State v. Davis

After being advised of his Miranda rights, Davis asked to speak to his
attorney

THIS OPINION HAS NO PREDCEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Arthur Tyrone Davis,       
Appellant.

Appeal From Sumter County

Marc H. Westbrook, Circuit Court Judge

Unpublished Opinion No. 2004-UP-251

Heard December 9, 2003 – Filed April
15, 2004

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, of Columbia,
for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Assistant Attorney General Deborah R. J. Shupe, all of Columbia;  and Solicitor
Cecil Kelly Jackson, of Sumter; for Respondent.

PER CURIAM:  Arthur Tyrone Davis
was convicted of two counts of assault and battery of a high and aggravated
nature (“ABHAN”), one count of possession of a weapon during a violent crime,
and one count of conspiracy.  The circuit court sentenced Davis to ten years
imprisonment for each count of ABHAN, five years imprisonment for possession
of a weapon during a violent crime, and five years imprisonment for conspiracy,
with the sentences to run consecutively.  Davis appeals, arguing the circuit
court erred by: 1) admitting the confession he gave as a part of the plea agreement;
and 2) refusing to enforce his plea agreement.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On April 14, 1997, assailants forced two men into
the trunk of their car.  The victims were driven to a secluded location where
they were robbed, beaten, stripped, and shot.

Subsequently, Davis was brought to the police station for
questioning. After arriving at the police station, Officer James Hicks advised
Davis of his Miranda rights.  Because Davis chose not to waive these
rights, Officer Hicks did not question Davis at that time.  Instead, Officer
Hicks assisted Davis in calling his attorney, Murrell Smith. [1] Davis and his attorney spoke
privately for approximately twenty minutes. Smith then proposed a deal to Officer
Hicks in which Davis would agree to tell the Solicitor about every crime he
had been involved in, and in exchange, the Solicitor would agree to allow Davis
to plead guilty to all offenses delineated as non-violent and receive a ten-year
cap on sentencing.  Officer Hicks spoke with a Sumter County Assistant Solicitor
and obtained approval to accept the offer.  Davis then gave a written confession
in which he admitted abducting and shooting the victims.  Thereafter, the Solicitor
refused to honor the agreement after learning Davis was involved in several
crimes he had not disclosed pursuant to the plea agreement.

At a pre-trial hearing, Davis moved to enforce
the terms of the plea agreement, denying the Solicitor’s allegation that he
had been involved in crimes he had not disclosed pursuant to the agreement. 
The Solicitor presented testimony and evidence tying Davis to the additional
crimes.  Specifically, the Solicitor examined a police officer who testified
that he had learned of numerous crimes Davis did not report to the Solicitor.
The officer also testified he had interviewed a co-defendant concerning Davis’
involvement in crimes not disclosed to the Solicitor and had located documents
verifying Davis pawned stolen goods from those crimes.  The circuit court found
Davis breached the plea agreement and denied Davis’ motion to enforce it.

At the call of the case for trial, Davis
moved to suppress the confession he had made to police in connection with the
failed plea agreement, arguing it could no longer be considered voluntary. 
Davis testified in the suppression hearing that his confession was made in reliance
on the plea agreement and that he would not otherwise have given such a statement. 
Davis argued that because the Solicitor chose not to honor the terms of the
plea agreement, the circuit court should find his confession was involuntarily
given.  The circuit court denied the motion to suppress Davis’ confession, finding
it was voluntarily given. 

At trial, the Solicitor introduced the confession
over Davis’ objection.  The jury subsequently returned a guilty verdict for
two counts of ABHAN, one count of possession of a weapon during a violent crime,
and one count of conspiracy.  The circuit court sentenced Davis to ten years
imprisonment for each count of ABHAN, five years imprisonment for possession
of a weapon during a violent crime, and five years imprisonment for conspiracy,
with the sentences to run consecutively.  Davis appeals.

LAW/ANALYSIS

I.       Admission of Confession

Davis argues the circuit court erred by admitting
Davis’ confession into evidence because the statement was not voluntarily given.
[2]   We disagree. 

In determining whether a confession was voluntarily
given by the defendant, the circuit court examines the totality of the circumstances
at the time the defendant gave the statement to determine if the conduct of
“law enforcement officials was such as to overbear [the defendant’s] will to
resist and bring about confessions not freely self-determined.” Rogers v.
Richmond, 365 U.S. 534, 544 (1961); see State v. Peake, 291
S.C. 138, 139, 352 S.E.2d 487, 488 (1987) (“The test for determining the admissibility
of a statement is whether it was knowingly, intelligently, and voluntarily given
under the totality of the circumstances.”).

