State v. Rearick , 417 S.C. 391 ( 2016 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Bryan Rearick, Appellant.
Appellate Case No. 2014-001692
Appeal From Beaufort County
Carmen T. Mullen, Circuit Court Judge
Opinion No. 27654
Heard June 15, 2016 – Filed August 17, 2016
DISMISSED
Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General John Benjamin Aplin,
Senior Assistant Deputy Attorney General Deborah R. J.
Shupe, all of Columbia, and Solicitor Isaac McDuffie
Stone, III, of Bluffton, for Respondent.
JUSTICE BEATTY: Following the circuit court judge's declaration of a
mistrial over defense counsel's objection, Bryan Rearick moved to bar subsequent
prosecution of the charge of felony driving under the influence resulting in death
("felony DUI") on the ground a second trial would violate the Double Jeopardy
Clause of the South Carolina and United States Constitutions.1 Rearick appeals the
judge's order denying this motion, arguing: (1) the denial of a motion to dismiss
on double jeopardy grounds is immediately appealable; and, if so, (2) the judge's
declaration of a mistrial was erroneous in that there was no "manifest necessity" to
justify the ruling. We adhere to well-established appealability precedent and
dismiss the appeal as interlocutory.
I. Factual / Procedural History
During the late evening hours of May 30, 2010, Rearick was involved in a
head-on collision on Hilton Head Island that resulted in the death of the driver of
the other vehicle. Trooper Thomas Summers with the South Carolina Highway
Patrol was dispatched to the accident scene where he found Rearick receiving
medical treatment in an ambulance. Trooper Summers followed the ambulance to
the hospital, interviewed Rearick, and ordered that blood be drawn for forensic
toxicology analysis. On July 22, 2010, a Beaufort County grand jury indicted
Rearick for felony DUI.2
Rearick waived his right to a jury trial and the case proceeded as a bench
trial on January 30, 2014. At the beginning of the trial, defense counsel raised
several pretrial motions. Initially, counsel moved to dismiss the case based on the
State's failure to produce the arresting officer's video recording of the incident in
violation of section 56-5-2953 of the South Carolina Code.3 Additionally, counsel
moved to suppress the blood sample taken from Rearick on the grounds: (1) it was
obtained without a warrant and without any exigency in contravention of Missouri
v. McNeely, 133 S. Ct. 1552 (2013);4 (2) it was obtained in violation of section 56-
1
U.S. Const. amend. V; S.C. Const. art. I, § 12.
2
S.C. Code Ann. § 56-5-2945(A)(2) (Supp. 2015).
3
Id. § 56-5-2953 (Supp. 2015) (requiring that a person charged with DUI have his
conduct at the incident site recorded on video, including field sobriety tests, unless
certain exceptions apply); see City of Rock Hill v. Suchenski, 374 S.C. 12, 17, 646
S.E.2d 879, 881 (2007) (holding dismissal of a DUI charge "is an appropriate
remedy provided by [section] 56-5-2953 where a violation of subsection (A) is not
mitigated by subsection (B) exceptions").
4
Missouri v. McNeely, 133 S. Ct. 1552 (2013) (holding that, in drunk-driving
investigations, the natural dissipation of alcohol in the bloodstream does not
5-2950,5 which requires that a driver who is accused of DUI be offered a breath
test before a blood sample is requested; and (3) the chain of custody of the sample
was fatally defective in that the State failed to produce as a witness the nurse who
allegedly drew the blood at the hospital.
The State called Trooper Summers as its primary witness during the pretrial
hearing. According to Trooper Summers, the video recording device in his patrol
car was activated when he turned on his blue lights to respond to the accident
scene. When Trooper Summers arrived at the accident site, he encountered the
EMS, the fire department, and deputies with the Beaufort County Sheriff's
Department. However, he could not recall how many individuals were present and
could not identify anyone by name. Yet, he specifically remembered speaking
with Rearick at the scene.
On cross-examination, Trooper Summers admitted that he did not know
whether a video recording of the incident had been placed into evidence. Defense
counsel further questioned Trooper Summers regarding the contents of his accident
report as well as the videotaped interview he provided to the South Carolina
Department of Public Safety about the case. When it became evident that Trooper
Summers could not recall the details of the incident, the trial judge took a forty-
five minute recess to permit Trooper Summers to review his notes, the accident
report, and the DVD of his interview.
