State v. Pontoo ( 2017 )


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  • 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.
    Raphael Pontoo, Appellant.
    Appellate Case No. 2015-000323
    Appeal From Lexington County
    Thomas A. Russo, Circuit Court Judge
    Unpublished Opinion No. 2017-UP-467
    Heard November 14, 2017 – Filed December 28, 2017
    AFFIRMED
    Donald L. McCune, Jr., of Savage Law Firm, of
    Charleston; and Chief Appellate Defender Robert M.
    Dudek, of Columbia, for Appellant.
    Attorney General Alan McCrory Wilson and Assistant
    Attorney General Mark R. Farthing, both of Columbia;
    and Solicitor Samuel R. Hubbard, III, of Lexington, for
    Respondent.
    PER CURIAM: Appellant Raphael Pontoo appeals his convictions of armed
    robbery and failure to stop for a blue light resulting in death, for which he received
    a cumulative sentence of thirty years' imprisonment. Pontoo argues the circuit court
    erred by (1) giving jury instructions that shifted the burden of proof, (2) allowing the
    State to impeach him with his silence, and (3) permitting an in-court identification
    process that did not comport with due process. We affirm.
    1.     The circuit court correctly instructed the jury on the affirmative defense of
    duress, and the instructions were consistent with the relevant and applicable South
    Carolina law. See State v. New, 
    371 S.C. 523
    , 527, 
    640 S.E.2d 871
    , 873 (2007)
    ("Generally, affirmative defenses must be established by a preponderance of the
    evidence."); 
    id.
     (finding the burden is on the defendant "to prove his defense of
    duress by a preponderance of the evidence"); State v. Attardo, 
    263 S.C. 546
    , 551,
    
    211 S.E.2d 868
    , 870 (1975) (recognizing the burden of proof is on the party asserting
    an affirmative defense); see also Sheppard v. State, 
    357 S.C. 646
    , 665, 
    594 S.E.2d 462
    , 472–73 (2004) (recognizing a jury charge is correct if it correctly defines the
    applicable law when read as a whole).
    Additionally, Pontoo's argument that the circuit court failed to charge the
    current and correct law for the offense of Failure to Stop for a Blue Light—
    specifically, that an element, "in the absence of mitigating circumstances," was
    omitted from the jury instruction—is not preserved because Pontoo did not raise the
    argument to the circuit court. See State v. Dunbar, 
    356 S.C. 138
    , 142, 
    587 S.E.2d 691
    , 693–94 (2003) ("In order for an issue to be preserved for appellate review, it
    must have been raised to and ruled upon by the [circuit court]. Issues not raised and
    ruled upon in the [circuit] court will not be considered on appeal.").
    2.     The circuit court properly permitted the State to impeach Pontoo with his
    inconsistent statement and pre-arrest silence because Pontoo was not in custody
    when he was interviewed at the hospital. See State v. McIntosh, 
    358 S.C. 432
    , 443,
    
    595 S.E.2d 484
    , 490 (2004) ("The State may point out a defendant's silence prior to
    arrest, or his silence after arrest but prior to the giving of Miranda[1] warnings, in
    order to impeach the defendant's testimony at trial.").
    The evidence supports the circuit court's finding that Pontoo was not in
    custody when he was questioned at the hospital because the questioning was purely
    investigative, thus not warranting Miranda warnings. See State v. Doby, 
    273 S.C. 704
    , 707, 
    258 S.E.2d 896
    , 899 (1979) ("Miranda applies 'only where there has been
    such a restriction on a person's freedom as to render him "in custody"'" (quoting
    State v. Neely, 
    271 S.C. 33
    , 41–42, 
    244 S.E.2d 522
    , 527 (1978))); State v. Morgan,
    1
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    
    282 S.C. 409
    , 411, 
    319 S.E.2d 335
    , 336 (1984) ("Miranda warnings are not required
    if the defendant is not in custody or significantly deprived of his freedom."); 
    id.
     at
    411–12, 319 S.E.2d at 336–37 (holding Miranda warnings are not required when
    statements are made in response to routine investigation); State v. Lynch, 
    375 S.C. 628
    , 633, 
    654 S.E.2d 292
    , 295 (Ct. App. 2007) ("Miranda rights attach only if the
    suspect is subject to custodial interrogation." (footnote omitted)); State v. Simmons,
    
