3787 - State v. Horton

I.	Did the trial judge err in failing to grant Hortons motion for a directed verdict as to the reckless homicide charge?
II.	Did the trial judge err in admitting the results of the urine test?
III.	Did the trial judge err in allowing the State to present evidence that Horton lacked remorse?

LAW/ANALYSIS

I.  Directed Verdict Reckless Homicide

Horton argues the trial judge erred in denying Horton's motion for a directed verdict as to the reckless homicide charge.  We disagree.

On appeal from the denial of a directed verdict in a criminal case, an appellate court must view the evidence in the light most favorable to the State. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004); State v. Al-Amin, 353 S.C. 405, 578 S.E.2d 32 (Ct. App. 2003); State v. Morgan, 352 S.C. 359, 574 S.E.2d 203 (Ct. App. 2002). When ruling on a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Gaster, 349 S.C. 545, 564 S.E.2d 87 (2002); State v. Wilds, 355 S.C. 269, 584 S.E.2d 138 (Ct. App. 2003); State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 (Ct. App. 2002). If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, this Court must find the case was properly submitted to the jury. State v. Rosemond, 356 S.C. 426, 589 S.E.2d 757 (2003); State v. Lindsey, 355 S.C. 15, 583 S.E.2d 740 (2003); see also State v. Ballington, 346 S.C. 262, 551 S.E.2d 280 (Ct. App. 2001) (stating judge should deny motion for directed verdict if there is any direct or substantial circumstantial evidence which reasonably tends to prove accuseds guilt, or from which his guilt may be fairly and logically deduced). On the other hand, a defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged. State v. McKnight, 352 S.C. 635, 576 S.E.2d 168 (2003); State v. McCluney, Op. No. 3742 (S.C. Ct. App. filed February 2, 2004) (Shearouse Adv. Sh. No. 6 at 63); State v. Padgett, 354 S.C. 268, 580 S.E.2d 159 (Ct. App. 2003).

When the death of a person ensues within three years as a proximate result of injury received by the driving of a vehicle in reckless disregard of the safety of others, the person operating the vehicle is guilty of reckless homicide. . . .  S.C. Code Ann. 56-5-2910(A) (Supp. 2003).  Reckless homicide requires proof that the defendant (1) operated an automobile; (2) in reckless disregard for the safety of others; (3) the defendants conduct proximately caused injury to the victim; and (4) within three years, the victim died as a result of these injuries.  See State v. Watson, 349 S.C. 372, 563 S.E.2d 336 (2002). See State v. Watson, 349 S.C. 372, 563 S.E.2d 336 (2002).

To convict an individual of reckless homicide, the State must prove the individual was driving a vehicle in reckless disregard of the safety of others. State v. Rowell, 326 S.C. 313, 487 S.E.2d 185 (1997). Reckless disregard for the safety of others signifies an indifference to the consequences of ones acts. Id.; see also McKnight, 352 S.C. at 645, 576 S.E.2d at 173 ([I]n reckless homicide cases, we have held that reckless disregard for the safety of others signifies an indifference to the consequences of ones acts.). It denotes a conscious failure to exercise due care or ordinary care or a conscious indifference to the rights and safety of others or a reckless disregard thereof. Rowell, 326 S.C. at 315, 487 S.E.2d at 186.

We find the State presented sufficient evidence to submit the reckless homicide charge to the jury.  Both Suzie and Geoffrey Thomas testified that Gregory looked both ways before crossing the street.  The Thomases declared they did not see the white car that Horton was driving until it struck and killed Gregory.  Officer Burgesss testimony that there were no skid marks on the road where the car struck Gregory supported the statement by the Thomases that Hortons car came upon them very quickly.  Officer Burgess said that he detected an odor of alcohol on Hortons person and, although Horton was not slurring his speech or staggering, he believed Horton was under the influence.  The officer indicated that his suspicions were strengthened by the fact that Horton was unemotional after the accident and that [h]is attitude and behavior just didnt add up to [the] reality of what had just happened.  The forensic toxicologist with SLED noted that, at the time of the accident, Horton had alcohol, THC, opiate derivatives, and cocaine metabolite in his system.  A jury could conclude from these facts that, on the day in question, Horton operated his vehicle in reckless disregard of the safety of others.