Once Trooper Summers resumed his testimony, he recalled that "[t]here
were some deputies" at the accident scene. He estimated that he spent
approximately thirty to forty-five minutes at the accident scene and that the video
recorder in his patrol car was running during that time. After hearing this
testimony, defense counsel expressed concern that potentially exculpatory
evidence had not been turned over by the State pursuant to Brady6 and Rule 5,
constitute an exigency in every case sufficient to justify conducting a blood test
without a warrant).
5
S.C. Code Ann. § 56-5-2950 (Supp. 2015) (providing that a person driving a
motor vehicle in South Carolina is deemed to have consented to a chemical test of
his breath, blood, or urine if arrested for an offense arising out of acts alleged to
have been committed while under the influence of alcohol, drugs, or a combination
of the two).
6
Brady v. Maryland, 373 U.S. 83 (1963).
SCRCRimP. Counsel explained that the video recording may have contained
images of Rearick's conduct and demeanor at the time of the accident and that
Trooper Summers's lapel microphone may have recorded his conversations with
Rearick.
The judge determined that a videotape from Trooper Summers's vehicle was
not required under the circumstances and, thus, denied counsel's motion on that
basis. However, the judge shared counsel's concern that the other deputies on the
scene may have videotaped Rearick's conduct and that those recordings were either
not available or had not been provided to defense counsel. When defense counsel
moved to dismiss the case based on the State's failure to provide these videotapes,
the trial judge took the motion under advisement.
With respect to defense counsel's remaining pretrial motions, the judge
found no violation of the implied consent statute and ruled that any statements
Rearick gave to Trooper Summers at the hospital were admissible. Still, the judge
took under advisement defense counsel's motion to suppress Rearick's blood
alcohol content.
When trial testimony began, the State presented several witnesses to
establish the chain of custody of Rearick's blood draw at the hospital after the
accident. At the conclusion of this testimony, the judge found the State had
established the chain of custody and admitted the toxicology results of Rearick's
blood alcohol content subject to defense counsel's ongoing, yet unresolved,
objection that the blood evidence was obtained without a warrant.
The State then called Trooper Scott Ashe, a member of the Multi-
Disciplinary Accident Investigation Team ("MAIT") and an expert in accident
reconstruction, who testified regarding MAIT's conclusions regarding the accident.
Following this testimony, defense counsel advised the judge that the State and
Trooper Ashe had referred to documents that were not included in the materials
turned over to her as part of discovery. The judge recessed to allow the State time
to ascertain what was not included in the discovery materials provided to the
defense, to obtain the identities of any Beaufort County deputies present at the
accident scene, and to determine whether there were any video recordings of the
accident scene.
Once the trial reconvened the following week, the judge inquired whether all
discovery material had been turned over to defense counsel. Defense counsel
acknowledged that she received the missing MAIT notes the afternoon the court
recessed, but stated she was also provided a number of pages identifying vehicle
recall information regarding both vehicles involved in the accident. As a result,
defense counsel moved for a dismissal on the ground that Rearick's due process
rights had been violated by the State's failure to provide evidence that may have
been exculpatory. In response, the State asserted that a continuance was the more
appropriate remedy. The judge, however, declared a mistrial over the objection of
defense counsel.
Nine days later, defense counsel filed a motion to bar subsequent
prosecution on the ground a second trial would violate the Double Jeopardy Clause
of the South Carolina and United States Constitutions. The judge denied this
motion. While the judge noted the problems with the State's evidence and
questioned whether certain exculpatory evidence had been turned over to the
defense, the judge found there was no prosecutorial misconduct. The judge then
explained that she considered the competing alternative remedies of a continuance,
a dismissal, and a mistrial. After assessing these options, the judge determined
there was "a high degree of necessity to declare a mistrial in the instant
circumstance[s]." Having granted the mistrial "out of manifest necessity," the
judge ruled that double jeopardy had not attached and, thus, the State was not
barred from prosecuting the felony DUI charge.
Rearick appealed this order to the Court of Appeals and, subsequently, filed
a motion to certify the appeal to this Court pursuant to Rule 204(b), SCACR. The
State filed a motion to dismiss the appeal as interlocutory. This Court granted
Rearick's motion to certify the appeal and denied the State's motion to dismiss.
