State v. Manning

• Decision Date: 10 October 2012
• Docket Number: No. 5017.,5017.
• Citation: 400 S.C. 257,734 S.E.2d 314
• Parties: The STATE, Respondent, v. Christopher MANNING, Appellant. Appellate Case No. 2010–161686.
• Court: South Carolina Court of Appeals

400 S.C. 257

734 S.E.2d 314

The STATE, Respondent,

v. Christopher MANNING, Appellant.Appellate Case No. 2010–161686.

No. 5017.

Court of Appeals of South Carolina.

Heard May 8, 2012.

Decided Aug. 1, 2012.

Withdrawn, Substituted and Refiled Oct. 10, 2012.

Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General David A. Spencer, all of Columbia; and Solicitor Donald Myers, of Lexington, for Respondent.

WILLIAMS, J.

In this appeal, Christopher Manning (Manning) asserts the circuit court erred by (1) denying Manning's motion to dismiss the case because the State violated section 56–5–2953 of the South Carolina Code (Supp. 2011) by failing to provide an affidavit of the arresting officer certifying that it was physically impossible to provide a video recording as required by the statute when Manning needed emergency medical treatment; (2) denying Manning's motion to suppress the blood test evidence pursuant to section 56–5–2946 of the South Carolina Code (1991) because there was not sufficient probable cause for an arrest; (3) denying Manning's motion for a mistrial based on prejudice suffered by Manning after the circuit court severed the felony DUI charge and the possession of a schedule three substance charge after the jury was aware Manning was being tried on both charges; and (4) charging the jury on section 56–5–2950(b) of the South Carolina Code (Supp. 2011). We affirm.

FACTS

On July 31, 2009, Manning was working at Boondocks, a private club. Jacob Hill (Hill) was working at a nearby restaurant, Fisherman's Wharf. Hill needed a ride home from work, so he walked to Boondocks where he knew people because he had previously worked there. When he arrived at Boondocks, Hill started drinking with friends.

After Manning's shift at Boondocks was over at 11:00 pm, he began drinking with Hill and his friends until around 4:00 am. Heather Fairchild (Fairchild), one of the bartenders at Boondocks that night, testified that although Manning and Hill consumed a “pretty good amount of alcohol” by drinking beer and taking shots together, neither appeared to be visibly drunk. When Boondocks closed, Fairchild testified she heard Manning and Hill talk about going swimming in Lake Murray and also heard Manning say he had his car and he was going to drive.

Manning and Hill were subsequently in a single car accident, severely injuring Manning and killing Hill. Manning was arrested and indicted for felony DUI and possession of a quantity of acetaminophen and hydrocodone, a schedule three substance. During the two-day jury trial, the State argued Manning was the driver. Manning's defense at trial was that Hill was the driver of the vehicle.

Nathan Prouse (Prouse), an employee of the Lexington County Fire Service, testified he received a call shortly before 5:00 am about a vehicle accident on Highway 378. He was the first responder on the scene. When Prouse arrived, he saw two bodies lying on the ground in a field. EMS arrived immediately after Prouse and pronounced Hill deceased. Prouse went to assist Manning, who was severely injured. Prouse testified Manning appeared alert and told Prouse, “I f-ed up!” Other emergency responders testified they heard Manning say those same words. Elizabeth Grayson Simmons(Simmons), of Lexington County EMS, testified the first thing she noticed was a strong smell of alcohol as she approached Manning. Simmons testified Manning's nose was split, and he had a wound as big as a fist in his abdomen exposing his intestines. Simmons testified she heard Manning state, “I f-ed up. I should have never done this. Look what I've done.” Firefighter Victor Tomaino (Tomaino), who assisted in Manning's care, testified he heard Manning repeatedly say, “I f-ed up” and “I should not have been driving.”

Corporal Quest Hallman (Corporal Hallman) was the first police officer to arrive at the scene, but Manning had already been transported to the hospital. Corporal Hallman conducted an investigation of the scene to determine the identity of the driver. Corporal Hallman ultimately concluded that Manning was the driver and directed Trooper Jeffrey B. Baker (Trooper Baker) to retrieve a blood sample from Manning at the hospital. In explaining his request for the blood sample, Corporal Hallman testified, “In my experience and my determination, I determined [Manning] was the driver of the vehicle. And with there being a death involved, a legal blood sample was drawn.”

