State v. Sledge ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
John Calvin Sledge, Appellant.
Appellate Case No. 2016-000641
Appeal From Greenville County
D. Garrison Hill, Circuit Court Judge
Opinion No. 5672
Heard October 1, 2018 – Filed August 7, 2019
AFFIRMED IN PART AND VACATED IN PART
Laura Ruth Baer, of Collins & Lacy, PC, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Assistant Attorney General Caroline M. Scrantom, all of
Columbia; and Solicitor William Walter Wilkins, III, of
Greenville, for Respondent.
HUFF, J.: John Calvin Sledge appeals from his convictions and sentences for
murder, unlawful conduct toward a child, and possession of a weapon during the
commission of a violent crime. On appeal, Sledge raises three issues: (1) whether
the trial court erred in admitting portions of a 911 call because they amounted to
inadmissible hearsay and were more prejudicial than probative; (2) whether the
trial court erred in admitting his statements to police because they were not freely
and voluntarily given; and (3) whether the trial court erred in imposing a five-year
sentence for possession of a weapon during the commission of a violent crime
because he was given a life sentence for the murder charge and section 16-23-490
of the South Carolina Code expressly prohibits such. We affirm the convictions
but vacate the sentence imposed for the weapon possession.
FACTUAL/PROCEDURAL BACKGROUND
On the night of January 29, 2014, Kimberly Sledge (Victim) was killed by a single
gunshot to the back of her head. After receiving two hang-up calls at 10:15 and
10:16 p.m. that night, 911 communications received a third call from Victim's ten-
year-old son, M.W., at 10:17 p.m. In the 911 call, M.W. reported that his mother
had been shot and stated that his mother was married to John Sledge. When the
dispatcher asked who shot Victim, M.W. replied, "John Sledge." Asked when this
occurred, M.W. replied, "Just a minute ago." M.W. told the dispatcher he thought
his "dad just ran off." The dispatcher asked M.W. if Victim and Sledge were
arguing, and M.W. stated that they were. M.W. provided a description of Sledge's
vehicle to the dispatcher. The young boy can be heard crying often and expressing
shock, disbelief, and fear during the twenty-two-minute call.
Officers arrived at the incident location at 10:34 p.m. Once in the home, they
found M.W. on the phone in the living room and Victim deceased in the bathroom.
After a "be on the lookout" was dispatched for Sledge, Deputies Robert May and
John Williams observed a car matching the description of Sledge's and activated
their blue lights and stopped Sledge. Because they were responding to an incident
involving a gunshot victim, the deputies drew their firearms and ordered Sledge to
show his hands and get out of his car and on the ground. Deputy May
acknowledged repeatedly using profane language with Sledge while instructing
Sledge to put his hands out the window of his car. The deputies placed Sledge in
handcuffs and escorted him to Deputy May's vehicle, placing him inside it.
Though Deputy May was holding on to Sledge, he testified Sledge was "able to
walk just fine." Deputy May then read Sledge his Miranda1 rights. Deputy May
testified Sledge appeared to be intoxicated, and he noted Sledge had a strong odor
of alcoholic beverage coming from his person.2 However, he testified Sledge was
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Deputy Williams found a 12-pack of beer in the passenger seat of Sledge's truck
and noticed a few beers were missing.
not "fall-down drunk," and he appeared to understand what was being said and was
able to carry on a conversation. Review of Deputy May's in-car video reveals very
clear Miranda warnings were given and Sledge responded "Yes, sir" when asked if
he understood his rights. Further, Sledge appeared to get on the ground without
difficulty when instructed to do so, and he did not stumble or falter when walking
to the deputy's car. When asked if he would like to speak to the deputies, Sledge
said he would and asked "what's going on?" Deputy May informed Sledge he was
being detained because there was a crime scene at his house. Sledge asked the
deputy "why" and indicated he did not know why there would be a crime scene.
Deputy May then asked Sledge what he was doing before he left the house, and
Sledge described some of his activities and indicated he left the house after getting
into an argument with his wife. During the drive, Sledge questioned what was
happening and Deputy May responded, "Well you and your wife got in a fight,
right?" Sledge asked what was wrong with his wife and what was wrong with his
family. The deputy responded he was going to let someone else tell Sledge about
it, but told him that his child was fine.