II. Discussion
A. Appealability of An Order Denying A Double Jeopardy Claim
1. Arguments
Rearick readily acknowledges this Court in State v. Miller, 289 S.C. 426,
346 S.E.2d 705 (1986), expressly held that an order denying a double jeopardy
claim is not immediately appealable. However, he contends Miller conflicts with
the United States Supreme Court's ("USSC") decision in Abney v. United States,
431 U.S. 651 (1977), which held that a pretrial order denying a defendant's motion
to dismiss on double jeopardy grounds was a "final decision" and is "immediately
appealable." Referencing Abney's "substantial analysis of the Federal
constitutional ban against double jeopardy," Rearick maintains Abney
"demonstrates why an appeal now is required." Ultimately, Rearick seeks for this
Court to overrule Miller and related precedent, reasoning that a state procedural
rule that conflicts with a defendant's constitutional right not to be tried twice for
the same crime cannot prevail.
2. Abney
In Abney, the USSC "granted certiorari to determine whether a pretrial order
denying a motion to dismiss an indictment on double jeopardy grounds is a final
decision within the meaning of 28 U.S.C. § 1291."7 Abney v. United States, 431
U.S. 651, 653 (1977). The USSC determined that such pretrial orders "constitute
'final decisions' and thus satisfy the jurisdictional prerequisites of § 1291." Id. at
662.
In reaching this conclusion, the USSC prefaced its analysis by recognizing
that there is no constitutional right to an appeal and there is a "firm congressional
policy against interlocutory or 'piecemeal' appeals." Abney, 431 U.S. at 656.
However, the USSC found that an order denying a defendant's motion seeking a
dismissal on double jeopardy grounds satisfied the prerequisites for fitting within
"'the small class of cases' that Cohen8 has placed beyond the confines of the final-
judgment rule." Id. at 659. The Court explained that: (1) these orders "constitute
a complete, formal, and, in the trial court, final rejection of a criminal defendant's
double jeopardy claim"; (2) "the very nature of a double jeopardy claim is such that
it is collateral to, and separable from the principal issue at the accused's impending
criminal trial"; and (3) "the elements of [the double jeopardy] claim are completely
independent of [a defendant's] guilt or innocence." Id. at 659-60.
Finally, the USSC emphasized that "the rights conferred on a criminal
accused by the Double Jeopardy Clause would be significantly undermined if
appellate review of double jeopardy claims were postponed until after conviction
7
Section 28 U.S.C. § 1291 provided: "The courts of appeals shall have
jurisdiction from all final decisions of the district courts of the United States, the
United States District Court for the District of the Canal Zone, the District of
Guam, and the District Court of the Virgin Islands, except where a direct review
may be had in the Supreme Court." Abney, 431 U.S. at 653 n.1.
8
See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)
(establishing "collateral order doctrine" as an exception to the final-judgment rule;
describing collateral orders as "that small class [of orders] which finally determine
claims of right separable from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the cause itself to require
that appellate consideration be deferred until the whole case is adjudicated").
and sentence." Abney, 431 U.S. at 660. The Court noted that it had long
"recognized that the Double Jeopardy Clause protects an individual against more
than being subjected to double punishments. It is a guarantee against being twice
put to trial for the same offense." Id. at 660-61. The Court concluded, stating "if a
criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the
full protection of the Clause, his double jeopardy challenge to the indictment must
be reviewable before that subsequent exposure occurs." Id. at 662.
Although we appreciate the merit of Abney, it cannot be considered in a
vacuum since we must analyze Abney in the context of the statutory prerequisites
for appellate jurisdiction as prescribed by the South Carolina General Assembly.
3. A Criminal Defendant's Right to Appeal in South Carolina
In South Carolina, a criminal defendant has no constitutional right to appeal.
Rather, a defendant's right to appeal is authorized by statutes and appellate court
rules of procedure. See State v. Wilson, 387 S.C. 597, 599, 693 S.E.2d 923, 924
(2010) ("The right of appeal arises from and is controlled by statutory law."