The State presented evidence reasonably tending to prove Hortons guilt of the offense of reckless homicide.  Accordingly, the trial judge did not err in denying Hortons motion for a directed verdict on the charge of reckless homicide. 

II.  Urine Test 

Horton contends the trial judge erred in admitting the results of his urine test.  We disagree. 

An in camera hearing was held to determine the admissibility of the urine test.  Officer Joye testified that, after administering the Datamaster, he asked Horton to submit to a urine test.  The officer drove Horton to the emergency room (ER) at Spartanburg Regional Medical Center.  He filled out the implied consent form at the hospital.  Horton signed the implied consent form.  Because a male nurse was not available to go in the bathroom with Horton while he was giving the sample, Officer Joye went into the one unit bathroom with Horton and observed him give the urine sample.  The bathroom had a toilet but no stall.  Horton handed the urine sample to Officer Joye.  The officer then passed the sample to an ER staff nurse, Sue Mobley, who had observed from outside the partially open door.  Mobley labeled the kit, as far as putting the tape over the urine sample and put[ting] the identification information . . . on it.  After Mobley signed, sealed, and labeled the urine sample, she returned the sample to Officer Joye.  Officer Joye gave the urine sample to Officer Burgess for transport. 

Officer Burgess witnessed Mobley sign the specimen seal.  Officer Burgess signed the outside of the box indicating that he had received the urine sample.  The officer kept the sample in his possession until [he] turned it in to the evidence locker at the patrol office.  Officer Burgess stated he did not sign the sample in to the evidence locker until September 27.  He could not recall at what time he placed the sample in the evidence locker.  Further, he did not remember whether he stored the sample in his personal refrigerator prior to placing it in the evidence locker.  When he placed the sample in the evidence locker, [t]he bottle [was] sealed and [was] in plastic.  And on the outside . . . of the box there [are] tabs . . . that are sealed and initialed. 

Sergeant William Eugene Williford removed the urine sample from the evidence locker and transported it to SLED headquarters in Columbia.  When Sergeant Williford arrived at SLED, the evidence technician removed the sample from the box and placed it in a plastic bag.  Sergeant Williford sealed the bag, initialed it, and placed it in the SLED drop box.  When asked on cross-examination what type of container the sample was contained in when he removed it from the evidence locker, Sergeant Williford responded: A styrofoam-type container.  He stated the urine sample was in a plastic container which was inside a sealed box which was inside a second sealed box.  Robert Michael Sears, the SLED forensic toxicologist, confirmed that he removed Hortons sample from a sealed plastic bag prior to conducting his analysis of the urine sample.  The trial judge denied Hortons motion to suppress the results of the urine test. 

The admission or exclusion of evidence is left to the sound discretion of the trial judge.  State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003).  A courts ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error which results in prejudice to the defendant.  State v. Hamilton, 344 S.C. 344, 543 S.E.2d 586 (Ct. App. 2001); State v. Mansfield, 343 S.C. 66, 538 S.E.2d 257 (Ct. App. 2000).  An abuse of discretion occurs when the trial courts ruling is based on an error of law.  State v. Foster, 354 S.C. 614, 582 S.E.2d 426 (2003); State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000). 

A.      Collection of Urine Sample 

Horton maintains the results of the urine test should have been suppressed because the urine sample was improperly collected. 

Blood and urine samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility.  S.C. Code Ann. 56-5-2950(a) (Supp. 2003). 

Horton claims section 56-5-2950 was violated because Officer Joye was the individual who collected the urine sample.  We find this argument is without merit.  Because there were no male nurses available that evening to personally witness the production of the sample and immediately collect it, Mobley followed hospital policy and did not accompany Horton into the bathroom.  However, while Mobley did not stand next to Horton while he gave his sample, she observed the situation from the partially open bathroom door.  The only role played by Officer Joye was to place a lid on the sample and hand it to Mobley, who then signed the appropriate labels on the container and sealed it. 

We find the trial judge did not err in finding that, as Mobley was in the immediate proximity of the test, the procedure followed was appropriate under the circumstances. 

B.      Chain of Custody

Horton avers the State failed to prove a complete and proper chain of custody in regard to the urine sample.

