State v. Salisbury

• Decision Date: 17 February 1998
• Docket Number: No. 2792.,2792.
• Citation: 498 S.E.2d 655,330 S.C. 250
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Elliott Gilbert SALISBURY, Jr., Appellant.

330 S.C. 250

498 S.E.2d 655

The STATE, Respondent, v. Elliott Gilbert SALISBURY, Jr., Appellant.

No. 2792.

Court of Appeals of South Carolina.

Submitted November 4, 1997.

Decided February 17, 1998.

Rehearing Denied April 23, 1998.

John L. Drennan and Theodore N. Lupton, N. Charleston, for Appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Columbia; and Solicitor Walter M. Bailey, Jr., Orangeburg, for Respondent.

PER CURIAM:

A jury convicted Elliott Gilbert Salisbury of driving under the influence (DUI). He appeals. We affirm.

FACTS

On December 23, 1995, at approximately 1:50 a.m., a pickup truck driven by Salisbury approached four highway patrol officers. The car in which the officers were riding was not equipped with a radar detector. One officer believed Salisbury was speeding because the officers were driving at the legal speed limit, yet Salisbury caught up with them. The officers pulled onto the shoulder of the road, let the truck pass, and caught up with it at a stop light. When the light turned green, the truck appeared to be going over the 45 mile per hour speed limit. It also crossed the centerline several times. Believing Salisbury to be under the influence, the officers activated their blue light.

About a quarter of a mile later, Salisbury pulled into a parking lot and got out of his truck. Officer Alvin Link asked him for his license. Salisbury told Link he had one, but did not have it with him. Link explained he had stopped Salisbury for speeding and weaving on the road. Salisbury acknowledged he had been drinking. According to Link, Salisbury smelled like alcohol, walked unsteadily, spoke with slurred speech, and had bloodshot eyes.

Link decided to administer field sobriety tests. Salisbury could not get halfway through the alphabet. Nor could he complete the "walk and turn" test. Salisbury said he could not perform a "one leg stand test" because he was "too drunk to do that shit." At that point, Link arrested Salisbury for driving under the influence and transported him to the police station for a breathalyzer test. At no time did Salisbury complain of any medical condition which would have affected his ability to perform the field sobriety tests.

Officer Robert Beres, who did not participate in Salisbury's arrest, conducted the breathalyzer test. He informed Salisbury of his right to refuse the test. Like Link, Beres noticed Salisbury walked unsteadily and had bloodshot eyes and slurred speech. Salisbury told Beres he had consumed four beers earlier in the evening and a couple more before leaving the house. Beres ran a simulator test and observed Salisbury twenty minutes before he tested him. Salisbury's breathalyzer test revealed a blood alcohol content of .21.

Salisbury testified he woke up in pain that night because he had back problems. When the officers stopped him, he was going to the store for a painkiller. Salisbury admitted he had four beers between eight and twelve o'clock at night.

Salisbury said problems with his defroster caused him to keep wiping the windshield as he drove to the store. Salisbury also explained he could not recite the alphabet because he had not said it in a long time, he could not walk a straight line because of his back pain, and he could not stand on one foot because, weighing three hundred pounds, he "could not stand all that weight on one leg."

Salisbury also contended his rotten teeth caused the high reading on the breathalyzer because there are "holes where teeth have been pulled out [that] haven't healed up."

Before trial, Salisbury's counsel moved for "an in limine hearing" to determine if the breathalyzer was properly administered. His motion was denied. He also sought a Jackson v. Denno¹ hearing concerning statements Salisbury allegedly made during the field sobriety tests. That motion was also denied. However, during the trial the judge did conduct a Jackson v. Denno hearing. He determined Link read Salisbury his Miranda² rights, and Salisbury understood those rights and voluntarily gave a statement.

After the jury charge, Salisbury's counsel asked if the judge had charged on circumstantial evidence.³ The judge replied he had not given that because "there is no circumstantial evidence." The court noted Salisbury's objection. However, after the jury found Salisbury guilty and the judge sentenced him, he made no additional objection.

DISCUSSION

I. Circumstantial Evidence Charge

Salisbury argues the trial court erred in refusing to charge the law of circumstantial evidence. He asserts the State relied entirely or at least substantially on circumstantial evidence to prove he was impaired.