While Deputy May was transporting Sledge to the Law Enforcement Center
(LEC), the deputy was instructed to stop and meet with a forensic officer. Deputy
May stopped at a business where the forensic technician, Iona Ooten, swabbed
Sledge's hands for gunshot residue. Review of the in-car video reveals as follows:
During this time—at around forty-nine minutes into the video—Sledge asked to
use the bathroom, but the officers told him it was too cold. Deputy May buckled
Sledge back in the vehicle, and Sledge again asked to use the bathroom. Ooten
again stated that it was too cold, and Deputy May told Sledge he could use the
bathroom downtown once they arrived there. About a minute after he first asked,
Sledge asked to use the bathroom a third time and received the same response.
They arrived at the LEC at about one hour and eighteen minutes into the video, or
twenty-nine minutes after Sledged first requested to use the bathroom.
Once at the LEC, Sledge encountered Sergeant Ramon Rivera before being
brought into an interview room, at which time Sledge asked if he could use the
restroom. Sergeant Rivera was in the process of obtaining search warrants related
to the matter at that time and told Sledge he would be back in five minutes. When
Sergeant Rivera returned and asked Sledge if he still needed to use the restroom,
Sledge stated he did not. Before Sledge was interviewed, a search warrant was
served on him. While Sergeant Rivera stepped away to retrieve something, Sledge
was escorted into the interview room where the search warrant was served on him,
and he was stripped naked, processed for DNA, and photographed by Ooten.
When Sergeant Rivera returned a few minutes later he was informed Sledge may
have urinated on himself, and he noticed the chair Sledge had been sitting in was
wet, and there was something wet on the floor. Sergeant Rivera and Investigator
Tracy King then interviewed Sledge for two and a half hours after Sledge waived
his Miranda rights. In the interview room, Sergeant Rivera asked Sledge whether
he had been drinking. Sledge stated he had. The sergeant then asked Sledge if he
was under the influence of alcohol, and Sledge replied that he was not, stating he
drank two beers three or four hours ago. During the interview, Sledge claimed he
and Victim only bickered that night and did not fight. He denied that he left the
home after shooting his gun, denied knowing what happened to Victim, denied
M.W. came out of the room during their bickering to see him sitting or lying on top
of Victim as described by M.W., and adamantly denied shooting or harming
Victim that night.
Meanwhile, Sergeant Ragan Marling, who at that time worked in criminal
investigation involving crimes against children, met with M.W. at her office. She
testified M.W. was visibly upset, asking a lot of questions concerning Victim.
When Sergeant Marling informed him that his mother did not survive, M.W. broke
down, started crying, and kept asking over and over, "Why would he do this?" On
cross-examination, the defense elicited the following from Sergeant Marling:
M.W. told her he heard arguing and yelling throughout the day; M.W. went into
the den to see what was happening; he said Victim's shoulder appeared to be
injured; at one time when he came out of his room, Victim and Sledge were in a
physical altercation—with Sledge on top of Victim on the floor in front of the
fireplace—and M.W. tried unsuccessfully to push Sledge off of Victim; M.W. then
went back into his bedroom; before entering his bedroom, he stood at the doorway
to his bedroom talking to Victim, who was in the bathroom near his bedroom, and
Sledge stated something about taking Victim to the hospital; M.W. turned around
and went into his bedroom and, thereafter, heard a loud bang; when he came out of
his bedroom about ten minutes after hearing the bang, he did not see Sledge in the
house. Notably, defense counsel asked the sergeant if M.W. went to bed after he
tried to push Sledge off Victim, and she stated M.W. went back to his room at that
time, but she did not believe he went to bed at that time.
M.W. testified at trial concerning the events of that day. He stated they did not
have any visitors. He ate dinner in his room that evening and spent most of his
time in his bedroom once he came back into the house. At some point, Victim
entered M.W.'s room trying to get away from Sledge. Before Victim entered his
room, M.W. heard Victim and Sledge arguing. Victim left M.W.'s room and,
thereafter, M.W. went out of his room to check on Victim because Victim and
Sledge were being loud and M.W. was trying to go to sleep. When he exited his
room, he saw Sledge sitting on Victim in a squatting position as Victim was on her
back. M.W. pushed Sledge off Victim and Victim told M.W. to "just go," so M.W.
went to his room. Victim followed M.W. back into his room. M.W. thought
Victim had a broken collarbone, and he asked her about her shoulder. Victim
stated to M.W. that Sledge was really mad and might kill her, which scared M.W.
