Mar 17, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys. Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases. Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics. During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
David H. Barton, Employee, Claimant,
v.
William Ian Higgs d/b/a Iyanel Enterprises and Total Home Exteriors, Inc., Employers, and Key Risk Insurance and SC Uninsured Employers Fund, Carrier, Defendants,
Of Whom Total Home Exteriors, Inc., Employers, and Key Risk Insurance are the Respondents,
and SC Uninsured Employers Fund is the Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Greenville County
D. Garrison Hill, Circuit Court Judge
Opinion No. 26594
Heard November 18, 2008 – Filed February 9, 2009
REVERSED
Amy V. Cofield, of Lexington, and Latonya Dilligard Edwards, of Columbia, for Petitioner.
David A. Wilson and Michael A. Farry, both of Horton, Drawdy, Ward & Jenkins, of Greenville, for Respondents.
CHIEF JUSTICE TOAL: In this workers’ compensation case, the court of appeals held that Petitioner South Carolina Uninsured Employers’ Fund (the Fund) was responsible for paying benefits to an injured employee. Barton v. Higgs, 372 S.C. 109, 641 S.E.2d 39 (Ct. App. 2007). We granted a writ of certiorari to review that decision and now reverse.
Factual/Procedural Background
David Barton (Claimant) was employed by William Higgs d/b/a Iyanel Enterprises (Iyanel), which served as the roofing subcontractor for Respondent Total Home Exteriors (Total Home). On November 22, 2003, Claimant sustained a compensable injury when he fell from a roof. At the time of the accident, Iyanel did not have workers’ compensation insurance, and thus, as the higher-tier contractor, Total Home remained liable to pay Claimant benefits. Total Home sought to transfer liability to the Fund pursuant to S.C. Code Ann. § 42-1-415 (Supp. 2007).
At the hearing before the single commissioner, the president of Total Home testified that he received a Certificate of Insurance from Higgs showing that Iyanel had a workers compensation policy in effect from September 13, 2003 through September 13, 2004. The Certificate listed Total Home as the certificate holder and Jackie Perry Insurance Agency (Insurance Company) as the producer, but the Certificate was not signed in the blank listed for “Authorized Representative.” Higgs testified that he paid for the workers’ compensation insurance and that an employee of the Insurance Company issued the Certificate of Insurance. Nonetheless, coverage was never bound, resulting in Iyanel not being insured on the date of the accident.
The single commissioner found that Iyanel had attempted in good faith to obtain workers’ compensation insurance and presented the Certificate of Insurance to Total Home, upon which Total Home relied in good faith. Accordingly, the single commissioner ruled that liability should be transferred to the Fund. The full commission, the circuit court, and the court of appeals affirmed the single commissioner’s decision to transfer liability.
We granted a writ of certiorari and the Fund presents the following issue for review:
Did the court of appeals err in affirming the decision to transfer liability to the Fund pursuant to § 42-1-415?
Standard of Review
When reviewing an appeal from the workers’ compensation commission, the appellate court may not weigh the evidence or substitute its judgment for that of the full commission as to the weight of evidence on questions of fact. Therrell v. Jerry’s Inc., 370 S.C. 22, 26, 633 S.E.2d 893, 894-95 (2006). However, the appellate court may reverse the full commission’s decision if it is based on an error of law. Id. The issue of interpretation of a statute is a question of law for the Court. Catawba Indian Tribe of South Carolina v. State, 372 S.C. 519, 524, 642 S.E.2d 751, 753 (2007).
Law/Analysis
The Fund argues that the court of appeals erred in affirming the decision to transfer liability because the Certificate of Insurance was unsigned. We agree.
Under the Workers’ Compensation Act, a general contractor is considered the “statutory employer” of a subcontractor’s employees and is liable to pay workers’ compensation benefits to the subcontractor’s employee injured on the job. See S.C. Code Ann. § 42-1-410 (2006). Thus, “[t]he employee of the sub-contractor may look to the prime contractor for workers’ compensation benefits without regard to whether the sub-contractor is covered by a workers’ compensation insurance policy.” Freeman Mechanical, Inc. v. J.W. Bateson Co., Inc., 316 S.C. 95, 97, 447 S.E.2d 197, 198 (1994). The purpose of this statute is to protect the employee and assure coverage in the event of an injury.
In 1996, however, the Legislature created a narrow exception to this rule which provides that the general contractor may transfer the responsibility to pay benefits:
[U]pon the submission of documentation to the commission that a contractor or subcontractor has represented himself to a higher tier subcontractor, contractor, or project owner as having workers’ compensation insurance at the time the contractor or subcontractor was engaged to perform work, the higher tier subcontractor, contractor, or project owner must be relieved of any and all liability under this title except as specifically provided in this section.
Section 42-1-415(A). However, to transfer liability to the Fund, the higher-tier contractor “must collect documentation of insurance . . . on a standard form acceptable to the commission.” The workers’ compensation commission has promulgated a regulation providing that a Certificate of Insurance “shall serve as documentation of insurance” and that the Certificate “must be dated, signed, and issued by an authorized representative of the insurance carrier for the insured.” S.C. Code Reg. 67-415 (Supp. 2007). In other words, liability may be transferred from the higher tier contractor to the Fund only after the higher tier contractor has properly documented the subcontractor’s claim that it retains workers’ compensation insurance. This statutory scheme provides an ultimate safety net for general contractors against a subcontractor’s act of fraud.
In the instant case, by failing to collect a signed Certificate of Insurance form, Total Home failed to meet the requirement as set forth in the regulation. Even assuming Iyanel was not acting fraudulently in submitting the unsigned form, Total Home could have easily investigated the absence of the signature and determined that Iyanel did not have a valid policy. In our view, public funds should not be expended where Respondent could have discovered the mistake by acting in accordance with the regulations.