Driving under the influence consists of (1) driving a vehicle; (2) within the state of South Carolina; (3) while under the influence of intoxicating liquors, drugs, or any other substance of like character. S.C.Code Ann. § 56-5-2930 (1991). The driving of an automobile while under the influence of intoxicating liquors may be proven by circumstantial evidence. See, e.g., State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993)

; State v. Graves, 269 S.C. 356, 237 S.E.2d 584 (1977); State v. Nathari, 303 S.C. 188, 399 S.E.2d 597 (Ct.App. 1990).

The issue of whether to charge circumstantial evidence in a driving under the influence trial is a troublesome one. South Carolina appellate entities have written numerous opinions instructing trial judges concerning when the evidence requires a circumstantial charge under varying circumstances. Yet, the precise issue of charging circumstantial evidence in a driving under the influence scenario is novel under South Carolina law.

In State v. Carroll, 277 S.C. 306, 286 S.E.2d 382 (1982), the South Carolina Supreme Court explained:

When a request is made for a circumstantial evidence instruction, the trial judge may exercise discretion and deny the request when the crime and the identity of the perpetrator are established by direct evidence and the circumstances introduced are merely corroborative. State v. Jenkins, 270 S.C. 365, 242 S.E.2d 420 (1978); State v. Simmons, 269 S.C. 649, 239 S.E.2d 656 (1977). It has been held that an instruction on circumstantial evidence is not necessary when the evidence is introduced only to show intent. Belcher v. State, 504 S.W.2d 858 (Tex.Crim.App.1974); 23A C.J.S. Criminal Law § 1250 (1961). Intent is seldom susceptible to proof by direct evidence and must ordinarily be proved by circumstantial evidence, that is, by facts and circumstances from which intent may be inferred. State v. Tuckness, 257 S.C. 295, 185 S.E.2d 607 (1971). When all the salient facts of the prosecution's case, including the facts from which intent is inferred, are proved by direct evidence, the prosecution is not relying on circumstantial evidence to an extent requiring a special jury instruction.

We hold that a trial judge may refuse to give an instruction on circumstantial evidence when the State relies on direct evidence to prove the acts of the crime and the identity of the perpetrator and on circumstantial evidence to prove intent. The trial judge acted within his discretion in refusing to give the requested instruction.

Carroll, 277 S.C. at 308,286 S.E.2d at 383. "Where the State does not rely wholly upon circumstantial evidence and no request was made that the trial judge charge the law governing testimony of that class, it is not incumbent upon the trial judge to charge the law pertaining thereto." State v. Moorer, 241 S.C. 487, 500, 129 S.E.2d 330, 337 (1963),overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)

. See also State v. Langston, 265 S.C. 74, 216 S.E.2d 875 (1975)(where State does not rely wholly upon circumstantial evidence, objection that trial judge failed to charge law governing that type of evidence is waived by failure to request such instruction, when opportunity is afforded to do so); State v. White, 211 S.C. 276, 44 S.E.2d 741 (1947)(where State did not rely solely upon circumstantial evidence, and no request was made for charge thereabout, failure to charge law of circumstantial evidence was not reversible error, although such a charge would have been appropriate).

However, "irrespective of a request, the trial judge is required to instruct the jury as to the rules governing circumstantial evidence where the State depends solely upon this class of evidence to support a conviction." State v. Baker, 208 S.C. 195, 201, 37 S.E.2d 525, 527 (1946). See also Moorer, 241 S.C. 487,

129 S.E.2d 330 (it is well settled that when State depends entirely upon circumstantial evidence for conviction, trial judge must instruct jury as to law governing testimony of that class); State v. Duck, 210 S.C. 94, 41 S.E.2d 628 (1947), abrogated on other grounds by State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991)(if State depends entirely on circumstantial evidence to connect accused with crime charged, then court's failure to charge jury as to rules governing circumstantial evidence constitutes reversible error, even though no request therefor was made).

Whether it is necessary to charge circumstantial evidence on the court's own motion or at all depends upon whether the case relies solely upon such evidence. 75B Am.Jur.2d Trial § 1390 (1992). Where the main fact sought to be proved is a matter of inference, the case is one of circumstantial evidence. Id. Thus, a circumstantial evidence charge should be given where no witness saw the defendant commit the crime, where he has made no admission thereof, and where the evidence is circumstantial. Id. The failure or refusal to give a circumstantial evidence instruction is not error where there is direct evidence the defendant committed the act charged. Id. at § 1391. Where the evidence is partly direct and partly circumstantial, a circumstantial evidence instruction may overemphasize the circumstantial evidence, while...