State v. Lowery

• Decision Date: 06 April 2022
• Docket Number: Appellate Case No. 2018-002242,Opinion No. 5903
• Citation: 436 S.C. 349,872 S.E.2d 197
• Parties: The STATE, Respondent, v. Phillip Wayne LOWERY, Appellant.
• Court: South Carolina Court of Appeals

436 S.C. 349

872 S.E.2d 197

The STATE, Respondent,

v.Phillip Wayne LOWERY, Appellant.

Appellate Case No. 2018-002242

Opinion No. 5903

Court of Appeals of South Carolina.

Heard March 8, 2022

Filed April 6, 2022

Rehearing Denied May 18, 2022

Appellate Defender Taylor Davis Gilliam, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General William M. Blitch, Jr., and Assistant Attorney General Ambree Michele Muller, of Columbia, and Solicitor William Walter Wilkins, III, of Greenville, all for Respondent.

THOMAS, J.:

Phillip Wayne Lowery appeals his driving under the influence (DUI) conviction, arguing the trial court erred in (1) admitting statements he made on a dash camera recording and (2) not dismissing the charge due to the State's failure to comply with the DUI statute regarding a second dash camera recording. We reverse and remand.

FACTS

During a Jackson v. Denno¹ pre-trial hearing, Trooper David Vallin of the South Carolina Department of Public Safety testified he responded to a call about an accident. Shortly thereafter, Vallin responded to another call indicating a vehicle that left the scene of the accident was at the Spinx gas station. When he arrived at the Spinx, Vallin noted the vehicle had front end damage, Lowery was standing next to the vehicle, and three or four other officers were already present and surrounding Lowery. Vallin testified he preliminarily questioned Lowery about the car accident, but it developed into a DUI investigation. Vallin testified he had a dash cam in his vehicle and it recorded the investigation. The State played Vallin's video for the trial court. In Vallin's video, Lowery made many incriminating statements, including admitting he had been driving the vehicle. Vallin admitted his questioning of Lowery was accusatory because Vallin believed Lowery was involved in the accident.

Lowery argued his statements on Vallin's video should not be admitted because he was in custody, being interrogated, and had not yet been given Miranda² warnings. The State argued the video was admissible because Vallin was investigating an accident. After reviewing Vallin's video, the court ruled Lowery was not in custody and recitation of Miranda warnings was not required. The court also found the questions were "fairly innocuous questions regarding the traffic accident" and asked in "furtherance of a routine traffic violation." Thus, the court found the video was admissible. The court ruled any evidence of the accident as a hit and run was inadmissible; thus, all references to the accident were to be redacted from Vallin's video.

Vallin similarly testified before the jury, additionally claiming Lowery smelled strongly of alcohol and his speech was slurred. Vallin's video was played for the jury.

Trooper Brandon Lee McNeely, of the South Carolina Highway Patrol, testified he was also present at the Spinx. McNeely testified Lowery smelled of alcohol and displayed signs of impairment. McNeely's dash cam was activated. McNeely testified the horizontal gaze nystagmus

(HGN) sobriety test, which tests for involuntary eye movement due to the influence of drugs or alcohol, was given. According to McNeely, the HGN test indicated Lowery was impaired. Lowery performed a walk and turn test and a one leg stand test, which McNeely testified indicated Lowery's impairment. Lowery was placed under arrest, handcuffed, and then given Miranda warnings.

The court admitted McNeely's video and the video began playing for the jury. After the video showed the HGN test and at least one of the other sobriety tests, the video stopped playing. An off-the-record bench conference was held, the court commented on the State's inability to use the computer, and the State asked McNeely, "I know we didn't finish that video, but you said you [M ]irandized him, correct?" and "Does [M ]iranda appear on that video?" McNeely responded "yes" to both questions.³ The State rested, and Lowery moved for a directed verdict. Lowery argued the State failed to provide evidence Lowery was driving a vehicle. The court denied the motion.

Lowery presented a defense indicating he rode with a friend that night and was not driving the vehicle. At the close of evidence, Lowery renewed his motion for a directed verdict and also argued the State failed to comply with the statute requiring the dash cam video to show all of the field sobriety tests and the Miranda warnings. Lowery argued, "I don't know what is on that video and what can and can't be played. The field sobriety tests weren't shown in full there and neither was [M ]iranda as required by the statute shown on camera." The State argued, "[W]e addressed this at the bar a minute ago," and the parties redacted the video together. The court denied Lowery's motions, finding the State substantially complied with the statute. Lowery was convicted and sentenced to two years’ imprisonment and a fine. This appeal follows.