Victim then left M.W.'s room. M.W. estimated the time of this incident was 8:30
or 9:00 because that was his normal bedtime, he was in his pajamas, and he was
"trying to go to sleep." He was not able to relax, though, as he heard arguing while
he was in his bedroom. M.W. did not emerge from his room again until after he
heard a loud bang and he felt the house shake and smelled gun smoke. M.W.
waited about five minutes before he came out of his room. He found his mother
face down on the floor between the hall and the bathroom, and Sledge was no
longer there. M.W. found a phone in the bathroom and called 911.
Law enforcement did not find evidence of a robbery or burglary. Additionally, the
evidence did not support that the crime involved a home invasion. Investigation
into the lives of Victim and Sledge did not reveal any other individuals who had a
problem with either of them. After the 10:15 and 10:16 p.m. hang-up calls, the
third 911 call from M.W. started at 10:17 p.m. Review of surveillance video from
a convenience store—identified by Sledge as the place he had driven to that night
to purchase beer after he left his home—showed Sledge was at the location at
10:27 p.m. The drive from Sledge's house to the store took approximately nine
minutes. One of the investigators testified he found a fairly large quantity of long,
blond hair consistent with Victim's in the bathroom but found no hairbrushes in the
room, which indicated some type of altercation occurred there. Victim sustained a
single gunshot to the back of her head, which would have resulted in a very quick
demise. The cause of death was determined to be a gunshot wound to the head,
and the manner of death was ruled a homicide.
After the matter was submitted to the jury, it found Sledge guilty of murder,
possession of a weapon during the commission of a violent crime, and unlawful
conduct toward a child. The trial court sentenced Sledge to life on the murder
charge, five years for possession of a weapon during the commission of a violent
crime, and ten years for unlawful conduct toward a child.
STANDARD OF REVIEW
In criminal cases, this court sits to review errors of law only and is bound by the
trial court's factual findings unless those findings are clearly erroneous. State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). The admission or exclusion
of evidence is within the discretion of the trial court, and its decision will not be
disturbed on appeal absent an abuse of discretion. State v. Winkler, 388 S.C. 574,
583, 698 S.E.2d 596, 601 (2010). An abuse of discretion occurs when the trial
court's conclusions either lack evidentiary support or they are controlled by an
error of law. Id. "Our role when reviewing a trial court's ruling concerning the
admissibility of a statement upon proof of its voluntariness is not to reevaluate the
facts based on our view of the preponderance of the evidence." State v. Breeze,
379 S.C. 538, 543, 665 S.E.2d 247, 250 (Ct. App. 2008). "Rather, our standard of
review is limited to determining whether the trial court's ruling is supported by any
evidence." Id. "Thus, on appeal the trial court's findings as to the voluntariness of
a statement will not be reversed unless they are so erroneous as to show an abuse
of discretion." Id.LAW/ANALYSIS
I. 911 Call
Sledge made a pre-trial motion to exclude portions of M.W.'s 911 call. The trial
court ruled the evidence admissible and allowed the tape to be played for the jury
over Sledge's objection. On appeal, Sledge contends the trial court erred in
admitting the portions of the 911 call in which M.W. stated (1) Victim and Sledge
were fighting earlier in the evening and (2) Sledge shot Victim. He argues the
statements were inadmissible hearsay for which no exception applies, and they
were more prejudicial than probative. We disagree.
Rule 803 of our evidentiary rules affords an excited utterance exception to the rule
against hearsay. It provides, even though the declarant is available as a witness,
"[a] statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition" is not
excluded by the hearsay rule. Rule 803(2), SCRE.
Three elements must be met for a statement to be an
excited utterance: (1) the statement must relate to a
startling event or condition; (2) the statement must have
been made while the declarant was under the stress of
excitement; and (3) the stress of excitement must be
caused by the startling event or condition.
