Apr 21, 2012 | Uncategorized, Workers' Compensation
The Commission has a new member. Congratulations, Commissioner McCaskill. The attorneys at Reeves, Aiken and Hightower LLP look forward to appearing before you.
With over 22 years workers’ compensation experience, 7 of which he was an insurance defense attorney, Robert J. Reeves is standing by to help you and your family if you have been seriously injured on the job. As a former Registered Nurse (RN), he uniquely understands serious accident claims. As a seasoned litigation attorney, he is willing to fight for you in court. We would welcome an opportunity to review your case. Compare our attorneys’ credentials to any other firm. Then call us today at 877-374-5999 for a private consultation. Or, for more information, please visit our website at www.rjrlaw.com.
Senate Confirms Commissioner McCaskill
By a vote of 27-0, the Senate confirmed the nomination of businessman Gene McCaskill to fill a term on the Workers’ Compensation Commission that expires June 30.The following is from the South Carolina Workers’ Compensation Commission.
Senate Confirms Commissioner McCaskill
On March 6, 2012 the Senate confirmed the Initial Appointment of Gene McCaskill to the Commission, with the term to commence on June 30, 2006 and expire on June 30, 2012. Commissioner McCaskill fills the vacant Commission seat created by the resignation of David Huffstetler in November 2011. He served the previous nine years as Senior Executive Assistant at the Office of the Attorney General and two decades as a grocer in Camden. Prior to his employment with the Attorney General’s Office, he served as Director of Admissions for Camden Military Academy and was a member of the SC Commission on Consumer Affairs and the SC Educational Television Commission.
Apr 20, 2012 | Assault and Battery, Criminal Defense, Uncategorized
This SC Supreme Court case involves very serious criminal charges and highlights how the smallest detail cannot be overlooked. Here, the defense lawyer was rightly concerned that his client’s escapee status from prison would horribly prejudice a jury against him. Nevertheless, the trial court allowed the testimony to prove his motivation in fleeing the police. As one can see from this appeal, every aspect of a criminal case has to be fiercely defended. Nothing can be ignored or taken for granted. Better make sure your attorneys understand these issues and are willing to fight for you and your family.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both South Carolina and North Carolina civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. We are not afraid to go to Court and often do. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Shawn Wiles, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Saluda County
William P. Keesley, Circuit Court Judge
Opinion No. 26674
Heard May 13, 2009 – Filed June 22, 2009
AFFIRMED AS MODIFIED
Appellate Defender M. Celia Robinson, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Solicitor Donald V. Myers, of Lexington, for Respondent.
JUSTICE WALLER: Petitioner Shawn Wiles was indicted for assault and battery with intent to kill (ABIK), failure to stop for a blue light, and possession of a stolen vehicle. A jury convicted him of assault and battery of a high and aggravated nature (ABHAN) and failure to stop for a blue light.[1] Pursuant to Rule 220(b), SCACR, the Court of Appeals affirmed in an unpublished opinion. SeeState v. Wiles, Op. No. 2007-UP-318 (S.C. Ct. App. filed June 14, 2007). We granted petitioner’s request for a writ of certiorari to review the Court of Appeals’ decision. We affirm as modified.
FACTS
On December 26, 2003, a state trooper clocked two vehicles traveling 101 mph on Highway 25 in Edgefield County. The first vehicle was a pickup truck, and the second was a stolen 1997 Ford Crown Victoria driven by petitioner. Putting on his blue light and siren, the trooper gave chase. The truck lost control and veered off the road. The Ford then pulled over, but as the trooper approached it, the car turned around and headed back on the highway.
The high-speed chase again ensued with the trooper and another highway patrol vehicle pursuing petitioner. The trooper testified that petitioner turned onto Route 378 toward Saluda and drove at speeds over 120 mph while passing other cars on the road in an unsafe manner. A few miles outside the city of Saluda, the trooper’s supervisor directed him to terminate the chase because of safety concerns.
However, Saluda County Sheriff’s deputy Frank Daniel was at that same time responding to the call about the chase. Deputy Daniel was in an intersection waiting to make a left turn onto Route 378 when petitioner ran a red light and crashed into Deputy Daniel’s car.[2]
The force of the collision with the deputy’s car propelled the Ford into a nearby building. Petitioner and his female passenger exited the car, and went into the building. A SWAT team responded to the scene, and eventually petitioner was located in the building hiding above the ceiling tiles. Petitioner was unarmed, and the SWAT team apprehended him without further incident.