Initially, we note, Davis alleges because the plea
agreement induced him to confess, his statement became involuntary once the
Solicitor decided not to honor the plea agreement.  Because the totality of
the circumstances is considered to determine if the defendant’s will is overborne
by the acts of the police at the time the confession is given, it would be inappropriate
to review the circumstances existing after the confession was given.  Thus,
we examine voluntariness at the time Davis gave his confession.

“When reviewing a trial court’s ruling concerning
voluntariness, this Court does not reevaluate the facts based on its own view
of the preponderance of the evidence, but simply determines whether the trial
court’s ruling is supported by any evidence.” State v. Saltz, 346 S.C.
114, 136, 551 S.E.2d 240, 252 (2001); see State v. Rochester,
301 S.C. 196, 200, 391 S.E.2d 244, 247 (1990) (holding the conclusion of the
circuit court on issues of fact as to the voluntariness of a confession will
not be disturbed on appeal unless so manifestly erroneous as to show an abuse
of discretion).

In the circuit court’s consideration of the totality
of the circumstances, the only factor that weighed against the voluntariness
of the confession was the fact that Davis received a promise of leniency before
confessing. Id., at 200, 391 S.E.2d at 246-47 (holding a promise of leniency
is a factor to be considered in determining whether a statement was voluntarily
given, but does not always necessitate a finding that the statement was involuntarily
given).

The remaining factors favored a finding that the
confession was voluntarily given.  Foremost in this analysis was the fact that
Davis’ offer to confess in return for a specific sentence resulted in the promise
of leniency from the police officer.  See Drew v. State, 503 N.E.2d
613, 617 (Ind. 1987) (“[T]he promise of . . . leniency was not initiated by
the State, but rather resulted in response to a specific request by the defendant,
who solicited the promise[ ] as a precondition for making a full statement. 
Thus, the defendant had already manifested the propensity and willingness to
make a voluntary statement before the occurrence of any action on the part of
the State.”); State v. Harwick, 552 P.2d 987, 990 (Kan. 1976)
(“When the promises are solicited by the accused, freely and voluntarily, the
accused cannot be heard to say that in accepting the promise he was the victim
of a compelling influence.”).

In addition, Davis was advised of his Miranda
rights and consulted privately with his attorney prior to making the offer to
confess. Cf. Miranda v. Arizona, 384 U.S. 436, 466 (1966) (“The
presence of counsel . . . would insure that statements made in the government-established
atmosphere are not the product of compulsion.”).  

Furthermore, the record does not reflect: 1) the
questioning was unreasonably lengthy; 2) the police officer engaged in deceit
or trickery; 3) the police officer made physical threats against Davis; or 4)
Davis was subjected to physical violence.  See Rochester, 301
S.C. at 201, 391 S.E.2d at 247 (holding lengthy questioning, trickery, threats
of violence, and the use of violence all weigh against finding a confession
was voluntarily given).

After reviewing the totality of the circumstances,
the circuit court determined Davis’ confession was voluntarily given.  Because
the circuit court’s decision was supported by the evidence, the circuit court
did not err by making this determination.  See Saltz, 346 S.C.
at 136, 551 S.E.2d at 252 (“When reviewing a trial court’s ruling concerning
voluntariness, this Court . . . simply determines whether the trial court’s
ruling is supported by any evidence.”); see also State v. Richardson,
342 S.E.2d 823, 831 (N.C. 1986) (“Promises or other statements indicating to
an accused that he will receive some benefit if he confesses do not render his
confession involuntary when made in response to a solicitation by the accused.”);
People v. Wright, 469 N.E.2d 351, 354 (Ill. Ct. App. 1984) (holding defendant’s
confession following State’s promise not to seek death penalty deemed voluntary,
as defendant initiated discussion and stated he would not confess unless State
promised not to seek death penalty); Taylor v. Commonwealth, 461 S.W.2d
920, 922 (Ky. 1970) (holding “the circumstances of the promise in the instant
case were entirely compatible with the exercise by the appellants of a free
volition in the giving of the confessions” because one of the defendants proposed
the deal to police and the other obtained the advice of counsel before agreeing
to the confession deal); Thomas v. State, 531 So.2d 45, 48 (Ala. Crim.
App. 1988) (holding a confession is not involuntarily given when the defendant
made the request for leniency without being coerced by the police officer). [3]  

II.      Refusal to Enforce Plea Agreement

Davis argues the circuit court erred
by refusing to enforce the plea agreement.  Specifically, Davis contends the
circuit court erred by failing to apply a clear and convincing burden of proof
in determining whether Davis breached the terms of the plea agreement.  Davis
argues the evidence presented by the Solicitor was not sufficient to meet this
higher burden of proof.  We disagree.

