THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Phillip Wayne Lowery, Appellant.
Appellate Case No. 2018-002242
Appeal From Greenville County
Robin B. Stilwell, Circuit Court Judge
Opinion No. 5903
Heard March 8, 2022 – Filed April 6, 2022
REVERSED AND REMANDED
Appellate Defender Taylor Davis Gilliam, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., and Assistant Attorney General Ambree Michele
Muller, of Columbia, and Solicitor William Walter
Wilkins, III, of Greenville, all for Respondent.
THOMAS, J.: Phillip Wayne Lowery appeals his driving under the influence
(DUI) conviction, arguing the trial court erred in (1) admitting statements he made
on a dash camera recording and (2) not dismissing the charge due to the State's
failure to comply with the DUI statute regarding a second dash camera recording.
We reverse and remand.
FACTS
During a Jackson v. Denno1 pre-trial hearing, Trooper David Vallin of the South
Carolina Department of Public Safety testified he responded to a call about an
accident. Shortly thereafter, Vallin responded to another call indicating a vehicle
that left the scene of the accident was at the Spinx gas station. When he arrived at
the Spinx, Vallin noted the vehicle had front end damage, Lowery was standing
next to the vehicle, and three or four other officers were already present and
surrounding Lowery. Vallin testified he preliminarily questioned Lowery about
the car accident, but it developed into a DUI investigation. Vallin testified he had
a dash cam in his vehicle and it recorded the investigation. The State played
Vallin's video for the trial court. In Vallin's video, Lowery made many
incriminating statements, including admitting he had been driving the vehicle.
Vallin admitted his questioning of Lowery was accusatory because Vallin believed
Lowery was involved in the accident.
Lowery argued his statements on Vallin's video should not be admitted because he
was in custody, being interrogated, and had not yet been given Miranda2 warnings.
The State argued the video was admissible because Vallin was investigating an
accident. After reviewing Vallin's video, the court ruled Lowery was not in
custody and recitation of Miranda warnings was not required. The court also
found the questions were "fairly innocuous questions regarding the traffic
accident" and asked in "furtherance of a routine traffic violation." Thus, the court
found the video was admissible. The court ruled any evidence of the accident as a
hit and run was inadmissible; thus, all references to the accident were to be
redacted from Vallin's video.
Vallin similarly testified before the jury, additionally claiming Lowery smelled
strongly of alcohol and his speech was slurred. Vallin's video was played for the
jury.
Trooper Brandon Lee McNeely, of the South Carolina Highway Patrol, testified he
was also present at the Spinx. McNeely testified Lowery smelled of alcohol and
1
378 U.S. 368, 376−77 (1964) (entitling a defendant in a criminal case to an
evidentiary hearing on the voluntariness of a statement).
2
Miranda v. Arizona, 384 U.S. 436, 471−76 (1966) (explaining a suspect's
statement obtained as a result of custodial interrogation is inadmissible unless he
was advised of and voluntarily waived his rights).
displayed signs of impairment. McNeely's dash cam was activated. McNeely
testified the horizontal gaze nystagmus (HGN) sobriety test, which tests for
involuntary eye movement due to the influence of drugs or alcohol, was given.
According to McNeely, the HGN test indicated Lowery was impaired. Lowery
performed a walk and turn test and a one leg stand test, which McNeely testified
indicated Lowery's impairment. Lowery was placed under arrest, handcuffed, and
then given Miranda warnings.
The court admitted McNeely's video and the video began playing for the jury.
After the video showed the HGN test and at least one of the other sobriety tests, the
video stopped playing. An off-the-record bench conference was held, the court
commented on the State's inability to use the computer, and the State asked
McNeely, "I know we didn't finish that video, but you said you [M]irandized him,
correct?" and "Does [M]iranda appear on that video?" McNeely responded "yes"
to both questions.3 The State rested, and Lowery moved for a directed verdict.
Lowery argued the State failed to provide evidence Lowery was driving a vehicle.
The court denied the motion.
Lowery presented a defense indicating he rode with a friend that night and was not
driving the vehicle. At the close of evidence, Lowery renewed his motion for a
directed verdict and also argued the State failed to comply with the statute
requiring the dash cam video to show all of the field sobriety tests and the Miranda
warnings. Lowery argued, "I don't know what is on that video and what can and
can't be played. The field sobriety tests weren't shown in full there and neither was
[M]iranda as required by the statute shown on camera." The State argued, "[W]e
addressed this at the bar a minute ago," and the parties redacted the video together.