At trial, evidence was admitted that approximately one week before the chase petitioner had escaped from a South Carolina prison.[3] A Department of Corrections (DOC) investigator interviewed petitioner when he was re-incarcerated. According to the investigator, petitioner’s thoughts while driving 140 mph were that “he was about to be killed or would end up killing someone in the process of trying to get away from the police.” On cross-examination, the DOC investigator acknowledged petitioner had told him that he panicked when he saw the trooper and he did not intentionally try to ram into the deputy’s car.
The jury convicted petitioner of the lesser included offense of ABHAN and failure to stop for a blue light. The trial court sentenced petitioner to consecutive sentences of 10 years for ABHAN, and three years for the failure to stop.
On appeal, petitioner argued the trial court erred in allowing evidence of petitioner’s escape. Finding the issue unpreserved, the Court of Appeals affirmed.
ISSUES
1. Did the Court of Appeals err in finding petitioner’s issue on appeal unpreserved?
2. Did the trial court err in admitting evidence of petitioner’s escape?
DISCUSSION
1. Issue Preservation
Prior to jury selection, petitioner made a motion in limine to exclude evidence of his escape. The trial court ruled the evidence admissible to show res gestae, motive and intent. Petitioner appealed the trial court’s ruling, but the Court of Appeals found the issue unpreserved for appellate review. See State v. Wiles, supra (citing State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001)). Petitioner argues the Court of Appeals erred because the trial judge’s ruling was final. Furthermore, petitioner contends that counsel renewed his objection when the escape evidence was admitted. We agree with petitioner that this issue is preserved.
Generally, a motion in limine is not a final determination; a contemporaneous objection must be made when the evidence is introduced. State v. Forrester, 343 S.C. at 642, 541 S.E.2d at 840. There is an exception to this general rule when a ruling on the motion in limine is made “immediately prior to the introduction of the evidence in question.” Id. This exception is based on the fact that when the trial court’s ruling is not preliminary, but instead is clearly a final ruling, there is no need to renew the objection. Id.(citing State v. Mueller, 319 S.C. 266, 268-69, 460 S.E.2d 409, 410 (Ct.App.1995)).[4]
In the instant case, the evidence was not immediately introduced after the motion in limine. Nonetheless, by his actions, the trial judge clearly indicated that his ruling was a final, rather than preliminary, one because he commented to the jury about petitioner’s escape before any evidence was admitted. Specifically, the trial judge told the jury the following:
The State is gonna attempt to introduce evidence related to the fact, in their view, that [petitioner] was an escapee from another institution …. The evidence … related to an escape is only allowed to be used for you to evaluate what his motives were, what his intents were, whether there was a mistake or accident, something like that.
Moreover, the escape was then referenced by both the State and petitioner’s counsel in their opening statements.
In our opinion, the trial court’s ruling on the admission of evidence regarding petitioner’s escape was a final ruling, and therefore, petitioner’s argument that the evidence was improperly admitted is preserved for appellate review.[5] See Forrester, supra.
Thus, we find the Court of Appeals erred in ruling that the issue raised on appeal was procedurally barred.
2. Evidence of Escape
Turning to the merits, petitioner argues the trial court judge erred in allowing the evidence of his escape to be admitted at trial on the ABIK and failure to stop charges. Petitioner contends the evidence should have been excluded as improper evidence of prior bad acts and because it was more prejudicial than probative. We disagree.
Evidence is relevant and admissible if it tends to establish or make more or less probable the matter in controversy. See Rules 401 & 402, SCRE. Evidence of other crimes, wrongs, or acts is generally not admissible to prove the character of a person in order to show action in conformity therewith; however, such evidence may be admissible “to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.” Rule 404(b), SCRE. The evidence admitted must logically relate to the crime with which the defendant has been charged. E.g., State v. Stokes, 381 S.C. 390, 673 S.E.2d 434 (2009); State v. Beck, 342 S.C. 129, 135, 536 S.E.2d 679, 682-83 (2000).
Stated differently, evidence which is “logically relevant to establish a material element of the offense charged is not to be excluded merely because it incidentally reveals the accused’s guilt of another crime.” State v. Green, 261 S.C. 366, 371, 200 S.E.2d 74, 77 (1973); see also State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996) (evidence of other crimes which supplies the context of the crime, or is intimately connected with and explanatory of the crime charged, is admissible as res gestaeevidence).
Nonetheless, even where the evidence is shown to be relevant, if its probative value is substantially outweighed by the danger of unfair prejudice, the evidence must be excluded. See Rule 403, SCRE. Unfair prejudice means an undue tendency to suggest decision on an improper basis. State v. Stokes, supra; State v. Beck, supra.
