State v. Gordon ( 2015 )


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  •                     THE STATE OF SOUTH CAROLINA
    In The Supreme Court
    The State, Petitioner,
    v.
    Cody Roy Gordon, Respondent.
    Appellate Case No. 2014-001337
    ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
    Appeal From Oconee County
    The Honorable Alexander S. Macaulay, Circuit Court Judge
    Opinion No. 27554
    Heard June 3, 2015 – Filed August 5, 2015
    AFFIRMED AS MODIFIED
    Attorney General Alan McCrory Wilson and Assistant
    Attorney General John Benjamin Aplin, both of
    Columbia, for Petitioner.
    Keith G. Denny, of Keith G. Denny, P.A., of Walhalla,
    for Respondent.
    JUSTICE BEATTY: The State appeals the Court of Appeals' affirmation
    of the circuit court's interpretation of section 56-5-2953 of the South Carolina
    Code. The Court of Appeals found that section 56-5-2953 requires officers to
    record the head of the motorist when administering the Horizontal Gaze
    Nystagmus (HGN) field sobriety test and that Cody Gordon's head was not
    sufficiently visible. The State posits that a plain reading of the statute makes no
    mention of the motorist's "head." We affirm the Court of Appeals' conclusion that
    the statute requires that the motorist's head be recorded in the video; however, we
    vacate the mandate to remand to the magistrate court for further consideration. We
    reinstate Gordon's conviction as we find that the officer complied with the statute
    in recording Gordon's HGN test.
    I.     Factual/Procedural History
    On October 29, 2011, Gordon was stopped at a license and registration
    checkpoint by a South Carolina Highway Patrol Officer. The officer administered
    several field sobriety tests. The test at issue in this case is the HGN test. The
    dashboard camera on the officer's patrol car recorded the entire incident, including
    all field sobriety tests, with continuous recording. The stop occurred at night, so
    the lighting was not perfect, but the officer had Gordon stand in the light of his
    patrol car's headlights and further illuminated Gordon by shining a flashlight
    directly on his face.
    Following the tests, Gordon was placed under arrest. Gordon was charged
    with driving under the influence (DUI) for violating section 56-5-2930. The case
    was presented to a magistrate judge and a jury. The jury found Gordon guilty as
    charged. Gordon timely appealed his conviction.
    Using still-shot photos of the video, Gordon argued that the video violated
    section 56-5-2953(A) because he was out of sight and in the dark during the HGN
    test. The circuit court concluded that section 56-5-2953(A) requires the motorist's
    head to be visible during the administration of the HGN field sobriety test. Section
    56-5-2953(A) reads in pertinent part:
    (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 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 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) (Supp. 2011) (emphasis added). The circuit court
    found Gordon's head was not "sufficiently visible through the entire administration
    of the [HGN] test." The circuit court reversed his conviction and dismissed the
    DUI charge. The State timely appealed to the Court of Appeals.
    The Court of Appeals affirmed in part, vacated in part, and remanded the
    case to the magistrate court. State v. Gordon, 
    408 S.C. 536
    , 
    759 S.E.2d 755
     (Ct.
    App. 2014). The court concluded that "the circuit court correctly found the head
    must be shown during the HGN test in order for that sobriety test to be recorded,
    and we affirm that finding." Gordon, 408 S.C. at 543, 759 S.E.2d at 758. The
    Court of Appeals remanded the case to the magistrate court with the instruction to
    "make factual findings in light of the circuit court and our determination that the
    test must be recorded on the camera; specifically for the HGN test, the head has to
    be visible on the recording." Gordon, 408 S.C. at 543-44, 759 S.E.2d at 759.
    The Court of Appeals denied the State's petition for a rehearing.1 This Court
    granted the State's petition for a writ of certiorari to review the Court of Appeals'
    decision.
    II.    Standard of Review
    In criminal cases, the appellate court sits to review errors of law only. State
    v. Baccus, 
    367 S.C. 41
    , 48, 
    625 S.E.2d 216
    , 220 (2006). Thus, an appellate court is
    bound by the trial court's factual findings unless they are clearly erroneous. 
    Id.
    "The cardinal rule of statutory interpretation is to ascertain and effectuate the
    intention of the legislature." Sloan v. Hardee, 
    371 S.C. 495
    , 498, 
    640 S.E.2d 457
    ,
    459 (2007). "When a statute's terms are clear and unambiguous on their face, there
    is no room for statutory construction and a court must apply the statute according
    to its literal meaning." 
    Id.
     In interpreting a statute, "[w]ords must be given their
    plain and ordinary meaning without resort to subtle or forced construction to limit
    or expand the statute's operation." 
    Id. at 499
    , 
    640 S.E.2d at 459
    .
    1
