State v. Creech, 2109

• Decision Date: 02 November 1993
• Docket Number: No. 2109,2109
• Citation: 314 S.C. 76,441 S.E.2d 635
• Parties: The STATE, Respondent, v. Ronald L. CREECH, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 635

441 S.E.2d 635

314 S.C. 76

The STATE, Respondent, v. Ronald L. CREECH, Appellant.

No. 2109.

Court of Appeals of South Carolina.

Heard Nov. 2, 1993.

Filed Dec. 20, 1993.

Refiled on Denial of Rehearing Jan. 31, 1994.

Certiorari Denied Aug. 26, 1994.

Fred Henderson Moore, Charleston, and S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Attys. General Harold M. Coombs, Jr. and Norman Mark Rapoport, Columbia, and Sol. Barbara R. Morgan, Aiken, for respondent.

ORDER

January 31, 1994.

PER CURIAM:

After reviewing the Petition for Rehearing in this case, it is ordered that Opinion No. 2109 filed December 20, 1993, be withdrawn and the attached Opinion be substituted. The Petition for Rehearing is denied.

AND IT IS SO ORDERED.

/s/ William T. Howell, C.J.

/s/ Jasper M. Cureton, J.

GOOLSBY, J., I adhere to my previous concurring and dissenting opinion.

CURETON, Judge:

Ronald L. Creech was convicted of aggravated assault and battery upon two police officers. On appeal, Creech argues the trial judge erred: (1) in failing to grant a mistrial when testimony placed Creech's character in issue; (2) in failing to direct a verdict of acquittal; and (3) in failing to conduct a Jackson v. Denno ¹ hearing to determine the admissibility of a statement allegedly made by Creech. We conclude that use of Creech's statement absent a Jackson v. Denno hearing violates due process, and therefore reverse the convictions and remand for a new trial.

At approximately 11:00 p.m. on December 27, 1991, State Trooper Thomas Blackburn was on patrol duty on Highway 78 near Williston and observed a car being driven in an erratic manner. He followed the car and, believing the driver to be under the influence of alcohol, pulled the car over. ² Blackburn approached the car and asked the driver to step to the rear so that Blackburn could determine if he had been drinking. The doors of the car opened and the other four occupants began to get out. Blackburn told them to remain in the car and they did so. The passengers then rolled the car's windows down and began shouting obscenities. Blackburn told the person in the front passenger seat to exit the car and walk to the rear. The individual did so but then cursed and shoved Blackburn. Blackburn tried to place handcuffs on the individual and the remaining passengers exited the car and came towards him. Blackburn called for assistance on his radio.

Officer Frank Stone of the Williston police happened on the scene and stopped to assist Blackburn. Stone told the other passengers to get back but they shouted, waved their hands, and ran into the street yelling "Stop and help us with the police." ³

Other State Troopers arrived and the officers were restoring order when two cars arrived and several persons, including Creech, stepped out. Creech walked across the street and inquired about his nephew, who was one of those arrested. Captain Thomas Gantt of the Sheriff's Department and Officer John Bell of the Williston Police Department approached Creech, told him everything was all right, and escorted him back across the street.

Creech ignored the police and again came back across the street with several other persons. They cursed Gantt, who told them to get in the car. One of the individuals attacked Gantt, and Bell attempted to assist him. Creech then struck Bell in the head and Bell wrestled Creech into a headlock.

Creech continued to struggle, and Bell then struck Creech in the head several times with his flashlight. During the struggle, Creech allegedly tried to grab Bell's gun. Bell suffered ruptured blood vessels and swelling in his eye due to the blow inflicted by Creech.

Officer Stone and Trooper Blackburn helped restrain Creech. Creech broke free, however, and struck Stone in the eye. Stone's eye became swollen and he suffered blurred vision from Creech's blow.

The officers subdued Creech and charged him with disorderly conduct. They transported him to the hospital for medical attention for a head injury he suffered when Bell struck him with the flashlight. While waiting for treatment at the hospital, Captain Gantt testified that he told Creech, "how things can explode" and "get out of hand" and that "some officers might think you were trying to grab the gun if you start wrestling with them." Creech, who was admittedly in custody and handcuffs allegedly replied, "Well you know, I was trying to grab his gun." Gantt then stated he told Creech that he "ought not say that" and Creech said, "Well, I tell it like it is." Gantt conceded that neither he nor any other officer in his presence advised Creech of his Miranda rights that night.

