Martha F. Watts v. Ricky W. Chastain ( 2022 )


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  •                      THE STATE OF SOUTH CAROLINA
    In The Court of Appeals
    Martha Foster Watts, Appellant,
    v.
    Ricky W. Chastain, Sheriff Laurens County, South
    Carolina, Respondent.
    Appellate Case No. 2019-001514
    Appeal From Laurens County
    Donald B. Hocker, Circuit Court Judge
    Opinion No. 5952
    Submitted October 3, 2022 – Filed November 23, 2022
    AFFIRMED
    Thomas J. Thompson, of Townsend & Thompson, LLP,
    of Laurens, for Appellant.
    Carly H. Davis and Russell W. Harter, Jr., both of
    Chapman, Harter & Harter, P.A., of Greenville, for
    Respondents.
    THOMAS, J.: This is a personal injury case filed by Martha Foster Watts against
    the Sheriff of Laurens County involving a car accident. At trial, the court admitted
    a video into evidence over Watts' objection. On appeal, Watts argues she is
    entitled to a new trial because (1) the video was unfairly prejudicial to the verdict
    and (2) defense counsel's closing argument unfairly prejudiced the outcome. We
    affirm.
    FACTS
    The night of August 15, 2013, Watts was traveling on Highway 76 in South
    Carolina when her vehicle collided with another vehicle that had, in a matter of
    seconds before, been involved in a collision with a Laurens County Sheriff's
    Deputy. 1 Watts alleged personal injuries and asserted a negligence claim against
    Ricky W. Chastain, the Sheriff of Laurens County. 2 Chastain denied liability
    under the South Carolina Tort Claims Act and alleged comparative fault on behalf
    of Watts.
    Prior to trial, Watts filed a motion in limine, objecting to Chastain's use of a copy
    of a nearby private recycling business' surveillance video on the grounds that (1) it
    was not an exact copy of the original video; (2) Chastain did not show the original
    video was unavailable through no fault of his own; (3) it was altered in substance
    and edited; (4) the playback speed was inaccurate; (5) it did not show the collisions
    at issue; (6) it did not fairly and accurately represent the time between the first and
    second collisions; (7) the image was too blurry to be useful to the jury; and (8) it
    was inherently prejudicial to Watts.
    During the trial, Watts filed a motion to suppress the video and all evidence
    derived from it. After an in-camera hearing, the court found the video was
    admissible because the probative value outweighed any unfair prejudice to Watts.
    Immediately before closing arguments, the court instructed counsel that they could
    argue what was on the video, but they could not add to it. During defense
    counsel's closing argument, the court overruled Watts' objections that defense
    counsel's comments on the video disregarded the court's instruction not to add
    anything that was not depicted on the video.
    At the conclusion of the trial, the jury found Chastain was not negligent. Watts
    filed a motion for a new trial or judgment notwithstanding the verdict (JNOV)
    1
    Deputy Barton Holmes was the officer involved in the first collision and his
    report stated that collision occurred at 10:37 pm. In a post-incident interview with
    Trooper (then Corporal) Al Duncan of the South Carolina Highway Patrol, Holmes
    said the second collision occurred five to ten seconds after the first collision. The
    other driver testified the second collision occurred two seconds after the first
    collision.
    2
    Watts filed her initial complaint against the Laurens County Sheriff's
    Department; however, she filed an amended complaint naming only Chastain, as
    the Sheriff of Laurens County.
    pursuant to Rules 59 and 60 of the South Carolina Rules of Civil Procedure. Watts
    argued the surveillance video was improperly admitted into evidence at trial
    because the video shown to the jury at trial was a copy of the original video. She
    also argued defense counsel made a prejudicial and improper closing argument.