The court denied Lowery's motions, finding the State substantially complied with
the statute. Lowery was convicted and sentenced to two years' imprisonment and a
fine. This appeal follows.
STANDARD OF REVIEW
"In criminal cases, the appellate court sits to review errors of law only." State v.
Gordon, 414 S.C. 94, 98, 777 S.E.2d 376, 378 (2015). "[A]n appellate court is
bound by the trial court's factual findings unless they are clearly erroneous." Id.
3
The video transported to this court stops playing at approximately five minutes
into the twelve minute video. The final sobriety test and Miranda warnings are not
viewable.
LAW/ANALYSIS
A. Admissibility of Statements
Lowery argues the trial court erred in admitting the statements he made before
being Mirandized because he was in custody at the time and being interrogated;
thus, his statements were not freely and voluntarily made. We agree.
"A criminal defendant is deprived of due process if his conviction is founded, in
whole or in part, upon an involuntary confession." State v. Pittman, 373 S.C. 527,
565, 647 S.E.2d 144, 164 (2007). The State must establish the defendant
voluntarily and knowingly waived his Miranda rights when giving a statement.
State v. Miller, 375 S.C. 370, 379, 652 S.E.2d 444, 449 (Ct. App. 2007). Miranda
warnings are only required if a suspect "has been taken into custody or otherwise
deprived of his freedom of action in any significant way." Miranda, 384 U.S. at
444.
The State argues Lowery was not in custody because this was merely a routine
traffic stop. "[R]outine traffic stops do not constitute 'custodial interrogation' for
purposes of the Miranda rule." State v. Peele, 298 S.C. 63, 65, 378 S.E.2d 254,
255 (1989) (citing Berkemer v. McCarty, 468 U.S. 420 (1984) and Pennsylvania v.
Bruder, 488 U.S. 9 (1988)). We find guidance from State v. Easler, in which
police officers responded to a call regarding an automobile accident after one of
the parties involved had left the scene. 327 S.C. 121, 125–26, 489 S.E.2d 617, 620
(1997), overruled on other grounds by State v. Greene, 423 S.C. 263, 283, 814
S.E.2d 496, 507 (2018). Easler was convicted of numerous charges, including
felony DUI causing death and felony DUI causing great bodily injury. Id. at 125,
489 S.E.2d at 619. The officers found Easler, who matched a description given to
the officers, at the pay phone at a convenience store. Id. at 126, 489 S.E.2d at 620.
The officers questioned Easler about his involvement in the accident, and Easler
admitted he had been involved. Id. When asked why he left the scene, Easler
stated he was afraid and had no driver's license. Id. An officer requested Easler
return to the scene, and Easler asked for a package he had left at the pay phone,
which contained a six-pack of beer and cigarettes. Id. The officer asked Easler
when he had his last drink, and Easler admitted "he'd had a Milwaukee's Best just
prior to the accident . . . ." Id.
The court found the case did not involve a routine traffic stop, stating, "[o]n the
contrary, the officers, having been advised there had been an accident and that
someone had left the scene, went looking for that individual based upon a
description given by two eyewitnesses." Id. at 127, 489 S.E.2d at 620. The court
concluded the questioning was "clearly interrogation[, and t]he only remaining
inquiry [was] whether Easler was 'in custody' at the time." Id. at 127, 489 S.E.2d
at 621.4
We likewise find Lowery's questioning was more than a routine traffic stop. Vallin
first went to the scene of the accident and was given a description of a vehicle.
Vallin admitted his questioning was accusatory because he believed Lowery was
involved in the accident. We have reviewed Vallin's video and, like the situation
in Easler, we find the questioning was interrogational. See State v. Kennedy, 325
S.C. 295, 303, 479 S.E.2d 838, 842 (Ct. App. 1996) ("The special procedural
safeguards outlined in Miranda are not required if a suspect is simply taken into
custody, but only if a suspect in custody is subjected to interrogation. Interrogation
is either express questioning or its functional equivalent. It includes words or
actions on the part of police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an
incriminating response.").
4
The court found Easler was not "in custody" for purposes of Miranda, stating the
following:
[T]he officers had no basis to suspect Easler of DUI or to
know the extent of the injuries in the accident.
Accordingly, they requested him to return to the scene of
the accident where, upon seeing the injuries and realizing
Easler's intoxicated state, they arrested him and
issued Miranda warnings. Given the totality of these
circumstances, we find Easler was not 'in custody' for
purposes of Miranda.
Id. at 128–29, 489 S.E.2d at 621 (footnote omitted); see State v. Morgan, 282 S.C.