(citation omitted)). To appeal, a defendant must be "aggrieved"9 by a decision that
is statutorily classified as one that is appealable, which generally involves a final
judgment. S.C. Code Ann. § 18-1-30 (2014) ("Any party aggrieved may appeal in
the cases prescribed in this title."); Rule 201(b), SCACR ("Only a party aggrieved
by an order, judgment, sentence or decision may appeal."); see Rule 201(a),
SCACR ("Appeal may be taken, as provided by law, from any final judgment,
appealable order or decision.").
The General Assembly has expressly limited those decisions that are
immediately appealable.10 Originally enacted in 1896, section 14-3-330 of the
South Carolina Code provides, in pertinent part, that an immediate appeal may be
taken in a law case from:
(1) Any intermediate judgment, order or decree in a law case involving
the merits in actions commenced in the court of common pleas and
9
"[A]n aggrieved party is one who is injured in a legal sense or has suffered an
injury to person or property." State v. Cox, 328 S.C. 371, 373, 492 S.E.2d 399, 400
(Ct. App. 1997).
10
See S.C. Const. art. V, § 5 ("The Supreme Court shall constitute a court for the
correction of errors at law under such regulations as the General Assembly may
prescribe.").
general sessions, brought there by original process or removed there
from any inferior court or jurisdiction, and final judgments in such
actions; provided, that if no appeal be taken until final judgment is
entered the court may upon appeal from such final judgment review
any intermediate order or decree necessarily affecting the judgment
not before appealed from;
(2) An order affecting a substantial right made in an action when such
order (a) in effect determines the action and prevents a judgment
from which an appeal might be taken or discontinues the action, (b)
grants or refuses a new trial or (c) strikes out an answer or any part
thereof or any pleading in any action.
(3) A final order affecting a substantial right made in any special
proceeding or upon a summary application in any action after
judgment.
S.C. Code Ann. § 14-3-330(1), (2), (3) (1976); see State v. Samuel, 411 S.C. 602,
604, 769 S.E.2d 662, 663 (2015) ("Absent some specialized statute, the immediate
appealability of an interlocutory or intermediate order depends on whether the
order falls within [section] 14-3-330 [of the South Carolina Code]." (citation
omitted)); see also S.C. Code Ann. § 18-1-130 (2014) ("Upon an appeal from a
judgment the court may review any intermediate order involving the merits and
necessarily affecting the judgment.").
Significantly, appellate court decisions that pre-date and post-date the
enactment of section 14-3-330 have consistently held that a defendant may appeal
only after sentence has been imposed. Without explanation, this Court in 1880
dismissed a defendant's appeal, holding that the sentence of the defendant in the
Court of General Sessions is the final judgment, from which alone an appeal may
be taken. State v. McKettrick, 13 S.C. 439, 439 (1880).
Twenty years later, the Court applied the holding in McKettrick to dismiss as
interlocutory an appeal of an order granting a mistrial. State v. Hughes, 56 S.C.
540, 35 S.E. 214 (1900). In so ruling, the Court explained:
It is a bad practice, and generally condemned, to hear appeals by
piecemeal, especially in criminal cases; for it is destructive of the
prompt administration of justice, which is so essential to the peace of
society. To allow appeals to be heard from such preliminary rulings
would enable a party charged with the most serious crime always to
secure a continuance, when otherwise not entitled to it, by simply
moving to quash the indictment, and, when his motion is overruled,
give notice of appeal from such ruling, and thereby stop the trial, as
was in the present case. [But not so in the appeal at bar, for then
several justices of this court refused to allow an appeal from a
preliminary order to stay the wheels of justice.]. Both reason and
authority require us to hold that this appeal is premature, and must
therefore be dismissed.
Hughes, 56 S.C. at 543, 35 S.E. at 215.
For decades, this Court relied on Hughes and has consistently held that a
criminal defendant may not appeal until sentence is imposed. In 1921, the Court
relied on this authority to find that an order denying a motion to dismiss based on
double jeopardy grounds following a mistrial provided no exception to well-
established rules of appealability. State v. Wyatt, 115 S.C. 325, 326, 105 S.E. 704,
704 (1921) (dismissing appeal from an order denying a defendant's plea of former
jeopardy following a mistrial on the ground that there had "not been any final
judgment, the ruling of his honor, the presiding judge, is not appealable").
