State v. Green ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Tappia Deangelo Green, Appellant.
Appellate Case No. 2017-001296
Appeal From Charleston County
Roger L. Couch, Circuit Court Judge
Opinion No. 5800
Heard November 7, 2019 – Filed February 3, 2021
AFFIRMED
Appellate Defender Joanna Katherine Delany, of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General William Frederick Schumacher, IV,
both of Columbia; and Solicitor Scarlett Anne Wilson,
of Charleston, for Respondent.
HUFF, J.: Tappia Dangelo Green appeals from his convictions for armed robbery,
kidnapping, and possession of a weapon during the commission of a violent crime.
He asserts the trial court erred in (1) allowing irrelevant testimony of a detective
concerning the victim's fear, causing the detective to give the victim's story
credibility, (2) allowing evidence of his post-arrest silence in violation of Doyle v.
Ohio,1 and (3) not enforcing a grant of mistrial when a juror was unable to
participate in deliberations due to a medical condition and asked to be relieved.
We affirm.
FACTUAL/PROCEDURAL BACKGROUND
Green was tried before a jury May 22-25, 2017. The State presented evidence that:
Green and two other individuals—Jonathan Johnson and a third, unknown man—
kidnapped Keith Lee under gunpoint as he waited for his girlfriend who had
entered a bank; they robbed him of a small amount of cash and jewelry; they drove
him to his place of employment to collect his pay check; they drove him to a check
cashing business; and they released him after taking his money from his paycheck.
The defense's position was that Lee owed Johnson money for drugs; he voluntarily
rode with the men to cash his check and turned over the money; and Lee only
reported it as a crime to avoid his girlfriend's anger over him using his paycheck
for drugs.
During the trial, Detective Jennifer Butler testified she interviewed Lee's girlfriend,
Karissa, who identified Johnson2 as a person she had seen while she was in the
bank. Detective Butler transported Lee and Karissa home after their interviews.
When asked about their emotional state during this time, she stated they both
appeared "very shook'en up," they were very disturbed, they were concerned about
retaliation, and they inquired about a special patrol request for their address.
Detective Butler testified she detected "pretty genuine fear" and, in her experience
as a detective, that was not common, and they appeared more shaken and
concerned than average victims. The solicitor asked the detective if, based upon
what she perceived as a very real fear, she believed their story. Defense counsel
objected, stating, "He's asking her did she believe [their] story and I think that's
irrelevant whether she believes it." The trial court allowed the testimony over the
objection.
Green testified in his own defense, claiming Johnson stated Lee owed him money.
He recounted how he, Johnson, Lee and a third person drove around smoking weed
that day, indicating they went from the bank to Lee's place of employment and to a
check cashing business. Green acknowledged that he was the person wearing all
black as depicted on the camera at Lee's place of employment that day. Green
1
426 U.S. 610 (1976).
2
Karissa knew Johnson because she worked with Johnson's mother.
disputed that Lee was forced or threatened to do anything by him or Johnson.
Explaining how he touched the check or envelope belonging to Lee, Green stated
that Lee and Johnson walked into a check cashing place and, after they came out
and got in the car, Lee handed him a check or an envelope that he then gave to
Johnson. Green testified Lee did appear upset at one point, though, commenting
that his "gal" was going to "trip."
On cross-examination, the solicitor engaged in lengthy questioning of why Green
had not told this story to the police and this was the first time anyone had heard it.
Defense counsel eventually objected, asserting the solicitor was improperly
commenting on Green's exercise of his Fifth Amendment rights. The trial court
sustained the objection and, at the trial court's direction, the solicitor moved on to
other questions. Subsequently, a concern was raised that the solicitor's line of
questioning may have violated Doyle. After hearing arguments and listening to a
proffer of evidence on the matter, the trial court determined the evidence indicated
Green was not Mirandized 3 and, therefore, the questioning was not violative of
Doyle. However, no further questions were elicited, nor was any argument made,
on the matter before the jury.
After the jury began deliberations, Juror 280 came before the court, apparently
having asked to be relieved because of a menstrual problem. The trial court
explained that they could quit early that day, but she would have to return in the
morning. When asked if she wanted to go home early, she declined. She further
declined the trial court's invitation to start a little later the following morning,
explaining such would not matter. Juror 280 returned to the jury room, and the
trial court stated, "This juror that was in here, she's not participating with
discussions. She's just back there crying. She says it's going to be worse
tomorrow." The trial court then stated, "I'm going to have to miss try [sic] the
case." Defense counsel suggested they bring the jurors back the next week, but the
trial court declined that suggestion and again stated, "I'm going to miss try [sic] the
case" noting the juror was not participating, she stated it would be worse
tomorrow, and she was not an effective juror. The defense declined to proceed
with only eleven jurors, and the trial court stated, "Bring in the lady who's having
the problem." However, before it could do so, the jury returned with a verdict.
After the trial court indicated it had been informed the jury had reached a verdict, it
asked if the parties were ready to receive the verdict. Defense counsel replied that
3
Miranda v. Arizona, 384 U.S. 436 (1966).
the defense was ready. When the jury returned to the courtroom, the trial court
addressed the foreman, noted an issue had come up during deliberations, and asked
if he felt "the jury has had an adequate opportunity to review the case and has
issued its decision without duress." The foreman replied affirmatively. When
asked if he thought it was a fair verdict in this matter, the foreman again replied
affirmatively. The trial court then addressed Juror 280 and asked if she had been
able to participate in this decision, if she felt it was a fair verdict on her part, and
whether she had an opportunity to adequately consider the case. Juror 280
responded affirmatively to each question. The trial court had all the jurors confirm
this was their verdict. The verdict was then published, with the jury finding Green
guilty on all charges. When asked if the defense had any matters to consider
before releasing the jury, defense counsel stated they had none.
