State v. White

• Decision Date: 17 February 1993
• Docket Number: No. 1975,1975
• Citation: 428 S.E.2d 740,311 S.C. 289
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Ronald WHITE, Appellant. . Heard

Page 740

428 S.E.2d 740

311 S.C. 289

The STATE, Respondent, v. Ronald WHITE, Appellant.

No. 1975.

Court of Appeals of South Carolina.

Heard Feb. 17, 1993.

Decided March 22, 1993.

Rehearing Denied April 22, 1993.

Olin L. Purvis, III, Darlington, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Attys. Gen. Harold M. Coombs, Jr., and Norman Mark Rapoport, Columbia, and Sol. Dudley Saleeby, Jr., Florence, for respondent.

GOOLSBY, Judge:

Ronald White appeals his conviction for felony driving under the influence and his sentence of twenty-one years imprisonment. The questions on appeal concern the trial judge's failure to grant a motion for continuance, his admission of certain inculpatory statements made by the defendant, his admission of certain expert testimony, his failure to direct a verdict of not guilty, his allowing a victim impact statement to be read immediately prior to sentencing, and his sentencing White to twenty-one years imprisonment. We affirm.

Around 11:00 p.m. on September 25, 1990, Trooper Wayne Gaugh received a transmission about a pedestrian being on Interstate-95 North in Florence County. Trooper Gaugh began searching the highway and found White at or about the 162-mile marker standing near the roadway.

The trooper approached White. He noted White had a strong odor of alcohol about his person and staggered as he walked. White, who wore a torn, blood-covered shirt, also bled from the shoulder. The back of his right hand showed a "road rash" from an apparent contact with the highway. White told the trooper that he had been in a fight.

Because White needed immediate medical attention, Trooper Gaugh took White to a nearby emergency room at McLeod Regional Medical Center in Florence.

While being examined by medical personnel, White told a nurse that he had attempted to flag down a truck after something happened to the car he had been driving. White claimed a truck that he had attempted to flag down had hit him.

After the doctor treating White ordered a blood sample, White became verbally abusive and threatened hospital personnel. Security officers were called. They placed White in "four-point restraints." These restraints remained about his wrists and ankles the remainder of the night.

Sometime around 2:00 a.m., after he had been in the hospital for nearly three hours, White told the nurse with whom he had earlier spoken that he had been driving and had been in a car accident. He expressed fear that his passenger, Melvin Terry, who was his brother-in-law, was dead.

Nursing personnel then notified security, who contacted the highway patrol. A state trooper, Robert Austin, immediately came to the hospital. He talked with White sometime between 2:00 and 2:25 a.m.

White told Trooper Austin he had been driving a car to Darlington and a truck had either hit him or run him off the road. He expressed concern to the trooper that "his friend might be out there ... with the vehicle." When the trooper asked White where this had happened, White said he did not know. White also claimed he had been walking along the highway about two hours before Trooper Gaugh picked him up and brought him to the hospital.

Trooper Austin then left the hospital and drove down Interstate-95 to look for White's car.

Around 3:45 a.m., a nurse got a blood sample from White. He had given the hospital a urine sample earlier at about 1:00 a.m. A test using the blood sample revealed a blood alcohol content of 79 milligrams per deciliter (.079). His urine tested positive for benzodiazepine, i.e., valium.

Between 4:00 and 5:00 a.m., White received several injections of sodium pentothal, a sedative.

A passerby found White's car sometime before 7:00 a.m. near the 162-mile marker only a few hundred feet from where Trooper Gaugh had picked White up. The car had traveled down an embankment and had come to rest at the edge of some woods. The car had gone off the road on the left-hand side, entered the median, traveled there for some distance before sliding sideways across the road, and had gone back over onto the right side before leaving the highway and heading down into the woods where it had hit a tree. Branches knocked from the tree in the collision had fallen on the car, partially concealing it.

Troopers found Terry nearby. He was dead. He had sustained fatal chest and neck injuries. His body lay three or four feet from the driver's side of the car.

Around 9:00 a.m., Trooper Austin and Trooper Lloyd Wilkes drove to the hospital to talk with White. Trooper Wilkes read White his Miranda rights. Afterward, White indicated he wanted to talk to the troopers.

He told the troopers he had been the driver of the car and had been drinking, although he did not remember how much he had had to drink. He also told them he had been "running seventy-five or eighty" miles per hour and he had lost control of the car when a truck veered into his lane, forcing him to leave the lane to avoid colliding with the truck.

When one of the troopers, in response to a question from White about Terry's whereabouts and condition, told White his brother-in-law was dead, White began to tug at the restraints that held him to the bed and he screamed, "Oh, my Lord, ... I've killed him. I've killed him."

A few hours later, the troopers arrested White. They charged him with felony driving under the influence.

1. White asserts the trial court abused its discretion in refusing to grant his motion for a continuance.

White had retained a nurse anesthetist to testify. When the solicitor called the case for trial, however, White learned the nurse anesthetist was on vacation. He moved the court for a continuance so that he could try to get the nurse anesthetist's partner to testify instead.

The granting of a motion for a continuance is a matter resting in the trial judge's sound discretion and his ruling will not be disturbed without a clear showing of an abuse of discretion. State v. Tanner, 299 S.C. 459, 385 S.E.2d 832 (1989). No abuse of discretion occurred here.

In this instance, White did not comply with Rule 7(b), SCRCrimP. In particular, neither White nor his counsel, as the rule requires, offered his oath that the testimony of the absent witness was material to White's defense, that the motion for a continuance was not intended for delay but was being made because White could not go safely to trial without the absent witness's testimony, and that White had made use of due diligence to procure the testimony of the absent witness. Moreover, White failed to set forth under oath what fact or facts he believed the absent witness would have testified to and the grounds for his belief.

2. White asserts the trial court erred in admitting into evidence the statements that White made to the law enforcement officers. White argues his two statements were involuntarily given as a matter of law because he was either "in four-point restraints" or was in restraints and had been given sodium pentothal. As we noted above, hospital personnel placed the restraints on White because he was belligerent and White received doses of sodium pentothal between 4:00 and 5:00 a.m. to calm him down.

A confession is not admissible unless it was voluntarily made. State v. Childs, 299 S.C. 471, 385 S.E.2d 839 (1989). A determination of whether a confession was given voluntarily requires an examination of the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Franklin, 299 S.C. 133, 382 S.E.2d 911 (1989).

Here, the trial court determined the preponderance of the evidence, considering the totality of the circumstances, showed that both statements, the one made between 2:00 a.m. and 2:15 a.m. and the one made around 9:00 a.m., were voluntarily made despite either the presence of restraints or the presence of restraints and White's having earlier been administered sodium pentothal. The evidence supports the trial court's findings.

As to the first statement, Trooper Austin, the officer to whom White made the...