State v. Hook, 3424.

• Decision Date: 17 December 2001
• Docket Number: No. 3424.,3424.
• Citation: 348 S.C. 401,559 S.E.2d 856
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Roy Edward HOOK, Appellant.

348 S.C. 401

559 S.E.2d 856

The STATE, Respondent, v. Roy Edward HOOK, Appellant.

No. 3424.

Court of Appeals of South Carolina.

Heard November 6, 2001.

Decided December 17, 2001.

Rehearing Denied February 21, 2002.

Assistant Appellate Defender Katherine Carruth Link, of South Carolina Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan and Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.

ANDERSON, J.

Ray Edward Hook appeals his conviction for driving under the influence, third offense. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

While driving during the early morning hours of January 15, 1999, Hook was involved in an automobile collision with Roger Smith of the Williston Police Department, who was operating a police department patrol car. The investigating trooper, Joseph Cruz, cited Smith for driving too fast for conditions and charged Hook with driving under the influence.

Both Hook and Smith sustained injuries in the accident and both were taken to a hospital for treatment. Hook was given two intravenous doses of Toradol, a non-narcotic pain killer. The physician also gave Hook a prescription for Darvocet, a narcotic pain killer. After Hook received medical attention, Cruz arrested him, advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and took him to the detention center for a breathalyzer test. Hook ultimately declined to take the breathalyzer. Hook was held at the detention center for a number of days. On the day after the accident, he continued to experience severe pain to his side and chest and began spitting up blood. Unbeknownst to law enforcement personnel, Hook had in fact suffered a ruptured spleen which later required surgical removal.

On the day after the accident, Hook's probation agent, Judy Brown, spoke with him and asked that he submit to a drug test. Another probation agent, Marshall Bunch, administered the test. Neither agent advised Hook of his rights under Miranda. After informing Hook he tested positive for cocaine, the probation agents questioned him about cocaine usage. According to the agents, Hook admitted using cocaine on the night before the accident. Brown testified Hook admitted his cocaine use caused the accident.

At trial, Hook's attorney argued several grounds for the exclusion from evidence of the drug test results and Hook's statement to the probation agents. Defense counsel moved in limine to exclude the test results and statements on the ground the information was privileged under South Carolina Code Annotated Section 24-21-290 (Supp.2000).

The court ruled the test results were inadmissible, but the statements were a "clear admission against [Hook's] interest" and were, therefore, admissible.

Later in the trial, the court addressed the issue of voluntariness. After conducting a Jackson v. Denno¹ hearing, the court ruled the statement was voluntary but privileged and thus inadmissible, rejecting Hook's argument the statement was involuntary and was taken in violation of his Fifth Amendment rights.

Hook testified in his own defense. He admitted he drank three beers between 5:00 and 7:30 p.m. on January 14, 2000, but denied his ability to drive a car was impaired at the time of the accident. At the close of his testimony, the solicitor requested permission to impeach Hook's testimony with his statement to the probation agents. Specifically, the solicitor requested permission to question Hook about drug use, then impeach any denial of drug use with testimony from the probation agents concerning his statements to them. The court initially indicated that because Hook took the stand in reliance on the court's prior ruling that the statement was inadmissible, the solicitor would not be allowed to question him about drug use or use his statements for impeachment purposes. However, after hearing additional arguments on the issue, the court reversed its position and ruled the State could use the statements for impeachment. In reaching this determination, the court reasoned Hook opened the door for impeachment in his testimony. The court further reasoned Hook's statements were voluntary inasmuch as he did not assert his privilege to remain silent in the face of the probation agents' questions, and the United States Supreme Court had previously sanctioned using voluntary, but otherwise inadmissible statements, to impeach a defendant when he attempts to commit perjury.