ISSUES
1. Whether the trial court erred by allowing irrelevant testimony by Detective
Butler that Lee was purportedly more fearful than the average victim, causing the
detective to believe his story and give it credibility, when the case turned on
credibility.
2. Whether the trial court erred by allowing evidence of Green's post-arrest
silence in violation of Doyle, when the court determined the matter hinged on
whether Green had been provided with Miranda warnings, then disregarded
testimony Green had been read Miranda and refused to hear and consider body
camera recordings from two officers on scene at Green's arrest given time
considerations.
3. Whether the trial court erred in not enforcing its grant of a mistrial when
Juror 280 was unable to participate in deliberations due to a medical condition and
asked to be relieved, Green asked that the case be continued until the following
week when the juror's medical problem would be resolved, Green refused to waive
his right to twelve jurors, the court stated it was declaring a mistrial because Juror
280 could not effectively participate in deliberations, and then the jury returned
with a verdict.
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.
Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). "This same standard of
review applies to preliminary factual findings in determining the admissibility of
certain evidence in criminal cases." Id. at 6, 545 S.E.2d at 829. On review, this
court is limited to determining whether the trial court abused its discretion. Id.Accordingly, we do not re-evaluate the facts based upon our own view of the
preponderance of the evidence. Id. Rather, we simply determine whether the trial
court's ruling is supported by any evidence. Id."In general, rulings on the admissibility of evidence are within the trial court's
sound discretion and will not be disturbed on appeal absent an abuse of that
discretion resulting in prejudice to the complaining party." State v. Halcomb, 382
S.C. 432, 443, 676 S.E.2d 149, 154 (Ct. App. 2009). "[T]his Court is bound by the
trial court's factual findings unless they are clearly erroneous." Id. at 439, 676
S.E.2d at 152. "The appellate court reviews a trial judge's ruling on admissibility
of evidence pursuant to an abuse of discretion standard and gives great deference
to the trial court." State v. Torres, 390 S.C. 618, 625, 703 S.E.2d 226, 230 (2010).
The decision to grant or deny a mistrial is within the sound discretion of the trial
court and will not be overturned on appeal absent an abuse of discretion amounting
to an error of law. State v. Wiley, 387 S.C. 490, 495, 692 S.E.2d 560, 563 (Ct.
App. 2010).
LAW/ANALYSIS
I. Detective Butler's Testimony
On appeal, Green argues the trial court erred in allowing Detective Butler's
testimony that she found Lee credible due to his appearing more fearful than the
average victims she had come into contact with because such was "irrelevant, as it
invaded the province of the jury," thereby rendering it incompetent. He contends,
because credibility of Lee was a critical issue in the case, this irrelevant bolstering
resulted in prejudice to him.
We agree with the State that Green's appellate argument that the testimony
vouched for the credibility of Lee and invaded the jury's province is not preserved
for our review. The record clearly shows defense counsel objected to admission of
Detective Butler's testimony in this regard solely on the basis of relevance. See
State v. McKnight, 352 S.C. 635, 646, 576 S.E.2d 168, 174 (2003) (holding in
order to preserve an issue for appellate review, the issue must be raised to and
ruled upon by the trial court); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691,
694 (2003) ("A party need not use the exact name of a legal doctrine in order to
preserve it, but it must be clear that the argument has been presented on that
ground."); State v. Whitten, 375 S.C. 43, 47, 649 S.E.2d 505, 507 (Ct. App. 2007)
(holding an appellate court is limited by appellate rules that allow the court to
consider only the precise question that was before the trial court and ruled upon by
the court). Further, starting with its opening statement to the jury and throughout
the trial, the defense presented a theory that Lee owed money to Johnson for drugs,
there was no robbery but only the collection of a drug debt, Lee's story was not
credible, and Lee's reason for not telling the truth was to hide the true story from
the police and his girlfriend. Thus, whether Lee's story was believable was
relevant. Accordingly, the record supports the trial court's determination that the
evidence was relevant. See Rule 401, 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."). Whether this testimony from Detective Butler was
improper because it invaded the jury's province or improperly vouched for Lee was
not raised to nor ruled upon by the trial court and, therefore, is not preserved for
our review.
We additionally note that one of the responding police officers, Alexander
Kaufman, testified without objection that, although this was a very unusual set of
circumstances, he found Lee's and Karissa's statements to be credible because they
were very cooperative, they gave consistent statements, they cooperated with the
investigation, they returned calls and made calls to Kaufman, it was very unusual
for victims of crime to be so cooperative, and he found no reason to doubt them.
He stated it did not appear Lee and Karissa were involved in any criminal, gang, or
drug activity, and their credibility continued to be established throughout the
investigation. Accordingly, any error in the admission of Detective Butler's
testimony in this regard is harmless. See State v. Price, 368 S.C. 494, 499-500,
629 S.E.2d 363, 366 (2006) (noting any error in admission of improper evidence is
harmless when such is cumulative to other unobjected-to evidence admitted at
trial); State v. Kirton, 381 S.C. 7, 37-38, 671 S.E.2d 107, 122 (Ct. App. 2008)
(finding, while an objection to the testimony presented by the victim was
preserved, appellant failed to timely object to the similar testimony by two other
witnesses and, therefore, the admission of the victim's testimony would have been
harmless error as it was merely cumulative to the other that was entered into
evidence without objection).