Here, the evidence of petitioner’s escape was logically relevant for several reasons. First, the evidence of escape shows his motive for fleeing from police; thus, it was relevant on the failure to stop for a blue light charge. See Rule 404(b), SCRE. Second, the evidence that petitioner was an escapee was relevant to his alleged intent on the ABIK charge. Id.; cf. State v. Green, supra(where the Court held that evidence of appellants’ escape from prison, and their status as fugitives, was admissible on the issues of intent and common design in an attempted armed robbery case). Finally, this evidence was also admissible under the res gestaetheory. See State v. Adams, supra.[6]
Further, we find this evidence was not unduly prejudicial. See Rule 403, SCRE; State v. Stokes, supra; State v. Beck, supra.
Accordingly, the trial court did not err in admitting the evidence of petitioner’s escape, and the Court of Appeals’ opinion isAFFIRMED AS MODIFIED.
TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Petitioner moved for a directed verdict on the possession of a stolen vehicle charge because evidence admitted at trial indicated that petitioner himself had stolen the car in Georgia. The trial court granted the motion. See State v. McNeil, 314 S.C. 473, 445 S.E.2d 461 (Ct. App. 1994) (the possession of a stolen vehicle statute requires that the defendant receive the goods from someone who actually stole them; he cannot receive the vehicle from himself).
[2] The deputy was taken to the hospital and missed 5 days of work, but he was not seriously injured.
[3] The record reflects that in a separate proceeding prior to the instant trial, petitioner pled guilty to, and was sentenced for, the escape.
[4] See also Staubes v. City of Folly Beach, 339 S.C. 406, 415, 529 S.E.2d 543, 547 (2000) (“This Court does not require parties to engage in futile actions in order to preserve issues for appellate review.”).
[5] In any event, we note counsel did specifically renew his objection on the record when this evidence was first admitted.
[6] We agree with the State that the evidence of petitioner’s escape was “the first link in a chain of circumstances” which led to the criminal charges in the instant case. State v. Green, 261 S.C. at 372, 200 S.E.2d at 77.
Apr 17, 2012 | News, Uncategorized
In honor of Mother’s Day, the lawyers of Reeves, Aiken, & Hightower are going to raffle away a new iPad to one lucky mom!
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Apr 16, 2012 | DUI & DWI, Uncategorized
This recent SC Court of Appeals case will be considered a major change in SC DUI law. However, it really is not. “Miranda warnings” are widely known by the public thanks to television shows and movies showing arrests of criminal defendants. The actual case has been around for decades. No one is really certain from where this “fifth Miranda warning” originated, but the right to terminate police interogation by asking for a lawyer has never been expressly a part of Miranda. Rather, it is largely incorporated into the first “Miranda” right to remain silent. Nevertheless, the Court of Appeals has now formally clarified this apparent confusion and resolved the issue. If this case is pursued to the SC Supreme Court, there is little doubt this decision will be affirmed.
The criminal attorneys at Reeves, Aiken & Hightower, LLP, focus their practice on SC DUI and NC DWI. In addition to the years of criminal and civil case experience, the firm also highlights Tyler Burns who is a former Sixteenth Circuit (York County) DUI prosecutor. Mr. Burns now takes his prosecutor’s evaluation of cases to defend those individuals who have been charged with a DUI or DUAC. Our firm encourages potential clients to carefully compare our lawyers’ credentials to any other law practice. Then call us today at 877-374-5999 for a private consultation. For more information, please visit our website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Appellant,
v.
Mark Allen Hoyle, Respondent.
Appeal From York County
John C. Hayes, III, Circuit Court Judge
Opinion No. 4963
Heard March 19, 2012 – Filed April 4, 2012
REVERSED
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor Kevin Brackett, of York, for Appellant.
John M. Foster, of Rock Hill, for Respondent.
PIEPER, J.: This appeal arises out of Appellant Mark Allen Hoyle’s magistrate’s court conviction for driving under the influence (DUI). The circuit court found the magistrate erred by failing to suppress the incident site video recording due to incomplete Miranda[1] warnings; consequently, the circuit court remanded the case to the magistrate’s court for a new trial. On appeal, the State argues the circuit court erred in ordering the suppression of the video recording because the arresting officer gave Hoyle sufficient Miranda warnings in compliance with section 56-5-2953 of the South Carolina Code (Supp. 2011). We reverse.