The State must prove a chain of custody for a urine sample from the time it is obtained until it is tested.  See State v. Carter, 344 S.C. 419, 544 S.E.2d 835 (2001) (case involving a blood sample); Ex parte Dept of Health & Envtl. Control, 350 S.C. 243, 565 S.E.2d 293 (2002).  A complete chain of evidence must be established as far as practicable, tracing possession from the time the specimen is given to the final custodian by whom it is analyzed.  Carter, 344 S.C. at 424, 544 S.E.2d at 837; State v. Cribb, 310 S.C. 518, 426 S.E.2d 306 (1992); Benton v. Pellum, 232 S.C. 26, 100 S.E.2d 534 (1957).  Where the substance analyzed has passed through several hands, the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis.  Benton, 232 S.C. at 33-34, 100 S.E.2d at 537.

Proof of chain of custody need not negate all possibility of tampering but must establish a complete chain of evidence as far as practicable.  Carter, 344 S.C. at 424, 544 S.E.2d at 837; State v. Williams, 297 S.C. 290, 376 S.E.2d 773 (1989); Benton, 232 S.C. at 33, 100 S.E.2d at 537.  In applying this rule, our Supreme Court has found evidence inadmissible only where there is a missing link in the chain of possession because the identity of those who handled the specimen was not established at least as far as practicable.  Carter, 344 S.C. at 424, 544 S.E.2d at 837.  On the other hand, where the identity of persons handling the specimen is established, the Supreme Court has found that evidence regarding its care goes only to the weight of the specimen as credible evidence.  Id.  In other words, where there is a weak link in the chain of custody, as opposed to a missing link, the question is only one of credibility and not admissibility.  Id. 

In his brief, Horton cites testimony by Officer Burgess and Sergeant Williford in support of his contention that the State failed to adequately prove the chain of custody of the urine sample.  Officer Burgess did not recall: (1) whether he received the urine sample from Mobley or Officer Joye; (2) at what time he delivered the sample to the evidence locker; and (3) whether he stored the sample in his home refrigerator until he transported it to the evidence locker.  Horton points to testimony by Sergeant Williford that, when he delivered the urine sample to SLED, the plastic container which held the urine sample was inside a Styrofoam container.  Horton claims [t]here was no testimony as to how the plastic container got into a styrofoam container.

Regardless, the identities of all persons handling Hortons urine sample were firmly established.  See Carter, 344 S.C. at 424, 544 S.E.2d at 837.  The persons who handled the evidence testified to a sufficient chain of custody.  The State proved a continuous chain of custody through the testimony of all people who had control and possession of the evidence.

There is no missing link in the chain of custody. The trial judge did not abuse his discretion in finding a complete chain of custody and allowing the jury to consider the results of the urine test.

C. Rule 403 Analysis

Horton claims the results of the urine test were more prejudicial than probative and should have been excluded by Rule 403, 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.  A trial judges decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances.  State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003).  We review a trial courts decision regarding Rule 403 pursuant to the abuse of discretion standard and are obligated to give great deference to the trial courts judgment.  Id. 

The toxicologists report confirming the presence of alcohol, THC, opiate derivatives, and cocaine metabolite in Hortons urine was certainly damaging to his case.  However, we find this evidence was more probative than prejudicial in nature.  The test results corroborate Officer Burgesss suspicion that, even though the Datamaster registered a legal alcohol level, Horton was under the influence.  Furthermore, Horton was free to challenge the veracity of the test results.  In fact, Horton advanced this argument at trial, eliciting testimony from two SLED toxicologists that it was impossible to determine whether Horton was under the influence of these drugs at the time of the accident.

Recently, the Court of Appeals, in Kennedy v. Griffin, ___S.C.___, 593 S.E.2d 512 (Ct. App. 2004), analyzed the admissibility of evidence of marijuana usage in an automobile collision scenario. Kennedy is inapposite to the facts of the case at bar. Here, there is a definite correlation between the ingestion of the drugs and alcohol and the toxicology analysis. In Kennedy, the evidence offered was inconclusive and indefinite in regard to the impact on the individual ingesting the substance. The test results in this case corroborated Officer Burgesss observation of Horton.

The trial judge did not abuse his discretion in allowing the admission of the results of Hortons urine test. The probative nature of this evidence, especially when viewed in conjunction with Officer Burgesss testimony, far outweighs any prejudice. We note the admission of the urine test did not restrict Hortons ability to present an adequate defense, as he was still able to attack the test results.

