The State v. Branham

• Decision Date: 02 March 2011
• Docket Number: No. 4803.,4803.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent,v.Charles Brandon BRANHAM, Appellant.

392 S.C. 225

708 S.E.2d 806

The STATE, Respondent,

v.Charles Brandon BRANHAM, Appellant.

No. 4803.

Court of Appeals of South Carolina.

Submitted Jan. 1, 2011.Decided March 2, 2011.

James Ross Snell, Jr., of Lexington, for Appellant.Rachel Donald Erwin, of Blythewood, for Respondent.PIEPER, J.

Appellant Charles Brandon Branham was convicted of driving under the influence, first offense, following a jury trial in the magistrate's court. The circuit court affirmed the magistrate's refusal to dismiss the case due to the State's failure to provide Branham with a videotape of his breath alcohol analysis test (breath test). On appeal, Branham argues the court must dismiss his conviction because the State did not produce the videotape. We affirm. ¹

FACTS

Trooper K.G. Ginn of the South Carolina Highway Patrol arrested Branham for suspicion of driving under the influence. A breath test was administered. Branham appeared pro se before the magistrate to plead not guilty and to request a jury trial. At a pretrial hearing, Branham did not indicate he wished to hire an attorney. On the day of jury selection, Branham did not appear in court and a jury was selected in his absence for a trial to begin the following day. On the day of jury selection but after a jury had been selected, Branham contacted the magistrate's court asking for a continuance because his attorney could not attend trial the next day. The court advised Branham that it would not grant him a continuance. At 4:54 p.m. the same day, attorney James Snell contacted the magistrate's court and requested a continuance because he was scheduled to appear for guilty pleas in the circuit court at the same time as Branham's trial. The magistrate contacted the circuit court and arranged for Snell to be present for Branham's trial.

On the day of trial, Snell moved to dismiss the charge because the State had not provided Branham with a videotape of the breath test site. The magistrate denied the motion. The magistrate also delayed the start of the trial to permit Snell to review evidence and discuss the case with Trooper Ginn. Trooper Ginn testified on behalf of the State. The State also entered the incident site videotape, implied consent form, and breath alcohol analysis test report (datamaster ticket) into evidence. The datamaster ticket contained a notice at the bottom that Branham could view the breath test site video by means of an internet website at www. sled. sc. gov and provided Branham with an I.D. and password to access the video. The jury found Branham guilty of driving under the influence and the magistrate sentenced Branham to thirty days, suspended upon payment of a fine.

Branham appealed to the circuit court, asking the court to either dismiss the conviction because the State failed to produce the breath test site videotape or remand for a new trial because the magistrate failed to grant a continuance so the State could produce the videotape. On appeal, the circuit court affirmed the magistrate's refusal to grant Branham's motion to dismiss. The circuit court also found that Branham's request for a continuance was not preserved for review because the magistrate's return did not indicate that a motion for a continuance was made. Alternatively, the circuit court concluded that Branham's continuance request, if made, was untimely because it was made after jury selection on the morning of trial. Branham appealed to this court, arguing only that his conviction should be dismissed for failure to produce the breath test site videotape.

STANDARD OF REVIEW

In a criminal appeal from the magistrate's court, the circuit court does not review the matter de novo. S.C.Code Ann. § 14–25–105 (Supp.2010). The appeal must be heard by the circuit court upon the grounds of exceptions made and the record on appeal, without the examination of witnesses. S.C.Code Ann. § 18–3–70 (Supp.2010). The circuit court “may either confirm the sentence appealed from, reverse or modify it, or grant a new trial.” Id. The appellate court's review in criminal cases is limited to correcting the order of the circuit court for errors of law. City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007).

ANALYSIS

At the outset, we note that this case involves only the breath test site video required by section 56–5–2953(A)(2) of the South Carolina Code (2006) ² and does not involve the incident site video, which was produced at trial by the State. We also specifically note that this case does not involve any claim that the video was not accessible or available online. Thus, we analyze this case within this context.

