State v. Hill
| Decision Date | 11 May 2004 |
| Docket Number | No. 3795.,3795. |
| Citation | 597 S.E.2d 822,359 S.C. 301 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE of South Carolina, Respondent, v. Gary Thomas HILL, Appellant. |
J. Stephen Welch, of Greenwood, for Appellant.
Deputy Director for Legal Services Teresa A. Knox, Legal Counsel Tommy Evans, Jr., and Legal Counsel J. Benjamin Aplin, all of South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent.
CURETON, A.J.:
Gary Thomas Hill appeals the circuit court's decision revoking his probation and sentencing him to seven years imprisonment. We affirm in part, reverse in part, and remand.
FACTS
On November 4, 1991, Hill was convicted of second-degree arson, second-degree burglary, malicious injury to personal property, driving under the influence (fourth offense), and criminal domestic violence (third offense). The judge sentenced Hill to twenty years imprisonment, suspended upon the service of ten years and five years probation. Hill was granted parole on July 28, 1996. His parole ended on February 25, 1997, and his probation began immediately thereafter. When the events that are the subject of this appeal took place, Hill had completed approximately four years and eight months of his probation.
On October 24, 2001, Hill's probation officer, Marshall Evans, received a call from the Department of Social Services ("DSS"). DSS informed Evans that it had reason to believe Hill possessed firearms and had been pointing them at his son. To further investigate this information, Evans called Hill and asked him to come to his office. Hill went to see Evans as requested on October 25, 2001.
Evans confronted Hill with the information received by DSS and asked whether he did in fact possess any weapons. Hill admitted that his son owned a .22 caliber rifle, which he had received for his birthday. Hill agreed to let Evans and other probation officers search his house for weapons, but the agreed upon search never took place.
While in Evans's office, Hill asked if he could get a drink of water. Evans agreed and accompanied Hill as he went into the hallway. After getting some water, Hill turned and headed down the hall towards the exit. Although Evans asked Hill to stop, he did not respond and instead proceeded out of the building where he locked himself in his car. Evans testified that at least three other probation officers were involved in trying to "chase" Hill down.
The officers surrounded Hill's car and attempted to gain entry. Despite the officers' commands to stop, Hill began to drive out of the parking lot notwithstanding the proximity of the officers to his car. At this point, two of the officers opened fire on Hill's car. Hill's car was hit several times in numerous places including the rear window, the side window, the trunk, and the rear quarter panel. Hill received three gunshot wounds, one in the head and two in the back. Although the officers shot Hill three times, he never stopped his car. He was arrested some time later while seeking treatment at a hospital.
Hill hired attorney James Brislane to represent him at the probation revocation hearing. On November 1, 2001, Brislane filed motions under Rule 5, SCRCrimP, and Brady v. Maryland.1 Hill asserts on appeal these motions were filed to determine exactly what happened on the day of the incident. Hill believed he was entitled to the following: (1) the names of witnesses that supported his version of the incident; (2) written statements of the probation agents; (3) Anderson City Police Department investigative materials; and (4) the South Carolina Law Enforcement Division ("SLED") report.
On November 11, 2001, Brislane moved for a continuance of the probation revocation hearing. At the hearing on the motion, the court informed Brislane that because the probation and parole department's records were confidential,2 neither a Rule 5 motion nor a Brady motion were appropriate for obtaining the requested information. The court instructed Brislane to find the statute applicable to the parole department's records and to serve the appropriate motion on counsel. The court also informed Brislane it would hear the motion once correctly made.
The record does not disclose any motions made according to the court's instructions prior to the probation revocation hearing, which was held on December 21, 2001. Neither the SLED report outlining the investigation of the incident nor the Anderson Police Department's report was furnished to Hill or his counsel prior to the hearing.
At the revocation hearing, the circuit court and Brislane agreed the key issue was not whether Hill violated his probation, but whether he violated his probation willfully.3 All of the officers involved in the incident testified at the hearing. The majority of the testimony presented consisted of the officers' assertions that Hill intentionally tried to run them over during his escape. On cross-examination of each witness, Brislane tried to discredit the idea that Hill intentionally attempted to harm the officers. However, at the conclusion of the hearing, the court revoked Hill's probation and sentenced him to seven years imprisonment.
Following the revocation hearing, Hill hired Beattie Ashmore to represent him. Ashmore filed a motion to reconsider on December 28, 2001. In the motion, Ashmore asked the court to reconsider the ruling based on the fact that the SLED report investigating the incident was not complete and the report contained mitigating information. After filing the motion to reconsider, Ashmore made several additional motions in an attempt to obtain the SLED report. These motions included a motion to produce, another motion pursuant to Rule 5, SCRCrimP, and another Brady motion. Ashmore also served subpoenas on SLED and the Anderson County Solicitor's Office. Due to these efforts, Hill received the SLED report prior to the hearing on the motion to reconsider.
At the hearing, the circuit court asked Ashmore whether he was proceeding under Rule 28 or Rule 29, SCRCrimP.4 After a brief colloquy, the court informed counsel that he could not proceed under both so he would have to elect. Ashmore chose to proceed under Rule 29. Relying on the information in the SLED report, Ashmore presented evidence that countered the probation officers' assertions that Hill intentionally tried to hit them with his vehicle.
In an order dated July 3, 2002, the court denied Hill's motion on the ground that he failed to meet the five elements required to support the award of a new trial based on after-discovered evidence. Specifically, the court ruled that even considering the additional evidence presented, the outcome would not change if a new hearing were permitted. As such, the court upheld its previously imposed sentence of seven years. Hill appeals.
STANDARD OF REVIEW
The determination of whether or not to revoke probation is within the trial court's discretion. State v. Proctor, 345 S.C. 299, 301, 546 S.E.2d 673, 674 (Ct.App.2001). "[B]efore revoking probation, the circuit judge must determine if there is sufficient evidence to establish the probationer has violated his probation conditions." State v. Lee, 350 S.C. 125, 131, 564 S.E.2d 372, 375 (Ct.App.2002). "This court's authority to review such a decision is confined to correcting errors of law unless the lack of a legal or evidentiary basis indicates the circuit judge's decision was arbitrary and capricious." State v. Hamilton, 333 S.C. 642, 647, 511 S.E.2d 94, 96 (Ct.App.1999); see State v. Brown, 284 S.C. 407, 410, 326 S.E.2d 410, 411 (1985)
().
DISCUSSION
Hill argues the circuit court erred by not requiring the State to produce the information requested through the Rule 5 and Brady motions prior to the probation revocation hearing.
State v. Kennerly, 331 S.C. 442, 452, 503 S.E.2d 214, 219 (Ct.App.1998), aff'd, 337 S.C. 617, 524 S.E.2d 837 (1999).
Gibson v. State, 334 S.C. 515, 524, 514 S.E.2d 320, 324 (1999). "This rule applies to impeachment evidence as well as exculpatory evidence." Id.
"The requirements of Rule 5, as opposed to the constitutional dictates of Brady, are judicially created discovery mechanisms for use in criminal proceedings." State v. Proctor, 348 S.C. 322, 330, 559 S.E.2d 318, 322 (Ct.App.2001), rev'd on other grounds, 358 S.C. 424, 595 S.E.2d 480 (2004). Although Hill's counsel proceeded under several provisions of Rule 5, the primary subsection was Rule 5(a)(1)(C). This subsection provides:
(C) Documents and Tangible Objects. Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial, or were obtained from or belong to the defendant.
"The definition of `material' for purposes of Rule 5 is the same as the definition used in the Brady context." Kennerly, 331 S.C. at 453, 503 S.E.2d at 220. "Impeachment or exculpatory...
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