State v. Burdette

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.

Shane Adam Burdette, Appellant.

Appellate Case No. 2015-000513

Appeal From Oconee County
J. Cordell Maddox, Jr., Circuit Court Judge

Unpublished Opinion No. 2017-UP-237
Heard May 1, 2017 – Filed June 7, 2017

AFFIRMED

Appellate Defender Susan B. Hackett, of Columbia, for
Appellant.

Attorney General Alan M. Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka, and
Assistant Attorney General Susannah R. Cole, all of
Columbia, for Respondent.

PER CURIAM: Shane Adam Burdette appeals his convictions of voluntary
manslaughter and possession of a weapon during the commission of a violent
crime, arguing the trial court erred in (1) admitting his custodial statements,1 (2)
refusing to qualify his witness as an expert in ballistics, (3) instructing the jury that
malice may be inferred from the use of a deadly weapon, and (4) sentencing him to
consecutive terms of imprisonment. We affirm.

1. We find no error by the trial court in admitting Burdette's custodial
statements. "On appeal, the conclusion of the trial judge as to the voluntariness of
a statement will not be reversed unless so erroneous as to show an abuse of
discretion." State v. Miller, 375 S.C. 370, 378, 652 S.E.2d 444, 448 (Ct. App.
2007).

"[T]he prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-
incrimination." Miranda v. Arizona, 384 U.S. 436, 444 (1966). "When seeking to
introduce a confession, the State must prove that the statement was voluntary and
taken in compliance with Miranda." State v. Goodwin, 384 S.C. 588, 601, 683
S.E.2d 500, 507 (Ct. App. 2009).

"In South Carolina, the test for determining whether a defendant's confession was
given freely, knowingly, and voluntarily focuses upon whether the defendant's will
was overborne by the totality of the circumstances surrounding the confession."
State v. Moses, 390 S.C. 502, 513, 702 S.E.2d 395, 401 (Ct. App. 2010).

Courts have recognized appropriate factors that may be
considered in a totality of the circumstances analysis:
background; experience; conduct of the accused; age;
maturity; physical condition and mental health; length of
custody or detention; police misrepresentations; isolation
of a minor from his or her parent; the lack of any advice
to the accused of his constitutional rights; threats of
violence; direct or indirect promises, however slight; lack
of education or low intelligence; repeated and prolonged
nature of the questioning; exertion of improper influence;
and the use of physical punishment, such as the
deprivation of food or sleep.

Id. at 513-14, 702 S.E.2d at 401.

1
We combine Burdette's first and second issues on appeal.
In Missouri v. Seibert, the Court addressed the admissibility of a post-Miranda
statement obtained by questioning a suspect until incriminating information was
elicited, administering Miranda warnings, and then—following the warnings—
leading the suspect to cover the same incriminating information a second time.
542 U.S. 600, 604 (2004). The Court held a statement repeated after a warning in
such circumstances was not admissible. Id.

Our supreme court in State v. Navy also emphasized the Miranda warnings
requirement cannot be skirted by interrogative tactics that undermine the very
purpose of Miranda. 386 S.C. 294, 302, 688 S.E.2d 838, 841 (2010). To
determine whether a constitutional violation occurred in this setting, a court must
analyze the following factors:

1) the completeness and detail of the question and
answers in the first round of interrogation;

2) the timing and setting of the first questioning and the
second;

3) the continuity of police personnel; and

4) the degree to which the interrogator's questions treated
the second round as continuous with the first.

Id. at 302, 688 S.E.2d at 841-42.

We find no error by the trial court in admitting Burdette's three written statements.
As to the written statements being tainted by Officer John Towery's comment to
Burdette that the Miranda warnings did "not mean anything, it's just somethin'
[under] the law we gotta do," we find the subsequent readings of the Miranda
warnings and Burdette's waivers cured any taint. As to the length of interrogation
and Burdette's alleged intoxication, we find these were factors to consider in
determining if the statements were voluntarily made; however, we do not find
either rendered the statements involuntary. We further find the request for
Burdette to sign his statement after he invoked his right to counsel did not render
that statement or subsequent statements involuntary. Thus, we affirm the
admission of the written statements.
2. We likewise find no error by the trial court in refusing to qualify Burdette's
witness as an expert in ballistics. "All expert testimony must satisfy the Rule 702
criteria . . . ." State v. White, 382 S.C. 265, 270, 676 S.E.2d 684, 686 (2009). The
South Carolina Rules of Evidence state,

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of opinion or
otherwise.

Rule 702, SCRE.

Burdette offered his witness as an expert in ballistics. The witness testified to his
education and experience in gunsmith repair, firearm safety training, concealed
weapon permit training, and daily experience in collecting pellets at the gun club
as part of his participation in a lead removal and recycling program. He did not
testify to any experience, training, or education specifically related to ballistics.
The trial court allowed the witness to testify as an expert gunsmith, but it refused
to qualify the witness as an expert in ballistics. We find no abuse of discretion.
See State v. Price, 368 S.C. 494, 498, 629 S.E.2d 363, 365 (2006) ("The decision
to admit or exclude testimony from an expert witness rests within the trial court's
sound discretion.").

3. We next find Burdette suffered no prejudice from the trial court's erroneous
instruction to the jury that malice may be inferred from the use of a deadly weapon
despite evidence that would reduce, mitigate, excuse, or justify the killing.2

"A jury charge instructing that malice may be inferred from the use of a deadly
weapon is no longer good law in South Carolina where evidence is presented that
would reduce, mitigate, excuse, or justify the homicide." State v. Stanko, 402 S.C.
252, 260, 741 S.E.2d 708, 712 (2013). The erroneous instruction of inferred
malice from the use of a deadly weapon charge is subject to a harmless error
analysis. State v. Belcher, 385 S.C. 597, 611, 685 S.E.2d 802, 809 (2009). "When
considering whether an error with respect to a jury instruction was harmless, we
must 'determine beyond a reasonable doubt that the error complained of did not
contribute to the verdict.'" State v. Middleton, 407 S.C. 312, 317, 755 S.E.2d 432,

2
The State conceded the jury charge was erroneous.
435 (2014) (quoting State v. Kerr, 330 S.C. 132, 144-45, 498 S.E.2d 212, 218 (Ct.
App. 1998)).

Here, we find no prejudice because the erroneous charge could not have
contributed to the jury's verdict of the lesser-included offense, voluntary
manslaughter. "Voluntary manslaughter is the unlawful killing of a human being
in sudden heat of passion upon sufficient legal provocation." State v. Cole, 338
S.C. 97, 101, 525 S.E.2d 511, 513 (2000). Malice is not an element of voluntary
manslaughter; thus, we find any error in the malice instruction could not have
contributed to the verdict. See State v. Chambers, 194 S.C. 197, 203, 9 S.E.2d 549,
552 (1940) (finding any error resulting from the trial judge's instructions on malice
was harmless when the jury convicted the defendants of lesser-included offenses of
which malice was not an element).

4. Finally, we find Burdette's remaining issue—the trial court erred in
sentencing him to consecutive terms of imprisonment based on a mistaken belief
that it was required under the law—was not preserved for appellate review. See
State v. Johnston, 333 S.C. 459, 462, 510 S.E.2d 423, 425 (1999) (stating "a
challenge to sentencing must be raised at trial, or the issue will not be preserved for
appellate review").

AFFIRMED.

WILLIAMS and KONDUROS, JJ., and LEE, A.J., concur.