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(ABHAN) and failure to stop for a blue light.[1] Pursuant to Rule 220(b), SCACR, the Court of Appeals affirmed in an unpublished opinion.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 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.
Apr 1, 2012 | Criminal Defense, Uncategorized
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 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
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).