In 1986, the Court expressly considered the implications of Abney to extant
appealability rules, including Wyatt. State v. Miller, 289 S.C. 426, 346 S.E.2d 705(1986). In Miller, the defendant was convicted of murder, grand larceny, and
housebreaking; however, the trial judge granted the defendant's motion for
judgment notwithstanding the verdict ("JNOV"). Id. at 426, 346 S.E.2d at 705.
The State appealed, and this Court reversed the judge's grant of JNOV and
reinstated the verdicts of guilty on the charges of murder and grand larceny. Id.This Court, however, upheld the dismissal of the housebreaking conviction and
remanded the case for sentencing. Id. (citing State v. Miller, 287 S.C. 280, 337
S.E.2d 883 (1985)). On remand, Miller moved to bar the capital sentencing
proceeding on double jeopardy grounds. Id. The trial judge denied the motion,
after which Miller filed a notice of appeal. Id.This Court dismissed the appeal without prejudice to Miller's right to appeal
from final judgment. Miller, 289 S.C. at 428, 346 S.E.2d at 706. In so ruling, the
Court relied on its prior decisions holding that a criminal defendant may not appeal
until sentence has been imposed and decisions holding that an order denying a
double jeopardy claim is not immediately appealable. Id. at 427, 346 S.E.2d at 706
(citing Hughes and its progeny as well as Wyatt). The Court acknowledged
Miller's argument that the rule prohibiting an immediate appeal from an order
denying a double jeopardy claim had been overruled by federal decisions,
including Abney, which hold that appeals based on double jeopardy grounds
involve final judgments that are directly appealable. Id. Nevertheless, the Court
found that in both state and federal courts, the right to appeal a criminal conviction
is conferred by statute and, as noted in Abney, in order to exercise that statutory
right to appeal, a defendant must come within the terms of the applicable statute.
Id. Significantly, the Court concluded that the cases cited by Miller, including
Abney, which were based on 28 U.S.C. § 1291 had "no application to state court
appeals." Id. The Court explicitly adhered to its "view that under § 14-3-330
(1976) a criminal defendant may not appeal until after sentence has been imposed."
Id.
Fourteen years later, the Court reaffirmed Miller in State v. Gregorie, 339
S.C. 2, 528 S.E.2d 77 (2000). In Gregorie, the defendant was convicted in
magistrate's court of speeding. Id. at 3, 528 S.E.2d at 78. He appealed to the
circuit court, which reversed and remanded for a new trial, finding the State failed
to introduce any evidence of the applicable speed limit. Id. On appeal, the Court
of Appeals initially dismissed the appeal, but reinstated it and affirmed the circuit
court's ruling. Id.
This Court overruled Gregorie and another related decision in which the
Court of Appeals erroneously created an exception to the rule established in Miller
that "a criminal defendant claiming a double jeopardy violation is not exempt from
the regular appealability requirements." Gregorie, 339 S.C. at 4 n.1, 528 S.E.2d at
78 n.1. The Court clarified that the test for appealability is "not whether the appeal
involves a double jeopardy claim . . . but whether the party bringing the appeal is
aggrieved." Id. at 4, 528 S.E.2d at 78.
Applying this rule, the Court found Gregorie's appeal was immediately
appealable not because it involved a double jeopardy claim, but because Gregorie
was otherwise aggrieved by the new trial remedy ordered by the circuit court. Id.
The Court noted that the circuit court found the State failed to meet its burden of
proof and the State's failure to appeal that finding became the law of the case. Id.
Ultimately, the Court found Gregorie correctly asserted that, under those
circumstances, a second trial in magistrate's court would violate his double
jeopardy rights. Id.
Recently, this Court analogized a denial of a request for immunity under the
South Carolina Protection of Persons and Property Act ("Act") to a denial of a
motion to dismiss a criminal case on the ground of double jeopardy. State v. Isaac,
405 S.C. 177, 747 S.E.2d 677 (2013). Citing Miller, the Court held a denial of a
request for immunity under the Act is not immediately appealable. Id. at 185, 747
S.E.2d at 681. The Court reasoned that "[a]bsent an unambiguous expression of
legislative intent, we see no reason to alter settled law concerning appealability,
which additionally would have the illogical effect of elevating a statutory
immunity claim over one constitutionally based." Id. at 184, 747 S.E.2d at 680.