State v. Stahlnecker, 386 S.C. 609, 623, 690 S.E.2d 565, 573 (2010). "In
determining whether a statement falls within the excited utterance exception, a
court must consider the totality of the circumstances." State v. Sims, 348 S.C. 16,
20, 558 S.E.2d 518, 521 (2002). "Additionally, such a determination is left to the
sound discretion of the trial court." Id. at 21, 558 S.E.2d at 521. "The passage of
time between the startling event and the statement is one factor to consider, but it is
not the dispositive factor." Stahlnecker, 386 S.C. at 623, 690 S.E.2d at 573.
"Other factors useful in determining whether a statement qualifies as an excited
utterance include the declarant's demeanor, the declarant's age, and the severity of
the startling event." Id. (quoting Sims, 348 S.C. at 22, 558 S.E.2d at 521). "The
excited utterance exception is based on the rationale that 'the startling event
suspends the declarant's process of reflective thought, reducing the likelihood of
fabrication.'" State v. Ladner, 373 S.C. 103, 116, 644 S.E.2d 684, 691 (2007)
(quoting State v. Dennis, 337 S.C. 275, 284, 523 S.E.2d 173, 177 (1999)). The
determination of whether a statement qualifies as an excited utterance exception "is
left to the sound discretion of the trial court." Sims, 348 S.C. at 21, 558 S.E.2d at
521. The burden of establishing facts that would qualify a statement as an excited
utterance is upon the proponent of the evidence. State v. Davis, 371 S.C. 170, 178-
79, 638 S.E.2d 57, 62 (2006).
Sledge cites Davis in support of his argument that, because M.W. did not witness
the shooting, the excited utterance exception does not apply. We find Davis
distinguishable and the Sims case more applicable to the excited utterance
exception under the facts of this case.
Davis involved the admissibility of testimony from the State's key witness, Shawn
Hicks, regarding statements made to him by Greg Hill. 371 S.C. at 173, 638
S.E.2d at 59. Hicks testified he heard Davis, Reggie Stevens, and the victim
arguing, after which he heard a gunshot and saw three individuals running through
the victim's backyard. Id. After hearing the gunshot, Hicks sold drugs to Stevens
and Hill, and Stevens and Hill returned a short time later with Davis. Davis then
bought drugs from Hicks, during which time Davis had a shotgun. Id. Hicks
testified Davis offered to sell him the shotgun. Id. Over defense counsel's
objection, Hicks testified Hill told him not to purchase the gun. Id. at 174, 638
S.E.2d at 59. Thereafter, Hicks testified Hill told him that Davis and Stevens went
into the house and further advised Hicks not to get the shotgun because the victim
had been shot with it. Id.This court affirmed Davis' murder and armed robbery convictions, and Davis filed
a petition for writ of certiorari, arguing the statement made by Hill to Hicks—that
the shotgun had been used to murder the victim—was erroneously admitted
hearsay. Id. at 177, 638 S.E.2d at 61. Our supreme court agreed with Davis,
finding this court erred in determining Hill's statement was admissible under the
excited utterance exception. Id. at 178, 638 S.E.2d at 61-62. The court noted,
"statements which are not based on firsthand information, such as [when] the
declarant was not an actual witness to the event, are not admissible under the
excited utterance exception to the hearsay rule." Id. at 179, 638 S.E.2d at 62. It
concluded there was insufficient evidence that Hill's statement was an excited
utterance because (1) no evidence was elicited by the State that Hill was still under
the stress or excitement of the victim's shooting when the alleged statement was
made and, therefore, the State failed to meet its burden of establishing a foundation
for the excited utterance and (2) there was no evidence in the record to support the
conclusion that Hill witnessed the shooting. Id. at 180, 638 S.E.2d at 62-63.