We recognize that the full commission found that the form was a valid documentation and, as the agency charged with administering the Workers’ Compensation Act, this decision should be given great deference. See Dunton v. S.C. Bd. of Exam’rs in Optometry, 291 S.C. 221, 223, 353 S.E.2d 132, 133 (1987) (recognizing that the construction of a statute by the agency charged with its administration will be accorded the most respectful consideration). However, we hold that the full commission’s decision should not be upheld because the interpretation is clearly contrary to its own regulation. See Brown v. South Carolina Dep’t of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002) (holding that while the Court typically defers to an agency’s construction of its own regulation, where the plain language of the regulation is contrary to the agency’s interpretation, the Court will reject the interpretation).
Conclusion
For the foregoing reasons, we reverse the decision of the court of appeals and hold that Total Home may not transfer liability to the Fund.
KITTREDGE, J., and Acting Justices James E. Moore and Donna S. Strom, concur. WALLER, J., dissenting in a separate opinion.
JUSTICE WALLER: I respectfully dissent. In my opinion, the Court of Appeals correctly held that respondent Total Home “met all of the statutory requirements to transfer liability.” Barton v. Higgs, 372 S.C. 109, 117, 641 S.E.2d 39, 43 (Ct. App. 2007). Accordingly, I would affirm in result.
S.C. Code Ann. § 42-1-415 provides that when a subcontractor “has represented himself” to a general contractor as having workers’ compensation insurance at the time the subcontractor “was engaged to perform work,” the general contractor “must be relieved of any and all liability.” The statute further states that the general contractor “must collect documentation of insurance … on a standard form acceptable to the commission.” S.C. Code Ann. § 42-1-415 (Supp. 2008).
A review of some additional facts is in order. The president for Total Home testified that he would not have given Iyanel Enterprises a contract without obtaining a certificate of workers’ compensation insurance. Likewise, the testimony of William Higgs confirmed that before Iyanel could work as a subcontractor on jobs for Total Home, Total Home required him to get a certificate of insurance. According to Higgs, he went to the Jackie Perry Insurance Agency, paid his money for the policy, and obtained the certificate. Despite the issuance of the certificate by the Perry Agency, the coverage was never bound, resulting in Iyanel not being insured on the date of Claimant’s accident.
The record reflects that the Perry Agency had employed someone who issued certificates of insurance without the coverage being bound. Therefore, the only fraud that seems to have occurred in this case is by an employee of the insurance agency, not by the subcontractor. Although the majority concedes that section 42-1-415 is designed to protect a general contractor from fraud, the end result of the majority’s reasoning is that Total Home becomes a victim of fraud simply because it was not committed by the subcontractor.
More importantly, however, the majority seems to gloss over the fact that the express requirements of the statute clearly were met in the instant case. Instead, the majority opinion focuses its attention on the regulation’s requirements.[1] This runs contrary to settled precedent.
Although regulations authorized by the Legislature generally have the force of law, a regulation may not alter or add to a statute. Goodman v. City of Columbia, 318 S.C. 488, 490, 458 S.E.2d 531, 532 (1995); Banks v. Batesburg Hauling Co., 24 S.E.2d 496, 499 (1943); see also Society of Prof’l Journalists v. Sexton, 283 S.C. 563, 567, 324 S.E.2d 313, 315 (1984) (“Although a regulation has the force of law, it must fall when it alters or adds to a statute.”).
The Goodman case is instructive. Goodman involved S.C. Code § 42-17-50, the workers’ compensation statute which allows “an application for review” of the single commissioner’s order by the Full Commission. The Commission promulgated Regulation 67-701 which requires that a specific form be filed (Form 30). The petitioner in Goodman did not file a Form 30, but instead wrote the Commission a letter “expressing his desire to appeal.” Goodman, 318 S.C. at 490, 458 S.E.2d at 532. On direct appeal, the Court of Appeals found the petitioner’s letter did not substantially comply with section 42-17-50.
On certiorari, this Court reversed. The Goodman court stated that Regulation 67-701 “adds the requirement of applying for review with a particular form, thereby adding to the statute. Insofar as Reg. 67-701 increases the threshold requirements of section 42-17-50, the specifications set forth in the statute must prevail.” Id. at 490-491, 458 S.E.2d at 532 (emphasis added). The Court in Goodman therefore held that that petitioner’s letter constituted substantial compliance with section 42-17-50. Id. at 491, 458 S.E.2d at 532.
The instant case is analogous to Goodman in that there was substantial compliance with the applicable statute. Total Home requested and received documentation of Iyanel’s insurance on a form authorized by the Commission. All the substantive parts of the form were filled in – it listed Higgs as being insured with a workers’ compensation policy (including a policy number and coverage dates), and also listed Total Home as the certificate holder.
The only thing missing was a signature. In my opinion, requiring such strict compliance with the regulation would only serve to frustrate legislative intent.[2] The obvious purpose of section 42-1-415 is to encourage a higher tier contractor to require proof that its subcontractors carry workers’ compensation insurance. Therefore, if the higher tier contractor substantially complies with the document collection requirement, it should not be ultimately liable when the subcontractor turns out to not actually be insured. See§42-1-415; Goodman, supra.
In addition, nowhere in the statute is there a requirement that the higher tier contractor verify the authenticity of the documentation of insurance. Nevertheless, the majority suggests that Total Home “could have easily investigated the absence of the signature and determined that Iyanel did not have a valid policy.” First, I disagree that section 42-1-415 imposes this burden on the general contractor. Moreover, I also disagree that under the facts of this case, any such investigation would have uncovered the fraud apparently committed by a rogue employee of the insurance agency.[3]
Put simply, the majority’s focus on the absence of a signature literally “elevat[es] form over substance.” South Carolina Second Injury Fund v. American Yard Prods., 330 S.C. 20, 24, 496 S.E.2d 862, 864 (1998). At the very least, the majority has elevated regulation over statute, and in my opinion, this runs contrary to well-settled law. See, e.g., Goodman, supra; Society of Prof’l Journalists v. Sexton, supra.