FACTS
On March 21, 2009, Hoyle was charged with DUI. Upon his arrest, the officer advised Hoyle of the following: (1) he had the right to remain silent; (2) anything he said could be used against him in a court of law; (3) he had the right to an attorney; and (4) if he could not afford an attorney, one would be appointed for him prior to questioning. The officer did not advise Hoyle that he had the right to terminate the interrogation at any time and to not answer any further questions. Hoyle was convicted of DUI. Hoyle appealed his conviction, arguing the magistrate’s court erred in refusing to dismiss the charge, or in the alternative, erred in failing to suppress certain evidence, because (1) he was not fully advised of his Miranda rights and (2) certain audio portions of the sequence of events were missing.[2] At the hearing before the circuit court, Hoyle relied on State v. Kennedy, 325 S.C. 295, 479 S.E.2d 838 (Ct. App. 1996), and argued the incident site video recording should be suppressed because it did not contain the officer instructing Hoyle of the Miranda warning that a suspect has the “right to terminate the interrogation at any time and not to answer any further questions.” The circuit court agreed, remanded for a new trial, and ordered the incident site video recording be suppressed. This appeal followed.
STANDARD OF REVIEW
In a criminal appeal from the magistrate’s court, the circuit court does not review the matter de novo; rather, the court reviews the case for preserved errors raised by appropriate exception. Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 341, 713 S.E.2d 278, 282 (2011). The circuit court “may either confirm the sentence appealed from, reverse or modify it, or grant a new trial.” S.C. Code Ann. § 18-3-70 (Supp. 2011). “The appellate court’s review in criminal cases is limited to correcting the order of the circuit court for errors of law.” State v. Johnson, 396 S.C. 182, 186, 720 S.E.2d 516, 518 (Ct. App. 2011).
LAW/ANALYSIS
The State argues the circuit court erred in suppressing the incident site video recording and remanding for a new trial because Hoyle was given appropriate Miranda warnings in compliance with section 56-5-2953. We agree.
“‘All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.'” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010) (quoting Broadhurst v. City of Myrtle Beach Election Comm’n, 342 S.C. 373, 380, 537 S.E.2d 543, 546 (2000)). The court should look to the plain language of the statute. Binney v. State, 384 S.C. 539, 544, 683 S.E.2d 478, 480 (2009). If the language of a statute is unambiguous and conveys a clear and definite meaning, then the rules of statutory interpretation are not needed and the court has no right to impose a different meaning. State v. Gaines, 380 S.C. 23, 33, 667 S.E.2d 728, 733 (2008).
The applicable provisions of the statute in question follow:
(A) A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site video recorded.
(1)(a) The video recording at the incident site must:
(i) not begin later than the activation of the officer’s blue lights;
(ii) include any field sobriety tests administered; and
(iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.
S.C. Code Ann. § 56-5-2953(A)(1)(a) (Supp. 2011).
To give force to the Constitution’s protection against compelled self-incrimination, the United States Supreme Court established in Miranda “certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.” Duckworth v. Eagan, 492 U.S. 195, 201 (1989). The Miranda court held that a suspect in custody must be warned of the following rights:
He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
384 U.S. at 479.
The court also explained that “[o]nce warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Id. at 473-74. Furthermore, if the suspect decides, after receiving the Miranda warnings, that he wishes to remain silent, the custodial officers must “scrupulously honor[]” his “right to cut off questioning.” Michigan v. Mosley, 423 U.S. 96, 104 (1975).
In State v. Kennedy, this court cited Miranda, stating:
A suspect in custody may not be subjected to interrogation unless he is informed that: he has the right to remain silent; anything he says can be used against him in a court of law; he has a right to the presence of an attorney; if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires; and he has the right to terminate the interrogation at any time and not to answer any further questions.
325 S.C. 295, 303, 479 S.E.2d 838, 842 (Ct. App. 1996), aff’d as modified, 333 S.C. 426, 510 S.E.2d 714 (1998).
The issue in Kennedy was whether the defendant voluntarily waived his Miranda rights. Id. at 306, 479 S.E.2d at 844. The court did not discuss the sufficiency of the warnings given, and the court did not discuss whether the officer informed the defendant of his right to terminate the interrogation. Id. at 306-09, 479 S.E.2d at 844-46. On the other hand, in State v. Cannon, police gave the defendant the following Miranda warning:
You have the right to remain silent; anything you say can and will be used against you in a court of law; you have the right to talk to a lawyer and have him present with you while you are being questioned; if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one.