    329 S.C. 154
    , 157, 
    494 S.E.2d 460
    , 462 (Ct. App. 1997) ("The mere giving of
    Miranda warnings does not convert an otherwise non-custodial situation into a
    'custodial interrogation.'"); see also United States v. Jamison, 
    509 F.3d 623
    , 633 (4th
    Cir. 2007) (holding a defendant was not in custody, such that the privilege against
    self-incrimination would attach, when police questioned him in the hospital
    emergency room).
    Additionally, Pontoo's argument that his cross-examination and impeachment
    by the State constituted a Doyle2 violation is not preserved because Pontoo did not
    raise the argument to the circuit court. See State v. Morris, 
    307 S.C. 480
    , 485, 
    415 S.E.2d 819
    , 823 (Ct. App. 1991) ("Whe[n] an objection and the ground therefor is
    not stated in the record, there is no basis for appellate review.").
    Even if the argument was preserved, the argument is meritless because Doyle
    is not applicable to the facts of this case. Doyle prohibits a prosecutor from
    impeaching and cross-examining a defendant about his failure to tell his exculpatory
    story to police after receiving Miranda warnings at the time of his arrest. See Doyle,
    426 U.S. at 619 ("We hold that the use for impeachment purposes of petitioners'
    silence, at the time of arrest and after receiving Miranda warnings, violated the Due
    Process Clause of the Fourteenth Amendment."). Our supreme court has held the
    State commenting on a defendant's post-arrest silence is a violation of due process.
    See McIntosh, 
    358 S.C. at 444
    , 
    595 S.E.2d at 490
    . However, Pontoo was not arrested
    or in custody; instead, he was given Miranda warnings out of an abundance of
    caution, and his pre-arrest, but post-Miranda silence was used against him. We find
    Doyle does not apply in light of the South Carolina cases that have found Miranda
    and its protections inapplicable when a defendant is given Miranda warnings but not
    subjected to custodial interrogation. See, e.g., Simmons, 329 S.C. at 157, 494 S.E.2d
    at 462 (finding field sobriety tests admissible even though the State failed to show
    the defendant, who had been given Miranda warnings, waived Miranda rights
    because the tests were administered pursuant to a routine traffic stop, which did not
    constitute detainment sufficient to rise to the level of custodial interrogation, and
    therefore, the defendant was not entitled to Miranda warnings at all); Doby, 
    273 S.C. 2
       Doyle v. Ohio, 
    426 U.S. 610
     (1976).
    at 707–08, 258 S.E.2d at 898–99 (1979) (finding the principles of Miranda were
    inapplicable at the time the defendant waived his rights because he was not placed
    under arrest prior to or while giving his confession).
    3.      Pontoo's argument the circuit court erred in allowing the in-court
    identification of him—specifically, arguing the Neil v. Biggers3 hearing was unduly
    suggestive—is not preserved because Pontoo did not raise this specific argument to
    the trial court. See State v. Patterson, 
    324 S.C. 5
    , 19, 
    482 S.E.2d 760
    , 767 (1997)
    ("Appellant is limited to the grounds raised at trial."); State v. Thomason, 
    355 S.C. 278
    , 288, 
    584 S.E.2d 143
    , 148 (Ct. App. 2003) ("[A] party cannot argue one theory
    at trial and a different theory on appeal.").
    Although not preserved, the circuit court did not abuse its discretion in
    permitting the in-court identification of Pontoo at the Neil v. Biggers hearing.
    Pontoo's argument the hearing was unduly suggestive because the first time he was
    positively identified was when he was sitting at the defense table is without merit.
    See State v. Lewis, 
    363 S.C. 37
    , 42, 
    609 S.E.2d 515
    , 518 (2005) ("The United States
    Supreme Court has not extended its exclusionary rule to in-court identification
    procedures that are suggestive because of the trial setting."); id. at 43, 609 S.E.2d at
    518 ("[W]e conclude Neil v. Biggers does not apply to a first-time in-court
    identification because the judge is present and can adequately address relevant
    problems; the jury is physically present to witness the identification, rather than
    merely hearing testimony about it; and cross-examination offers defendants an
    adequate safeguard or remedy against suggestive examinations.").
    AFFIRMED.
    SHORT, KONDUROS, and GEATHERS, JJ., concur.
    3
    Neil v. Biggers, 
    409 U.S. 188
     (1972).
    

Document Info

Docket Number: 2017-UP-467

Filed Date: 12/28/2017

Precedential Status: Non-Precedential

Modified Date: 10/22/2024