In sum, because I believe the majority opinion overlooks precedent which stands for the principle that a regulation should not trump the language and intent of the statute, I respectfully dissent.
[1] The Fund’s sole argument, with which the majority agrees, is that because the form was unsigned, it did not meet the requirements of the applicable regulation. Regulation 67-415 provides the following information about the term “documentation of insurance” used in the statute:
For purposes of Section 42-1-415, the ACORD Form 25-S, Certificate of Insurance, as published by the ACORD Corporation and as issued by the insurance carrier for the insured, shall serve as documentation of insurance. The Certificate of Insurance must be dated, signed, and issued by an authorized representative of the insurance carrier for the insured.
S.C. Code Reg. 67-415(A) (Supp. 2008). The ACORD Form 25-S is a standard insurance industry form.
[2] See, e.g., South Carolina Second Injury Fund v. American Yard Prods., 330 S.C. 20, 22, 496 S.E.2d 862, 863 (1998) (this Court’s primary function when interpreting a statute is to ascertain and give effect to the intent of the legislature).
[3] For example, if Total Home had called the Perry Agency to verify the unsigned documentation, it is quite possible that the employee who was not binding the coverage could have simply lied to cover up his/her own fraudulent activity.
Mar 17, 2012 | Car Accidents, Personal Injury, Uncategorized
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today 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
Noel and Elizabeth Dillon, Appellants/Respondents,
v.
Neil Frazer, Respondent/Appellant.
Appeal From Greenville County
G. Edward Welmaker, Circuit Court Judge
Opinion No. 26629
Heard January 8, 2009 – Re-filed June 1, 2009
AFFIRMED IN PART; REVERSED IN PART
Cynthia Barrier Patterson, of Columbia, and Donald R. Moorhead, of Greenville, for Appellant/Respondents.
C. Stuart Mauney and T. David Rheney, both of Gallivan, White & Boyd, of Greenville, for Respondent/Appellant.
JUSTICE PLEICONES: This action arose out of an automobile accident in which Noel Dillon was injured due to Neil Frazer’s admitted negligence. The men were co-employees of a company located in Ontario, Canada and both were residents of Ontario. After a jury verdict for $6,000, Dillon[1] appealed the trial court’s refusal to grant a new trial absolute on damages. Frazer appealed four points, all relating to whether or not Dillon’s action should have been barred by the exclusivity statute found in Ontario workers’ compensation law. We certified the case pursuant to Rule 204(b), SCACR. We now affirm the trial court’s ruling refusing to apply Ontario law, reverse the trial court’s refusal of a new trial absolute as to damages, and remand.
FACTS
In 2002, Dillon and Frazer were employed by Massiv Die-Form (Massiv), a Canadian corporation with no facilities or place of business in South Carolina. The men were in Greenville, South Carolina working for Massiv. During their visit, Dillon and Frazer stayed at a hotel in Greenville and drove a rental car, all of which was paid for by Massiv. Both Dillon and Frazer were paid 30 minutes per day for the travel time between their hotel and the worksite. Frazer was the only employee authorized to drive the rental car.
Dillon sustained injuries in a car accident when Frazer ran a stop sign in a car in which Dillon was a passenger. Dillon was transported by ambulance to a hospital, where it was determined that he had eight fractured ribs on his right side and two on his left, a fractured sternum, a fractured clavicle, a fractured left thumb, and a punctured lung. He was admitted to the hospital where he remained for two days. Once back in Canada, Dillon received physical therapy. The remainder of his care was covered by the Canadian Health System and those costs were not sought in this action.
Due to his punctured lung, Dillon was not medically able to fly back to Canada until the Friday following his release from the hospital. He did not return to work for at least 10 weeks. Initially, Dillon returned to full-time work, but performed fewer overtime hours than prior to his injuries. Dillon testified that, prior to the accident, he worked roughly between 900 and 1,100 hours of overtime and double time each year. He stated that, after the accident, the number of hours he was able to work diminished.
Frazer admitted liability, so the only questions remaining for the jury were the amount of damages due Dillon and whether Dillon’s wife was entitled to damages for loss of consortium. All told, Dillon’s hospital care in Greenville amounted to $10,518. Dillon also claimed $320 for EMS transportation to the hospital and $1,188 in physical therapy bills. In addition to compensation for medical care, Dillon also contended that he was entitled to $509,168 in lost past and future earnings, including $101,350 in lost wages from the date of injury to the estimated trial date and $407,818 for the post-trial period, based on calculations by Dillon’s expert.
During deliberations, the jury sent questions to the judge asking whether any compensation had been paid to Dillon by a third party. The jury awarded Dillon $6,000 and found for Frazer on the consortium claim by Dillon’s wife. Dillon moved for a new trialnisi additur or in the alternative, for a new trial absolute as to damages only. The trial court granted Dillon’s motion for additur and increased the damages by $15,000, bringing the total amount of damages to $21,000. He denied all other motions.
I.
New trial absolute
Dillon argues on appeal that the trial court erred by not granting a new trial absolute as to damages. We agree.