    After a hearing, the trial court filed its order denying Watts' motions. The court
    found the video complied with Rules 1001 to 1004, SCRE, because (1) the video
    recorded by Trooper Duncan was a duplicate of the images shown on the
    surveillance video; (2) there was no genuine question raised as to the authenticity
    of the original video; and (3) the original video was never in the possession of
    Chastain and is no longer available for reasons fully explained at trial. The court
    also found the video was relevant evidence because it provided information and
    evidence as to the position of the vehicles, the timing of the two collisions at issue,
    the roadway conditions, and whether the motorists had their lights on. Finally, the
    court found there was no prejudice in defense counsel's closing argument and any
    remarks by counsel did not deprive Watts of a fair trial. This appeal followed.
    STANDARD OF REVIEW
    The grant or denial of a motion for a new trial lies within the sound discretion of
    the trial court. RRR, Inc. v. Toggas, 
    378 S.C. 174
    , 182, 
    662 S.E.2d 438
    , 442 (Ct.
    App. 2008). This court's standard of review is limited to determining whether
    there was an abuse of discretion. BB&T v. Taylor, 
    369 S.C. 548
    , 551, 
    633 S.E.2d 501
    , 502-03 (2006). "An abuse of discretion arises where the judge issuing the
    order was controlled by an error of law or where the order is based on factual
    conclusions that are without evidentiary support." 
    Id.
     "In deciding whether to
    assess error to a court's denial of a motion for a new trial, we must consider the
    testimony and reasonable inferences to be drawn therefrom in the light most
    favorable to the nonmoving party." Vinson v. Hartley, 
    324 S.C. 389
    , 405, 
    477 S.E.2d 715
    , 723 (Ct. App. 1996).
    "In deciding a motion for JNOV, the evidence and all reasonable inferences must
    be viewed in the light most favorable to the nonmoving party . . . ." Gastineau v.
    Murphy, 
    331 S.C. 565
    , 568, 
    503 S.E.2d 712
    , 713 (1998). "[I]f more than one
    inference can be drawn, the case must be submitted to the jury." 
    Id.
     "A motion for
    JNOV may be granted only if no reasonable jury could have reached the
    challenged verdict." 
    Id.
     The jury's verdict will not be overturned if any evidence
    exists that sustains the factual findings implicit in its decision. Shupe v. Settle, 
    315 S.C. 510
    , 515, 
    445 S.E.2d 651
    , 654 (Ct. App. 1994).
    LAW/ANALYSIS
    I.    Video Evidence
    Watts argues she is entitled to a new trial because the video was unfairly
    prejudicial to her. We disagree.
    A.    Rules 1001 to 1004, SCRE
    Rule 1001(2), SCRE, provides "photographs" include "video tapes, motion pictures
    or other similar methods of recording information." Rule 1001(4), SCRE, defines
    a "duplicate" as "a counterpart produced by the same impression as the original . . .
    by mechanical or electronic re-recording . . . or by other equivalent techniques
    which accurately reproduces the original." Rule 1002, SCRE, states to prove the
    content of a recording, the original recording should be entered into evidence.
    Rule 1003, SCRE, allows a "duplicate" to be admitted "to the same extent as an
    original unless (1) a genuine question is raised as to the authenticity of the original
    or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the
    original." Rule 1004(1), SCRE, lists an exception to the original recording
    requirement and provides a copy may be admitted if all originals are lost or have
    been destroyed without the fault of the party desiring to prove the fact. See Vaught
    v. Nationwide Mut. Ins. Co., 
    250 S.C. 65
    , 68-69, 
    156 S.E.2d 627
    , 628-29 (1967)
    (stating secondary evidence is only admissible when "the primary evidence of the
    fact to be proved is satisfactorily shown to have been lost or destroyed without the
    fault of the party desiring to prove the fact . . . ." (quoting W.C. Beaty & Co. v. S.
    Ry. Co., 
    80 S.C. 527
    , 530, 
    61 S.E. 1006
    , 1007 (1908))). "The preliminary inquiry
    as to whether there had been sufficient evidence tending to prove the loss,
    destruction or unavailability of an original document to justify the admission of
    secondary evidence is an inquiry, the answer to which, in large measure, is within
    the discretion of the trial [court] . . . ." Windham v. Lloyd, 
    253 S.C. 568
    , 573, 
    172 S.E.2d 117
    , 119 (1970).