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only." State v. Gordon , 414 S.C. 94, 98, 777 S.E.2d 376, 378 (2015). "[A]n appellate court is bound by the trial court's factual findings unless they are clearly erroneous." Id.

LAW/ANALYSIS

A. Admissibility of Statements

Lowery argues the trial court erred in admitting the statements he made before being Mirandized because he was in custody at the time and being interrogated; thus, his statements were not freely and voluntarily made. We agree.

"A criminal defendant is deprived of due process if his conviction is founded, in whole or in part, upon an involuntary confession." State v. Pittman , 373 S.C. 527, 565, 647 S.E.2d 144, 164 (2007). The State must establish the defendant voluntarily and knowingly waived his Miranda rights when giving a statement. State v. Miller , 375 S.C. 370, 379, 652 S.E.2d 444, 449 (Ct. App. 2007). Miranda warnings are only required if a suspect "has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda , 384 U.S. at 444, 86 S.Ct. 1602.

The State argues Lowery was not in custody because this was merely a routine traffic stop. "[R]outine traffic stops do not constitute ‘custodial interrogation’ for purposes of the Miranda rule." State v. Peele , 298 S.C. 63, 65, 378 S.E.2d 254, 255 (1989) (citing Berkemer v. McCarty , 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) and Pennsylvania v. Bruder , 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988) ). We find guidance from State v. Easler , in which police officers responded to a call regarding an automobile accident after one of the parties involved had left the scene. 327 S.C. 121, 125–26, 489 S.E.2d 617, 620 (1997), overruled on other grounds by State v. Greene , 423 S.C. 263, 283, 814 S.E.2d 496, 507 (2018).

Easler was convicted of numerous charges, including felony DUI causing death and felony DUI causing great bodily injury. Id. at 125, 489 S.E.2d at 619. The officers found Easler, who matched a description given to the officers, at the pay phone at a convenience store. Id. at 126, 489 S.E.2d at 620. The officers questioned Easler about his involvement in the accident, and Easler admitted he had been involved. Id. When asked why he left the scene, Easler stated he was afraid and had no driver's license. Id. An officer requested Easler return to the scene, and Easler asked for a package he had left at the pay phone, which contained a six-pack of beer and cigarettes. Id. The officer asked Easler when he had his last drink, and Easler admitted "he'd had a Milwaukee's Best just prior to the accident ...." Id.

The court found the case did not involve a routine traffic stop, stating, "[o]n the contrary, the officers, having been advised there had been an accident and that someone had left the scene, went looking for that individual based upon a description given by two eyewitnesses." Id. at 127, 489 S.E.2d at 620. The court concluded the questioning was "clearly interrogation[, and t]he only remaining inquiry [was] whether Easler was ‘in custody’ at the time." Id. at 127, 489 S.E.2d at 621.⁴

We likewise find Lowery's questioning was more than a routine traffic stop. Vallin first went to the scene of the accident and was given a description of a vehicle. Vallin admitted his questioning was accusatory because he believed Lowery was involved in the accident. We have reviewed Vallin's video and, like the situation in Easler , we find the questioning was interrogational. See State v. Kennedy , 325 S.C. 295, 303, 479 S.E.2d 838, 842 (Ct. App. 1996) ("The special procedural safeguards outlined in Miranda are not required if a suspect is simply taken into custody, but only if a suspect in custody is subjected to interrogation. Interrogation is either express questioning or its functional equivalent. It includes words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.").

Next, we look to whether Lowery was in custody. See State v. Williams , 405 S.C. 263, 273, 747 S.E.2d 194, 199 (Ct. App. 2013) ("To determine whether a suspect was in custody for the purposes of Miranda , the Supreme Court has asked whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."); Easler , 327 S.C. at 128, 489 S.E.2d at 621 ("The relevant inquiry is whether a reasonable man in the suspect's position would have understood himself to be in custody."). We find Lowery was in custody.⁵

"In determining whether a suspect is ‘in custody,’ the totality of the circumstances, including the individual's freedom to leave the scene and the purpose, place and length of the questioning must be considered." Easler , 327 S.C. at 127, 489 S.E.2d at 621. "The custodial determination is an objective analysis based on whether a reasonable person would have concluded that he was in police custody." State...