State v. Pittman
Decision Date | 25 September 2000 |
Docket Number | No. 3245.,3245. |
Citation | 537 S.E.2d 563,342 S.C. 545 |
Parties | The STATE, Appellant, v. James L. PITTMAN, Respondent. |
Court | South Carolina Court of Appeals |
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh and Assistant Attorney General J. Benjamin Aplin, all of Columbia; and Solicitor Thomas E. Pope, of York, for Appellant.
J. Dennis Bolt, of Columbia, for Respondent.
James L. Pittman was indicted for resisting arrest, which stemmed from an arrest for public disorderly conduct. The trial judge dismissed the resisting arrest charge. The State appeals. We reverse and remand.
On March 13, 1998, Pittman was a passenger in a van stopped by Officer Johnny Martin with the York County Sheriffs Department. While Officer Martin was talking with the driver, he noticed Pittman reach under the seat. Officer Martin, unsure if Pittman was reaching for a weapon, asked Pittman to step out of the vehicle. Officer Martin testified:
He acted like he didn't want to get out. He said he wouldn't get out. He finally got out. He was grossly intoxicated, became very loud and boisterous, basically disorderly. At that time I placed him under arrest for public disorderly conduct and he was placed in the back of the patrol car.
Officer Martin transported the driver and Pittman to the York County Detention Center. En route to the jail, Pittman became very angry. He threatened Officer Martin, stating he was a kick-boxer and would get even with Officer Martin once he got out of jail. Pittman kicked the shields of the windows on the patrol car. Officer Martin stopped the car, walked around to the passenger side, and opened the back door. Pittman was still kicking so Martin sprayed him with O.C. spray. Pittman kicked the door open, exited the patrol car, and kicked Officer Martin in the head. During a pre-trial hearing, Pittman moved to dismiss the resisting arrest charge. He claimed his initial arrest for public disorderly conduct was unlawful and, therefore, the resisting arrest charge was unlawful. Officer Martin testified in camera. The trial judge granted the motion to dismiss. The State appeals.
ISSUE
Did the trial court err in dismissing the charge of resisting arrest and in refusing to allow the State to present evidence to the jury regarding probable cause for the underlying arrest of Pittman for public disorderly conduct?
The State contends the trial judge erred in dismissing the resisting arrest charge and "in foreclosing the State from presenting evidence to the jury that there was probable cause for the underlying arrest of [Pittman] for public disorderly conduct." We agree.
Pittman's basis for the motion to dismiss was: (1) Pittman used profanity and was loud and boisterous only to the police officers, which is not grounds, according to State v. Perkins, 306 S.C. 353, 412 S.E.2d 385 (1991), for public disorderly conduct under S.C.Code Ann. § 16-17-530 (1985); and (2) any gross intoxication observed was while Pittman was a passenger in a vehicle and thus did not satisfy § 16-17-530.
Section 16-17-530 provides:
Any person who shall (a) be found on any highway or at any public place or public gathering in a grossly intoxicated condition or otherwise conducting himself in a disorderly or boisterous manner, (b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church ... shall be deemed guilty of a misdemeanor....
Pittman asserts his use of profane, loud, and boisterous language was directed solely at the officers and in opposition to police action. Pittman claims that, because of this, the officer had no ground to arrest him. Pittman relies on State v. Perkins, 306 S.C. 353, 412 S.E.2d 385 (1991):
Perkins, 306 S.C. at 354-55, 412 S.E.2d at 386.
We agree that if Pittman's only disorderly behavior had been to use profanity, or to complain about Officer Martin removing him from the vehicle, he could not be arrested for public disorderly conduct. However, that was not the extent of Pittman's behavior according to Officer Martin's testimony. Officer Martin declared:
The following exchange occurred when Officer Martin was cross-examined by defense counsel:
The officer's decision to arrest Pittman for public disorderly conduct under § 16-17-530 was based on more than just his language. Review of the testimony presented reveals the arrest was also grounded upon the gross intoxication of Pittman in a public place.
Defense counsel argued because Officer Martin knew Pittman was intoxicated while a passenger in a vehicle, as opposed to standing or walking on the street, Pittman could not be charged with a violation of § 16-17-530. During the hearing, defense counsel produced the supplemental incident report filed by Officer Martin which read: Pittman's counsel maintained: "So the intoxication he talks about was while he was in the car and I don't believe he can be charged with intoxication while in the car." The State contended that even if the arrest failed under State v. Perkins, 306 S.C. 353, 412 S.E.2d 385 (1991), it would still be valid under the grossly intoxicated portion of the statute.
In State v. Galloway, 305 S.C. 258, 407 S.E.2d 662 (Ct.App. 1991), this Court, addressing a situation similar to the case at bar, upheld the applicability of the public disorderly conduct statute to an intoxicated passenger riding in an automobile. The Court explained the facts:
Galloway, 305 S.C. at 260-61, 407 S.E.2d at 664.
The facts in the case sub judice are slightly, but not significantly, different from those in Galloway. Galloway exited the vehicle voluntarily and set foot on the highway. However, the officer did not arrest him at that time for disorderly conduct. Galloway returned to the vehicle and...
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