State v. Baggett ( 2015 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Marty Baggett, Appellant.
Appellate Case No. 2011-204146
Appeal From Williamsburg County
George C. James, Jr., Circuit Court Judge
Unpublished Opinion No. 2015-UP-311
Heard October 6, 2014 – Filed June 24, 2015
Withdrawn, Substituted and Refiled October 21, 2015
AFFIRMED
Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia, for Respondent.
PER CURIAM: Marty Baggett appeals his conviction for felony driving under
the influence (DUI), arguing the trial court erred in failing to direct a verdict of
acquittal in his favor when the State failed to present evidence of video of his
conduct at the incident site. We affirm.
We find the trial court did not err in denying Baggett's motion to dismiss the felony
DUI charge. See S.C. Code Ann. § 56-5-2953(A) (2006)1 (requiring video
recording of the incident site when a person violates section 56-5-2945 of the
South Carolina Code (Supp. 2014), the felony DUI statute); S.C. Code Ann. § 56-
5-2953(A)(1) (providing this recording at the incident site generally must begin no
later than the activation of the officer's blue lights; include advisement of Miranda2
rights before any field sobriety tests administered, if the tests are administered; and
conclude after the arrest of a person for a violation of section 56-5-2930 or section
56-5-2933 of the South Carolina Code, or a probable cause determination that the
person violated section 56-5-2945 of the South Carolina Code); S.C. Code Ann. §
56-5-2953(B) (2006) ("[I]n circumstances including, but not limited to, road
blocks, traffic accident investigations, and citizens' arrests, where an arrest has
been made and the videotaping equipment has not been activated by blue lights,
the failure by the arresting officer to produce the videotapes required by this
section is not alone a ground for dismissal. However, as soon as videotaping is
practicable in these circumstances, videotaping must begin and conform with the
provisions of this section. Nothing in this section prohibits the court from
considering any other valid reason for the failure to produce the videotape based
upon the totality of the circumstances; nor do the provisions of this section prohibit
the person from offering evidence relating to the arresting law enforcement
officer's failure to produce the videotape."); Town of Mt. Pleasant v. Roberts, 393
S.C. 332, 347, 713 S.E.2d 278, 285 (2011) (stating the purpose of section 56-5-
2953 is to create direct evidence of a DUI arrest); State v. Henkel, 413 S.C. 9, 14,
774 S.E.2d 458, 461 (2015), reh'g denied (Aug. 5, 2015) ("Subsection (A) was
intended to capture the interactions and field sobriety testing between the subject
and the officer in a typical DUI traffic stop where there are no other witnesses.");
Roberts, 393 S.C. at 348, 713 S.E.2d at 286 ("[T]he Legislature specifically
provided for the dismissal of a DUI charge unless the law enforcement agency can
justify its failure to produce a videotape of a DUI arrest.").
In this case, videotaping never became practicable. See Henkel, 413 S.C. at 15-16,
774 S.E.2d at 462 ("[W]e hold when an individual's conduct is videotaped during a
1
Section 56-5-2953 was amended effective February 10, 2009. See Act No. 201,
2008 S.C. Acts 1682-85. The amended statute is not applicable to Baggett's March
8, 2007 arrest.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
situation provided for in subsection (B), compliance with subsection (A) must
begin at the time videotaping becomes practicable and continue until the arrest is
complete."). The law enforcement officers were responding to the report of a dead
body in the roadway. Therefore, the normal protocol for a traffic stop was not
applicable. See id. at 14, 774 S.E.2d at 461 ("During a traffic stop, the subject, his
vehicle, and his interaction with the officer can be videotaped by the car-mounted
camera that is initiated by the officer's blue lights."). At least fifteen people,
including Emergency Medical Service personnel, volunteer fire fighters, law
enforcement officers, and members of Baggett's family, were present at the
incident site. See id. at 15, 774 S.E.2d at 462 (finding "the legislative concerns
with videotaping one-on-one traffic stops to capture the interactions between an
officer and the subject are not present" when "[n]umerous officers and emergency
personnel observed [the defendant's] conduct at the scene" and multiple officers
described the defendant's symptoms of intoxication). Although Corporal Staggers
stated he identified Baggett as the driver of the truck, he testified Baggett told him
the victim had been driving and had fallen out of the truck. Corporal Staggers
turned the investigation of the case over to Investigator Boston, who arrived on the
scene as Corporal Staggers questioned Baggett. Investigator Boston testified
Baggett was already in Corporal Staggers's patrol car when he arrived. Thus,
Baggett would not have been within camera range of a car-mounted camera.
Baggett also told Investigator Boston the victim was driving. Corporal Staggers
testified he did not have Baggett perform any field sobriety tests due to safety
concerns because Baggett was so unsteady on his feet. Accordingly, the
videotaping requirements of section 56-5-2953(A)(1)(b) were not applicable. We
find dismissal of the felony DUI charge was not required under the totality of the
circumstances.
AFFIRMED.
HUFF, SHORT, and KONDUROS, JJ., concur.