260 S.C. 537, 542-43, 197 S.E.2d 678, 680 (1973), cert. denied, 414 U.S. 1067 (1973). The defendant appealed, arguing the warnings were insufficient and should have included the following language: “If you decide to answer any questions now without a lawyer present, you will still have the right to stop answering at any time or until you talk to a lawyer.” Id. at 543, 197 S.E.2d at 680. The South Carolina Supreme Court disagreed and found that Miranda does not require an officer to inform a suspect of his right to stop answering questions at any time. Id.
The language in Miranda is clear that the right to terminate the interrogation at any time and to not answer any further questions is not a required Miranda warning. Miranda only requires four warnings, and the United States Supreme Court did not include the right to terminate the interrogation at any time as one of the four warnings. See Miranda, 384 U.S. at 479 (holding a suspect in custody must be warned prior to any questioning that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires”). Furthermore, pursuant to Miranda, the right to terminate an interrogation arises after warnings are given. See id. at 473-74 (“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”).
Recent United States Supreme Court decisions interpreting Miranda also recognize Miranda includes four rights. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2259 (2010) (quoting Miranda for the proposition that a suspect “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires” (internal quotation marks omitted)); Florida v. Powell, 130 S. Ct. 1195, 1204 (2010) (noting that “[t]he four warningsMiranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed”).
Our interpretation of Miranda and Cannon is also consistent with other jurisdictions that have considered the issue and determined that under Miranda an officer is not required to inform a suspect of a right to stop questioning after it has begun. See United States v. Lares-Valdez, 939 F.2d 688, 690 (9th Cir. 1991) (finding that the Miranda court contemplated the right to cease questioning and declined to include it among the warnings necessary to protect a suspect’s Fifth and Sixth Amendment rights); Mock v. Rose, 472 F.2d 619, 622 (6th Cir. 1972) (holding Miranda warnings do not include the right to stop answering questions at any time); Flannagin v. State, 266 So. 2d 643, 651 (Ala. 1972) (holding an officer is not required under Miranda to inform a suspect that he has the right to stop questioning at any time because “[t]he right of an accused to exercise [the four Miranda] rights at any time during the proceeding is not a separate right of which he must be independently informed. It is, instead, the practical result of his exercising those other rights at a time of his choosing”); Katzensky v. State, 183 S.E.2d 749, 751 (Ga. 1971) (“Miranda does not require the officers to advise the individual that he may withdraw the waiver of his constitutional rights at any time during the interrogation.”).
For the bench, bar, and law enforcement, we recognize a need may exist to clarify any perceived confusion about the reach of Kennedy.[3] Regarding the language at issue herein, we interpret that part of Kennedy as being dicta.[4] Moreover, even if we were to interpret the reach of Kennedy otherwise, the South Carolina Supreme Court’s opinion in Cannon serves as the controlling precedent for purposes of our review. While one panel of this court cannot overturn prior published precedent of another panel of this court absent en banc review, we need not do so in order to apply controlling South Carolina Supreme Court precedent. Based on the foregoing, we find that the South Carolina Supreme Court does not interpret Miranda to require an oral or written warning on the right to terminate an interrogation at any time and to not answer any further questions.[5]
A review of the incident site video recording indicates the officer gave Hoyle all four warnings required by Miranda; thus, the officer fully complied with both Miranda and section 56-5-2953. See S.C. Code Ann. § 56-5-2953(A)(1)(a)(iii) (Supp. 2011) (“The video recording at the incident site must . . . show the person being advised of his Miranda rights.”). Therefore, we reverse the circuit court’s order and reinstate the conviction.
CONCLUSION
Accordingly, the order of the circuit court is hereby
REVERSED.
KONDUROS and GEATHERS, JJ., concur.
[1] Miranda v. Arizona, 384 U.S. 436 (1966).
[2] To the extent this second issue was independent of the Miranda issue, that issue was neither ruled on by the circuit court, nor argued on appeal to this court. In fact, Hoyle clarified his argument before the circuit court in stating “the only question I submit to this court that they have to decide, that you have to decide, Your Honor, is whether [Hoyle is] entitled to dismissal or a remand for further proceedings for suppression of evidence for deficient Miranda.”
[3] See Op. S.C. Att’y Gen., 2009 WL 1968618 (June 4, 2009) (responding to an inquiry by the South Carolina Sheriffs’ Association as to whether Kennedy affords a fifth right that must be included in a Miranda warning).