II. Doyle
When Green testified in his defense, his testimony supplied explanations for the
State's evidence that Green's fingerprints were found on Lee's paycheck or
envelope and for the video evidence of his presence. As noted, on cross-
examination of Green, the solicitor thereafter engaged in lengthy questioning of
why Green had not told this story to the police and why this was the first time
anyone had heard it. Defense counsel eventually objected to this line of
questioning, asserting the solicitor was improperly commenting on Green's
exercise of his Fifth Amendment rights. The trial court sustained the objection and
the solicitor moved on to other questions. During re-cross examination of Green,
an issue arose on another matter, and the trial court decided to dismiss the jury for
the evening during which time the court intended to research the matter. When
court resumed the next day, the trial court noted it had a conference with the
attorneys in his chambers on two separate matters, including in regard to the
solicitor's questioning of Green concerning his failure to offer an exculpatory
statement during his almost two-year incarceration prior to trial. The trial court
stated it had some concern whether the line of questioning violated Doyle, but
noted the solicitor advised there was no record in the file to indicate Green had
ever been given his Miranda rights. The solicitor then also indicated he had
spoken with the arresting officer, who advised that Green had outstanding warrants
when he was arrested, so she did not Mirandize or question him. Defense counsel
protested that Green had informed him he was given post-arrest Miranda rights,
and counsel sought to proffer Green's testimony on the matter. The trial court
indicated it was hesitant to "try the circumstances of [Green's] arrest," but relented
to a proffer after defense counsel asserted the matter was "critical to whether or not
[Green was] entitled to a mistrial."
In the proffer, Green testified he was involved in a high speed chase and once he
was apprehended, "this guy . . . read me my rights," and told Green he had "like
eleven warrants." Green claimed this person read him his Miranda rights and put
him in a car with a female officer who then transported Green to the county jail.
He stated the female did not read him his rights, but "just basically transported me
to the county jail." Green expounded that he had run into an apartment and then
was sitting on some steps when officers told him to come out with his hands up.
At that point, he was cuffed and one of the North Charleston Police officers said,
"[H]ey, that's Tappia Green" and he was given his Miranda rights. Green did not
know the officer's name, but described him as an approximately thirty year-old
white man with a bald head, a stocky build, and wearing all green. When pressed
for a description of the person by the solicitor, Green stated, "That's why they do
police body cameras. All that should be on record." He claimed the bald-headed
officer asked him some questions, and he was then put into a cruiser by a man and
transported to jail by a female officer.
The State thereafter proffered the testimony of arresting officer Danielle Smoak
and K-9 Officer Brandon VanAusdal. Officer Smoak testified that on August 19,
2015, she was involved in a pursuit of Green, who was driving a vehicle and then
fled into a building. She and her teammates surrounded the building and waited
for the K-9 officer to arrive. Officer Smoak took the first position at the doorway
on one side, while the K-9 officer was directly across from her on the other side.
When the K-9 officer announced that he was going to release the dog, Green came
out with his hands up. Officer Smoak took Green into custody as he came out the
door, put him in handcuffs, and placed him in the back of her patrol car and waited
for transport. They ran a records check and found Green had outstanding warrants
for armed robbery, kidnapping, firearms and forgery. She did not Mirandize him
or attempt to interrogate him. Officer Smoak stated that as soon as they found out
Green had warrants, she notified the detective and "that was that." No one in her
presence read Green his Miranda rights. When asked if the transport officer read
Green his rights, Officer Smoak testified transport officers did not do that and such
was not part of their protocol. Officer Smoak stated the only person present at the
scene that fit the description of a stocky guy with a bald head wearing something
like fatigues was K-9 Officer Brandon VanAusdal. Although she could not say
with certainty that none of the other officers ever talked to Green that day, Officer
Smoak testified no one usually talks to an arrested individual after she detains the
person and puts them in a car. As far as she knew, no other officers except the K-9
officer had any contact with Green. Once Green was placed into Officer Smoak's
patrol car, it was secured and locked such that nobody else could have entered her
car to read Green his rights. When the transport officer arrived, Officer Smoak
unlocked her patrol car for the officer and the transport officer took Green from
Officer Smoak's car, put him in hers, and then transported him to jail.
Officer VanAusdal testified that on August 19, 2015, he was involved with taking
Green into custody after he fled into an apartment building. Upon arrival, he was
at the door with Officer Smoak where he deployed his K-9 and gave three K-9
warnings, indicating he was getting ready to release the dog. Officer VanAusdal
denied giving Miranda warnings to Green, and he did not hear anyone else read
Green his Miranda rights. After Green was taken into custody, Officer VanAusdal
returned his dog to his vehicle, at which point his function in the matter was over.
When asked at what point Officer VanAusdal would give Miranda warnings, he
stated he would do so if he was going to ask questions, "but if it's just a simple
warrant service, handcuffs are put on, [and] he's transported." When asked if he
recalled anyone else at the scene with a similar hairstyle to his, Officer VanAusdal
stated he did not remember who was bald and who was not.
Following the proffer, the solicitor argued that Doyle does not apply if no Miranda
warnings are given. Defense counsel moved for a mistrial, noting the incident
report4 from the night of Green's arrest indicated the event was recorded with body
cameras. The trial court responded, "If that evidence is available, I'll watch it right
now, but I've delayed this case today already for a whole morning on this issue."