    Additionally, the Court of Appeals withdrew its original opinion and substituted a
    new published one. Gordon, 408 S.C. at 536, 759 S.E.2d at 755.
    III.   Discussion
    Whether the Court of Appeals erred in affirming the circuit court's
    decision to reverse Gordon's magistrate court conviction for driving under the
    influence?
    A. Argument
    The State argues the Court of Appeals misconstrued the decision of the
    magistrate as lacking sufficient findings of fact. Specifically, the State contends
    that the Court of Appeals "misapprehended or overlooked the clear and
    unambiguous language of the statute, which does not include any requirement that
    'the head must be visible on the recording' of an HGN field sobriety test."
    B. Analysis
    The State would have us review this case using the analytical framework of
    Murphy v. State, 
    392 S.C. 626
    , 
    709 S.E.2d 685
     (Ct. App. 2011). The court in
    Murphy held that section 56-5-2953 only requires that the conduct of the motorist
    be recorded. Murphy, 392 S.C. at 631, 709 S.E.2d at 688. The Court of Appeals
    and the circuit court correctly distinguished Murphy from Gordon's case. In
    Murphy, the prior version of the statute at issue in this case was in effect. The
    prior version of the statute did not include the explicit requirement that the
    videotape include "any field sobriety tests administered." 
    S.C. Code Ann. § 56-5
    -
    2953(A)(1)(a)(ii)(Supp. 2011). The current version of the statute, which applies to
    Gordon, specifically requires that the officer record "any field sobriety tests
    administered." Based on this distinction, the magistrate erred as a matter of law in
    finding that the officer's recording was only required to show Gordon's conduct
    generally.
    The statute at issue in this case is clear and unambiguous and, therefore, this
    Court must give its words their ordinary meaning. The statute states that the video
    recording "must include any field sobriety test administered," which necessarily
    includes the HGN test. Considering the fact that the HGN test focuses on eye
    movement, common sense dictates that the head must be visible on the video.
    Accordingly, the circuit court's finding that the head must be visible does not
    amount to a hyper-technicality, but merely states the obvious. The Court of
    Appeals did not err in affirming this requirement.
    Here, the officer's administration of the HGN test is visible on the video
    recording. It is undisputed that Gordon's face is depicted in the video; it is
    axiomatic that the face is a part of the head. The officer's flashlight and arm are
    visible as he administers the test. Also, the officer's instructions were audible.
    Thus, the requirement that the head be visible on the video is met and the statutory
    requirement that the administration of the HGN field sobriety test be video
    recorded is satisfied. Therefore, the per se dismissal of the charge as discussed in
    Town of Mount Pleasant v. Roberts, 
    393 S.C. 332
    , 
    713 S.E.2d 278
     (2011), and City
    of Rock Hill v. Suchenski, 
    374 S.C. 12
    , 
    646 S.E.2d 879
     (2007) is not appropriate.
    Even if we assume that the video of a field sobriety test is of such poor
    quality that its admission is more prejudicial than probative, the remedy would not
    be to dismiss the DUI charge. Instead, the remedy would be to redact the field
    sobriety test from the video and exclude testimony about the test.2 If that remedy
    is applied here, there is still sufficient evidence to present this case to a jury for
    resolution. The evidence included the breath alcohol analysis report, video of
    other field sobriety tests, and Gordon's statement that he had consumed four beers.
    Neither Gordon nor the State would have been prejudiced by the exclusion
    of the HGN test video or testimony because of the alleged poor quality of the
    video. Since the focus of the HGN test is the movement of the eyes, the jury
    would not have been able to determine if Gordon passed or failed by simply
    looking at this video. Moreover, the viewing of a video of an HGN field sobriety
    test has very little probative value to a jury because the eyes of the motorist are
    rarely, if ever, seen.3
    The remaining issues raised by Gordon concerning discrepancies with the
    breath test site video's date and time stamp are without merit.
    IV.    Conclusion
    The Court of Appeals' decision is affirmed as to the requirements for video
    2
    It appears the solicitor unintentionally led the circuit court to believe that the
    HGN test was the only evidence against Gordon.
    3
    Of course, this would not be the case if actual eye movement is recorded.
    recording the HGN field sobriety test. The mandate to remand to the
    magistrate court for further consideration is vacated. Gordon's conviction is
    reinstated.
    TOAL, C.J., HEARN, J., and Acting Justice Allison Renee Lee, concur.
    PLEICONES, J., concurring in result only.
    

Document Info

Docket Number: Appellate Case 2014-001337; 27554

Judges: Beatty, Toal, Hearn, Lee, Pleicones

Filed Date: 8/5/2015

Precedential Status: Precedential

Modified Date: 10/19/2024