On cross examination, over defense counsel's objection, the solicitor questioned Hook about his statement to the probation agents. Hook admitted he told the officers he used powder cocaine "a couple of days before the accident." He denied, however, using cocaine on the night of January 14 prior to the accident during the early morning hours of January 15. He further denied telling the probation agents he used cocaine on the night of the accident or that his cocaine use caused the accident. The solicitor then recalled Brown, who recited Hook's alleged statements, thereby contradicting Hook's testimony.

LAW/ANALYSIS

I. Statutory Privilege

Initially, we address the efficacy of Section 24-21-290 (Supp.2000), which provides:

Information received by probation agents privileged.

All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director.

Elementally, the statute is trifurcated:

(1) all information and data obtained in the discharge of his official duty by a probation agent is privileged information;

(2) is not receivable as evidence in a court; and

(3) may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director.

The State contends that the language of the statute in element three "ordered by the court" refers to any court at any time. We reject that contention and rule that the statute is clearly and unambiguously referencing the court in the probation setting.

The defendant argues that the verbiage in the statute in element two "is not received as evidence in court" restricts the use of any statements by a probationer to a probation agent except in a probation revocation hearing. We agree.

Finally, we hold the statute creates an exclusionary privilege.

The statements made by Hook to the probation officers were nexed to the pending charge involving his custody.

Because we dispose of this case under the analysis of a separate issue, we decline to analyze the utilitarian efficacy of the statute as juxtaposed to factual scenarios involving possible waiver of the privilege.

II. Statement to Probation Agents—Voluntary/Involuntary

On appeal, Hook argues the trial court erred in determining his statement to the probation agents was voluntarily made. We agree.

The Fifth Amendment to the United States Constitution provides, in relevant part, that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const.amend. V. This provision governs state as well as federal criminal proceedings. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Article 1, Section 12, of the South Carolina Constitution contains a similar provision. S.C. Const. Art. I, § 12 ("... nor shall any person be compelled in any criminal case to be a witness against himself.").

The Fifth Amendment does not, of course, operate as a blanket prohibition against the taking of any and all statements made by criminal defendants to law enforcement officials. Volunteered statements, whether exculpatory or inculpatory, stemming from custodial interrogation or spontaneously offered up, are not barred by the Fifth Amendment. State v. Kennedy, 325 S.C. 295, 307, 479 S.E.2d 838, 844 (Ct.App. 1996)(citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

"The test for determining the admissibility of a statement is whether it was knowingly, intelligently, and voluntarily given under the totality of the circumstances." State v. Peake, 291 S.C. 138, 139, 352 S.E.2d 487, 488 (1987); see also State v. Rochester, 301 S.C. 196, 391 S.E.2d 244 (1990)

(trial judge's determination of whether statement was knowingly, intelligently and voluntarily made requires examination of totality of circumstances surrounding waiver). The State bears the burden of establishing voluntariness by a preponderance of the evidence.

If a defendant was advised of his Miranda rights, but nevertheless chose to make a statement, the "burden is on the State to prove by a preponderance of the evidence that his rights were voluntarily waived." State v. Washington, 296 S.C. 54, 370 S.E.2d 611 (1988) (emphasis in original); State v. Neeley, 271 S.C. 33, 244 S.E.2d 522 (1978). The State bears this burden of proof even where a defendant has signed a waiver of rights form.... The trial judge's determination of the voluntariness of a statement must be made on the basis of the totality of the circumstances, including the background, experience and conduct of the accused. State v. Linnen, 278 S.C. 175, 293 S.E.2d 851 (1982). The trial judge's resolution of the issue will not be disturbed absent an error of law. State v. Atchison, 268 S.C. 588, 235 S.E.2d 294, cert. denied, 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181 (1977).

State v. Franklin, 299 S.C. 133, 137-38, 382 S.E.2d 911, 913-14 (1989). See also State v. McLeod, 303 S.C. 420, 423, 401 S.E.2d 175, 177(1991)

(The trial court's "determination of the voluntariness of a statement will not be disturbed unless so...