Defense counsel asserted it was incumbent on the State to prove the matter beyond
a reasonable doubt. The trial court disagreed with such a burden of proof, stating it
was a question of whether or not Green received Miranda warnings at the scene.
Nonetheless, the court stated it would "probably find . . . beyond a reasonable
doubt . . . that there is sufficient evidence to indicate [Green] was not Mirandized
at that time." The court noted Court's Exhibit 3 contained a place on the form to fill
out if rights were given, but it was not checked and no copy of the advisement of
rights was attached. The trial court found nothing in the document indicated
Green's rights had been given to him by anyone; the officers who were present at
the door when he was taken into custody testified neither administered him
Miranda rights; and the officers indicated that with warrant arrests, such rights are
4
The document that included the incident report was made part of the record as
Court's Exhibit 3 for the proffer without objection. The report indicates that
Officers Riley and Norwood, responding to a report of a possible subject wanted
for a violent felony, pursued the suspect when he failed to comply with an
attempted traffic stop, that the suspect jumped out of his vehicle and ran into an
apartment building, a perimeter was set up with a K9 arriving for assistance, and
the suspect subsequently surrendered and was taken into custody by Officer Smoak
while perimeter units maintained officer safety. The report states that Officer
Norwood activated his body camera and "the entire incident was captured" on his
body camera, which included Officer Norwood "running in pursuit of the suspect
and . . . the front view of the suspect as he walked out of the apartment and
surrendered." A supplemental report by an Officer Cummins stated the officer
responded to assist in the matter, stood perimeter, a K9 arrived on the scene, the
suspect came out with his hands up, the suspect was detained without incident, and
'[t]his incident was recorded with the department issued body worn camera."
generally not given. Accordingly, the trial court found the matter was not violative
of Doyle, allowed the question to stand,5 and denied Green's motion for mistrial.
On appeal, Green contends the trial court erred by allowing the evidence of his
post-arrest silence in violation of Doyle (1) when it determined the matter hinged
on whether he had been provided Miranda warnings but then disregarded
testimony that he had been read his rights, and (2) by refusing to consider body
camera recordings of the two officers on scene at the arrest based upon time
considerations. He maintains the trial court's factual finding that Green had not
been provided with Miranda warnings was an abuse of discretion because it was
unsupported by the evidence. Alternatively, Green argues the trial court
committed legal error in allowing the State to impeach him with his pretrial silence
because there was evidence in the record from his own testimony that he had been
provided with Miranda warnings, and our appellate courts have upheld the
admission of such evidence for impeachment "only where there is no evidence in
the record the accused had received Miranda." We disagree.6
5
It should be noted, although the trial court stated it would "allow the question to
stand," no further testimony was elicited after the court's ruling, and the last the
jury heard on the matter was that the defense's objection to the questioning was
sustained.
6
As an initial matter, we do not agree with the State's assertion that this issue is not
preserved for our review. Though the solicitor asked numerous questions in this
regard before an objection, defense counsel did object during this unbroken line of
questioning, arguing it was an improper comment on Green's exercise of his Fifth
Amendment rights. The trial court sustained the objection at that time, but
subsequently undertook to consider whether this questioning amounted to a Doyle
violation. The trial court allowed a proffer of evidence on whether Green received
Miranda warnings and, thereafter, ruled on the issue. The issue was raised to the
trial court by Green with sufficient specificity, was raised in a timely manner, and
was ruled upon by the trial court. See S.C. Dep't of Transp. v. First Carolina Corp.
of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007) ("There are four basic
requirements to preserving issues at trial for appellate review. The issue must have
been (1) raised to and ruled upon by the trial court, (2) raised by the appellant, (3)
raised in a timely manner, and (4) raised to the trial court with sufficient
specificity." (quoting Jean Hoefer Toal et al., Appellate Practice in South Carolina
57 (2d ed. 2002))); see also Atl. Coast Builders & Contractors, LLC v. Lewis, 398
S.C. 323, 329, 730 S.E.2d 282, 285 (2012) ("Issue preservation rules are designed
to give the trial court a fair opportunity to rule on the issues, and thus provide us
In Doyle, the United States Supreme Court (USSC) ruled that a prosecutor may not
attempt to impeach a defendant's exculpatory story—told for the first time at
trial—by cross-examining him concerning any failure to have told the story after
receiving Miranda warnings at the time of his arrest, as use of the defendant's post-
arrest silence in this manner violates due process. 426 U.S. at 611. The court
noted "while it is true that the Miranda warnings contain no express assurance that
silence will carry no penalty, such assurance is implicit to any person who receives
the warnings" and "[i]n such circumstances, it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's silence to be used to
impeach an explanation subsequently offered at trial." Id. at 618. It thus held "the
use for impeachment purposes of [a defendant's] silence, at the time of arrest and
after receiving Miranda warnings, violate[s] the Due Process Clause of the
Fourteenth Amendment." Id. at 619.
Thereafter, in Fletcher v. Weir, 455 U.S. 603 (1982), the USSC clarified the rule
set forth in Doyle. In that case, Weir, who was on trial for intentional murder, took
the stand in his defense and, for the first time, offered an exculpatory version of the
stabbing of the victim. Id. The prosecutor cross-examined Weir as to why he
failed to offer this exculpatory explanation when he was arrested. Id. at 603-04.
