State v. Moses, No. 4758.

CourtCourt of Appeals of South Carolina
Writing for the CourtPIEPER
Citation390 S.C. 502,702 S.E.2d 395
PartiesThe STATE, Respondent, v. Waltroric U. MOSES, Appellant.
Decision Date20 December 2010
Docket NumberNo. 4758.
702 S.E.2d 395
390 S.C. 502


The STATE, Respondent,
v.
Waltroric U. MOSES, Appellant.


No. 4758.

Court of Appeals of South Carolina.

Heard Sept. 15, 2010.
Decided Nov. 5, 2010.
Rehearing Denied Dec. 20, 2010.

702 S.E.2d 398

Appellate Defender M. Celia Robinson, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Julie M. Thames, all of Columbia; Robert Mills Ariail, of Greenville, for Respondent.

PIEPER, J.

390 S.C. 508

Waltroric U. Moses appeals his conviction for assault and battery of a high and aggravated nature (ABHAN) and sentence pursuant to the Youthful Offender Act. On appeal, Moses argues the trial court erred in: (1) ruling his statement was voluntarily made; (2) refusing to dismiss the charges due to the State's destruction of and failure to disclose videotaped evidence; (3) refusing to grant the motion to quash the indictments; and (4) admitting statements by a witness under Rule 613, SCRE, as prior inconsistent statements. We affirm.

FACTS/PROCEDURAL HISTORY

On September 28, 2006, Moses, a special education student at Hillcrest High School, was involved in a physical altercation with a school police officer. The altercation took place during a lunch period when Moses went to the cafeteria to wish a cafeteria worker happy birthday. Moses walked towards a lunch line being monitored by a biology teacher, Brian Carl. As Moses approached, Carl told him not to cut in line. Moses did not respond and Carl followed him, indicating that Moses had to go to the end of the line. Moses continued to ignore Carl and proceeded through the lunch line. After tugging on Moses' backpack, Carl repeated for a third time that Moses could not cut in line. Refusing to cooperate, Moses told Carl not to touch him and that he better get away from him. Consequently, in accordance with school procedure, Carl took Moses' identification badge from his backpack and asked Officer Morris Madden, the school resource officer, to handle the situation with Moses.

Thereafter, Moses walked behind Carl to the administrator's table to retrieve his badge. When Moses walked back

390 S.C. 509
toward the lunch line, Carl turned around and put his hand on Moses' shoulder. Moses responded by raising his hand up and stating, "don't f---ing touch me." When Madden saw Moses raise his hand, Madden stood up, grabbed Moses by the hand, and told him to sit down at the administrator's table. Instead of sitting down, Moses "pushed" his chair toward Madden and told Madden to get off of him. Moses then pushed Madden. Moses started to walk away and Madden caught up with him and attempted to place him under arrest. When Madden attempted to grab Moses and arrest him, Moses turned around, shoved Madden with both hands, and told him, "get the f--k away."

After Moses pushed Madden a second time, Madden attempted to push Moses to the ground in order to gain control of him. However, Madden was unable to keep Moses

702 S.E.2d 399
down. Once Moses was able to stand up, he grabbed Madden around his waist and pushed him backwards. Madden used his arms to come underneath Moses' grip and then punched him. Moses then punched Madden in the left temple area of his head, knocking off his glasses. As a result, Madden suffered multiple facial fractures.

Moses immediately ran out of the cafeteria and exited the building while Madden and Officer Matthew Smith followed him. Smith asked Moses to stop. Moses finally stopped and told Smith to keep Madden away from him. Smith placed Moses into custody and transported him to the Simpsonville Police Department. At the police department, Smith took Moses into the squad room where he removed Moses' handcuffs. Smith read Moses his rights verbatim from the "Waiver of Rights" form and asked Moses if he understood his Miranda 1 rights. Moses replied that he understood his rights and signed the waiver. Smith then took Moses' written statement by writing down everything Moses said.

Moses was indicted for ABHAN, malicious injury to personal property, and disturbing schools. The case proceeded to trial in Greenville County on October 29, 2007. Following jury selection, the court denied the defense's pretrial motions

390 S.C. 510
relating to a Brady2 violation involving production of the school's surveillance tapes, the voluntariness of Moses' statement, and the alleged irregularity of grand jury proceedings. At trial, the court also overruled two evidentiary objections by defense counsel on the basis of hearsay and relevance.

The trial court granted a directed verdict on the indictment for malicious injury to personal property, finding no evidence of intent. The jury found Moses guilty of ABHAN, but not guilty of disturbing schools. The court sentenced Moses to incarceration for a period not to exceed six years, which is the maximum sentence for ABHAN under the Youthful Offender Act. This appeal followed.

ISSUES ON APPEAL

(1) Did the trial court err in ruling that Moses' custodial statement was admissible as voluntarily made?
(2) Did the trial court err in refusing to dismiss the charges against Moses as the result of the State's alleged destruction of and failure to preserve or disclose videotaped evidence?
(3) Did the trial court err in refusing to grant the motion to quash the indictments?
(4) Did the trial court err in admitting as substantive evidence prior statements made by a defense witness under the theory that the statements were admissible as prior inconsistent statements under Rule 613, SCRE, and did the court err in denying the motion to strike when the State's witness referenced Moses' prior bad act of assaulting a teacher?