[4] Notably, subsequent opinions from this court have cited Kennedy when stating the rule on Miranda warnings; however, no case cites the language in Kennedy that an officer must inform a suspect of the right to terminate the interrogation at any time and to not answer any further questions. See State v. Breeze, 379 S.C. 538, 544, 665 S.E.2d 247, 250 (Ct. App. 2008); State v. Lynch, 375 S.C. 628, 633 n.5, 654 S.E.2d 292, 295 n.5 (Ct. App. 2007).
[5] Hoyle asserted various policy arguments in support of expanded warnings in South Carolina; however, we reject those arguments.
Apr 15, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
Below is a great article by Shea Denning. She, along with Jeff Welty, is one of my favorite posters. Both are talented writers, and I follow them weekly. This posting highlights a recent NC case addressing the issue of how long a police officer may detain a vehicle after a routine traffic stop. As with most criminal cases, the individual facts are dispositive. However, the general guidelines presented give some benchmarks as to what Courts will have to examine in their analysis. One concept is clear. There must be some “reasonable suspicion” before the stop can last longer than it takes to write the warning or citation.
The criminal lawyers at Reeves, Aiken & Hightower, LLP, appreciate the nuances in particular cases that can mean the difference between a guilty verdict or acquittal. We carefully analyze the facts in each case and craft a comprehensive defense strategy with a singular goal – to win your case. While we certainly cannot guarantee any outcome, we can assure you that we will work tirelessly on your behalf. Compare our attorneys’ credentials to any other law firm. Then, call us today at 704-499-9000 for a private consultation. For more information, please visit our firm website at www.rjrlaw.com.
Air Fresheners? You Betcha. Eating on the Go? Not So Much.
April 3rd, 2012
By Shea Denning
Jeff has written before about whether a traffic stop may be prolonged to allow time for a drug-sniffing dog to arrive on the scene and sniff about the car (which itself is not a Fourth Amendment search, see Illinois v. Caballes, 543 U.S. 405, 409 (2005)). As Jeff noted in his paper, it is unclear whether a brief delay to allow time for a canine unit to arrive is permissible absent reasonable suspicion of criminal activity; however, it is well-established that an extended delay to await a drug dog’s arrival must be supported by reasonable suspicion. The North Carolina Court of Appeals in State v. Fisher, ___ N.C. App. ___ (March 20, 2012), recently considered whether a 20 to 25 minute detention of a defendant after he was stopped for a seatbelt violation was supported by the requisite suspicion. The case struck me as worth blogging about both because of the court’s view that any detention of the defendant beyond the issuance of the citation must be supported by reasonable suspicion and the ordinariness of the factors the State relied upon as evidence of criminal activity. Some, but not all, of those factors were accepted by the court as appropriate factors to consider in a reasonable suspicion analysis (hence, the title of this post).
The defendant in Fisher attracted the attention of a local police officer and drug investigator because he was not wearing his seatbelt and was driving “diligent[ly],” with “both hands on the wheel” in a “pack of traffic” traveling approximately 70 miles per hour along highway 70 West near Goldsboro. Slip op. at 2. The officer followed the defendant in his unmarked car for about three miles, during which time he ran the tag number on the vehicle, determining that it was registered to an elderly woman in Bayboro, N.C. The officer also saw a handprint on the trunk of the car, which was dirty. The officer considered suspicious the defendant’s driving, the registration of the car to someone else (since “90 percent of [his] drug seizures [came] from third party vehicles, meaning that the person driving the car is not the registered owner of the vehicle”) and the handprint, which indicated something had recently been placed in the trunk, “another indicator that defendant was a drug courier.” Slip op. at 2-3. The officer stopped the vehicle for the seatbelt violation.
When he approached the car, the officer noticed a strong odor of air freshener, which he also considered a sign of a drug courier. Defendant said he was going to Bayboro after a shopping trip to a mall in Smithfield. The officer thought this was suspicious since there were no bags in the car. The defendant said he went to shop for clothes, but nothing fit. Adding to the officer’s suspicion was that the defendant did not ask why he had been stopped. Furthermore, the officer considered it suspicious that the defendant had a fast food bag in the car, which he considered an indicator that the “person is in a hurry” and “does not want to leave their car unattended.” Slip. op. at 3.
After the defendant had been stopped for five or six minutes, the officer called for a canine unit because he believed the defendant was transporting drugs. He subsequently told the defendant that he would be given a warning ticket for the seatbelt violation and that he believed the defendant was transporting contraband. The defendant refused the officer’s request to search.