Forensic toxicologist, Jennifer Brown (Brown), testified that Manning's blood alcohol level was .173, and Hill's blood alcohol level was .169 at the time of the accident. Brown also testified this level of intoxication would slow an individual's reaction time, impair his or her vision, and adversely affect his or her judgment.

Corporal James O'Donnell (O'Donnell) testified he worked for the South Carolina Highway Department Patrol with the Multidisciplinary Accident Investigation Team (MAIT). The State qualified O'Donnell as an expert in the field of accident reconstruction. O'Donnell further testified that in his opinion, the vehicle was going 89 miles per hour at the time of the accident. He opined that the vehicle went into a curve, went off the shoulder of the road, overturned multiple times, struck a tree, and flew across a ditch where it landed. O'Donnell estimated the vehicle travelled a total of 535 feet during the accident. O'Donnell noted the accident was so violent that the engine was dislodged from the engine compartment. Hill was found lying approximately fifty feet from the vehicle, and Manning was found approximately fifteen feet from the vehicle. O'Donnell testified there was no forensic evidence identifying the driver, and no witnesses. O'Donnell did note, however, that a driver has more obstacles than a passenger would to keep from being ejected, and that the steering wheel in this case could have caused Manning's abdominal injuries.

Prior to trial, the circuit court severed the felony DUI charge and the schedule three drug charge, and the jury found Manning guilty of felony DUI. The circuit court sentenced Manning to eighteen years' imprisonment and a $10,000 fine. Manning appeals.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court is bound by the circuit court's factual findings unless they are clearly erroneous. Id.

LAW/ANALYSISI. Section 56–5–2953

Manning argues the circuit court erred in denying his motion to dismiss because the arresting officer did not provide an affidavit in compliance with section 56–5–2953. We disagree.

Section 56–5–2953(A) provides that a person who operates a vehicle while under the influence of alcohol “ must have his conduct at the incident site and the breath test site video recorded.” (emphasis added).

Subsection B of 56–5–2953 outlines four exceptions that excuse noncompliance with subsection A's mandatory video recording requirement. Failure to comply with the video recording requirement is excused: (1) if the arresting officer submits a sworn affidavit certifying the video equipment was inoperable despite efforts to maintain it; (2) if the arresting officer submits a sworn affidavit that it was impossible to produce the video recording because either (a) the defendant needed emergency medical treatment or (b) exigent circumstances existed; (3) in circumstancesincluding, but not limited to, road blocks, traffic accident investigations, and citizen's arrests; or (4) for any other valid reason for the failure to produce the video recording based upon the totality of the circumstances. § 565–2953(B); see also Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 346, 713 S.E.2d 278, 285 (2011) (explaining a previous version of subsection B that is nearly identical to the current version).

Manning relies on City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007), to argue the circuit court erred in failing to dismiss Manning's charges. In Suchenski, our supreme court affirmed the dismissal of the defendant's charges for driving with an unlawful alcohol concentration due to the failure of the arresting officer to record a third field sobriety test because he unintentionally ran out of videotape. 374 S.C. at 14–16, 646 S.E.2d at 879–80. However, in that case, our supreme court found the lower court only considered subsection A of 56–5–2953, and not the exceptions to the videotaping requirement in subsection B of 56–5–2953. Id. at 15–16, 646 S.E.2d at 880. Therefore, the Suchenski court found any issue dealing with the exceptions outlined in subsection B of 56–5–2953 was not preserved for review. Id.

Here, the circuit court found there was no conduct to record under subsection A of section 56–5–2953 because the police arrived after Manning left the scene to seek medical treatment. The circuit court held subsection A of 56–5–2953 was inapplicable because Corporal Hallman and Manning were never simultaneously present at the incident site; therefore, there was nothing to record. Moreover, the circuit court held that even if Corporal Hallman had a duty to record or sign a sworn affidavit certifying that it was physically impossible to produce the video recording because Manning needed emergency medical treatment, section 56–5–2953 allows a circuit court to look at the totality of the circumstances and make a determination of whether the charges should be dismissed.

We find section 56–5–2953 was implicated by the facts of this case. Although the officers did not arrive to the incident site before Manning was sent to the hospital, the first sentence of subsection A plainly states that “[a] person who violates Section 56–5–2930, 56–5–2933, or 56–5–2945 must have his conduct at the incident site ... video recorded.” § 56–5–2053(A). The important question here...