409, 411–12, 319 S.E.2d 335, 336–37 (1984) (finding the defendant was not in
custody where he and a companion returned to the scene of an accident, the
companion volunteered information that they had seen the accident, and the
defendant made statements "during the course of this routine investigation"); State
v. Barksdale, 433 S.C. 324, 335, 857 S.E.2d 557, 562 (Ct. App. 2021) (finding the
defendant was not in custody where the police officer responded to the scene of a
traffic accident, questioned the defendant to investigate the accident, permitted the
defendant to move about freely, and questioned the defendant about his alcohol
consumption).
Next, we look to whether Lowery was in custody. See State v. Williams, 405 S.C.
263, 273, 747 S.E.2d 194, 199 (Ct. App. 2013) ("To determine whether a suspect
was in custody for the purposes of Miranda, the Supreme Court has asked whether
there is a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest."); Easler, 327 S.C. at 128, 489 S.E.2d at 621 ("The
relevant inquiry is whether a reasonable man in the suspect's position would have
understood himself to be in custody."). We find Lowery was in custody.5
"In determining whether a suspect is 'in custody,' the totality of the circumstances,
including the individual's freedom to leave the scene and the purpose, place and
length of the questioning must be considered." Easler, 327 S.C. at 127, 489 S.E.2d
at 621. "The custodial determination is an objective analysis based on whether a
reasonable person would have concluded that he was in police custody." State v.
Evans, 354 S.C. 579, 583, 582 S.E.2d 407, 410 (2003).
The Williams court stated the following factors have been considered by courts in
determining whether an interrogation was "custodial" within the meaning of
Miranda:
(1) whether the contact with law enforcement was
initiated by the police or the person interrogated, and if
5
The State argues that even if Lowery was subjected to custodial interrogation, the
public safety exception applies. We disagree, finding State v. Medley, 417 S.C. 18,
787 S.E.2d 847 (Ct. App. 2016) instructive. In Medley, officers chased a suspect
that fled from a checkpoint. Id. at 22, 787 S.E.2d at 849. When he was found at
his parents' house, handcuffed, and pinned to the ground, an officer "asked Medley
whether he had a license and how much he had been drinking. Medley responded
that he did not have a license and '[t]oo much.'" Id. (alteration in original).
Medley was arrested and Miranda warnings were given. Id. This court held
Medley was in custody and under interrogation when he made his statement about
his alcohol consumption. Id. at 26, 787 S.E.2d at 852. In a footnote, this court
summarily rejected the State's argument that the public safety exception applied
and stated "[a]sking Medley how much he had to drink, although perhaps relevant
to his own health and safety, was simply irrelevant to the public's safety. The only
purpose for asking such a question was to obtain evidence for his DUI case." Id. at
27 n.5, 787 S.E.2d at 852 n.5.
by the police, whether the person voluntarily agreed to
interview; (2) whether the express purpose of the
interview was to question the person as a witness or
suspect; (3) where the interview took place; (4) whether
the police informed the person he or she was under arrest
or in custody; (5) whether they informed the person he or
she could terminate the interview and leave at any time
or whether the person's conduct indicated an awareness
of such freedom; (6) whether there were restrictions on
the person's freedom of movement during the interview;
(7) how long the interrogation lasted; (8) how many
police officers participated; (9) whether they dominated
and controlled the course of the interrogation; (10)
whether they manifested a belief that the person was
culpable and they had the evidence to prove it; (11)
whether the police were aggressive, confrontational, or
accusatory; (12) whether the police used interrogation
techniques to pressure the suspect; and (13) whether the
person was arrested at the end of the interrogation.
Williams, 405 S.C. at 276–77, 747 S.E.2d at 201.
In this case, the factors used to determine custody indicate Lowery was in custody.
First, he was surrounded by numerous officers and denied his request to use the
telephone or the restroom. Lowery was being questioned as a suspect rather than
as a witness. The interrogation was initiated by Vallin. Lowery's movements were
restricted by the officers surrounding him. Vallin admitted his interrogation was
accusatory. Given these factors, we find a reasonable person in Lowery's position
would have believed he was in custody. Accordingly, we find there was a
custodial interrogation that necessitated Miranda warnings.