III. Lack of Remorse/Constitutional Right to Remain Silent

Horton asserts the trial judge erred in allowing the State to present evidence of Hortons lack of remorse.  We disagree.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of South Carolina, statutes, these rules, or by other rules promulgated by the Supreme Court of South Carolina. Rule 402, SCRE; State v. Aleksey, 343 S.C. 20, 538 S.E.2d 248 (2000). Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401, SCRE. Under Rule 401, evidence is relevant if it has a direct bearing upon and tends to establish or make more or less probable the matter in controversy. In the Matter of the Care and Treatment of Corley, 353 S.C. 202, 577 S.E.2d 451 (2003); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003).

The testimony in question concerns the following remarks by Officer Burgess:

During my conversations with him, as far as asking phone numbers and things like that, insurance information, thats all I was getting from Mr. Horton, he sat there unemotional.
. . . .
He sat there unemotional, no response whatsoever. His attitude and behavior just didnt add up to [the] reality of what had just happened.

Horton frames the issue as an error in regard to evidence that Horton lacked remorse. However, Horton professes that Officer Burgess testimony was an improper comment on Hortons right to remain silent. Citing State v. Reid, 324 S.C. 74, 476 S.E.2d 695 (1996), overruled on other grounds by State v. Watson, 349 S.C. 372, 563 S.E.2d 336 (2002), Horton avers this line of questioning was a comment on [Hortons] lack of remorse and therefore improper.

Reid edifies:

It is a violation of due process for a State to permit comment on a defendants post-arrest silence since the giving of Miranda warnings might induce silence by implicitly assuring a defendant his silence will not be used against him. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). See also State v. Arther, 290 S.C. 291, 350 S.E.2d 187 (1986); State v. Smith, 290 S.C. 393, 350 S.E.2d 923 (1986); State v. Hale, 284 S.C. 348, 326 S.E.2d 418 (Ct. App. 1985), cert. denied, 286 S.C. 127, 332 S.E.2d 533 (1985). References to a defendants lack of remorse are also improper as violative of a defendants Fifth, Eighth, and Fourteenth Amendment rights. State v. Diddlemeyer, 296 S.C. 235, 371 S.E.2d 793 (1988), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State v. Cockerham, 294 S.C. 380, 365 S.E.2d 22 (1988); State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987), cert. denied, 503 U.S. 993, 112 S.Ct. 1691, 118 L.Ed.2d 404 (1992) (comments by the prosecution upon an accuseds failure to express remorse invite jury to draw an adverse inference merely because the defendant did not appear penitent); State v. Sloan, 278 S.C. 435, 298 S.E.2d 92 (1982). Here, the State was permitted to inquire both as to Reids post-arrest silence and his lack of remorse; this inquiry was therefore clearly improper.

Id. at 78, 476 S.E.2d at 696.

Horton complains that the trial court should have suppressed Officer Burgess observation and description of Horton at the accident scene. Horton sat in Officer Burgess patrol vehicle approximately twenty to thirty minutes while the officer made an accident report. The officer noted a smell of alcohol about Hortons person. Horton appeared unemotional. Officer Burgess thought Horton was under the influence of something and arrested him. The State offered the officers factual observations to support his opinion and conclusion that Horton was under the influence. [I]t is well settled that a lay witness may testify whether or not in his opinion a person was drunk or sober on a given occasion on which he observed him and that the weight of such testimony is for determination by the jury. State v. Ramey, 221 S.C. 10, 13-14, 68 S.E.2d 634, 635 (1952).

The testimony was not presented as evidence of Hortons lack of remorse or as a comment on Hortons post-arrest silence. Rather, the testimony was presented for the purpose of illustrating Hortons actions and attitudes after the accident, and how his unemotional response to the events led Officer Burgess to believe he was under the influence. The challenged testimony was clearly relevant and admissible to support the officers decision to have Horton submit to both a Datamaster and urine test.

Concomitantly, the trial judge did not err in allowing Officer Burgesss testimony about Hortons attitude and behavior after the accident.

Based on our review of the record, we come to the ineluctable conclusion that the testimony of Officer Burgess is NOT a comment upon post-arrest silence nor an impermissible comment on the defendants lack of remorse.

CONCLUSION

Based upon the foregoing, Hortons conviction and sentence for reckless homicide are

AFFIRMED.

HEARN, C.J., and BEATTY, J., concur.

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