In Sims, police were dispatched to a location one morning where a five-year-old
boy had been found upset and crying outside the apartment of his mother. 348
S.C. at 18, 558 S.E.2d at 520. The child's mother—the victim—was found inside
the apartment in a pool of blood, and she remained in a coma until her death. Id. at
18-19, 558 S.E.2d at 520. At trial, the child, who was then six years old, initially
answered the solicitor's questions and stated someone else was in the home besides
him and his mother and he saw his mother getting hurt. Id. at 19, 558 S.E.2d at
520. However, the child would not identify the person who was in the apartment
that night. Id. Thereafter, the solicitor elicited testimony from the responding
officer that the child appeared withdrawn and answered questions vaguely while
keeping his head down. Id. at 20, 558 S.E.2d at 520. Over defense counsel's
hearsay objection, the officer testified the child had indicated the appellant was in
the apartment the night of his mother's death. Id. The trial court found the
statement was hearsay but ruled it was admissible under the circumstances, noting
the age of the child and the fact the child made the statement after he discovered
his mother under traumatic circumstances. Id.Our supreme court found the trial court did not abuse its discretion in admitting the
child's statement to the officer because it fell under the excited utterance exception
to the hearsay rule. Id. at 23, 558 S.E.2d at 522. In so ruling, the court found it
met the first element required for an excited utterance exception because the
statement related to the startling event of the child "seeing his mother after she was
attacked and possibly while she was being attacked." Id. at 21, 558 S.E.2d at 521.
It further found, if the child was under the stress of excitement—the second
element—"then that stress was caused by the startling event of seeing his mother
being attacked and not being able to wake her." Id. The court ultimately
determined the child was under the stress of the excitement. Id. at 21-23, 558
S.E.2d at 521-22. It acknowledged a possible time period of twelve hours between
the time of the attack and the time of the child's statement but observed, "[e]ven
statements after extended periods of time can be considered an excited utterance as
long as they were made under continuing stress." Id. at 21-22, 558 S.E.2d at 521.
It further noted:
In this case, a five-year-old child possibly saw his mother
being attacked and, at the very least, was left alone with
his severely injured mother whom he could not wake,
until he made his way outside to be found by a neighbor.
Under these circumstances, we find the stress of
excitement from those events lasts a longer period of
time than would be likely to occur if the son had been an
adult.
Id. at 22, 558 S.E.2d at 521. Finding the declarant's demeanor and age and the
severity of the startling event are other factors useful in determining whether a
statement qualifies as an excited utterance—and the child's age and the severity of
the startling event clearly weighed in favor of finding his statement to be an
excited utterance—the court then looked at the child's demeanor. Id. It concluded,
although the child "was not crying or acting 'excited' in the sense of being animated
when he made the statement," his demeanor could be characterized as someone
who was under the "stress of excitement." Id. at 22, 558 S.E.2d at 522.
Accordingly, it held "[g]iven the totality of the circumstances, we find the [child]
was under the continuing stress of excitement when he told [the officer] appellant
was in the home the night of the attack." Id. at 23, 558 S.E.2d at 522.
Like Sims, we find the trial court did not abuse its discretion in admitting M.W.'s
statements to the officer concerning who shot Victim and that Victim and Sledge
had been arguing because these statements fall under the excited utterance
exception to the hearsay rule. See Stahlnecker, 386 S.C. at 623, 690 S.E.2d at 573("Three elements must be met for a statement to be an excited utterance: (1) the
statement must relate to a startling event or condition; (2) the statement must have
been made while the declarant was under the stress of excitement; and (3) the
stress of excitement must be caused by the startling event or condition."). First,
M.W.'s statements that Sledge shot his mother and that Sledge and his mother had
been arguing undoubtedly relate to a startling event. Second, the statements were
made while M.W. was under the continuing stress of the excitement. M.W.
testified only about five minutes passed after he heard the gunshot before he
emerged from his room to find Victim and call 911. Additionally, though there is
an indication that at least some of the arguing was more removed in time, we
nonetheless find M.W. was under continuing stress despite the lapse in time. See
Sims, 348 S.C. at 21-22, 558 S.E.2d at 521 ("While the passage of time between
the startling event and the statement is one factor to consider, it is not the
dispositive factor. Even statements after extended periods of time can be
considered an excited utterance as long as they were made under continuing
stress."). Although the 911 recording reflects M.W. tried to remain calm and assist
the dispatcher in providing important information during the call, M.W. can be
heard crying at times, and he expressed shock, disbelief, and fear during the
twenty-two-minute call. Third, it is clear the stress of the excitement was caused
by the startling event. Notably, M.W.'s demeanor, his age, and the severity of the
startling event also weigh in favor of finding the statements complained of were
excited utterances. See id.at 22, 558 S.E.2d at 521 ("Other factors useful in
determining whether a statement qualifies as an excited utterance include the
declarant's demeanor, the declarant's age, and the severity of the startling event.").
