In The Court of Appeals

State of South Carolina, Appellant,


Rocco Capodanno, Jr., Respondent.

Appeal From Lexington County
 Robin B. Stilwell, Circuit Court Judge

Unpublished Opinion No. 2011-UP-393 
Heard May 3, 2011 – Filed August 18, 2011


Rachel D. Erwin, of Blythewood, for Appellant.

John S. Nichols, of Columbia and S. Murray Kinard, of Lexington, for Respondent.

PER CURIAM: This is an appeal from the circuit court's reversal of Rocco Capodanno's conviction for driving under the influence.  We reverse and reinstate the conviction because the ruling the circuit court found to be erroneous was a ruling in favor of Capodanno.  Therefore, Capodanno was not aggrieved by the ruling, and his conviction cannot be reversed on that basis.

I.  Facts and Procedural History

Capodanno was arrested on March 17, 2006, and charged with driving under the influence by South Carolina highway patrolman M.F. Mars.  At the time of the arrest, Mars's patrol car video equipment was inoperable; therefore, he did not videotape the incident site as required by section 56-5-2953(A) of the South Carolina Code (Supp. 2006).[1]  However, Capodanno submitted to a breathalyzer test that was videotaped.  The magistrate judge assigned to the trial set a discovery deadline pursuant to Rule 5, SCRCrimP.  Mars failed to comply with the deadline.  Capodanno filed a motion for discovery sanctions based on Mars's failure to comply with the deadline set by the magistrate.  The magistrate granted the motion, but did not dismiss the case as requested by Capodanno.  Rather, the magistrate sanctioned the State by ruling that the State could not introduce the breath test site video.  The magistrate's ruling did not prevent Capodanno from introducing the breath test site video, but his attorney "elected not to put it in" evidence.  The magistrate prohibited Capodanno from either cross-examining Mars about the discovery sanction or arguing to the jury about it. 

Capodanno also made a motion to dismiss based on Mars's failure to video the incident site pursuant to section 56-5-2953.  Mars submitted an affidavit, as required by section 56-5-2953(B),[2] stating that he could not film Capodanno's arrest because he previously removed the camera from his patrol car for repairs.  Capodanno argued the affidavit was insufficient because it did not show "reasonable attempts had been made to put [the camera] in working order."  The magistrate denied the motion.  At trial, Mars gave Capodanno documents relating to the attempted repairs of the camera.  Capodanno asked for a continuance "to explore this issue," but the magistrate denied the motion.

Capodanno was convicted of driving under the influence.  He appealed the conviction to the circuit court arguing the magistrate should have (1) granted the motion to dismiss for failure to provide a copy of the breath test site video in discovery pursuant to Rule 5 and Brady v. Maryland, 373 U.S. 83, 87-88 (1963), (2) granted the motion to dismiss for failure to video the incident site pursuant to section 56-5-2953, (3) granted a continuance when Mars provided discovery relating to the repairs of the patrol car camera shortly before trial, and (4) allowed Capodanno to make arguments regarding the absence of the breath test site video.

The circuit court's order stated there was only one issue before it—"Was exclusion of the [breath test] room video tape but allowance of [the breath test] results proper?"  This issue relates only to the magistrate's ruling on Capodanno's motion for a discovery sanction.  The magistrate's ruling on this motion had two components.  First, the magistrate ruled in favor of the State by refusing to dismiss the case as a sanction for the discovery violation.  Second, the magistrate ruled in favor of Capodanno by prohibiting the State from introducing the breath test site video.  As Capodanno conceded at the hearing before the circuit court, he was not prejudiced by the component of the ruling prohibiting the State from introducing the breath test site video because he had the right to introduce the video himself.  However, Capodanno made the strategic decision not to put it in evidence.  At the hearing before the circuit court, the following exchange occurred between the circuit judge and Capodanno's attorney:

[The Court:]  So my question to you is this, . . . : Notwithstanding the fact that the magistrate judge suppressed the videotape evidence, did you still have the opportunity to introduce that as evidence in the case?

Because let me tell you what I am dealing with here: Is it a due process issue, that your defendant was not afforded the ability to appropriately confront his accusers, or was it a trial tactic?  That is, did you decide "I don't want that tape in," or was it something that was just handed to you and you had to deal with it?

[Defense Counsel]: Well, clearly, Your Honor, I think I'd be disingenuous if I said that we didn't have the ability to put that tape in.  I mean, I – clearly the judge had ruled that the tape was suppressed, that they couldn't use it, but I think, clearly, I could have – if I chose to go put that tape in, I could have done that, and just exposed myself to whatever issues might have come from that. 

But, you know – so I guess "yes" would be the answer to your question, I elected not to put it in, when perhaps I could have put it in.

Therefore, Capodanno was not prejudiced by the component of the magistrate's ruling preventing the State from introducing the video.  Capodanno was prejudiced only to the extent the magistrate refused to dismiss the entire case as a discovery sanction.