The Sixth Circuit Court of Appeals concluded Weir was denied due process of law
when the prosecutor used his post-arrest silence to impeach him. Id. at 604. The
USSC noted, "Although it did not appear from the record that the arresting officers
had immediately read respondent his Miranda warnings, the [Sixth Circuit Court
of Appeals] concluded that a defendant cannot be impeached by use of his
postarrest silence even if no Miranda warnings had been given." Id. The court
observed the significant difference between Weir's case and Doyle was "that the
record [did] not indicate that respondent Weir received any Miranda warnings
during the period in which he remained silent immediately after his arrest." Id. at
605. It then reversed the Court of Appeals, holding that "[i]n the absence of the
sort of affirmative assurances embodied in the Miranda warnings," the state does
not violate a defendant's due process rights by permitting cross-examination of his
post-arrest silence when a defendant takes the stand. Id. at 607.
with a platform for meaningful appellate review." (quoting Queen's Grant II
Horizontal Prop. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d
902, 919 (Ct. App. 2006))).
In Brecht v. Abrahamson, the USSC stated "the Constitution does not prohibit the
use for impeachment purposes of a defendant's silence prior to arrest . . . or after
arrest if no Miranda warnings are given," and "[s]uch silence is probative and does
not rest on any implied assurance by law enforcement authorities that it will carry
no penalty." 507 U.S. 619, 628 (1993).
Our courts have applied Doyle and its progeny to hold the Due Process Clause
prohibits the prosecution from commenting on an accused's post-Miranda silence.
Citing Brecht, our supreme court has held, "The State may point out a defendant's
silence prior to arrest, or his silence after arrest but prior to the giving of the
Miranda warnings, in order to impeach the defendant's testimony at trial." State v.
McIntosh, 358 S.C. 432, 443, 595 S.E.2d 484, 490 (2004). "Due process is not
violated because '[s]uch silence is probative and does not rest on any implied
assurance by law enforcement authorities that it will carry no penalty.'" Id.(quoting Brecht, 507 U.S. at 628). Additionally, our courts have found no due
process violation from cross-examination on a defendant's silence for impeachment
purposes when the record was devoid of evidence that the defendant received
Miranda warnings. See State v. Bell, 347 S.C. 267, 271, 554 S.E.2d 435, 437 (Ct.
App. 2001) (finding no due process violation when there was "no evidence in the
record that Bell ever received Miranda warnings" and refusing to presume the
warnings were given at the time of Bell's arrest); Brown v. State, 375 S.C. 464,
480-81, 652 S.E.2d 765, 773-74 (Ct. App. 2007) (holding, in a post-conviction
relief matter, that Brown failed to meet his burden of proving the solicitor
committed a Doyle violation and that trial counsel erred in failing to object when
there was "no evidence in the record that Brown ever received the Miranda
warnings").
A. Abuse of Discretion
First, we disagree with Green's assertion the trial court abused its discretion in
determining he had not been provided with Miranda warnings because such
finding was unsupported by the evidence. See Wilson, 345 S.C. at 6, 545 S.E.2d at
829 (observing that "an abuse of discretion is a conclusion with no reasonable
factual support"). Although Green testified he was given Miranda warnings at the
scene and Officer Smoak was unable to say with certainty that no other officers
ever talked to Green at the scene of his arrest, there is evidence to support the trial
court's finding that Green was not Mirandized. In his proffer, Green claimed a
white, baldheaded, male officer with a stocky build and wearing all green gave him
his Miranda rights after he came out of the apartment building and he was cuffed.
He stated this officer put him into a police cruiser with a female officer, who then
transported him to jail. The State proffered evidence from Officer Smoak that she
was standing in the first position of the doorway outside the building; K-9 Officer
VanAusdal was directly across from her; when Officer VanAusdal announced he
was going to release his dog, Green came out with his hands up; Officer Smoak
took Green into custody as he came out the door, she put him in handcuffs, and she
placed him in the back of her patrol car to wait for transport; Officer Smoak did
not Mirandize Green and no one in her presence read Green his rights; the only
person present at the scene who fit the description given by Green was Officer
VanAusdal; as far as she knew, no other officer at the scene had contact with
Green other than Officer VanAusdal; no one usually talks to an arrested individual
after she detains the person and puts him in her car; once she placed Green in her
car, she secured and locked the car such that no one else could have entered the car
to read Green his rights; once the transport officer arrived, she unlocked her patrol
car for the female transport officer, who then removed Green from Officer Smoak's
car and transported him to jail; and transport officers do not read arrestees their
rights and such is not part of their protocol. The State further proffered testimony
from K-9 Officer VanAusdal, who confirmed he was at the door with Officer
Smoak and gave K-9 warnings to Green. Officer VanAusdal denied giving
Miranda warnings to Green and stated he did not hear anyone else do so. Thus,
the proffered testimony reflects, while Green claimed he was given Miranda
warnings at the scene of his arrest by a male officer who then placed him into the
car of a female transport officer, the only person known to have contact with Green
at the scene of his arrest other than Officer Smoak was Officer VanAusdal; Officer
VanAusdal fit the description of the individual Green claimed read him his rights;
Officer Smoak did not give Green his Miranda rights and did not hear anyone else
read him his rights; being in the first position, Officer Smoak placed Green in
handcuffs and secured him in her locked car, which meant no one else had access
to Green until the transport officer arrived; Officer Smoak unlocked her door for
the female transport officer, who then took Green to jail; and Officer VanAusdal
denied reading Green his Miranda rights. Thus, contrary evidence was submitted
by Green and the State as to whether Green was read his Miranda rights by a male
officer at the scene.