The trial court has sound discretion when addressing questions of excessiveness or inadequacy of verdicts, and its decision will not be disturbed absent an abuse of discretion. Toole v. Toole, 260 S.C. 235, 239, 195 S.E.2d 389, 390 (1973). “The trial court must grant a new trial absolute if the amount of the verdict is grossly inadequate or excessive so as to shock the conscience of the court and clearly indicates the figure reached was the result of passion, caprice, prejudice, partiality, corruption or some other improper motive. The failure of the trial judge to grant a new trial absolute in this situation amounts to an abuse of discretion and on appeal this Court will grant a new trial absolute.” Vinson v. Hartley, 324 S.C. 389, 404-05, 477 S.E.2d 715, 723 (Ct. App. 1996). When considering a motion for a new trial based on the inadequacy or excessiveness of the jury’s verdict, the trial court must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice, prejudice, or some other improper motive. Elam v. S.C. Dept. of Transp., 361 S.C. 9, 602 S.E.2d 772 (2004).
DISCUSSION
In Kalchthaler v. Workman, 316 S.C. 499, 450 S.E.2d 621 (Ct. App. 1994), the Court of Appeals held that a party, having requested and been granted an additur, cannot complain of the amount. However, this does not preclude a party that is granted additur from appealing the trial judge’s refusal to grant a new trial absolute. Sullivan v. Davis, 317 S.C. 462, 467, 454 S.E.2d 907, 911 (Ct. App. 1995).
Dillon presented evidence of over $500,000 in damages as a result of the accident. While Frazer contested portions of Dillon’s claim, unchallenged testimony at trial established the following damages: $10,518 in medical bills, $320.00 for EMS transportation to the hospital, $1,188 in physical therapy bills, and $18,000 in lost wages and overtime pay. This totals $30,026 in undisputed damages.
We find the jury verdict of $6,000 irreconcilably inconsistent with the unchallenged evidence presented at trial. The disparity between the award and the admitted damages goes beyond a merely conservative award and suggests that the jurors were motivated by improper considerations.
This suggestion is borne out by the following three questions asked by the jury during deliberations: (1) if it could see the deposition of the human resources director for Massiv; (2) whether Dillon received any compensation while he was not working during the ten weeks after the accident; and (3) whether medical bills for the accident were paid for, and if so, by whom. The trial judge responded that those matters “are not for your concern.” The jury’s verdict demonstrates that the jury failed to follow the court’s instruction.
In Sullivan, supra, the jury sent questions to the trial judge inquiring as to what medical expenses had been covered by insurance.Id. at 466, 454 S.E.2d at 910. The jury awarded $20,000 despite the plaintiff’s medical bills totaling roughly $130,000, leading the Court of Appeals to conclude that “[t]he jurors obviously did not follow the court’s instructions to disregard insurance. . . . Therefore we must set it aside and grant a new trial absolute.” Id. at 466-67, 454 S.E.2d at 910-11. In the instant case, the record demonstrates that the jury ignored the trial court’s instruction to disregard matters relating to third party payment of medical bills.
The jury’s award of $6,000 in the face of over $30,000 in undisputed damages is grossly inadequate and demonstrates that the verdict was actuated by improper motivation. No plausible reason for the amount of the verdict has been advanced. For these reasons, the trial court erred in not granting Dillon’s motion for a new trial absolute.
II.
Application of Ontario law
Frazer argues in relation to the Ontario worker’s compensation exclusivity law, that the trial court erred: (1) in refusing to apply the exclusivity law; (2) in refusing to admit evidence on the exclusivity law; (3) in refusing to charge the jury on the exclusivity law; and (4) in denying Frazer’s motion for judgment notwithstanding the verdict based on application of the exclusivity law. Because each point hinges on the applicability of Ontario worker’s compensation law and the exclusivity law, we address these points as one and affirm on the ground that Frazer failed to plead Ontario law and so, is barred under Rules 12(b) and 8(c). See Rule 12(b), SCRCP (every defense must be asserted in the responsive pleading); Rule 8(c), SCRCP (in a responsive pleading a party “shall set forth affirmatively . . . any other matter constituting an avoidance or affirmative defense.”).[2]
Even if Frazer’s argument was preserved, we find that lex loci delicto properly governs this case. See Lister v. Nationsbank of Delaware, 329 S.C. 133,, 143, 494 S.E.2d 449, 454 (Ct. App. 1998) (In choice of law in South Carolina, the general rule is that the substantive law governing a tort action is the law of the state where the injury occurred.); Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303, 305 (1964), overruled on other grounds (In tort cases, the law of the place where the injury was occasioned or inflicted governs in respect of the right of action.).
CONCLUSION
For the reasons stated above, we affirm the trial court’s refusal to apply Ontario law and reverse the denial of Dillon’s motion for a new trial absolute. Since Frazer admitted liability, we remand for a new trial on damages only.
TOAL, C.J., WALLER, BEATTY and KITTREDGE, JJ., concur.
[1] Though Elizabeth Dillon filed Notice of Appeal, she did not pursue her appeal.
[2] Frazer asserted South Carolina worker’s compensation law in his pleadings, but did not include Ontario worker’s compensation law. The trial court denied his motion to amend his pleadings to include Ontario law.
Mar 15, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. Or visit our website at www.rjrlaw.com.
Semi Truck Overturns Spills Lumber on I-85 in Spartanburg South Carolina
March 6th, 2012 | Author: Truck360 Staff
SPARTANBURG, S.C. – A semi truck carrying lumber overturned spilling lumber on an exit ramp of Interstate 85 on Friday morning, February 24, in Spartanburg, South Carolina.
A lumber truck overturned on the I-85 exit ramp in Spartanburg, SC on February 24, 2012 spilling lumber all over the ramp and the roadways of both interstates and causing a major traffic jam.
Spartanburg is located in Spartanburg County in the northern part of the state about 93 miles northwest of Columbia and 29 miles northeast of Greenville.
The 18 wheeler accident occurred just before 7:15 a.m. According to the South Carolina Highway Patrol, the truck was traveling on the southbound exit ramp of I-85 onto I-26 eastbound when it overturned on the exit’s curve.