Section 56–5–2953(B) of the South Carolina Code (2006) provides that a “[f]ailure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal” if certain exceptions apply. The statutory exceptions are: (1) if the arresting officer submits a sworn affidavit certifying the video equipment was inoperable despite efforts to maintain it and there was no operable breath test facility available in the county; (2) if the officer submits a sworn affidavit that it was impossible to produce the videotape because the defendant either (a) needed emergency medical treatment or (b) exigent circumstances existed; and (3) in circumstances including but not limited to road blocks, traffic accidents, and citizens' arrests. Id. Other exceptions are possible as the statute further provides, “[n]othing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances....” Id.

In City of Rock Hill v. Suchenski, our supreme court found dismissal of the charge was “an appropriate remedy” where a violation of section 56–5–2953(A) was “not mitigated” by an exception from subsection (B). 374 S.C. 12, 17, 646 S.E.2d 879, 881 (2007). On appeal, the City argued its noncompliance was excused pursuant to the exceptions listed in section 56–5–2953(B); however, the supreme court refused to consider the City's arguments because they were not preserved for appellate review. Id. at 15–16, 646 S.E.2d at 880. In finding dismissal an appropriate remedy, the supreme court stated “failure to produce videotapes would be a ground for dismissal if no exceptions apply.” ³ Id. at 16, 646 S.E.2d at 881.

Branham argues that the State has inexcusably failed to comply with section 56–5–2953. Branham further asserts that his failure to timely file a Rule 5 motion is not an exception to the State's statutory duty to produce a videotape from the breath test site; thus, Branham asserts his conviction must be vacated.

Pursuant to Rule 5 of the South Carolina Rules of Criminal Procedure, the prosecution must disclose certain types of information upon request of the defendant. The magistrate's return does not indicate Branham made an oral or written request for discovery. However, at the hearing before the circuit court, Branham's attorney argued that he made a Rule 5 motion orally before the magistrate. The circuit court addressed this assertion as a part of Branham's argument that the magistrate erred in refusing to grant a continuance in order to allow him to obtain and evaluate the breath test site videotape. First, the circuit court found Branham's issue on appeal was not preserved for the circuit court's appellate review because the magistrate's return did not indicate that Branham made a motion for continuance on the date of trial. The circuit court then alternatively ruled that the magistrate did not abuse her discretion in refusing to grant a continuance. In so doing, the circuit court found “a discovery request was not made until the morning of the trial.” The circuit court also noted that the magistrate acted within her discretion when she delayed the start of the trial to permit Branham's attorney to confer with the prosecuting officer.

On appeal, Branham has abandoned his argument that he made an oral motion for discovery pursuant to Rule 5 because: (1) he did not contest the circuit court's ruling regarding the magistrate's failure to grant a continuance in his appellate brief and (2) Branham does not argue on appeal that he orally requested discovery. See State v. Tyndall, 336 S.C. 8, 17, 518 S.E.2d 278, 282 (Ct.App.1999) (noting an issue not argued in the appellate brief is deemed abandoned on appeal); Rule 208(b)(1)(B) (“Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.”). Further, because the court also alternatively ruled that Branham made an untimely discovery motion and Branham did not contest that finding, we find this alternative ground constitutes an independent basis to uphold the decision finding Branham's continuance request untimely. See State v. Galloway, 305 S.C. 258, 262–63, 407 S.E.2d 662, 665 (Ct.App.1991) (declining to reach the merits of the issue where appellant failed to appeal an alternative ruling, which constituted an independent ground for upholding the judgment); see also State v. Hicks, 387 S.C. 378, 379, 692 S.E.2d 919, 920 (2010) (affirming the ruling of the trial court because the appellant failed to appeal all grounds upon which the ruling was based); Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010) (“Under the two issue rule, where a decision is based on more than one ground, the appellate court will affirm unless the appellant appeals all grounds because the unappealed ground will become the law of the case.”). Thus, we find the circuit court's decision that the magistrate properly proceeded with the trial without permitting more time for discovery is the law of the case.

Therefore, we are left with Branham's sole issue on appeal as to whether the State failed to comply with any statutory duty to produce the breath test site video pursuant to section 56–5–2953. This case presents in part the question of whether a statutory obligation to produce...