Plea agreements are contractual in nature, and
courts use traditional principles of contract law to interpret and enforce them. 
See State v. Thrift, 312 S.C. 282, 292-93, 440 S.E.2d 341, 347
(1994) (citation omitted).  When the defendant breaches a plea agreement, the
Solicitor is released from his obligations thereunder. State v. Tillman,
320 S.C. 61, 63, 463 S.E.2d 94, 96 (Ct. App. 1995).  In determining whether
the defendant has breached the plea agreement, the circuit court’s “analysis
must be more stringent than a contract [analysis] because the rights involved
are fundamental and constitutionally based.”  Thrift, 312 S.C. at 293,
440 S.E.2d at 347.

Davis argues Thrift requires the
circuit court to use a clear and convincing evidence standard to determine whether
Davis breached the plea agreement by failing to disclose crimes in which he
was involved.  See Black’s Law Dictionary 577 (7th ed. 1999) (stating
clear and convincing evidence “is a greater burden than preponderance of the
evidence, the standard applied in most civil trials”). 

We conclude this argument is without merit.  Assuming,
without deciding, Thrift requires the circuit court to apply a clear
and convincing evidence standard, the circuit court did so in the present case. 
After reviewing the applicable law, the terms of the plea agreement, and the
omissions in Davis’ statement, the circuit court found, “[e]ven when holding
the State to a higher degree of responsibility, this Court is clearly convinced
that the State has presented more than enough evidence to support its contention
that Arthur Tyrone Davis breached his plea agreement.” (emphasis added). 

Furthermore, the Solicitor presented adequate evidence
to support the circuit court’s conclusion.  The Solicitor presented a co-defendant’s
statement and testimony from an investigating police officer outlining independent
corroboration of Davis’ involvement in crimes not disclosed pursuant to the
plea agreement, as well as documents verifying Davis pawned stolen goods from
those crimes. 

Because the circuit court found clear evidence
convincing it that Davis was involved in crimes he failed to disclose to the
Solicitor, the circuit court did not err by finding Davis breached the plea
agreement. See State v. Amerson, 311 S.C. 316, 320, 428 S.E.2d
871, 873 (1993) (“Appellate courts are bound by fact findings in response to
motions preliminary to trial when the findings are supported by the evidence
and not clearly wrong or controlled by error of law.”).  Thus, the circuit court
did not err by denying Davis’ motion to enforce the plea agreement.

CONCLUSION

Based on the above, Davis’ convictions
are

AFFIRMED.

HEARN, C.J., HOWARD, and KITTREDGE, JJ., concurring.

[1] Smith did not represent Davis at trial.

[2] We note, Rule 410, SCRE, addresses the admissibility of statements
obtained in guilty plea negotiations.  However, Davis did not raise this statute
as a ground for exclusion of the confession, nor did the circuit court rule
upon its applicability. Therefore, we cannot address it on appeal.  See
Humbert v. State, 345 S.C. 332, 337, 548 S.E.2d 862, 865 (2001)
(holding to preserve an issue for appellate review, it must have been raised
to and ruled upon by the circuit court). 

[3] Davis further contends State
v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986) required the circuit court
to exclude the confession he gave as part of the plea agreement.  In Mathis,
our supreme court stated a defendant’s guilty plea cannot be introduced into
evidence. Id. at 592-93, 340 S.E.2d at 540-41.  In explaining the ruling,
our supreme court distinguished guilty pleas from “prior inconsistent statements
(including confessions),” noting confessions may be used as evidence. Id.
at 592, 340 S.E.2d at 540; cf. Kercheval v. U.S., 274 U.S. 220,
223 (1927) (“A plea of guilty differs in purpose and effect from a mere admission
or an extrajudicial confession.”).  Because Davis moved to suppress his confession
at trial, but did not argue evidence of his plea offer was inadmissible, Mathis
is inapplicable to the facts of this case.  To the extent Davis argues evidence
of his plea agreement was inadmissible, this issue is not preserved for appellate
review.  See Humbert, 345 S.C. at 337, 548 S.E.2d at 865 (holding
to preserve an issue for appellate review, it must have been raised to and
ruled on by the circuit court).