    Watts argues the video does not qualify as an admissible "print" or "duplicate" of
    the original, under Rules 1001, 1002, and 1003 of the South Carolina Rules of
    Evidence. Watts asserts Matthew Cagle, the owner of the recycling business,
    testified to facts proving that the video is altered from the original surveillance
    video because Cagle fast forwarded through some of the footage during the
    copying by Trooper Duncan to get to the time he wanted to start recording.
    Trooper Duncan also testified the video jumps a little because he did not need to
    record much of the surveillance before and after the collisions. Also, Watts asserts
    Trooper Duncan testified the video included imperfections that were not on the
    original surveillance video – images of himself reflected on the monitor while he
    copied the surveillance video and the process of copying the surveillance as it
    played on the monitor created a glare that was not on the original footage. Cagle
    also testified there was a glare on the recording.
    At trial, Cagle testified the system "records in a loop, and about every six months it
    records over itself." He also stated there was no cassette tape he could give
    Trooper Duncan because it recorded on a hard drive and the only way to get a copy
    of the recording was for Trooper Duncan "to bring a tripod like this right here and
    set a camcorder on it to record the images off the monitor." Trooper Duncan
    testified Cagle told him there was no way to get the data off the hard drive and he
    used the camcorder to record the surveillance footage because he realized the
    evidence could be lost. Watts did not argue the original was not lost or that
    Chastain lost the original. Watts also did not argue the video was not a copy of the
    original, just that the video is fast-forwarded to the time of the collisions, does not
    show the collisions, and the quality is low.
    The trial court found the video complied with Rules 1001 to 1004, SCRE, because
    (1) the video recorded by Trooper Duncan was a duplicate of the images shown on
    the original surveillance video; (2) there was no genuine question raised as to the
    authenticity of the original video; and (3) the original video was never in the
    possession of Chastain and is no longer available for reasons fully explained at
    trial. We find the evidence supports this conclusion; thus, there was no abuse of
    discretion by the trial court in admitting the video. See BB&T, 
    369 S.C. at 551
    ,
    
    633 S.E.2d at 503
     ("An abuse of discretion arises where the judge issuing the order
    was controlled by an error of law or where the order is based on factual
    conclusions that are without evidentiary support.").
    B.    Rule 901, SCRE
    Rule 901(a), SCRE, requires authentication as a condition precedent to the
    admissibility of evidence and provides it "is satisfied by evidence sufficient to
    support a finding that the matter in question is what its proponent claims." It
    further provides that authentication may be made by "[t]estimony that a matter is
    what it is claimed to be." Rule 901(b)(1), SCRE.
    In State v. Brown, involving the authentication of Global Positioning System
    (GPS) records, our supreme court "emphasize[d] that '[n]o elaborate showing of
    the accuracy of the recorded data is required'; however, the State must make some
    showing to authenticate the records." 
    424 S.C. 479
    , 490, 
    818 S.E.2d 735
    , 741
    (2018) (quoting People v. Rodriguez, 
    224 Cal. Rptr. 3d 295
    , 309 (Cal. Ct. App.
    2017)). The court held a witness need not be an expert, but "should have
    experience with the electronic monitoring system used and provide testimony
    describing the monitoring system, the process of generating or obtaining the
    records, and how this process has produced accurate results for the particular
    device or data at issue." Id. at 492, 
    818 S.E.2d at 742
    . In Rodriguez, cited by the
    Brown court, the court also considered the authentication of GPS records and
    stated:
    It is settled [that] computer systems that automatically
    record data in real time, especially on government-
    maintained computers, are presumed to be accurate.
    Thus, a witness with the general knowledge of an
    automated system may testify to his or her use of the
    system and that he or she has downloaded the computer
    information to produce the recording. No elaborate
    showing of the accuracy of the recorded data is required.
