State v. Nathari

• Decision Date: 21 March 1990
• Docket Number: No. 1492,1492
• Citation: 303 S.C. 188,399 S.E.2d 597
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Abdul NATHARI, Appellant. . Heard

Page 597

399 S.E.2d 597

303 S.C. 188

The STATE, Respondent, v. Abdul NATHARI, Appellant.

No. 1492.

Court of Appeals of South Carolina.

Heard March 21, 1990.

Decided April 30, 1990.

Jack B. Swerling, of Swerling, Harpootlian and McCulloch, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and William Edgar Salter, III, and Solicitor James C. Anders, Jr., Columbia, for respondent.

PER CURIAM:

Abdul Nathari appeals from his conviction on two counts of felony driving under the influence ¹. We affirm.

Viewed in the light most favorable to the State, the facts are as follows. On March 7, 1987, Nathari, while driving, struck and killed two twelve-year-old boys. Several witnesses testified Nathari was weaving back and forth across the road. One witness testified Nathari's weaving forced two oncoming cars off the road. This witness attempted to disable Nathari's car when the two stopped at a traffic light, but was unsuccessful. He continued to follow Nathari and saw him veer completely off the road and strike the two boys. Nathari did not brake before the impact and travelled almost 270 feet with one of the boys on his hood, the boy's torso inside the car, before the witness was able to attract his attention and stop him.

Other witnesses observed Nathari at the scene to be glassy-eyed, red-eyed, and slurred of speech. After Highway Patrol officers arrested him, Nathari was tested on the breathalyzer. The results of this test indicated Nathari had a blood alcohol level of .04%. ² The officers then transported Nathari to a hospital for a urine test. They advised Nathari he had a right under the Implied Consent Statute ³ to refuse the urine test. They advised him that a refusal would result in a 90 day suspension of his driver's license. Nathari refused the test. At trial, Nathari's refusal came into evidence.

I.

First, Nathari asserts the trial court erred in admitting certain testimony into evidence. He argues: (1) the testimony of the victims' mothers was irrelevant, inflammatory, and prejudicial; (2) testimony that Nathari "looked like a zombie" was speculative; (3) testimony that Nathari was "veering lazily back and forth on the road" approximately one and one half miles away from the scene was too remote; (4) testimony concerning the victims went beyond the scope of proper redirect examination; (5) testimony that Nathari was "messed up" was conclusory; (6) testimony concerning a recent "gouge mark" at the scene and concerning articles of the victims' clothing was irrelevant and inflammatory; (7) testimony from one officer that other officers determined Nathari acted "very much, very much under the influence" was hearsay; (8) testimony from an expert witness not listed on the State's witness list concerning the possible interactions between alcohol and other drugs was unqualified, speculative, and without proper foundation; and (9) questioning by the State of one of Nathari's witnesses concerning purported exculpatory information was inflammatory and irrelevant.

Ordinarily, the conduct of a trial, including the admission of proffered evidence, is largely within the sound discretion of the trial judge. His exercise of discretion will not be disturbed on appeal unless it can be shown he committed legal error in the exercise of discretion and the rights of the appellant were thereby prejudiced. State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941).

The mothers' testimony was relevant. It established the identity of the victims. Nathari's stipulation to the boys' cause of death in no way prohibits the State from eliciting this testimony from the mothers. Further, Nathari shows no prejudice as a result of the mothers' testimony. The "zombie" testimony was elicited from a lay witness whom Nathari ran off the road prior to striking the boys. The witness observed Nathari's face and noted his eyes were "like slits." This witness set forth a factual basis for her opinion. The trial judge committed no error. See State v. Stockman, 82 S.C. 388, 64 S.E. 595 (1909). This testimony is clearly relevant as it is circumstantial evidence from which the jury could infer that Nathari was under the influence of alcohol, other drugs, or a combination of the two.

The "veering lazily" testimony is not too remote. See State v. Tucker, 273 S.C. 736, 259 S.E.2d 414 (1979) ("weaving" observed two miles from collision held not too remote). Further, it identified Nathari as the driver of the car that struck the two boys and it was circumstantial evidence from which the jury could infer Nathari was under the influence. Testimony elicited from this witness on redirect concerning Nathari's conduct at the scene was proper to refute the implication raised by Nathari's counsel that, by walking back to the site of the impact, Nathari wished to help one of the boys.