Map showing location where a lumber truck overturned on the exit ramp from the southbound I-85 to the eastbound 26 in Spartanburg, SC on February 24, 2012.
The driver of the tractor trailer was identified as Ronnie Lavelle Thomas, 29, of Stillmore, Georgia. Authorities charged Thomas with driving too fast for conditions.
No injuries were reported at the time of the accident.
The incident remains under investigation at this time.
Mar 15, 2012 | Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This SC Supreme Court case illustrates how every aspect of a serious injury case is aggressively defended. Here, defense lawyers wrongfully struck minority jurors during jury selection. The Court correctly reversed the case and remanded it for a new trial. But note, the lawyers had to fight all the way to the state Supreme Court and will have to try this case all over again. Better make sure your serious accident attorney is willing to go the distance and fight for you and your family. There is too much at stake to risk an inexperienced or timid lawyer.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Manuel Robinson, as duly appointed Personal Representative of the Estate of Brenda Doris Robinson, deceased, Petitioner,
v.
Bon Secours St. Francis Health System, Inc. and St. Francis Hospital, Inc., d/b/a St. Francis Women’s and Family Hospital, Adrian Paul Corlette, Sr., MD, Elaine Mary Haule, MD, Donald Webster Wing, MD and Tara L. Sabatinos, PA, Respondents.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Greenville County
D. Garrison Hill, Circuit Court Judge
Opinion No. 26628
Heard January 22, 2009 – Filed April 13, 2009
REVERSED
Matthew Christian and W. Harold Christian, Jr., both of Christian Moorhead & Davis, of Greenville, for Petitioner.
Ashby W. Davis, of Davis & Snyder, of Greenville, and Gregory A. Morton, of Donnan & Morton, of Greenville, for Respondents.
PER CURIAM: We granted a writ of certiorari to review the Court of Appeals’ opinion in Robinson v. Bon Secours St. Francis Health Sys. Inc., Op. No. 2006-UP-333 (S.C. Ct. App. filed September 20, 2006). The sole issue on certiorari is whether the Court of Appeals properly upheld the trial court’s denial of Robinson’s Batson[1] motion. We reverse.
FACTS
Robinson is the personal representative of the estate of his deceased wife, Brenda, who passed away while under the care of Respondents on September 19, 2000.[2] Robinson brought wrongful death and survival actions against the hospital and treating physicians. The trial commenced on March 21, 2005.
During jury selection, counsel for the defense struck four potential jurors: three black females and one white male. The jury was ultimately composed of five white males, seven white females, one black female alternate, and one white female alternate. Robinson made a Batson motion to set aside the state’s strikes of the three black potential jurors.
In response, defense counsel explained the rationale for his strike of Juror No. 12 stating, she was “a 53-year-old black female would more identify with the 52-year-old decedent in this case than she would any other party.” Defense counsel also gave his reasons for striking the other black female jurors being that one had limited education and limited life experience due to her youth, and the other was too young and unemployed.
The trial court held the explanations given were race neutral such that Robinson had not met his burden of demonstrating purposeful discrimination; the Court of Appeals affirmed. Robinson v. Bon Secours St. Francis Health Sys. Inc., Op. No. 2006-UP-333 (S.C. Ct. App. filed September 20, 2006).
ISSUE
Did the Court of Appeals err in affirming the denial of Petitioner’s Batson motion?
DISCUSSION
The Equal Protection Clause of the Fourteenth Amendment prohibits the striking of a venire person on the basis of race or gender. McCrea v. Gheraibeh, 380 S.C. 183, 669 S.E.2d 333 (2008). A Batson hearing must be held when members of a cognizable racial group or gender are struck and the opposing party requests a hearing. State v. Adams, 322 S.C. 114, 124, 470 S.E.2d 366, 372 (1996). At the hearing, the proponent of the strike must offer a facially race-neutral explanation for the strike. Once the proponent states a race-neutral reason, the burden is on the party challenging the strike to show the explanation is mere pretext, either by showing similarly situated members of another race were seated on the jury or that the reason given for the strike is so fundamentally implausible as to constitute mere pretext despite a lack of disparate treatment. State v. Evins, 373 S.C. 404, 415, 645 S.E.2d 904, 909 (2007), cert. denied, — U.S. —-, 128 S.Ct. 662, 169 L.Ed.2d 521 (2007); McCrea v. Gheraibeh.
An explanation for a jury strike will be deemed race-neutral unless a discriminatory intent is inherent. Purkett v. Elem, 514 U.S. 765, 768, (1995); Adams, 322 S.C. at 123, 470 S.E.2d 471 (emphasis supplied). Where the stated reason is inherently discriminatory, the inquiry ends and a pretext inquiry is obviated. McCrea, 380 S.C. at ___, 669 S.E.2d at 335. On two occasions, this Court has found the stated reason for a juror strike facially discriminatory. In Payton v. Kearse, 329 S.C. 51, 56, 495 S.E.2d 205, 208 (1998), we held a peremptory challenge based upon a characterization of the juror as a “redneck” was facially discriminatory, and therefore violative of Batson. Most recently, in McCrea, we found a solicitor’s “uneasiness” over a potential juror’s dreadlocks was insufficient to satisfy the race-neutral requirement.
Here, defense counsel stated the reason he struck the juror was that she was a “53-year-old black female” who “would more identify with the 52-year-old decedent in this case than she would any other party.” The reason is, on its face, inherently discriminatory.[3] Accordingly, the trial court erred in proceeding to the next step of the inquiry, i.e., whether the stated reason was pretextual. AccordMcCrea (trial court must first elicit race-neutral reason for strike before proceeding with pretext inquiry). We hold the trial court erred in denying Robinson’s Batson motion. The case is reversed and remanded for a new trial.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, PLEICONES, BEATTY, JJ., and Acting Justice James E. Moore, concur.