4. Import of Abney to Appellate Review in State Courts
Despite the wealth of South Carolina authority to the contrary, Rearick
maintains that Abney is controlling because the federal constitutional right against
double jeopardy cannot be trumped by a state procedural rule.
We recognize the split of authority as to the import of Abney in the state
appellate court realm. Some courts "suggest that the state, as part of its
constitutional obligation to effectively enforce the double jeopardy bar, must
provide for an immediate appeal from the trial court's denial of a non-frivolous
double jeopardy objection." 7 Wayne R. LaFave et al., Criminal Procedure §
27.2(c) (4th ed. 2015).11 In contrast, some courts reject Abney's application to state
11
See, e.g., State v. Choate, 725 P.2d 764, 764 (Ariz. Ct. App. 1986) (citing Abney
and finding that "an interlocutory appeal of a double jeopardy claim is
constitutionally mandated"); State v. Baranco, 884 P.2d 729, 733 (Haw. 1994)
(adopting Abney rationale and holding that "the collateral order exception to the
final judgment rule permits an interlocutory appeal of an order denying a pretrial
motion to dismiss an indictment on double jeopardy grounds"); People v. Torres,
549 N.W.2d 540, 552 (Mich. 1996) (discussing Abney and concluding that trial
court's nonfinal decision to grant a new trial was immediately appealable because
the defendant "could only have avoided the second trial by seeking an immediate
appeal"); Roberson v. State, 856 So. 2d 532, 533 (Miss. Ct. App. 2003)
(referencing Abney and determining that "[a]n immediate appeal regarding a
denied double jeopardy claim is permitted"); State v. Milenkovich, 458 N.W.2d
747, 750 (Neb. 1990) (analyzing Abney and concluding that "a defendant must be
granted the opportunity to raise a claim of double jeopardy prior to being subjected
to the second trial"); State v. Anderson, 6 N.E.3d 23, 32 (Ohio 2014) (discussing
Abney and concluding that "an accused would not be afforded a meaningful review
of an adverse decision on a motion to dismiss and discharge on double-jeopardy
grounds if that party must wait for final judgment as to all proceedings in order to
secure review of the double-jeopardy decision"); Commonwealth v. Orie, 22 A.3d
1021, 1027 (Pa. 2011) (permitting immediate appellate review of trial court's order
determining that petitioner's double jeopardy challenge was frivolous); State v.
Godette, 751 A.2d 742, 745-46 (R.I. 2000) (citing Abney and recognizing that the
courts on the ground that Abney "is better interpreted as a case interpreting the
federal statute governing appeals, not the scope of the constitutional prohibition
against double jeopardy, so that its holding is not binding on state courts
interpreting their own law." Id.12
We are persuaded by the holdings in those state jurisdictions that decline to
adopt Abney. A careful review of Abney reveals the USSC's analysis is narrowly
confined to an interpretation of federal law with no indication of a mandatory
application in state courts. As we interpret Abney, the USSC was not analyzing
whether a defendant has a constitutional right to appeal the denial of a pretrial
motion to dismiss on double jeopardy grounds. Rather, the USSC was deciding
whether such denial was a "final decision" within the context of 28 U.S.C. § 1291,
the federal appeals statute. Thus, we find those state jurisdictions that adopt the
denial of a motion to dismiss on double jeopardy grounds constitutes an exception
to the general rule regarding appeals in criminal cases).
12
See, e.g., Jones v. State, 450 So. 2d 186, 187 (Ala. Crim. App. 1984)
(acknowledging split of authority on Abney but taking "the view that a denial of a
pretrial motion based on a plea of double jeopardy is not immediately appealable");
State v. Fisher, 579 P.2d 167, 170 (Kan. Ct. App. 1978) (limiting Abney to
construction of federal appeals statute and ruling that denial of motion to dismiss
did not constitute a "judgment" within the meaning of a state statute providing for
appeals in criminal cases); Huff v. State, 599 A.2d 428, 436 (Md. 1991) (finding
Abney "does not constitutionally mandate interlocutory appeals" and that due
process does not require the State to provide an immediate appeal); State v.