    Courts in California have not required "testimony
    regarding the 'acceptability, accuracy, maintenance, and
    reliability of . . . computer hardware and software'" in
    similar situations. . . . The rationale is that while
    mistakes may occur, such matters may be developed on
    cross-examination and should not affect the admissibility
    of the printout or recording of the data itself.
    224 Cal. Rptr. 3d at 309 (quoting People v. Dawkins, 
    179 Cal. Rptr. 3d 101
    , 110
    (Cal. Ct. App. 2014)).
    Watts argues the video was not relevant and was prejudicial to her because the
    video's time stamp begins twenty minutes after the collisions occurred and does not
    show either of the collisions at issue. Watts asserts this unresolved time
    discrepancy bars authentication of the original video. She asserts Cagle had no
    training relevant to surveillance systems, four of his system cameras did not work
    at the time of the wreck, and eight of the cameras did not work at the time of the
    trial, yet he testified his system worked well. Thus, she argues Cagle's testimony is
    not adequate to authenticate the original video's accuracy. She also asserts Trooper
    Duncan could not authenticate the video because he lacked personal knowledge
    and could not testify the surveillance equipment kept reliable, accurate time.
    Although the time stamp of the video begins twenty minutes after the collisions
    occurred, Cagle testified the system is reliable and the date and time stamp was
    accurate. He also testified the video was a recording of what played on his
    surveillance monitor and that no alteration of the video occurred between the time
    of the accident and the time Trooper Duncan recorded it with his camcorder. Rule
    901(b)(1), SCRE, provides that authentication may be made by "[t]estimony that a
    matter is what it is claimed to be." The Brown court held a witness need not be an
    expert, but should have experience with the electronic monitoring system used and
    provide testimony describing the system. 
    424 S.C. at 492
    , 
    818 S.E.2d at 742
    .
    Also, Trooper Duncan testified the video was a true and accurate representation of
    what he recorded on his camcorder when he went to Cagle's business. Thus, we
    find Cagle and Trooper Duncan's testimony was sufficient to authenticate the
    video, and the court did not err in admitting it into evidence at trial.
    C.    Rule 403, SCRE
    Relevant evidence is "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. Our courts have defined
    unfair prejudice as "an undue tendency to suggest a decision on an improper basis."
    Johnson v. Horry Cnty. Solid Waste Auth., 
    389 S.C. 528
    , 534, 
    698 S.E.2d 835
    , 838
    (Ct. App. 2010) (quoting State v. Owens, 
    346 S.C. 637
    , 666, 
    552 S.E.2d 745
    , 760
    (2001), overruled on other grounds by State v. Gentry, 
    363 S.C. 93
    , 
    610 S.E.2d 494
     (2005)). This court "reviews Rule 403 rulings pursuant to an abuse of
    discretion standard and gives great deference to the trial court." Lee v. Bunch, 
    373 S.C. 654
    , 658, 
    647 S.E.2d 197
    , 199 (2007). Thus, only in exceptional
    circumstances should this court reverse a trial court's decision regarding the
    comparative probative value and prejudicial effect of evidence. Johnson, 389 S.C.
    at 534, 698 S.E.2d at 838.
    Watts argues the video is of such poor quality that its probative value is extremely
    low. She further asserts its probative value is far outweighed by its unfair
    prejudice, confusion of the issues, and tendency to mislead the jury because it is
    silent 3, in black and white, and does not depict either of the collisions at issue.
    Watts argues the full effect of the unfair prejudice caused by the video is shown in
    the jury's finding that Deputy Holmes was not negligent in making his left U-turn,
    on an unlit and very dark stretch of road at night, without a siren, without overhead
    flashing lights or even a turn signal, and when there were at least three other
    vehicles following close behind him. Further, she argues it is undisputed that the
    collisions were only seconds apart, but the video was used to convince the jury that
    there was a longer time between impacts, so as to place liability on Watts. 4 She
    asserts the court erred a second time by denying her a new trial as a result of this
    unfair prejudice.
