State v. Seay
| Decision Date | 27 January 1975 |
| Docket Number | No. 19948,19948 |
| Citation | 263 S.C. 496,211 S.E.2d 649 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Robert Esley SEAY, Appellant. |
Julius B. Aiken and William J. Barnes, Greenville, for appellant.
County Sol. C. Victor Pyle, Greenville, and Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Robert M. Ariail and Staff Atty. Richard P. Wilson, Columbia, for respondent.
Defendant-Appellant, Seay, was convicted by a jury of failing to stop his motor vehicle after being signaled by the siren of a law enforcement vehicle in violation of Section 46--359, 1973 supplement of the 1962 Code. He has appealed.
The statute involved in pertinent part reads as follows:
(Emphasis added)
Seay submits that the lower court should have directed a verdict in his favor. A review of the evidence is necessary for a ruling on this question.
On April 25, 1973, about 5 o'clock in the afternoon, Major Butler of the Greenville Sheriff's Department was proceeding along Poinsett Highway, a four lane roadway, in a law enforcement vehicle. It had no identifying insignia or blue light, but was equipped with an electronic siren. A vehicle driven by Seay entered the Poinsett Highway from the west and pulled up alongside Major Butler's vehicle and to the left thereof. The Seay-driven vehicle had a Mr. Howard (a large man later found to be drunk) on the front seat and a Mr. Morris, who owned the car, on the rear seat.
As the vehicles came alongside each other Howard mouthed what appeared to Major Butler to be an obscenity. Major Butler testified that he reached in his pocket, took out his badge, blew his horn to attract Seay's attention and help up the badge and motioned the driver to pull over to the side of the road. Seay immediately accelerated the car. Major Butler said that upon such acceleration he 'immediately turned the electric siren on and began to pursue the car.' Upon being asked how close to the automobile he was at the time the siren was turned on, he responded, 'Probably twenty feet behind the automobile at that time.' He further estimated that the Seay automobile accelerated Major Butler said that the car continued through an intersection without stopping and turned onto the Old Buncombe Road. He gave chase, and related:
In the meantime Major Butler had radioed ahead and Officer Abercrombie in Travelers Rest had set up a road block and turned on the bule light of his police car. About 15 to 20 or 25 minutes after Officer Abercrombie had received the message, both Seay and Major Butler arrived on the scene.
It developed that Seay was driving while his license was under suspension, and the passenger (Howard) on the front seat was drunk. Seay plead guilty to driving under suspension and to reckless driving, and Howard plead guilty to public drunkenness. In addition, the charge involved in this case was made against Seay.
Morris, who owned the car and was a passenger on the back seat, and Seay, who was driving the car, testified before the jury. They explained Howard's failure to testify by stating that he had been so drunk his recollection of the incident was significantly limited.
It was Morris' testimony that he did not hear Major Butler blow his horn before the chase and never heard the siren during the chase.
It was Seay's testimony that he did not hear the horn blow, but that he did hear a siren in the far distance but was unaware of the fact that anyone was signaling him to stop.
It is a fair summary to say that both these witnesses contend that they were entirely oblivious to the fact that Major Butler was in pursuit of the car.
Both Morris and Seay testified that Howard was drunk and had been cursing and causing trouble for some time. They were attempting to get him out of the car.
We agree with the trial judge who ruled that the evidence was sufficient to support the conviction. Accordingly the exception is overruled.
Seay asks us to reverse the conviction because the judge's charge of §§ 46-- 581 and 46--216 'could well have confused the jury.' Those sections read as follows:
' § 16--216. Authorized emergency vehicle.--'Authorized emergency vehicles' are vehicles of the Fire Department (fire patrol), police vehicles and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorized by the Department or the chief of police of an incorporated municipality.'
Seay's counsel, in cross-examining Officer Abercrombie, had emphasized the fact that people other than officers sometimes have sirens on their vehicles. The charge became relevant in the light of this testimony. But independent of the testimony the reading of these two statutes to the jury could not have prejudiced the defendant's case such that it might be said that he did not receive a fair trial.
Seay alleges error on the part of the trial judge in refusing to charge Section 46--583. It reads as follows:
'Any authorized emergency vehicle may be equipped with a siren, whistle or bell capable of emitting sound audible under normal conditions from a distance of not less than five hundred feet and of a type approved by the Department, but such siren shall not be used except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which latter event the driver of such vehicle shall sound such siren when necessary to warn pedestrians and other drivers of the approach thereof.'
Failure to charge this section did not deny Seay a fair trial. This Court held in State v. Hoffman, 257 S.C. 461, 186 S.E.2d 421 (1972):
(Emphasis added)
The signal requiring a motorist to stop may be given by way of a siren or a flashing light, but both are not required. It is common knowledge that unmarked cars do patrol the highways and, as a matter of fact, signs appear all along public roads of this State indicating 'unmarked cars patrolling.'
There was no error on the part of the lower court in failure of the judge to sent the jury to view the unmarked vehicle driven by Major Butler. Counsel for Mr. Seay described the vehicle, 'It is just an ordinary, run-of-the-mill, prosaic automobile'. We are unable to see how the exercise of the judge's discretion in this regard denied Seay a fair trial.
A new trial is not required because Major Butler was permitted to repeat the obscenity he believed Seay's drunken passenger to have uttered. Testimony of Howard's two companions (Morris and Seay), to the effect that he had been using vile language all day, lends credence to the Major's conviction that he was indeed uttering just what the Major thought he was saying. The admissibility of this evidence was a discretionary matter for the trial judge. We find no error.
Affirmed.
Being unconvinced that appellant has met the burden of establishing a reasonable probability that his right to a fair trial was prejudiced by any error assigned, I concur in the result of the opinion of Justice Littlejohn.
While in agreement that the evidence was quite sufficient to support the conviction of the defendant-appellant, I am convinced that there was prejudicial error which should entitle the defendant to a new trial. The key factual issue in the case was whether Seay knew or had any reason to believe that he was being signalled to stop by a 'law enforcement vehicle.' Such being the key issue, further recitation of facts disclosed by the record is indicated to better demonstrate wherein I think there was prejudicial error.
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State v. Jones
...the vehicle. Under these circumstances, there was no abuse of discretion. State v. Spinks, 260 S.C. 404, 196 S.E.2d 313; State v. Seay, 263 S.C. 496, 211 S.E.2d 649. The testimony concerning the commission of the crimes charged and the identifications by the witnesses of appellant as the on......
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...the jury in view of Carrigan's stipulation, we conclude that he was not prejudiced by the trial judge's doing so. Cf. State v. Seay, 263 S.C. 496, 211 S.E.2d 649 (1975) (in a prosecution for failing to stop after being signaled by siren of law enforcement vehicle, court held, even if it was......