Murphy, 537 N.W.2d 492, 495 (Minn. Ct. App. 1995) (rejecting application of
Abney where state had specific jurisdictional rule prohibiting review of a pretrial
order denying defendant's motion to dismiss on double jeopardy grounds); State v.
Nemes, 963 A.2d 847, 848 (N.J. Super. Ct. App. Div. 2008) (concluding that
Abney does not embody a constitutional holding and, thus, defendant could not
appeal as of right from trial court's interlocutory order denying his motion to
dismiss on double jeopardy grounds); State v. Joseph, 374 S.E.2d 132, 135 (N.C.
Ct. App. 1988) (limiting Abney to federal statute and concluding order denying
defendant's motion to dismiss on double jeopardy grounds was not immediately
appealable); State v. Salzmann, 850 P.2d 1122, 1126 (Or. Ct. App. 1993) ("The
nature of the Court's analysis and the specificity in its holding persuade us that
Abney is merely a case of statutory construction of a federal statute and not one
that establishes a constitutional mandate for interlocutory appeals throughout the
several states.").
rationale in Abney misconstrue the holding and extend it beyond what was
intended by the USSC.13
Further, we believe an adoption of the rationale in Abney would have dire
consequences for the future of appellate review in South Carolina. If we were to
carve out an exception for the denial of a double jeopardy claim, we believe all
pretrial motions implicating a constitutional right would be subject to immediate
appeal.
B. Other Remedies
While the procedural bar of Miller may seem harsh, a defendant is neither
denied a future appeal nor other remedies. A defendant may still challenge the
denial of a motion to dismiss on double jeopardy grounds via (1) a petition for
federal habeas corpus relief, or (2) a petition for this Court to issue an
extraordinary writ.14 See Livingston v. Murdaugh, 183 F.3d 300, 301 (4th Cir.
1999) (affirming grant of writ of federal habeas corpus on double jeopardy grounds
and recognizing that "appeal of a denial of a double jeopardy claim would be futile
because the South Carolina Supreme Court has held that 'an order denying a double
jeopardy claim is not immediately appealable'" (quoting Miller, 289 S.C. at 427,
346 S.E.2d at 706)); Gilliam v. Foster, 63 F.3d 287, 291 (4th Cir. 1995) (denying
State's motion to stay federal district court's grant of habeas corpus for pending
decision on merits of defendant's double jeopardy claim in state court proceedings;
stating, "[i]t is also regrettable that, because South Carolina law does not permit an
interlocutory appeal of the double jeopardy ruling, the appellate courts of that state
were not the ones to rule on the matter in the first instance"); cf. Paul v. People,
105 P.3d 628, 633 (Colo. 2005) (en banc) (concluding that denial of defendant's
13
Notably, this Court has expressly recognized that the federal collateral order
doctrine, upon which Abney is based, is not applied in our state courts. See Capital
U-Drive-It, Inc. v. Beaver, 369 S.C. 1, 8 n.2, 630 S.E.2d 464, 468 n.2 (2006)
("Although the federal collateral order doctrine is not applied in our state courts,
we believe the reasoning of these cases is sound.").
14
S.C. Const. art. V, § 5 ("The Supreme Court shall have power to issue writs or
orders of injunction, mandamus, quo warranto, prohibition, certiorari, habeas
corpus, and other original and remedial writs."); S.C. Code Ann. § 14-3-310 (1976)
("The Supreme Court shall have power to issue writs or orders of injunction,
mandamus, quo warranto, prohibition, certiorari, habeas corpus and other remedial
and original writs.").
motion to dismiss on double jeopardy grounds was not immediately appealable,
but reviewing the appeal pursuant to appellate court's original jurisdiction).
III. Conclusion
Despite Rearick's arguments to the contrary, we conclude that Abney does
not alter the rule in Miller. Consequently, we dismiss this appeal without
prejudice.15
APPEAL DISMISSED.
KITTREDGE and FEW, JJ., concur. PLEICONES, C.J., and HEARN,
J., concurring in result only.
15
In view of our decision, we need not address Rearick's remaining issue
regarding the trial judge's declaration of a mistrial. See Futch v. McAllister Towing
of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (declining to
address remaining issues when decision regarding a prior issue is dispositive).