While he was waiting for the canine unit, the officer called the Pamlico County Sheriff’s Department (Bayboro is in Pamlico County) to ask about the defendant. A narcotics officer there told him that the defendant was “a known marijuana and cocaine distributor with pending drug charges.” Slip op. at 4. The officer further noted that defendant appeared nervous throughout the encounter “even after being told that he was only going to receive a warning.” Id.
When Emmy the drug dog arrived, she signaled to the officers that there were drugs in the defendant’s car. The officers found two pounds of marijuana in the trunk. In his trial on the drug charges that ensued, the defendant moved to suppress the evidence resulting from the search of the vehicle. The trial court granted the defendant’s motion, concluding that though the stop was justified, “there are not enough factors after the stop to continue with the detention of this defendant absent a search warrant.” Slip. op. at 7-8. The court of appeals reversed, finding that reasonable suspicion existed to detain the defendant beyond the time necessary to issue the warning citation for the seatbelt violation. The court’s analysis assumes that reasonable suspicion is required to detain a person stopped for a traffic infraction beyond the time necessary to issue a warning citation, a proposition espoused by the state’s appellate courts in several earlier opinions,see State v. McLendon, 350 N.C. 630 (1999); State v. Parker, 183 N.C. App. 1 (2007); State v. Euceda-Valle, 182 N.C. App. 268, 274 (2007), though somewhat at odds with the court of appeals’ holding in State v. Brimmer, 187 N.C. App. 451, 458 (2007), that reasonable suspicion was not required to extend a traffic stop for the time necessary for an officer to explain to the defendant a dog was going to walk around the car and the one-and-a-half minutes of the actual sniff, since “this very brief additional time did not prolong the detention beyond that reasonably necessary for the traffic stop.”
The court then noted that several of the factors identified as suspicious in Fisher—the defendant’s nervousness, the inconsistency in his explanation that he had been shopping two hours away but had made no purchases, the smell of an air freshener, and the defendant’s driving of a car registered to someone else—were similar to factors considered as among those establishing reasonable suspicion in earlier cases and were sufficient to establish the reasonable suspicion necessary for the officer to detain the defendant beyond the time necessary to issue the warning citation. And while the defendant’s pending drug charges did not support the prolonged detention at its inception, since the officer learned about those while he was awaiting arrival of the canine unit, the court held that this knowledge provided additional support for the reasonable suspicion required to justify the continued detention of the defendant.
As to the more ordinary factors relied upon by the officer, the court assumed, for the sake of argument, that driving in the flow of traffic, and having a handprint on the trunk and a fast food bag in in the car were not proper factors to consider in a reasonable suspicion analysis. So, at least for now, road trips with my family (which nearly always involve driving a dirty, hand-print laden car in a pack of traffic while consuming fast food) don’t give rise to a suspicion that criminal activity is afoot. Plus, we’ll all be wearing our seat belts.
Apr 15, 2012 | Criminal Defense, Uncategorized
Below is another great article posted by Jeff Welty. Lawyers should avoid the lure of press coverage and remember their oaths to the legal profession. If they seek the “limelight,” they may run afoul of Bar ethics rules. As importantly, they may even cause harm to their client’s ability to get a fair trial.
The attorneys at Reeves, Aiken & Hightower, LLP, are trial lawyers who take high profile cases. However, we know the pitfalls of giving statements to the press and avoid the issue by simply responding with ” no comment.” Our best “press coverage” is our clients themselves if we successfully resolve their case. While we cannot guarantee any particular outcome, we can assure our clients that we will work tirelessly on their behalf and give them full information and options in order for them to make the best decisions on how to proceed. Carefully compare our lawyers’ credentials and experience to any other law firm. Then call us at 877-374-5999 for a private consultation and review of your case. For more information, please visit our firm website at www.rjrlaw.com.
Silence Is Golden: the Withdrawal of Zimmerman’s Attorneys
April 12th, 2012
By Jeff Welty
Although the big news today in the George Zimmerman/Trayvon Martin case is that Zimmerman has been charged with second-degree murder, I want to focus on something that happened earlier in the week: attorneys Craig Sonner and Hal Uhrig held a news conference to announce that they had lost contact with Zimmerman and no longer represented him.