Accordingly, we find the statements were properly admitted under the excited
utterance exception.3
We acknowledge that Davis clearly provides that in situations in which the
declarant does not have firsthand knowledge because he did not witness an event,
statements made by the declarant concerning the event are not admissible under the
excited utterance exception to the rule against hearsay. Nonetheless, we find this
situation is distinguishable from Davis because, while the evidence suggests M.W.
did not visually observe Sledge shoot Victim, he perceived Sledge shot her based
upon his witnessing of the argument and physical altercation between Sledge and
Victim prior to the shooting, his auditory and sensory perception of the shooting,
and his discovery of Victim's body in a pool of blood and the fact that Sledge had
left the house. Under the totality of the circumstances, in particular the sequence
of events here, we find the startling event was such as to suspend M.W.'s process
of reflective thought, thereby reducing the likelihood he fabricated the statements
in issue. See Ladner, 373 S.C. at 116, 644 S.E.2d at 691 ("The excited utterance
exception is based on the rationale that 'the startling event suspends the declarant's
3
Based upon this determination, we need not reach Sledge's argument that the
statements were also not admissible under the present sense impression exception
to the rule against hearsay. See Rule 803(1), SCRE ("The following are not
excluded by the hearsay rule, even though the declarant is available as a witness: . .
. (1) Present Sense Impression. A statement describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter.").
process of reflective thought, reducing the likelihood of fabrication.'" (quoting
Dennis, 337 S.C. at 284, 523 S.E.2d at 177)).
We also disagree with Sledge's assertion the statements should have been excluded
because they were more prejudicial than probative. All relevant evidence is
generally admissible. Rule 402, SCRE. "'Relevant evidence' means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence." Rule 401, SCRE. "Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence."
Rule 403, SCRE. "Unfair prejudice means an undue tendency to suggest decision
on an improper basis." State v. Wiles, 383 S.C. 151, 158, 679 S.E.2d 172, 176
(2009). Rule 403, SCRE, has sometimes been misstated, incorrectly providing that
for evidence to be admissible under a Rule 403 analysis the probative value of
evidence must substantially outweigh the danger of unfair prejudice to the
defendant, whereas "[t]he correct test is the opposite: whether the probative value
of the evidence is substantially outweighed by the danger of unfair prejudice."
State v. King, 424 S.C. 188, 200 n.6, 818 S.E.2d 204, 210 n.6 (2018). The
misstated test "incorrectly places the burden on the proponent of the evidence to
establish admissibility, while the proper test places the burden on the opponent of
the evidence to establish inadmissibility" under Rule 403. Id. An appellate court
reviews a trial court's Rule 403, SCRE ruling pursuant to an abuse of discretion
standard and gives great deference to the trial court's determination. State v.
Collins, 409 S.C. 524, 534, 763 S.E.2d 22, 28 (2014). "A trial [court's] decision
regarding the comparative probative value and prejudicial effect of evidence
should be reversed only in exceptional circumstances." Id. (quoting State v.
Adams, 354 S.C. 361, 378, 580 S.E.2d 785, 794 (Ct. App. 2003)).
Here, the statements at issue were clearly relevant as to motive, opportunity and
identity. Further, while we acknowledge the prejudicial effect is great—
particularly as to M.W.'s statement that Sledge shot his mother—the child's trial
testimony provides additional damaging details not included in the 911 call,
including that he witnessed a physical altercation between Sledge and Victim prior
to the shooting and, during this time, Victim told M.W. that Sledge was really mad
at her and might kill her. His trial testimony also established a scenario that
explains why M.W. would have perceived Sledge was the person who shot his
mother. Accordingly, we cannot say the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice, and we find no abuse
of discretion in the trial court's determination the evidence was admissible under
Rule 403.