STANDARD OF REVIEW

In criminal cases, the appellate court only reviews errors of law and is bound by the trial court's factual findings unless the findings are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220(2006). "On appeal, the trial judge's ruling as to the voluntariness of the confession will not be disturbed unless so erroneous as to constitute an abuse of

390 S.C. 511
discretion." State v. Myers, 359 S.C. 40, 47, 596 S.E.2d 488, 492 (2004). Likewise, rulings on the admission of evidence are within the trial court's discretion and will not be reversed absent an abuse of discretion. State v. Stokes, 381 S.C. 390, 398, 673 S.E.2d 434, 438 (2009).

LAW/ANALYSIS

Moses first argues the trial court erred in failing to suppress Moses' custodial statement on the ground the statement was not knowingly or voluntarily given. Moses argues that under the totality of the circumstances, the statement, taken from a learning-disabled student, unaccompanied by his

702 S.E.2d 400
parents, was improperly admitted into evidence. However, because defense counsel failed to make a contemporaneous objection, this issue is not preserved for our review. "[M]aking a motion in limine to exclude evidence at the beginning of trial does not preserve an issue for review because a motion in limine is not a final determination. The moving party, therefore, must make a contemporaneous objection when the evidence is introduced." State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840(2001). Notwithstanding, if the court makes a ruling on the admission of evidence immediately prior to the evidence at issue being introduced at trial, then the aggrieved party need not renew the original objection. Id. (emphasis added). Here, Moses does not meet the exception to the rule because the evidence was not immediately introduced following the court's ruling at the pretrial hearing. Thus, it was necessary for defense counsel to renew her objection to the introduction of Moses' custodial statement in order to preserve the issue for appellate review.

Moreover, the record supports the trial court's ruling that Moses' statement was freely, knowingly, and voluntarily made. In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the United States Supreme Court indicated "that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession." 378 U.S. at 376, 84 S.Ct. 1774. Accordingly, a defendant has the right to object to the use of the confession and to have a fair hearing and a reliable

390 S.C. 512
determination on the issue of voluntariness. Id. at 376-77, 84 S.Ct. 1774. In order to introduce into evidence a confession arising from custodial interrogation,3 the State must prove by a preponderance of the evidence that the statement was made freely and voluntarily, and taken in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). State v. Goodwin, 384 S.C. 588, 601, 683 S.E.2d 500, 507 (Ct.App.2009); State v. Miller, 375 S.C. 370, 378, 652 S.E.2d 444, 448 (Ct.App.2007).4

"The main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel." Berghuis v. Thompkins, --- U.S. ----, ----, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098 (2010). Both of these Miranda rights protect the privilege against compulsory self-incrimination. Id. at 2260. The United States Supreme Court has now recognized there is no principled reason to adopt differing standards for determining when an accused has "invoked" the right to remain silent or "invoked" the right to counsel. See id. As such, a suspect must "invoke" these rights "unambiguously." See id. "A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that avoid[s] difficulties of proof and ... provide[s] guidance to officers on how to proceed in the face of ambiguity." Id. (internal quotation marks and citation omitted). Otherwise, "[i]f an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions...

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64 practice notes
  • State v. Betancourth, No. 32683-7-III
    • United States
    • Court of Appeals of Washington
    • December 8, 2016
    ...v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392 Ill. Dec 116, leave to appeal filed, No. 119332 (Ill. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not show that law enforcement told Ray Betanc......
  • State v. Betancourth, No. 32683-7-III
    • United States
    • Washington Court of Appeals
    • December 8, 2016
    ...v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392 Ill. Dec 116, leave to appeal filed, No. 119332 (Ill. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not show that law enforcement told Ray Betanc......
  • State v. Betancourth, 32683-7-III
    • United States
    • Court of Appeals of Washington
    • December 8, 2016
    ...People v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392111. Dec 116, leave to appeal filed, No. 119332 (111. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not show that law enforcement told Ray ......
  • State v. Betancourth, 32683-7-III
    • United States
    • Court of Appeals of Washington
    • December 8, 2016
    ...v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392 Ill. Dec 116, leave to appeal filed, No. 119332 (Ill. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not show that law enforcement told Ray Betanc......
  • Request a trial to view additional results
64 cases
  • State v. Betancourth, No. 32683-7-III
    • United States
    • Court of Appeals of Washington
    • December 8, 2016
    ...v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392 Ill. Dec 116, leave to appeal filed, No. 119332 (Ill. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not show that law enforcement told Ray Betanc......
  • State v. Betancourth, No. 32683-7-III
    • United States
    • Washington Court of Appeals
    • December 8, 2016
    ...v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392 Ill. Dec 116, leave to appeal filed, No. 119332 (Ill. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not show that law enforcement told Ray Betanc......
  • State v. Betancourth, 32683-7-III
    • United States
    • Court of Appeals of Washington
    • December 8, 2016
    ...People v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392111. Dec 116, leave to appeal filed, No. 119332 (111. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not show that law enforcement told Ray ......
  • State v. Betancourth, 32683-7-III
    • United States
    • Court of Appeals of Washington
    • December 8, 2016
    ...v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392 Ill. Dec 116, leave to appeal filed, No. 119332 (Ill. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not show that law enforcement told Ray Betanc......
  • Request a trial to view additional results

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