As far as I can tell from media reports and from watching most of the full video, Sonner said that “[a]s of the last couple days [Zimmerman] has not returned phone calls, text messages or emails. He’s gone on his own. I’m not sure what he’s doing or who he’s talking to. I cannot go forward speaking to the public about George Zimmerman and this case as representing him because I’ve lost contact with him.” Apparently they had last spoken to Zimmerman on Sunday, and they announced their withdrawal on Tuesday. In the interim, they said, Zimmerman had called the prosecutor’s office asking to speak to her, had called Sean Hannity and spoken to him, and had set up a website allowing supporters to make donations towards his expenses. Uhrig said that Zimmerman was “in our opinion . . . not doing well emotionally,” was “emotionally crippled,” was “probably suffering from post-traumatic stress syndrome” and “may not be in complete control of what’s going on.” Sommers described him as being in “hiding,” and Uhrig suggested that he was not in Florida, though he remained in the United States. They did say that they continued to believe in Zimmerman’s innocence.
A number of commentators have suggested that the lawyers’ statements at the press conference violated the rules of legal ethics. One even said that “[t]he clip [of the press conference] will be useful in legal ethics classes under the heading ‘HOW NEVER TO BEHAVE.’”
I don’t know anything about Florida’s Rules of Professional Conduct – the relevant portion of the Florida Bar’s website is down – and this isn’t a Florida legal blog. But it’s interesting to analyze the lawyers’ conduct under North Carolina’s rules.
First, did their conduct violate Rule 1.6, which provides that “[a] lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by [specific circumstances not applicable here]”? This duty extends to former clients, Rule 1.9(c)(2), so the lawyers can’t argue that their withdrawal ended the duty. And it extends not just to information acquired from the client, but to “all information acquired during the representation, whatever the source.” Rule 1.6 cmt. 3. So the fact that the lawyers presumably learned about Zimmerman’s phone calls to the prosecutor and to Hannity from someone other than Zimmerman is irrelevant. And since the lawyers denied being in recent contact with Zimmerman, he can’t have authorized the disclosure. Therefore, nothing else appearing, their disclosure of that information during the press conference would violate the rule.
The argument that Sonner reportedly has made is that “[n]othing was discussed that wasn’t already in the media.” If that’s true, it may be a defense, either on the grounds that a lawyer cannot “reveal” what is already known, or on the grounds that a lawyer is impliedly authorized to “admit a fact that cannot properly be disputed.” Rule 1.6 cmt. 5. As far as I can tell, though, it isn’t true: the lawyers spent 45 minutes talking about the case and answering a barrage of media questions. They addressed their relationship with Zimmerman (including the fact that Sonner agreed to represent him pro bono up until charges were filed, and that Zimmerman had told Sonner that he would turn himself in if a warrant issued against him), recent actions by Zimmerman, and their opinion of Zimmerman’s mental state. Much of that doesn’t seem to have been previously known to or covered by the media. So the lawyers’ conduct appears to have violated Rule 1.6.
Second, did their conduct violate Rule 1.16, which governs the termination of representation? It appears that the withdrawal itself was proper, since Zimmerman apparently stopped communicating with his lawyers and started doing things, like contacting the prosecutor and the media, that the attorneys had advised him not to do. Zimmerman’s failure to communicate with the lawyers may have been a failure to fulfill an obligation to the lawyers, Rule 1.16(b)(6), and his efforts to contact the prosecutor and the media constituted taking action that the lawyers considered imprudent, Rule 1.16(b)(4), either of which provide grounds for withdrawal. However, upon withdrawal, a lawyer is required to “take all reasonable steps to mitigate the consequences to the client,” Rule 1.16 cmt. 9, and portraying Zimmerman as emotionally unstable and in “hiding” outside Florida arguably harmed Zimmerman’s position. The lawyers might have believed that an unexplained withdrawal would have hurt Zimmerman even more, so I don’t think this possible violation is a slam dunk, but one certainly could conclude that the lawyers’ actions were designed to protect their own reputations rather than to benefit Zimmerman, and if so, their conduct also violated Rule 1.16.
Finally, did their conduct violate Rule 3.6, which concerns publicity and media matters? The rule prohibits extrajudicial statements that a lawyer knows or should know will be disseminated in the media and that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” A comment to the rule states that it is “more likely than not” that such an effect will result from statements about “the character, credibility, [or] reputation . . . of a party.” Rule 3.6 cmt. 5. Whether or not the lawyers’ statements about Zimmerman can properly be said to concern his “character” or “credibility,” it’s reasonable to suggest that they will negatively influence potential jurors’ views of Zimmerman. The comments suggest that Zimmerman is out of control and emotionally unstable, which is exactly the image of Zimmerman that the prosecution can be expected to paint at trial.
So, what should the lawyers have said? Something like this: “We are no longer representing George Zimmerman. We’re sorry, but we can’t answer any more questions about this matter.” And then, silence.