II. Statements to Police
Sledge contends the trial court erred in admitting both his statements in the patrol
car and those made during the interrogation at the LEC because, based on the
totality of the circumstances, they were not freely and voluntarily made. He
maintains the trial court's ruling reveals it looked at the facts and circumstances in
a piecemeal fashion rather than focusing on the totality of the circumstances. He
points to the following: the long duration of police custody prior to his arrest; the
circumstances surrounding him being pulled over with the officers' guns drawn,
them yelling obscenities, and him being handcuffed on the pavement despite his
compliance; the fact that he was intoxicated; Sledge's repeated requests for an
explanation; the fact that he was driven to a parking lot where his hands were
swabbed for gunshot residue and he requested to use the bathroom and was assured
he would be given the opportunity when they reached the LEC; the fact that he
remained handcuffed at the LEC and he was not given access to a bathroom in
spite of another request; the fact that he was stripped naked in the presence of
several officers—including a female officer who photographed him; and the fact
that he was in an orange jumpsuit and was handcuffed to a belt, where he remained
until 4:14 a.m. Sledge argues, while none of these facts alone undermined the
voluntariness of his statements, they had the cumulative effect of rendering his
waiver involuntary. Accordingly, he contends the State failed to meet its burden of
proving either of his waivers of rights were voluntary. We disagree.
First, we agree with the State that the issue concerning admission of the LEC
interview recording is not preserved for our review. Defense counsel made a
pretrial motion to exclude his statements made during the interview and again
sought exclusion of the entire recording during the trial. However, following
redaction of the recording, and after presentation of testimony from a witness on an
unrelated matter, defense counsel stated he had no objection to admission of the
redacted recording. See State v. Wannamaker, 346 S.C. 495, 499, 552 S.E.2d 284,
286 (2001) (holding appellant's assertion that the trial court erred by refusing to
suppress a custodial statement was unpreserved because trial counsel failed to
make a contemporaneous objection to the statement being read into evidence);
State v. Dicapua, 373 S.C. 452, 455, 646 S.E.2d 150, 152 (Ct. App. 2007) (holding
the defendant's statement that he had no objection to a videotape coming into
evidence "amounted to a waiver of any issue" the defendant had with the
videotape); Burke v. AnMed Health, 393 S.C. 48, 55, 710 S.E.2d 84, 88 (Ct. App.
2011) ("When a party states to the trial court that it has no objection to the
introduction of evidence, even though the party previously made a motion to
exclude the evidence, the issue raised in the previous motion is not preserved for
appellate review."). Nonetheless, even if the issue were properly preserved, we
find no error in the admission of either the statements made in the patrol car or
those made during the interrogation at the LEC.
In the video from Deputy May's car, when Sledge was initially pulled over he
immediately complied with the officers' instructions, appeared to get on the ground
without difficulty, and he did not stumble or falter when walking to the deputy's
car. Thereafter, a very clear Miranda warning was given, and Sledge responded
"Yes, sir" when asked if he understood his rights. Though the officers were unable
to accommodate Sledge's request to use the bathroom while in the parking lot,
nothing of substance to this case was discussed by Sledge until arrival at the LEC.
Once at the LEC, Sledge again asked to use the bathroom, and Sergeant Rivera
told him he would be back in five minutes. When Sergeant Rivera returned and
asked Sledge if he still needed to use the restroom, Sledge stated he did not. While
Sergeant Rivera went to retrieve something, Sledge was escorted into the interview
room for processing. When Sergeant Rivera returned, he was informed Sledge
may have urinated on himself. Sergeant Rivera testified he was gone for just a few
minutes during this time. Sledge changed into a jumpsuit before the interview
began at the LEC. During the LEC interview, the recording shows a thorough
recitation and explanation of Sledge's rights. Sledge was alert, coherent and
attentive, and he requested an explanation when he desired. He stated he
understood his rights and wished to speak to the officers. Sledge initialed each of
the rights read to him and signed below the Waiver of Rights language
emphatically stating, "I have nothing to hide, sir."
Though Deputy May testified Sledge appeared intoxicated when he pulled him
over, and Sledge stated in his LEC interview he had two beers to drink, we find
nothing to indicate intoxication to the level that Sledge did not realize what he was
saying. See State v. Saxon, 261 S.C. 523, 529, 201 S.E.2d 114, 117 (1973) ("The
fact that one is intoxicated at the time a confession is made does not necessarily
render him incapable of comprehending the meaning and effect of his words.