Our analysis next requires us to determine whether the failure to give Miranda
warnings until after Lowery's arrest was harmless error. See State v. White, 410
S.C. 56, 59, 762 S.E.2d 726, 728 (Ct. App. 2014) ("[A]ny error in the failure to
suppress a statement allegedly taken in violation of Miranda is subject to a
harmless error analysis."). There was evidence Lowery was intoxicated from the
officers' testimony. However, there was no direct evidence he was driving the
vehicle except from his statements made during Vallin's interrogation. Therefore,
Lowery's incriminating statements made prior to Miranda warnings, while being
interrogated and in custody, could reasonably have affected the verdict. Thus, we
find the error was not harmless. See State v. Byers, 392 S.C. 438, 447−48, 710
S.E.2d 55, 60 (2011) ("[T]he materiality and prejudicial character of [a trial] error
must be determined from its relationship to the entire case. Error is harmless when
it could not reasonably have affected the result of the trial." (quoting State v.
Reeves, 301 S.C. 191, 194, 391 S.E.2d 241, 243 (1990))).
B. Section 56-5-2953
Lowery argues the trial court erred in not dismissing the DUI charge when the dash
cam videos failed to comply with the DUI statute because the dash cam videos "did
not include all of the field sobriety tests administered, or any of the officers reading
[Lowery] his Miranda rights." Although we disagree dismissal is required, we
agree the video failed to comply with the DUI statute.
McNeely's video was not introduced until his trial testimony before the jury. It
appears from the record that the State experienced technical issues in publishing
McNeely's video to the jury; thus, not all of the sobriety tests were viewed by the
jury, and Miranda warnings were not seen on the video.
Lowery was convicted of violating South Carolina's DUI statute, found in section
56-5-2930 of the South Carolina Code (2018). The statute governing the video
recording of a DUI offense, section 56-5-2953 provides:
(A) A person who violates Section 56-5-2930, 56-5-
2933, or 56-5-2945 must have his conduct at the
incident site and the breath test site video recorded.
(1)(a) The video recording at the incident site must:
(i) not begin later than the activation of the officer's blue
lights;
(ii) include any field sobriety tests administered; and
(iii) include the arrest of a person for a violation of
Section 56-5-2930 or Section 56-5-2933, or a probable
cause determination in that the person violated Section
56-5-2945, and show the person being advised of his
Miranda rights.
...
S.C. Code Ann. § 56-5-2953(A) (2018) (emphases added). The purpose of the
statute is two-fold: "The first purpose is to create direct evidence of a DUI arrest
by requiring the video include any field sobriety tests administered. The
other purpose . . . is to protect the rights of the defendant by 'requiring video
recording of the person's arrest and of the officer issuing Miranda warnings.'"
State v. Kinard, 427 S.C. 367, 372, 831 S.E.2d 138, 140−41 (Ct. App. 2019)
(internal citation omitted) (quoting State v. Taylor, 411 S.C. 294, 306, 768 S.E.2d
71, 77 (Ct. App. 2014)).
Statutory language "should be given a reasonable and practical construction
consistent with the purpose and policy of the Act." Gilstrap v. S.C. Budget &
Control Bd., 310 S.C. 210, 214, 423 S.E.2d 101, 103 (1992). "Any ambiguity in a
statute should be resolved in favor of a just, equitable, and beneficial operation of
the law." Bennett v. Sullivan's Island Bd. of Adjustment, 313 S.C. 455, 458, 438
S.E.2d 273, 274 (Ct. App. 1993). "[W]hen a statute is penal in nature, it must
be construed strictly against the State and in favor of the defendant. State v.
Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991). Section 56-5-2953 is
"a statute which governs the admissibility of certain evidence." State v. Sawyer,
409 S.C. 475, 481, 763 S.E.2d 183, 186 (2014).
The statute requires a video recording of all of the sobriety tests and the issuance of
Miranda warnings. The recording at trial did not comply with the statute. Until
recently, dismissal of a DUI charge was an appropriate remedy if a police officer
failed to produce a video in compliance with the statute unless an exception
applied. See City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880
(2007) (explaining dismissal as a proper remedy and noting exceptions that excuse
compliance with section 56-5-2953(A) are provided in section 56-5-2953(B)).
However, in State v. Taylor, Op. No. 28085 (S.C. Sup. Ct. filed Feb. 23, 2022)
(Howard Adv. Sh. No. 7 at 24, 29), our supreme court found a violation of the
statute as to Miranda warnings no longer required a per se dismissal of the DUI
charge. The court stated any statements made by the defendant in violation of the
statute should be considered the same as any other violation of Miranda. Id. The
court did not apply this new rule in Taylor, stating it applied "from this point
forward." Id. at 32. Based on Taylor, we find the remedy for the failure to meet
the statutory requirement is not dismissal.
CONCLUSION
Accordingly, Lowery's conviction is
REVERSED AND REMANDED.
MCDONALD and HEWITT, JJ., concur.