    The relevant incidents were the two collisions, and the video captured the events
    that occurred relative to the time of the two collisions and were re-recorded in real
    time. Although the video does not show the actual impact of the collisions, the
    trial court found the video was relevant evidence because it provided information
    and evidence as to the position of the vehicles, the timing of the two collisions at
    issue, the roadway conditions, and whether the motorists had their lights on. Our
    standard of review of the trial court's admission of evidence is limited to
    determining whether there was an abuse of discretion. Lee, 
    373 S.C. at 658
    , 
    647 S.E.2d at 199
    . We find the evidence supports the trial court's conclusion that the
    video was relevant evidence because it provided information as to the position of
    the vehicles, the timing of the collisions at issue, the roadway conditions, and
    whether the motorists had their lights on. Thus, there was no abuse of discretion.
    See BB&T, 
    369 S.C. at 551
    , 
    633 S.E.2d at 503
     ("An abuse of discretion arises
    where the judge issuing the order was controlled by an error of law or where the
    order is based on factual conclusions that are without evidentiary support.").
    II.   Closing Argument
    Watts argues she is entitled to a new trial because defense counsel's closing
    argument unfairly prejudiced the outcome. We disagree.
    "It has long been settled that closing arguments and objections thereto are left
    largely to the sound discretion of the trial judge 'who is on the scene and in much
    3
    Cagle and Trooper Duncan testified the original surveillance footage did not
    have any sound.
    4
    Chastain agreed to redact all but a few of the objectionable portions of Deputy
    Holmes' video deposition, so Holmes' contradictory testimony that the second
    collision occurred 41 seconds after the first collision was not presented to the jury.
    better position than an appellate court to judge as to what is improper argument
    under the circumstances.'" Howle v. PYA/Monarch, Inc., 
    288 S.C. 586
    , 599, 
    344 S.E.2d 157
    , 164 (Ct. App. 1986) (quoting Lesley v. Am. Sec. Ins. Co., 
    261 S.C. 178
    , 185, 
    199 S.E.2d 82
    , 86 (1973)). "[C]onsiderable latitude is allowed counsel
    in drawing inferences and deductions from the evidence and in arguing the same to
    the jury." Lesley, 
    261 S.C. at 185
    , 
    199 S.E.2d at 85
    . "When [an] objection is
    timely made to improper remarks of counsel, the judge should rule on the
    objection, give a curative charge to the jury, and instruct offending counsel to
    desist from improper remarks." McElveen v. Ferre, 
    299 S.C. 377
    , 381, 
    385 S.E.2d 39
    , 41 (Ct. App. 1989).
    Prior to closing argument, Watts sought a ruling to prevent defense counsel from
    commenting on the video. The court stated:
    Whatever the video shows, you can certainly argue that
    as they can, but if the video does not show something,
    then you certainly cannot – because it almost would be
    testifying, and certainly you cannot do that. . . . So I'll
    allow you to argue what is on the video, but if it's not on
    the video, then you can't add to it.
    Watts asserts that defense counsel suggested in closing argument that the flashes of
    light in the video were the parties' vehicles as the collisions occurred.
    [DEFENSE COUNSEL]: Now, Barton Holmes and Ms.
    King all say that Barton Holmes did a U-turn. And if he
    did a U-turn, you could maybe see or expect where his
    lights would go. So Barton Holmes, according – if he
    had his lights on would be traveling in Lane Number 1
    and make a turn that would have taken him back in the
    direction or faced his vehicle back in the direction of
    Laurens. I invite you to look at this video on Channel 5
    and pay attention to what is happening before. You see
    lights, I'm going to suggest, moving in each direction on
    76. Lights moving. At some point in time, and I'm going
    to suggest to you it might be right around 58:07 that the
    video might show you some evidence that would indicate
    that there [were] lights that panned around in this
    direction and made possibly a U-turn. But you decide
    that.