Therefore, proof that an accused was intoxicated at the time he made a confession
does not render the statement inadmissible as a matter of law, unless the accused's
intoxication was such that he did not realize what he was saying."). Additionally,
though surely a source of embarrassment when he urinated on himself, the only
evidence is that this occurred before the LEC interview began, Sledge was not
made to remain in soiled clothes but changed into a jumpsuit after the incident, he
was not denied any comfort requests during his interview, and no statements of
substance were made by him between the time of his initial request to use the
bathroom and him relieving himself. Further, Sledge appeared relaxed and
forthcoming with details in the recording of this interview, and we detect no
coercive forces or anything to indicate Sledge's will was overborne. See State v.
Goodwin, 384 S.C. 588, 601, 683 S.E.2d 500, 507 (Ct. App. 2009) ("The test of
voluntariness [of a statement] is whether a defendant's will was overborne by the
circumstances surrounding the giving of a confession.").
Based upon the content of the videos and the testimony presented, the trial court
thoughtfully considered the fact that Sledge was Mirandized twice; his rights were
clearly and carefully explained; Sledge paid close attention to the rights explained
to him and acknowledged his waiver of rights in writing; and the atmosphere in the
interview room was not hostile and there was no evidence of coercion or pressure
to the extent his will was overborne. It further recognized there was evidence of
Sledge's intoxication and his denied use of the bathroom but determined these
circumstances did not take away his ability to understand, process information and
make rational decisions nor interfere with the voluntariness of the statement or his
knowing and intelligent waiver of his rights under Miranda. We hold the trial
court's determination on this matter is supported by evidence and find no abuse of
discretion in the admission of Sledge's statements. See State v. Saltz, 346 S.C. 114,
136, 551 S.E.2d 240, 252 (2001) ("The trial court's factual conclusions as to the
voluntariness of a statement will not be disturbed on appeal unless so manifestly
erroneous as to show an abuse of discretion."); id. ("When reviewing a trial court's
ruling concerning voluntariness, [the appellate court] does not reevaluate the facts
based on its own view of the preponderance of the evidence, but simply determines
whether the trial court's ruling is supported by any evidence.").
III. Sentence on Weapon Charge
Finally, Sledge contends the trial court erred in sentencing him to five years of
incarceration for possession of a weapon during the commission of a violent crime
because he was sentenced to life for his murder conviction, and statutory law
prohibits such a sentence when a life sentence without parole is imposed for a
violent crime. Accordingly, he argues this sentence should be vacated. Though he
acknowledges defense counsel did not raise an objection to the improper
imposition of this sentence, Sledge argues this court should nonetheless review the
issue in the interest of judicial economy. The State acknowledges that Sledge's
weapon possession sentence should be vacated because it was issued in violation
of the statute and further concedes Sledge is entitled to the proper sentence
regardless of issue preservation. We agree and vacate the five-year sentence for
possession of a weapon during the commission of a violent crime. See S.C. Code
Ann. § 16-23-490(A) (2015) (providing the five-year sentence for possession of a
weapon during the commission of a violent crime "does not apply in cases where
the death penalty or a life sentence without parole is imposed for the violent
crime"); State v. Bonner, 400 S.C. 561, 564, 735 S.E.2d 525, 526 (Ct. App. 2012)
(noting, though a challenge to sentencing must be raised at trial to be preserved for
appellate review, an exception to the rule authorizes the appellate court to consider
an unpreserved issue in the interest of judicial economy under appropriate
circumstances); State v. Johnston, 333 S.C. 459, 463-64, 510 S.E.2d 423, 425
(1999) (remanding for resentencing in a case which "present[ed] the exceptional
circumstance in which the State has conceded in its briefs and oral argument that
the trial court committed error by imposing an excessive sentence"); State v. Vick,
384 S.C. 189, 202-03, 682 S.E.2d 275, 281-82 (Ct. App. 2009) (finding, under
circumstances in which the State conceded it was error for the trial court to
sentence a defendant for the kidnapping of a victim whom he was also convicted of
murdering and that any such sentence for kidnapping should be vacated, it was
appropriate to vacate the sentence for kidnapping even though the defendant failed
to challenge the sentence when it was imposed).
Based on the above, we find no error in the admission of the portions of the 911
call or Sledge's statements and therefore confirm Sledge's convictions. However,
we find the trial court erred in imposing the five-year sentence on the weapon
charge and, accordingly, vacate that sentence.
AFFIRMED IN PART AND VACATED IN PART.
SHORT and WILLIAMS, JJ., concur.