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2010-UP-241 - City of Greenville v. McCollum

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

City of Greenville, Appellant,

v.

Michele Mote McCollum, Respondent.


Appeal From Greenville County
 D. Garrison Hill, Circuit Court Judge


Unpublished Opinion No.  2010-UP-241
Heard March 2, 2010 – Filed April 14, 2010


AFFIRMED


Debra J. Gammons, of Greenville, for Appellant.

Heath Preston Taylor, of West Columbia, and Janis Richardson Hall, of Greenville, for Respondent.

PER CURIAM:  The City of Greenville (City) charged Michele Mote McCollum with driving under the influence (DUI).  After the municipal court dismissed the charge, the circuit court affirmed the dismissal.  The City appeals, arguing the dismissal was improper because the City complied with all discovery and statutory requirements.  We affirm. 

FACTS

McCollum was charged with DUI, first offense, in January 2007.  She requested a jury trial and submitted a request for discovery to the City.  The City responded by furnishing McCollum certain information, but as to the  video of the Breath Alcohol Analysis Test, the City supplied a password that allegedly allowed McCollum to view the video by going to a State Law Enforcement Division (SLED) internet site.  On July 30, 2007, when the parties appeared before the municipal court for trial, McCollum informed the court of her inability to properly access the video from SLED's website.  The case was continued, with the municipal court suggesting the City provide McCollum with the video by another form of media.

The parties again appeared before the municipal court on October 23, 2007.  At that time McCollum moved pursuant to section 56-5-2953 of the South Carolina Code (Supp. 2009) to dismiss the charge because she had not received a copy of the video from the City.  After entertaining extensive oral argument, the municipal court granted the motion to dismiss, stating the statute required the City either to produce the video or provide an affidavit indicating that there were "exigent circumstances related to failure or inability of the City to provide" the video.

The City appealed the municipal court's dismissal to the circuit court. The City's "grounds for appeal," as discussed in its Notice of Intent to Appeal, concluded the municipal court erred in holding that section 56-5-2953 was violated.  The City also noted it did not violate Rule 5, SCRCrimP, because the "video is not within the possession, custody, nor control of the City."

Before the circuit court, the parties discussed Rule 5, SCRCrimP, and section 56-5-2953 as the bases for upholding and reversing the municipal court.  The circuit court held that while the City "alternatively asserts that [the municipal court] erred in holding that [s]ection 56-5-2953 mandates that the arresting officer provide McCollum an actual physical copy of the Datamaster video, …[b]ecause the Rule 5 violation provides an independent and adequate support for the dismissal decision, the court need not address the City's section 56-5-2953 argument."

In its brief to this court, the City argues in its first and second issues on appeal that the municipal court judge erred in dismissing McCollum's DUI charge under both Rule 5, SCRCrimP, (Issue I) and section 56-5-2953 (Issues I and II).  The City's Issue III argues the circuit court erred in affirming the municipal court under Rule 5 without examining McCollum's "failure to act with due diligence in viewing SLED's website."  Finally, in Issue IV, the City states the circuit court erred in failing to address the municipal court's dismissal of McCollum's DUI charge under section 56-5-2953.

STANDARD OF REVIEW

In reviewing criminal appeals from a municipal court, an appellate court may only correct the circuit court's order for errors of law.  City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007). 

LAW/ANALYSIS

I.  Dismissal pursuant to Rule 5, SCRCrimP

The City first argues the municipal court erred in dismissing the DUI charge against McCollum despite the City's compliance with the discovery requirements of Rule 5 and the videotaping requirements of section 56-5-2953.  In her response brief, McCollum argues the City has failed to preserve any issues for appellate review because the City's issues on appeal assign no error to the circuit court, but only address error by the municipal court judge.  We agree with McCollum as to Issue I.

An appellant's brief must contain a concise and direct statement of each issue presented to the appellate court for review.  Rule 208(b)(1)(B), SCACR.  "Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal."  Id.  A party is bound by the statement of his issues on appeal.  Town of Sullivan's Island v. Felger, 318 S.C. 340, 350 n.3, 457 S.E.2d 626, 631 n.3 (Ct. App. 1995).  Issue I asserts only that "[t]he municipal court judge erred in dismissing [McCollum's] driving under the influence charge" because the City complied with the discovery requirements of Rule 5, SCRCrimP, and the videotaping requirements of section 56-5-2953 of the South Carolina Code (Supp. 2009).  Moreover, the City's arguments under Issue I do not mention error on the part of the circuit court.  Thus, the City's statement of Issue I is insufficient to preserve any error made by the circuit court.

II.  Compliance with and Dismissal under Section 56-5-2953

In Issue II, the City contends the municipal court erred in dismissing the DUI charge against McCollum when section 56-5-2953 provides that failure to produce a videotape is not alone grounds for dismissal based upon the totality of the circumstances.  In Issue IV, the City argues the circuit court erred in affirming the municipal court's dismissal of the DUI charge without also addressing the City's compliance with section 56-5-2953.  "In criminal cases, the appellate court sits only to review errors of law which have been properly preserved, i.e., the issue has been raised to and ruled on by the trial court."  State v. Wise, 359 S.C. 14, 21, 596 S.E.2d 475, 478 (2004).  Here, the circuit court did not rule on whether the City complied with section 56-5-2953 or whether dismissal under that statute was proper.  The record does not reflect the City sought a ruling on the statute after the circuit court entered its order affirming based on Rule 5.  Accordingly, these issues are not preserved for our review.    

III.  Due Diligence

In Issue III, the City argues both the municipal and circuit courts erred in dismissing the DUI charge against McCollum by finding the City failed to comply with Rule 5, SCRCrimP, without examining McCollum's failure to act with due diligence in viewing SLED's website.  We disagree. 