Further, though the trial court indicated a reluctance to delay the trial any further, it
did not specifically refuse to consider any body camera evidence. Rather, the trial
court stated, "If that evidence is available, I'll watch it right now, but I've delayed
this case today already for a whole morning on this issue." Defense counsel did
not, thereafter, seek to obtain any such evidence, nor did he ask the court for any
additional time to do so. Additionally, upon review of the report cited by defense
counsel, there is nothing to indicate the body cameras of the perimeter officers who
indicated body cameras recorded the incident would have captured any alleged
giving of Miranda warnings to Green from Officer Smoak, K9 Officer VanAusdal,
or any other officers. Rather, Officers Norwood and Cummins indicated in the
report that the body cameras captured the pursuit, Green's surrender, and his
placement in detention. There is nothing to indicate they would have been close
enough to Green after he was taken into custody for their body cameras to capture
whether he was thereafter Mirandized. Accordingly, we find no abuse of
discretion.
B. Legal Error
We further disagree with Green's contention that the trial court committed legal
error in allowing the State to impeach him with his pre-trial silence because there
was evidence in the record he was provided with Miranda warnings. He contends
our appellate courts have upheld the admission of such evidence for impeachment
purposes "only [when] there is no evidence in the record the accused received
Miranda [warnings]." We agree that our courts have determined no Doyle
violation occurred when the prosecution referred to a defendant's post-arrest
silence based upon the fact that there was "no evidence" the defendant received
any Miranda warnings during the pertinent period of time. However, it does not
necessarily follow that when the question of whether a defendant has been given
Miranda warnings is in contention, Doyle automatically applies. We believe the
question is not whether any evidence has been presented that a defendant received
Miranda warnings when determining whether a Doyle violation has occurred.7
Rather, the question is whether the trial judge, who saw and heard testimony on the
matter and is in a better position to judge credibility, has the authority to make a
factual determination on whether Miranda warnings have been given for purposes
of determining a Doyle violation issue when contrary evidence is presented, and
the standard of review to be applied to the trial court's determination in such a
matter.
Research reveals no South Carolina cases—nor have we discovered any other
jurisdiction's cases—addressing whether a Doyle violation has occurred based
7
Were that the case, any defendant could wait until he or she testifies and then,
upon being challenged for giving a story for the very first time in his testimony,
automatically receive a mistrial by claiming he or she was Mirandized.
upon comments on an accused's silence when there is competing evidence as to
whether a defendant has been administered his Miranda rights. Further, research
reveals very little from other jurisdictions indicating whether the burden is on the
defendant to show a Doyle violation, or whether the burden is on the State to prove
Doyle is inapplicable. However, our sister state, Georgia, has held the burden rests
on the defendant to show a Doyle violation has occurred.
In Mattox v. State, the trial court allowed the State to cross-examine the defendant
with regard to her post-arrest silence over a defense objection. 395 S.E.2d 288,
289 (Ga. Ct. App. 1990). While the record before the court failed to indicate
whether Mattox received any Miranda warnings, the court went on to address
where the burden of proof rests in considering a possible Doyle violation. Id. The
court noted "the determination of whether the defendant has the burden of showing
a Doyle v. Ohio violation or the State has the burden of showing the applicability
of Fletcher v. Weir is one of first impression in this State." Id. at 290. The Mattox
court observed that the USSC in Fletcher reversed the lower court's grant of habeas
corpus after observing the record did not indicate whether or not the defendant had
received Miranda warnings during the period of silence immediately after his
arrest. Id. It reasoned, had the burden been on the State to show Doyle was
inapplicable, i.e. that the defendant had not received the Miranda warnings, the
Fletcher court would have affirmed the grant of habeas corpus. Id. Thus, the court
construed Fletcher "as authority for the proposition that, as a matter of
constitutional law, the burden may be placed upon the defendant to show that the
Miranda warnings were given prior to his silence that is relied upon by the State
for impeachment purposes" and determined it was necessary for the defense to
make a proper showing before Doyle would apply. Id. Accordingly, the court held
the record showed Mattox failed to meet her burden of showing her post-arrest
silence occurred after she received Miranda warnings. Id.We are persuaded by the reasoning in Mattox that such burden falls upon the
defendant to show a Doyle violation. As observed by the Mattox court, the USSC
in Fletcher reversed the lower court's grant of habeas corpus, noting the record
there failed to indicate the defendant received any Miranda warnings during the
period in which he remained silent immediately after his arrest. Had the burden
been upon the State to affirmatively demonstrate Doyle was not applicable, the
failure of the record to indicate whether or not the defendant received any Miranda
warnings during the period of silence after his arrest would have presumably been
fatal to the State meeting its burden of proof and would have resulted in affirmance
of the grant of habeas corpus. Accordingly, we believe the burden is upon the
defendant to show a Doyle violation has occurred. See also Lainhart v. State, 916
N.E.2d 924, 936 (Ind. Ct. App. 2009) ("[When] a defendant asserts a Doyle
violation, he 'ordinarily bears the burden of showing that Miranda warnings were
given prior to the post-arrest silence used by the state for impeachment purposes.'"
(quoting 3 Wayne R. LaFave, Criminal Procedure § 9.6(a) n. 47 (3rd ed. 2007)));
id. (holding, because the court had no indication at what point the defendant was
Mirandized for purposes of a Doyle and Fletcher analysis, the defendant failed to
meet his burden of showing that he received Miranda warnings prior to the silence
with which he was impeached and, therefore, no Doyle violation occurred); 3
Wayne R. LaFave, Criminal Procedure § 9.6(a) n.52 (4th ed. 2019) ("The
defendant ordinarily bears the burden of showing that Miranda warnings were
given prior to the post-arrest silence used by the state for impeachment purposes.").