    [PLAINTIFF'S COUNSEL]: Your Honor, we object to
    this testimony . . . about the video.
    THE COURT: He can argue the video so long as he does
    not add anything to what the video may depict.
    Watts also asserts defense counsel implied the jurors had been "trained" to be
    "detectives" in the case and asked the jurors to try to see things that are not on the
    video.
    [DEFENSE COUNSEL]: I'm going to suggest to you –
    and I'm not asking you to review this thing bunches of
    times. You review it whenever you want. But there are
    images in there that I think are enlightening that will
    support and prove important facts in this case, and they
    will prove, I submit to you, that there were lights on Ms.
    King's vehicle, Barton Holmes had lights on, and that
    there was a significant – and you go with your
    calculations about the time delay between what this video
    shows as to what appears to be the collision involving
    Barton Holmes and Ms. King and then the later collision
    involving Ms. Watts. But I'm trying to give you kind of
    the heads-up, the narrative, invite you to look at it again
    with your trained eyes, 24 eyes. You may see fine things
    much different than me. I invite you to do that. But I
    offer this to you as evidence that I submit would indicate
    that there were lights on out there, there was a significant
    time delay between these two impacts, that other vehicles
    move through the area without any difficulty, and that
    [Ms.] Watts' vehicle sometime, multiple seconds later,
    you figure out when that is, she collides with the King
    vehicle. . . .
    [PLAINTIFF'S COUNSEL]: Your Honor, we had
    specific directions about comments.
    THE COURT: Again, he cannot add anything that is not
    depicted on the video.
    Watts asserts defense counsel's argument improperly suggested to the jurors that
    they were "detectives" and the jury's duty was to uncover evidence that was not on
    the video.
    Watts argues the defense offered its interpretation of the video, including things
    that were not depicted on the video, which was contrary to the court's directives
    and prejudicial to her. She also argues defense counsel's closing argument was
    improper because it compared the jurors to radiologists and detectives, which
    appealed to the jurors' emotions, personal beliefs, intuitions, passion, biases and
    prejudices. She also asserts no expert testimony was offered in this case to
    interpret the video, no witness identified any vehicle on the video, and no other
    evidence was offered from which the jury could make an inference that any of the
    vehicles involved in the collisions were depicted on the video. Also, Watts asserts
    the court's rulings on her objections compounded the prejudice to her because it
    signaled to the jury that the court agreed with defense counsel's implications that if
    they looked well enough they would see on the video that Watts caused the wreck,
    despite Deputy Holmes' unsafe U-turn. Further, she maintains the court's rulings
    on defense counsel's improper comments were not cured by the court's general
    instructions to the jury, because "immediate curative instructions" were necessary.
    The trial court found there was no prejudice in defense counsel's closing argument
    and any remarks by counsel did not deprive Watts of a fair trial. It is within the
    sound discretion of the trial court to determine what is an improper argument under
    the circumstances. Howle, 288 S.C. at 599, 344 S.E.2d at 164. Our courts have
    held considerable latitude is allowed to counsel in arguing inferences and
    deductions from the evidence to the jury. Lesley, 
    261 S.C. at 185
    , 
    199 S.E.2d at 85
    . When Watts objected to the defense counsel's remarks she deemed improper,
    the court ruled on the objection and instructed counsel to desist from improper
    remarks. See McElveen, 299 S.C. at 381, 385 S.E.2d at 41 ("When objection is
    timely made to improper remarks of counsel, the judge should rule on the
    objection, give a curative charge to the jury, and instruct offending counsel to
    desist from improper remarks."). Thus, we do not find the trial court abused its
    discretion by denying her motion for a new trial or JNOV based on defense
    counsel's closing argument.
    CONCLUSION
    Accordingly, the decision of the trial court is
    AFFIRMED. 5
    WILLIAMS, C.J., and LOCKEMY, A.J., concur.
    5
    We decide this case without oral argument pursuant to Rule 215, SCACR.