We first note that there is no indication the municipal court based its decision on a violation of Rule 5.  Rather, the record reflects the municipal court based its decision solely upon the City's failure to comply with section 29-5-2953.  The record does not indicate the City sought a ruling from the municipal court concerning a violation of Rule 5 before filing its appeal to the circuit court.  As a result, whether the City complied with Rule 5 was not properly before the circuit court.  See Indigo Assoc. v. Ryan Inv. Co., 314 S.C. 519, 523, 431 S.E.2d 271, 273 (Ct. App. 1993) (holding a circuit court sitting in its appellate capacity cannot consider questions not raised or ruled upon by the lower court); see also State v. Landis, 362 S.C. 97, 101, 606 S.E.2d 503, 505 (Ct. App. 2004) (stating that in reviewing criminal appeals from the municipal court, the circuit court may review only preserved error raised by appropriate exception).   

The circuit court's order does not expressly address the lack of due diligence by McCollum in viewing the SLED website as it relates to section 56-5-2953.  As we read the circuit court's order, it holds that the videotape was discoverable under Rule 5 and that the actions of the City in directing McCollum to a website where the video could be viewed is insufficient compliance with the rule where the evidence showed McCollum was not able to view the videotape.  In fact, the court stated:

It would be difficult for the government to rationally contend that it has fulfilled its obligation under Rule 5 to allow the defendant to "inspect and copy" photographs and recorded video statements by simply directing the party to a website on which the video is stored. There is no evidence that a defendant or her lawyer can independently copy the video from the website, or download it to some other media.

Because the City made no effort to extract a ruling from the circuit court based on McCollum's lack of diligence under the statute, we affirm as to Issue III.

IV.  Affirmance on Other Grounds Appearing in the Record

As noted above, the City failed to preserve for appellate review its issues relating to the application of section 56-5-2953.  However, we may affirm on any ground appearing in the record.  See Rule 220(c), SCACR ("The appellate court may affirm any ruling, order, decision or judgment upon any ground(s) appearing in the Record on Appeal."); see also Moorhead v. First Piedmont Bank and Trust Co., 273 S.C. 356, 360, 256 S.E.2d 414, 416 (1979).  We affirm based upon section 56-5-2953.    

South Carolina law mandates that the police videotape the conduct of a person who drives a motor vehicle under the influence of alcohol at the site of her breath test using equipment provided by SLED.  S.C. Code Ann. § 56-5-2953(A) & (D) (Supp. 2009).  Furthermore: 

The video recording at the breath test site must:

(a) include the entire breath test procedure, the person being informed that he is being video recorded, and that he has the right to refuse the test;

(b) include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and

(c) also include the person's conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to video record this waiting period.

§ 56-5-2953(A)(2).  These recordings are admissible in criminal proceedings.  § 56-5-2953(A)(3).  The arresting officer's failure to produce such a video recording:

[I]s not alone a ground for dismissal . . . if the arresting officer submits a sworn affidavit certifying that the video recording equipment at the time of the arrest or probable cause determination, or video equipment at the breath test facility was in an inoperable condition, stating which reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the video recording because the person needed emergency medical treatment, or exigent circumstances existed. . . .  Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the video recording 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 video recording.

S.C. Code Ann. § 56-5-2953(B) (Supp. 2009).

Our supreme court has previously entertained arguments against dismissal under this statute and ruled: 

Under § 56-5-2953, a violation of the statute, with no mention of prejudice, may result in dismissal of the charges. The statute provides, "Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if [exceptions apply] . . ." (emphasis added). Conversely, failure to produce videotapes would be a ground for dismissal if no exceptions apply.

City of Rock Hill v. Suchenski, 374 S.C. 12, 16, 646 S.E.2d 879, 881 (2007). 

In our opinion, section 56-5-2953 and Suchenski apply to the instant case.  If the prosecuting authority neither produces the video recording nor files an affidavit explaining why it should be excepted from doing so, dismissal of the charge is proper.  We recognize that Suchenski does not stand for the proposition that a physical videotape must be furnished to each person charged with DUI.  However, this narrow focus disregards the holding in Suchenski.  In that case, the videotape ran out during Suchenski's arrest, leaving no recording of the last of three field sobriety tests.  Id. at 14, 646 S.E.2d at 879.  As a result, the City of Rock Hill was incapable of providing a complete video recording of Suchenski's arrest.  Id.  In its holding, the Suchenski court interpreted the statute as permitting dismissal when the prosecuting authority produced neither a videotape nor an affidavit.  Id. at 16, 646 S.E.2d at 881.  Here, the police officer uploaded the entire video recording to SLED's website, and McCollum was provided with login information to access the site.  However, after multiple attempts on different equipment, McCollum could not view the entire video.  Despite her complaints that she was unable to view the entire video and the municipal court's recommendation that she be provided with a copy in another medium, the City refused to provide McCollum a viewable copy of the video recording.  The municipal court did not require the City to produce this recorded evidence on a physical videotape, but rather, to take action to ensure McCollum could view the recording.  The City could have made arrangements for McCollum to view the recording on its own equipment or provided her a copy on CD or flash drive.  Because the City failed to take any such action, it failed to meet its obligation to produce the recording under Suchenski.  Accordingly, we affirm the circuit court's decision. 

CONCLUSION

We find the City's framing of Issue I failed to preserve for appellate review any error by the circuit court on that issue.  In addition, we find the City failed to preserve Issues II, III, and IV for appellate review by seeking a post-judgment ruling thereon.  For these reasons and for other reasons appearing in the record, the order of the circuit court is

AFFIRMED. 

HUFF and GEATHERS, JJ., and CURETON, A.J. concur.