Further, even assuming the burden shifted to the State to show Doyle was
inapplicable once Green proffered evidence Miranda warnings were provided to
him, we find no error. Given the manner in which this matter arose, the issue
boiled down to a factual determination. As with other issues that arise during trial
when determinations concerning competing evidence must be resolved by the trial
court, this court should not reevaluate the facts based on our own view of the
preponderance of the evidence but must simply determine whether the trial court's
ruling is supported by any evidence.8 As previously noted, there is evidence to
8
For instance, in evaluating the admissibility of a custodial defendant's statement
pursuant to Miranda, "[t]he State bears the burden of proving the defendant was
properly advised of his Miranda rights," as well as proving the defendant
voluntarily waived his rights and freely made a statement. State v. Hill, 425 S.C.
374, 380, 822 S.E.2d 344, 348 (Ct. App. 2018). "If a defendant makes a custodial
statement, then the trial court must not only make an inquiry into the voluntariness
of the statement, but also conduct an inquiry to ensure the police complied with the
mandates of Miranda and its progeny." State v. Ledford, 351 S.C. 83, 88, 567
S.E.2d 904, 906-07 (Ct. App. 2002). In State v. Davis, 267 S.C. 456, 461, 229
S.E.2d 592, 594 (1976) our supreme court found no error in the admission of the
defendant's statement—even though defendant denied that he was ever given his
Miranda warnings—noting evidence relative to voluntariness of a confession is
often in sharp conflict and the trial court must make the initial determination of its
admissibility. In determining the admissibility of a defendant's statement, our
courts have held "[t]he 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." State v. Saltz, 346 S.C. 114, 136, 551 S.E.2d 240,
support the trial court's finding that Green was not given Miranda warnings. See
Wilson, 345 at 5-6, 545 S.E.2d at 829 (holding that in criminal cases, the appellate
court sits to review errors of law only and is bound by the trial court's factual
findings unless those findings are clearly erroneous); id. at 6, 545 S.E.2d at 829(providing the appellate court does not re-evaluate the facts based upon its own
view of the preponderance of the evidence, but simply determines whether the trial
court's ruling is supported by any evidence); Halcomb, 382 S.C. at 443, 676 S.E.2d
at 154 ("In general, rulings on the admissibility of evidence are within the trial
court's sound discretion and will not be disturbed on appeal absent an abuse of that
discretion resulting in prejudice to the complaining party."); Torres, 390 S.C. at
625, 703 S.E.2d at 230 ("The appellate court reviews a trial judge's ruling on
admissibility of evidence pursuant to an abuse of discretion standard and gives
great deference to the trial court."). Ultimately, the matter came down to a
question of fact determined by the trial court. It is well settled that rulings on
admissibility of evidence involving credibility determinations are within the sound
discretion of the trial court, and the appellate court should not engage in de novo
review but must leave a credibility determination to the trial judge, who saw and
heard the witnesses and is, therefore, in a better position to evaluate their veracity.9
See State v. Johnson, 413 S.C. 458, 467, 776 S.E.2d 367, 371 (2015) (noting
"[c]redibility findings are treated as factual findings" and holding, in spite of
252 (2001). Further, "[w]hen 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." Id.9
Notably, during the solicitor's questioning of Green before the jury regarding this
being the first time he had told this story, Green stated he "was never questioned,"
that "a warrant was issued directly for [his] arrest," that he "never wrote a
statement," and that he never "did an interview." He further stated that he was not
locked up for this crime until three months after it occurred and "there was no
talking,[]" [i]t was just straight, we have a warrant for your arrest, take you to
county jail, that's that, deal with the courts." This testimony is in line with the
State's assertion that Green was not given Miranda warnings at the scene because
he had warrants. Additionally, at no time did Green claim during this testimony
before the jury that he had been Mirandized, a logical explanation as to why he
would not have spoken to officers about the matter. It was only in his subsequent
proffer that he claimed he was Mirandized at the scene and was asked a couple of
questions.
defendant's claim that she invoked her right to counsel such that her statement was
inadmissible, the trial court's determination that defendant's testimony regarding
her invocation of her right to counsel was implausible was to be given great
deference, and the appellate inquiry was limited to reviewing whether the trial
court's factual findings were supported by any evidence); State v. Banda, 371 S.C.
245, 251, 639 S.E.2d 36, 39 (2006) (finding an appellate court is bound by the trial
court's factual findings unless they are clearly erroneous, and the same standard of
review applies to preliminary factual findings in determining the admissibility of
certain evidence in criminal cases); State v. Tutton, 354 S.C. 319, 325-26, 580
S.E.2d 186, 190 (Ct. App. 2003) (noting, in a case involving the issue of
admissibility of other bad act evidence, "[t]he determination of a witness's
credibility must be left to the trial judge who saw and heard the witness and is
therefore in a better position to evaluate his or her veracity"). Because there is
evidence to support the trial court's finding that Green was not given Miranda
warnings at the scene as he claimed, the solicitor's questioning concerning Green's
post-arrest silence was permissible, and no due process violation occurred.