[1] Batson v. Kentucky, 476 U.S. 79 (1986).
[2] Brenda Robinson was a fifty-two year old epileptic who had a shunt implanted in August 2000 to drain fluid from her brain. She went to the St. Francis Hospital Emergency Room on September 11, 2000 after a seizure where she was evaluated and discharged. As a result of this evaluation, Robinson was subsequently advised she had a urinary tract infection and was proscribed antibiotics. She went home and began having seizures several days later. She returned to the hospital on September 15, 2000, and became comatose. She died four days later.
[3] We are unpersuaded by the claim that the reason for the strike was a similarity in age, as opposed to race. At best, the age factor provides an alternate motivation for the strike. This Court, however, has specifically rejected a dual motivation analysis in the context of a Batson claim. Payton v. Kearse, 329 S.C. 51, 59, 495 S.E.2d 205, 210 (1998) (notwithstanding validity of remaining explanations, one racially discriminatory reason vitiates strike).
Mar 15, 2012 | Drug Crimes and Controlled Substances Defense, Uncategorized
This SC Supreme Court case discusses when and under what circumstances police may search the interior of a car incident to a lawful stop. As the decision points out, suppressing evidence found during such a search can prove critical to an acquittal or prison term. Here, the search was deemed illegal, but the lawyer’s failure to file a timely appeal rendered the violation of his Fourth Amendment rights moot. The client received a sentence of 25 years. In criminal defense cases, it is necessary to challenge every aspect of a stop, search, and arrest at trial. Search issues can be very complicated and case specific. Better make sure your criminal defense attorney understands the rules and is willing to fight for your rights in court. There is too much at stake to risk an inexperienced or timid lawyer.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Osiel Gomez Narciso, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Beaufort County
J. Cordell Maddox, Jr., Circuit Court Judge
Opinion No. 27104
Heard January 25, 2012 – Filed March 14, 2012
AFFIRMED IN PART, REMANDED IN PART
Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Matthew J. Friedman, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Oseil Gomez Narciso (Petitioner) appeals his conviction for trafficking cocaine, and asserts that the circuit court erred in denying his motion to suppress drug evidence seized by police during a routine traffic stop. Following his conviction, Petitioner signed a Consent Order Granting Belated Direct Appeal (Consent Order) and waived his right to raise any other post-conviction relief (PCR) allegations. Petitioner requests this Court remand his case to determine whether that waiver was entered into knowingly and voluntarily. We affirm the circuit court’s order denying Petitioner’s motion to suppress, and remand the case for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
FACTUAL/PROCEDURAL BACKGROUND
On August 3, 2005, the Beaufort County Sherriff’s Office (BCSO) conducted a drug investigation focusing on Petitioner. Police believed that Petitioner may have been involved in the sale and distribution of cocaine in the Hilton Head/Bluffton area of Beaufort County. A sheriff’s deputy received information that Petitioner might be operating a vehicle in the area with expired license plates and possibly no driver’s license. The deputy conducted a traffic stop of Petitioner after confirming that his license plates were indeed expired and suspended. A “back-up officer,” arrived on scene shortly thereafter. Police placed Petitioner under arrest for operating the vehicle without a driver’s license and removed him from the vehicle. Police then conducted a “K-9” search of the vehicle. The narcotics-detection dog used in the search alerted on drug residue on the vehicle, and police conducted a search of the cargo compartment. Police seized powdered cocaine from the vehicle, and charged Petitioner with knowingly and intentionally possessing a quantity of powder cocaine with a weight in excess of one hundred grams.
The Beaufort County Grand Jury indicted Petitioner for trafficking cocaine in excess of one hundred grams, and Petitioner proceeded to trial. The jury found Petitioner guilty as indicted. The circuit court sentenced Petitioner to twenty-five years imprisonment. Petitioner did not appeal his conviction or sentence, but subsequently filed a PCR application.
Petitioner claimed in his PCR application that his trial attorney failed to file a timely notice of appeal even after assuring Petitioner that he “had multiple grounds for appeal,” and that he “would almost certainly be successful in overturning the convictions at the appellate level.” According to the Consent Order, Petitioner’s trial counsel admitted that he failed to file an appeal even though Petitioner requested one be filed. Thus, the State consented to granting Petitioner a belated direct appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974)[1]. In the same Consent Order, Petitioner “waived his right to raise any other PCR allegations.”
In a petition for writ of certiorari to this Court, Petitioner asserted that the PCR judge properly found that he did not waive his right to a direct appeal, and requested this Court remand his case to determine whether his waiver of any other PCR allegations was entered into knowingly or voluntarily. This Court granted the petition for writ of certiorari as to whether Petitioner knowingly and voluntarily waived his right to direct appeal, dispensed with further briefing on that question, and elected to proceed with further review of the direct appeal issue—the validity of the stop and search. Additionally, this Court granted review of whether Petitioner’s waiver of any other PCR allegations was entered into knowingly and voluntarily.
ISSUES PRESENTED
| Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop. |
| Whether Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily. |
STANDARD OF REVIEW
On appeal from a motion to suppress on Fourth Amendment grounds, this Court applies a deferential standard of review and will reverse only if there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010) (citation omitted). However, this Court is not barred from conducting its own review of the record to determine whether the trial judge’s decision is supported by the evidence. Id.
On certiorari in a PCR action, the Court applies the “any evidence” standard. Accordingly, this Court will affirm if any evidence of probative value in the record exists to support the findings of the PCR court. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011) (citation omitted).
LAW/ANALYSIS
I. Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop.
