produce real or physical evidence).

IV.

Clute further argues the trial court erred in not granting a mistrial based on the introduction of his South Carolina driving record for the purpose of proving a prior DUI conviction. Specifically, Clute argues the driving record should have been excluded because it constitutes improper character evidence. This issue is not preserved for appeal.

At trial and out of the presence of the jury, Clute refused to concede he had a prior conviction for driving under the influence. Thus, the State sought to introduce Clute's South Carolina driving record as proof of a prior DUI conviction in another state. Clute objected to the introduction of his South Carolina driving record, arguing that the State had to introduce the actual conviction records rather than the driving record to prove a previous DUI. The trial court ruled the...