Several days later, Creech was charged with aggravated assault and battery. The jury found him guilty and he appeals.

I.

Creech first contends the trial court erred in failing to grant his motion for a mistrial after the prosecution allegedly placed his character in issue during the testimony of Officer Bell:

Q. Okay, so he's in jail on the disorderly that the officer wrote.

A. Right, yes, ma'am.

Q. And then this is Friday night, Saturday morning, when did you get with your Chief or whatever and obtain warrants?

A. I believe Roger either called you Sunday morning or either Monday morning. Now, Sunday morning I called the Probation Officer.

Q. Let's not talk about anything in that regard, Officer Bell.

Creech's counsel indicated to the judge that he wanted to make a motion outside the jury's presence and the jury was removed from the courtroom. Counsel moved for a mistrial on the ground that Officer Bell's reference to calling the Probation Officer "conveys unerringly the impression that this man had a prior record and places him in the posture of guilt before the jury before the case is even deliberated." The trial judge asked counsel if he wanted a curative instruction for the jury to disregard the statement. Counsel responded "that is entirely up to the court but my motion is for a mistrial because this impression [that Creech had a prior criminal record] that is already conveyed is not retractable." The trial judge asked counsel several times if he desired a curative instruction and counsel adamantly stated that there was no way the impression could be displaced, and that such an instruction would not be curative. Out of an abundance of precaution, counsel requested the instruction, although maintaining his position that the judge should grant a mistrial. The judge denied the mistrial motion and instructed the jury as follows:

[P]lease disregard any statement by the witness about his calling the Probation Officer. That has no bearing on the issues for trial in this case so please disregard that statement. Disabuse your mind thereof.

On appeal, Creech claims the trial judge goaded him into requesting the curative instruction. He claims he was entitled to a mistrial. We disagree.

The granting of a mistrial is a matter within the sound discretion of the trial judge, whose decision will not be disturbed on appeal absent an abuse of discretion amounting to an error of law. State v. Washington, --- S.C. ----, 432 S.E.2d 448 (1993). The power to grant a mistrial should be used with the greatest of caution under urgent circumstances , and for very plain and obvious cases. State v. Prince, 279 S.C. 30, 301 S.E.2d 471 (1983). The Supreme Court favors the exercise of wide discretion of the trial judge in determining the merits of a mistrial motion in each individual case. State v. Howard, 296 S.C. 481, 374 S.E.2d 284 (1988). Among the factors to be considered are the character of the testimony, the circumstances under which it was offered, the nature of the case, and the other testimony in the case. Id. Applying these factors to the case before us, we find no abuse of discretion in denying the motion.

In addition, we find the curative instruction in this case to be almost identical to the instruction the Supreme Court held to be sufficient in State v. Howard. In Howard, the State presented evidence indicating the defendant committed a separate homicide from the one for which he was on trial. The trial judge denied a mistrial motion but, at counsel's request, instructed the jury to disregard what the witness had said and admonished the jury that the statement "had nothing to do with this trial." The Supreme Court held the trial judge did not abuse his discretion in refusing to grant a mistrial and in the curative instruction given to the jury. Likewise, we find no abuse of discretion in this case.

II.

Next, Creech claims the trial court erred in refusing his directed verdict motion. We disagree. Assault and battery of a high and aggravated nature is the unlawful act of violent injury to another person accompanied by circumstances of aggravation, such as the infliction of serious bodily injury or the resistance of lawful authority. State v. Jones, 133 S.C. 167, 130 S.E. 747 (1925). Resistance to lawful arrest by constituted authority accompanied by an unlawful act against a police officer becomes an assault and battery and may be of an aggravated nature though the officer suffers no actual bodily harm. State v. Brown, 269 S.C. 491, 238 S.E.2d 174 (1977).

In reviewing the refusal to grant a directed verdict, the evidence is viewed in the light most favorable to the State to determine whether there is any evidence, either direct or circumstantial, which reasonably tends to prove the guilt of the accused, or from which guilt may be fairly and logically deduced. State v. Breech, --- S.C. ----, 417 S.E.2d 873 (1992). ⁴ Viewed in this manner the evidence in this case was sufficient to withstand the directed verdict motion. Officer Blackburn testified he saw Creech strike Officer Bell in the face. Officer Stone testified he witnessed Creech strike Officer Bell and attempt to get Officer Bell's service revolver. Officer Stone also testified that Creech broke...