Petitioner argues that the facts presented by police to the circuit court did not rise to the level of “reasonable suspicion,” and that he was “unreasonably seized.” Thus, according to Petitioner, his Fourth Amendment rights were violated, and this Court should reverse his conviction. We agree with Petitioner that the search incident to arrest in this case violated his Fourth Amendment rights. However, for reasons explained below, the exclusion remedy is unavailable to Petitioner, and thus his conviction will stand.
In New York v. Belton, 453 U.S. 454 (1981), the United States Supreme Court initially explained the constitutionally permissible scope of a search incident to arrest. In that case, police ordered the driver of a speeding vehicle to pull over to the side of the road and stop. Id. at 455. The policeman asked to see the driver’s license and automobile registration and simultaneously smelled burnt marijuana. Id. at 455–56. The officer directed the occupants out of the car and conducted a pat down of the four men. Id. at 456. The officer then conducted a search of the passenger compartment of the car, including a black leather jacket belonging to Belton. Id. He unzipped one of the pockets of the jacket and discovered cocaine. Id.
Belton argued that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. Belton, 453 U.S. at 456–57. The Court stressed the need to provide a “workable rule,” and held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, “he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 459–60. The Court reasoned that the police should also be allowed to examine the contents of any containers found within the passenger compartment, “for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id. at 460–61 (citations omitted).
In the instant case, the police stopped Petitioner as part of an ongoing drug investigation, but primarily because the license tags on his automobile were expired. The police officer asked Petitioner for his driver’s license, and verified that Petitioner did not possess a valid driver’s license. Thus, he arrested Petitioner, and police searched Petitioner’s vehicle incident to that arrest.
Petitioner challenged the search at trial. The circuit court judge initially expressed concern at the vehicle search following a mere traffic stop, but denied Petitioner’s motion to suppress:
It concerns me that the law enforcement in this case would risk this investigation by making a search under these circumstances without obtaining a search warrant. It would have been a very easy thing to do. There was just no reason that it needed to be done the way that they did it . . . . But after looking especially at the case of New York v. Belton, 433 U.S. 454, is [sic] the only thing that tips the scales in the State’s favor in this case; and that is that a search may be made incident to an arrest of the passenger compartment of the vehicle, including containers located in the passenger compartment where the search incident to arrest even if the detainee has been arrested and removed from the vehicle.
Petitioner’s trial took place in 2007, two years prior to the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the United States Supreme Court limited the expansive searches allowed by Belton. The Court noted that Beltonhad been widely understood to “allow a vehicle search incident to arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Id. at 1718. The Court found this reading incompatible with its previous decisions regarding the basic scope of searches incident to lawful custodial arrests. Id. at 1719 (citation omitted). Therefore the Court held that police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. Id. (citing Thornton v. United States, 541 U.S. 615, 624–25 (2004)).
Newly announced rules of constitutional criminal procedure must apply retroactively to all cases, “pending on direct review or not yet final, with no exception for cases in which a new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Petitioner’s conviction has not yet become final on direct review. Thus, Gant applies retroactively to this case, and Petitioner may invoke its rule of substantive Fourth Amendment law as a basis for seeking relief. However, our analysis of the instant case is further controlled by the United States Supreme Court’s decision in Davis v. United States, 131 S.Ct. 2419 (2011).
In Davis, the defendant was charged and convicted of unlawful possession of a firearm based on discovery of a revolver in a stopped automobile in which he was the only passenger. Id. at 2425–26. During the pendency of Davis’s appeal, the United States Supreme Court decided Gant. The Eleventh Circuit applied Gant‘s new rule and held that the vehicle search incident to arrest violated Davis’s Fourth Amendment rights. Id. at 2426 (citation omitted). However, the court concluded that penalizing the arresting officer for following binding appellate court precedent would do nothing to deter Fourth Amendment violations. Id. (citingUnited States v. Davis, 598 F.3d 1259, 1265–66 (2010)).
The United States Supreme Court agreed, and reasoned that the acknowledged absence of police culpability doomed Davis’s claim. Id. at 2428. “Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningful deterrence’ and culpable enough to be ‘worth the price paid by the justice system.'” Id. (citing Herring v. United States, 555 U.S. 135, 144 (2009)). Excluding evidence in cases where the “constable” has scrupulously adhered to governing law deters no police conduct and imposes substantial social costs. Davis, 131 S.Ct. at 2434. Thus, the Court held that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. Id.
In the instant case, the search incident to arrest violated Petitioner’s Fourth Amendment rights pursuant to Gant. However, excluding the evidence against Petitioner would not deter police misconduct because the police in this instance conducted a search incident to arrest pursuant to binding appellate precedent. See id. at 2426–28. Moreover, exclusion of the evidence in this case would result in severe social costs, including the articulation of an inexplicable and undecipherable message to law enforcement regarding how to conduct a legal search. The protection of the Fourth Amendment can only be realized if the police are acting under a set of rules which make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement. Wayne R. LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142 (1974).
This Court will only reverse the circuit court’s decision on a motion to suppress when there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010). The circuit court in this case applied the established law to a search executed pursuant to binding precedent. Thus, Davis v. United States, and our own standard of review, commands that the circuit court’s decision be affirmed.[2]
II. Whether the Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily.
Petitioner signed a consent order granting belated direct appeal and waived his right to raise any other PCR allegations. He now asks this court to remand his case for a determination as to whether he knowingly and voluntarily waived his right to raise additional PCR claims.
In order to determine whether a waiver is effective, the court examines the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Spoone v. State, 379 S.C. 138, 143, 665 S.E.2d 605, 607 (2008) (citing United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)). Numerous jurisdictions have upheld waivers of post-conviction relief, provided they were knowing and voluntary. Id. at 143, 665 S.E.2d at 607. A defendant’s knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and may be accomplished by a colloquy between the court and defendant, between the court and defendant’s counsel, or both. Brannon v. State, 345 S.C. 437, 439, 548 S.E.2d 866, 867 (2001).