Finally, this issue comes to us based upon the denial of Green's motion for a
mistrial. We note that in the jury's presence, the trial court sustained defense
counsel's objection to the testimony and the solicitor moved on to other
questioning as instructed by the court. Thereafter, no further evidence was elicited
on the matter before the jury. Defense counsel subsequently made a motion for
mistrial based upon a Doyle violation and testimony on the matter was proffered,
but this did not occur in the presence of the jury. Thus, the last the jury heard on
the matter was that defense counsel's objection had been sustained. The decision
to grant or deny a mistrial is within the trial court's sound discretion, and its
decision on such will not be overturned on appeal absent an abuse of discretion
amounting to an error of law. Wiley, 387 S.C. at 495, 692 S.E.2d at 563. "The
grant of a motion for a mistrial is an extreme measure which should be taken only
[when] an incident is so grievous that the prejudicial effect can be removed in no
other way." State v. Herring, 387 S.C. 201, 216, 692 S.E.2d 490, 498 (2009). "A
mistrial should only be granted in cases of manifest necessity and with the greatest
caution for very plain and obvious reasons." State v. Bantan, 387 S.C. 412, 417,
692 S.E.2d 201, 203 (Ct. App. 2010) (quoting State v. Patterson, 337 S.C. 215,
227, 522 S.E.2d 845, 851 (Ct. App. 1999)). "Whether a mistrial is manifestly
necessary is a fact specific inquiry. 'It is not a mechanically applied standard, but
rather is a determination that must be made in the context of the specific difficulty
facing the trial judge.'" Id. (quoting State v. Rowlands, 343 S.C. 454, 457-58, 539
S.E.2d 717, 719 (Ct. App. 2000)). Given the specific difficulty facing the trial
judge, including the manner in which the issue arose, the fact that the trial court
sustained defense counsel's objection to the line of questioning, the fact that the
jury was never privy to the trial court's ultimate ruling that the questioning did not
violate Doyle, and the fact that no other testimony on the matter was elicited before
the jury after the trial court sustained the defense objection, we find no abuse of
discretion in the trial court's denial of Green's motion for a mistrial.
III. Participation of Juror
Green contends the trial court erred in failing to enforce its grant of a mistrial when
Juror 280 was unable to participate in deliberations due to a medical condition and
had asked to be relieved. He argues juror illness has long been recognized by our
courts as a basis for a mistrial that does not violate the prohibition against double
jeopardy. Green maintains his constitutional right to a trial by a jury of twelve was
violated when Juror 280's illness during deliberations resulted in a verdict by a jury
composed of less than twelve participating members. He contends it was illogical
to accept the jury verdict after the court ruled Juror 280 could not effectively
participate in deliberations and the defense had declined to proceed with only
eleven jurors.
We find Green has waived any possible error by waiting until after the verdict was
announced to move for a mistrial based upon Juror 280's situation. When the trial
court indicated the jury had reached a verdict, defense counsel raised no objection
but confirmed the defense was ready to receive the verdict. The trial court then
engaged in questioning of the foreperson and Juror 280 regarding the jurors'
opportunity to deliberate and, in particular, Juror 280's ability to participate in
deliberations, and confirmed all jurors agreed to the verdict reached. Defense
counsel did not raise any objections or seek to further question the jury, and the
verdict was then published. Defense counsel also agreed to the release of the jury
after the verdict was read without posing any questions or raising any concerns
about juror participation. Although Green thereafter moved for a mistrial, he did
not do so until after the jury's verdict was published. Because our courts have held
that one may not preserve a vice in a trial until he learns what the result will be and
then, dissatisfied with the result, take advantage of the vice on appeal, we find
Green has waived any alleged error. See State v. Penland, 275 S.C. 537, 538, 273
S.E.2d 765, 766 (1981) (holding the trial court did not err in denying appellant's
motion for mistrial when, although defense counsel objected to the solicitor's
alleged improper remarks during closing arguments, he failed to move for a
mistrial until after the verdict was returned, as "[o]ne may not preserve a vice until
he learns what the result will be and then, take advantage of the error on appeal");
State v. Burnett, 226 S.C. 421, 424, 85 S.E.2d 744, 746 (1954) ("A defendant may
not reserve vices in his trial, of which he has notice . . . , taking his chances of a
favorable verdict, and in case of disappointment, use the error to obtain another
trial."). See also State v. Aldret, 333 S.C. 307, 312, 509 S.E.2d 811, 813 (1999)
(noting a party must object at the first opportunity to preserve an issue for review,
and finding no error in the trail court's refusal to conduct further inquiry into
possible premature jury deliberation when, prior to the jury's verdict, defense
counsel discovered the allegedly premature deliberations and there was no
indication on the record that the trial court was made aware of such or that the trial
court was asked, prior to the verdict, to question the jurors regarding any premature
deliberations).
At any rate, we find no error. Though the trial court indicated it was inclined to
grant a mistrial based upon concerns that Juror 280 was not able to participate, the
jury returned a verdict before the court could do so. Before accepting the verdict,
the trial court inquired of the foreman and Juror 280, ensuring that the jury and
Juror 280 had adequate opportunity to consider the case, the decision was reached
without duress, and Juror 280 participated. See Wiley, 387 S.C. at 495, 692 S.E.2d
at 563 (holding the decision to grant or deny a mistrial is within the sound
discretion of the trial court and will not be overturned on appeal absent an abuse of
discretion amounting to an error of law); id. ("A mistrial should only be granted
when absolutely necessary, and a defendant must show both error and resulting
prejudice in order to be entitled to a mistrial.").
For the foregoing reasons, Green's convictions are
AFFIRMED.
WILLIAMS, J., concurs. MCDONALD, J., concurs in result only.