State v. Silver

• Decision Date: 10 December 1991
• Docket Number: No. 1775,1775
• Citation: State v. Silver, 414 S.E.2d 813, 307 S.C. 326 (S.C. App. 1991)
• Parties: The STATE, Appellant, v. Ronald W. SILVER, Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 813

414 S.E.2d 813

307 S.C. 326

The STATE, Appellant, v. Ronald W. SILVER, Respondent.

No. 1775.

Court of Appeals of South Carolina.

Heard Dec. 10, 1991.

Decided Feb. 24, 1992.

Rehearing Denied March 20, 1992.

Certiorari Granted Aug. 12, 1992.

J. Brady Hair and Susan Sweat, North Charleston, for appellant.

Reese I. Joye, Jr., North Charleston, for respondent.

SHAW, Judge.

Respondent, Ronald W. Silver, was convicted of driving under the influence by a municipal court jury. Silver appealed to the circuit court which reversed and remanded for a new trial finding the municipal court judge erred in failing to conduct a Jackson v. Denno hearing and in failing to grant Silver's in limine motion to exclude evidence. The State appeals. We reverse the circuit court order and reinstate the conviction.

The two issues before us on appeal are (1) whether a criminal defendant has an absolute right to a pretrial, in camera hearing and ruling on an in limine motion to exclude evidence and (2) whether a criminal defendant is entitled to a Jackson v. Denno hearing in order for the trial judge to determine whether a defendant is in custody and, thus, entitled to Miranda warnings.

There is no transcript of record from the municipal court trial. The record before us contains a case statement, municipal court return, arguments before the circuit court and the circuit court order. It is from these that we glean the following facts.

Silver was tried in municipal court. Immediately before trial, he requested an in camera hearing on an in limine motion to exclude the results of a breathalyzer test. He argued a hearing and ruling were necessary in order to structure the jury voir dire as a voir dire of the jury regarding the breathalyzer machine could taint the jury in the event the test results were suppressed. The trial judge denied this request, holding the issue in abeyance until the State sought to introduce the test results. On voir dire, the jury panel was questioned extensively on breathalyzers at the request of Silver.

Silver renewed this motion prior to opening statements arguing a hearing and ruling were necessary in order for him to make an effective opening statement. The motion was again denied. During trial, following a hearing from which the jury was excluded, the trial judge suppressed the breathalyzer results. Silver moved for a mistrial for failure of the trial judge to suppress the results at the beginning of the trial. This motion was denied.

During trial, the arresting officer testified he stopped Silver based on erratic driving which included running off the roadway, crossing the center line and improperly stopping in the middle of the road after activation of the blue light. As the officer was about to testify as to statements made by Silver, Silver objected on the basis that he was in custody and, as such, was entitled to Miranda warnings. Silver moved for a Jackson v. Denno hearing. The trial judge ruled as a matter of law that the defendant was not in custody at that time. The officer continued his testimony stating Silver had asked him to "give him a break" and "call me a cab."

The jury convicted Silver and he appealed to the circuit court. The circuit court held:

1. When a defendant in the trial of a criminal case moves for a Jackson v. Denno hearing on the question of statements allegedly made by the defendant, then the judge must hold an in camera hearing to make the following decisions on admissibility: (a) whether or not the defendant was "in custody" at the time; (b) whether the statements are incriminating; and (c) whether or not the statements were freely and voluntarily made and the defendant knowingly waived his/her rights to remain silent. If the judge decides the statements were not voluntarily given, then the statements should be suppressed. If, on the other hand, he decides the statements are admissible, then instructions must be given to the jury as to their right and duty regarding the weight they should give that evidence.

2. When a defendant moves for an in camera hearing to suppress evidence before the trial begins, both parties are entitled to know whether the evidence is admissible so as to properly pose their case for expeditious presentation to the jury. ... Therefore, if a motion is made for an in camera suppression hearing, one must be held.

The circuit court reversed and remanded for a new trial consistent with its opinion.

We first address the issue of the failure of the trial judge to hold an in limine hearing on suppression of the breathalyzer test results. In its opinion, the circuit court found an absolute right to an in camera hearing to suppress evidence prior to the start of a trial when requested by the defendant. We disagree.

In the case of State v. Bridges, 278 S.C. 447, 298 S.E.2d 212 (1982), the trial judge refused to make an anticipatory ruling on whether the State could use a prior guilty plea for impeachment purposes if the defendant decided to testify. The trial judge stated he would rule on the issue if the defendant took the stand and if objection was made. The defendant elected not to testify and argued on appeal that the trial judge's refusal to rule in advance had a chilling effect on his decision on whether or not to testify. Our Supreme Court held that the trial judge did not abuse his discretion in refusing to rule on the admissibility of evidence until it was offered at trial noting the general rule that the conduct of a criminal trial is left largely to the sound discretion of the trial judge and the appellate court should not interfere unless the complaining party was clearly abused or prejudiced in some way. Likewise, in the case at hand, we find no abuse of discretion on the part of the trial judge in refusing to rule on the admissibility of the breathalyzer results until offered in the course of the trial.

We further note that a ruling on a motion in limine is not the ultimate disposition on the admissibility of evidence. State v. Floyd, 295 S.C. 518, 369 S.E.2d 842 (1988). The ruling remains subject to change and, had the trial judge ruled the evidence admissible at the start and later reversed his ruling, Silver would...