In Spoone v. State, 379 S.C. 138, 665 S.E.2d 605 (2008), this Court addressed whether a PCR court erred in enforcing a written plea agreement wherein the petitioner waived his right to direct appeal, PCR, and habeas corpus relief. The petitioner argued that his waiver was not knowing and intelligent because there was no discussion at the plea proceeding about the extent of his understanding of the waiver. Id. at 141, 665 S.E.2d at 607.
The Court took into account that although petitioner had only a ninth grade education, the text of the written plea agreement was straightforward. Id. at 143–44, 665 S.E.2d at 608. In addition, the plea colloquy showed that the PCR court specifically asked petitioner about the waiver both in the language of the plea agreement, and in “plain language.” Id. Two attorneys accompanied petitioner to the plea hearing and both signed the written plea agreement along with petitioner. Id. Thus, this Court held that the PCR court correctly enforced the waiver and dismissed petitioner’s PCR application. Id.
In this case, according to the Consent Order, Petitioner appeared before the PCR court on August 26, 2008. The Consent Order states that Petitioner waived his right to raise any other PCR allegations, but was “granted a belated direct appeal pursuant to White v. State.” The record before this Court of the colloquy between the parties consists of the following:
The court: What’s the—what we got this morning?
Mr. Friedman: Your Honor, the first one is Osiel Gomez Narcisco [sic].
The court: All right.
Mr. Friedman: May we approach on this one?
The court: Yeah
(Bench conference)
Mr. Friedman: Thank you, Your Honor.
The court: Okay. Appreciate it. Thank you.
The Consent Order signed by Petitioner is straightforward. However, Petitioner used an English-speaking interpreter throughout his original trial, and apparently has, at best, a limited command of the English language. The colloquy provided to this Court does not show that the PCR court specifically asked Petitioner about the waiver, either in the language of the Consent Order, or in “plain language.”
The State argues that Petitioner’s case is distinguishable from Spoone because in that case the issue was “whether the right to appellate review and post-conviction review may be waived by a written plea agreement . . . ,” and that “[Petitioner] proceeded to trial and was convicted.” This is a distinction without a difference. The key issue in Spoone and in Petitioner’s case is the circumstances surrounding the waiver of the right to appeal PCR allegations. Aside from the consent agreement, the record in this case does not support the conclusion that Petitioner entered into the agreement knowingly and voluntarily. Additionally, the colloquy between the court and the defendant in this case does not clearly establish that Petitioner knowingly and voluntarily waived his right to raise any other PCR allegations. This Court will affirm the PCR court’s findings if any evidence of probative value exists in the record. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011). However, finding that no such evidence exists in the instant case, we must remand for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
CONCLUSION
We affirm the circuit court’s denial of Petitioner’s motion to suppress. However, the record does not adequately demonstrate whether Petitioner’s waiver was in accordance with this Court’s waiver jurisprudence. Thus, we remand the case for a determination on that issue.
AFFIRMED IN PART, REMANDED IN PART.
PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] In White v. State, 263 S.C. 110, 113, 208 S.E.2d 35, 36 (1974), the defendant was convicted of burglary and sentenced to twenty years imprisonment. The defendant did not appeal his conviction or sentence, but subsequently filed a petition for PCR and a circuit court denied that relief in a full evidentiary hearing. Id. The defendant argued on appeal that the PCR judge should have ordered a new trial because the defendant did not knowingly and intelligently waive the right to appeal from his conviction and sentence. Id. at 117, 208 S.E.2d at 39. The defendant’s trial counsel testified at the PCR hearing that he did not advise the defendant of his right to appeal because he was certain the defendant knew of his rights due to his prior criminal record. Id. The PCR judge found that the defendant did not knowingly and intelligently waive his right to appeal, and directed defendant’s new counsel to secure a belated appeal to this Court from his conviction and sentence. Id. at 118, 208 S.E.2d at 39. This Court found that with regard to this belated appeal, no notice of appeal had been filed, and thus the Court had no jurisdiction over such an appeal. Id. at 119, 208 S.E.2d at 39. However, the Court reviewed the record in connection with the properly presented PCR appeal and ruled that “there was no reversible error in the trial and that there was not an arguably meritorious ground of appeal, even if notice of intention to appeal had been timely served . . . .” White, 263 S.C. at 119, 208 S.E.2d at 40.
[2] Respondent argues that due to Gant, the “search-incident-to-arrest logic is no longer appropriate grounds for denying the suppression motion,” and urged this Court to find the search was justified under the automobile exception. However, the decision in Davis being dispositive, this Court need not reach the automobile exception, or any other grounds, for upholding the search. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1998) (holding that appellate courts need not discuss remaining issues when determination of a prior issue is dispositive).
Mar 15, 2012 | DUI & DWI, Uncategorized
One of the first tasks a DUI lawyer at trial is to reverse the jury’s stereotype of a “DUI” or “drunk driver.” Not all incidents where an individual is driving under the influence are equal, and as with all potential crimes, there are degrees of blameworthiness. What we reinforce to juries in the opening statement is that everyone who finds themselves accused of a crime comes before them “presumed innocent.” Then, the State of South Carolina must prove them guilty “beyond a reasonable doubt.” Why such a high standard of proof required. Because it is the State of South Carolina, with all of its resources, against an individual with limited means to defend themselves. That standard makes the fight just a little more balanced. As you can see, it is critical that you hire an experienced criminal trial attorney as early as possible. There is simply too much at stake to risk hiring the wrong lawyer.
At Reeves, Aiken, Hightower & Burns LLC, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation.