Opinion testimony from an officer that Nathari was "messed up" was supported factually by the officer's detailed account of his observations of Nathari and was therefore properly admitted. State v. Stockman, supra. This officer's testimony concerning a "gouge mark" and articles of the boys clothing was properly admitted to explain the crime scene investigation and to show the impact occurred off of the roadway. Testimony that other officers determined Nathari was under the influence is hearsay. However, this testimony was merely cumulative to the testimony of the other officers and does not warrant reversal. Jackson v. Price, 288 S.C. 377, 342 S.E.2d 628 (Ct.App.1986).

Testimony from the State's forensic toxicologist was properly admitted. This witness's name appeared on a witness list from the first trial on this matter; and, the State called her as an expert in response to Nathari's objection to the testimony of a lay witness on the same subject. In any event, application for relief under discovery rules is a matter within the sound discretion of the trial court. State v. Dixon, 284 S.C. 526, 328 S.E.2d 89 (Ct.App.1985). We find no abuse by the trial court here. Further, this witness's testimony came after her unchallenged qualification as an expert in the field of forensic toxicology. She testified that the field of forensic toxicology deals with interpreting the results of the study of body fluids "for the presence of alcohol and/or other poisons." This testimony combined with her educational background constitutes a sufficient foundation for the disputed testimony. Her testimony is also clearly relevant to explain what a urine test might show and, consequently, why one was sought by the State. In any case, adequacy of an expert's knowledge, once qualified, goes to the weight of the testimony, not to its admissibility. Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct.App.1985), app. dism., 286 S.C. 127, 332 S.E.2d 102 (1985).

Finally, the trial court permitted the Solicitor to cross examine Nathari's witness in regard to her failure to come forth with information that would purportedly exculpate Nathari. The trial judge has broad discretion in determining the general range and extent of cross examination. His exercise of discretion will not be disturbed absent manifest abuse. Cf. Taylor v. State, 258 S.C. 369, 188 S.E.2d 850 (1972). We find no such abuse. The question went to the witness's credibility, which is a proper ground upon which to impeach her direct testimony. Id. (cross examination on failure to give exculpatory statement constitutes legitimate attack on credibility).

II.

Nathari argues, on several grounds, that testimony commenting on his refusal to submit to a urine test was improperly admitted.

Nathari argues the State's request for a urine sample was unlawful because it was contrary to South Carolina's Implied Consent Statute. He primarily asserts the officers did not have reasonable ground to believe he was under the influence of a drug other than alcohol. Therefore, he argues, he had a lawful right to refuse the test. Ample direct and circumstantial evidence supports the officers' belief that Nathari was under the influence of a drug other than alcohol.

Nathari argues he did not knowingly waive his rights under the Implied Consent Statute because he was not informed that his refusal would be used against him. Additionally, he argues the State explicitly assured him that the only consequence from his refusal would be a license suspension. The officers complied with the provisions of the statute by informing Nathari of the license suspension penalty. The statute required no additional warnings. Nathari's only statutory right was adequately protected by the officers' warning.

Nathari argues he has a Fourth Amendment right to refuse to provide a urine sample which was violated when State's witness commented on his refusal. However, Nathari failed to present this ground to the trial court for consideration. We, therefore, will not consider it. State v. Vanderbilt, 287 S.C. 597, 340 S.E.2d 543 (1986).

Nathari argues the State's comment on his refusal violated his Fifth Amendment right against compelled self incrimination. He asserts his rights under the Fourth Amendment and the Fifth Amendment are mutually reinforcing, and therefore, his claims have more force than if he were asserting them independently. We need not reach this issue because he failed to present his Fourth Amendment argument to the trial court. Id. Thus, his Fifth Amendment argument stands alone. The use of a blood or urine test is non-testimonial in nature. Comment on Nathari's refusal did not violate his Fifth Amendment privilege against self incrimination. State v. Miller, 257 S.C. 213, 185 S.E.2d 359 (1971); State v. Smith, 230 S.C. 164, 94 S.E.2d 886 (1956).

III.

Nathari argues the trial court improperly admitted certain photographs into evidence. The determination of the admissibility of photographs is a matter left to the sound discretion of the trial court. State v. Goolsby, 275 S.C. 110, 268 S.E.2d 31 (1980), cert. denied, ...