Nevertheless, the circuit court judge found the magistrate erred by excluding the breath test site video while allowing the admission of the results.  The circuit court determined "[t]he appropriate remedy was either suppression of the [breath test] results along with the tape or no suppression at all."  Additionally, the court found "it was error not to allow the defendant to comment on the lack of a video tape at roadside or in the [breath test] room."  The court granted a new trial and remanded the case to magistrate court.

The State now appeals arguing (1) the circuit court applied an incorrect standard of review, (2) it was within the magistrate's discretion to exclude the breath test site video and admit the results, and (3) Capodanno did not preserve the issue of his inability to comment on the lack of an incident site video, and even if it is preserved, he has not shown a prejudicial or harmful error resulting therefrom.  Because we find the circuit court judge erred in reversing a ruling in favor of the defendant, we do not reach issues (1) and (2).  As to issue (3), we agree with the State.

II.  Exclusion of the Breath Test Site Video and Admittance of the Results

A party may appeal a ruling or judgment only if he is aggrieved by it.  S.C. Code Ann. § 18-1-30 (1985).  "A person is 'aggrieved by the judgment or decree when it operates on his rights of property or bears directly upon his interest, the word aggrieved referring to a substantial grievance, . . . or the imposition on a party of a burden or obligation.'"  Burns v. Gardner, 328 S.C. 608, 617, 493 S.E.2d 356, 361 (Ct. App. 1997) (quoting Bivens v. Knight, 254 S.C. 10, 13, 173 S.E.2d 150, 152 (1970)).  Here, the magistrate's ruling prohibiting the State from introducing the breath test site video was a ruling in Capodanno's favor.  Therefore, Capodanno was not aggrieved by the ruling.[3]  Accordingly, Capodanno could not appeal it, and it was error for the circuit court to reverse.  See Cisson v. McWhorter, 255 S.C. 174, 177-78, 177 S.E.2d 603, 605 (1970) ("Our statutory provision limiting appellate review to those who have been aggrieved by the judgment below is, in our opinion, a wise and well reasoned requirement, as our court is concerned with correcting errors that have practically wronged the appealing party."); Brode v. Brode, 278 S.C. 457, 458, 298 S.E.2d 443, 444 (1982) (dismissing appeal pursuant to section 18-1-30 because appellate review is limited "to parties aggrieved by judgments or decrees.").

III.  Prohibition on Testimony Concerning the Lack of an Incident and Breath Test Site Videos

The circuit court ruled the magistrate erred by not allowing Capodanno to comment on the lack of an incident site video.  We disagree that the magistrate made this ruling.  Rather, the magistrate did allow Capadanno to comment on the lack of an incident site video.  In the transcript of the appeal hearing in circuit court, Capodanno said the magistrate "did not allow [him] to argue that, you know, basically, 'Where is the video from the car?'"  However, upon further questioning by the circuit judge, Capodanno's attorney said: "I don't remember what I did say.  . . . I don't think I could, in good faith, represent to the Court exactly what I was limited from arguing or wasn't limited to arguing, except to the extent I do recall not being able to argue everything I wanted to argue."  The magistrate's return stated: "The Court did allow an argument to be made regarding the lack of videotaping equipment in the patrol car."  In the supplemental return the magistrate wrote: "I did allow Mr. Kinard to cross-exam[ine] Trooper Mars on the matter [the video equipment and its repair] and argue this in his closing."

The circuit court's order first concludes as a matter of law that "the Defendant was limited and/or prevented from cross-examining the Trooper or making arguments in his closing remarks relating to the Trooper's failure to produce the [breath test] room video tape."  (emphasis added).  However, the order then finds "it was error not to allow the defendant to comment on the lack of a video tape at roadside or in the [breath test] room."  (emphasis added).

Because the magistrate did not prohibit cross-examination or closing argument comment on the absence of the incident site video, it was error to reverse Capodanno's conviction on this basis.

Finally, as to the magistrate's decision that Capodanno could not comment on the lack of a breath test site video, we affirm.  The circuit court reversed that decision because it concluded section 56-5-2953(B) "specifically contemplates that the defendant would have the ability to comment on the lack of video tape evidence."  The magistrate's decision to exclude the breath test video and prohibit comment on its absence was based on a discovery violation, not on section 56-5-2953(B).  Therefore, the circuit court erred in reversing that decision.

IV.  Conclusion

Because the circuit court erred in reversing a ruling in favor of the appealing party, concluding that the magistrate did not allow Capodanno to comment on the lack of an incident site video, and reversing the prohibition on comment concerning the absence of a breath test site video, we reverse and reinstate the conviction.


FEW, CJ., PIEPER and LOCKEMY, JJ., concur.

[1] Because Capodanno's arrest occurred in March 2006, the 2006 version of section 56-5-2953 is applicable to this case.

[2] Section 56-5-2953(B) states in part:

Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal . . . if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the arrest . . . was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment in an operable condition . . . .

[3] This is supported by the fact that Capodanno did not appeal the ruling in his Notice of Appeal.  Rather, the circuit court judge raised the issue.