State v. Claybon L. Atwater Jr.

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.

Claybon Lewis Atwater, Jr., Appellant.

Appellate Case No. 2021-001320

Appeal From Horry County
Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2024UP051
Submitted January 1, 2024 – Filed February 7, 2024

AFFIRMED

Appellate Defender Joanna Katherine Delany, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia, for Respondent.

PER CURIAM: Claybon Lewis Atwater, Jr. appeals his convictions for felony
driving under the influence (DUI) resulting in death and felony DUI resulting in
great bodily injury, and aggregate sentence of twenty-two years' imprisonment. On
appeal, he argues the circuit court erred in failing to dismiss his charges or redact
an officer's body camera video recording from the incident site because the footage
did not show him receiving his Miranda 1 rights, as required by section 56-5-2953
of the South Carolina Code (2018). We affirm pursuant to Rule 220(b), SCACR.

The trial court erred in finding no violation of the relevant statute. See
§ 56-5-2953(A) ("A person who violates [s]ection . . . 56-5-2945 [of the South
Carolina Code (2018)] . . . must have his conduct at the incident site and the breath
test site video recorded."). The video recording from the incident site did not
comply with the statutory requirement to show Atwater being advised of his
Miranda rights because although Atwater was visible before and after the
advisement of the Miranda rights and the video recording contained audio of the
advisement, Atwater's leg and foot were the only parts of his body visible during
the advisement. Further, the video recording did not show the arresting officer as
he advised Atwater of his Miranda rights. See § 56-5-2953(A)(1)(a)(iii) (stating
the "video recording at the incident site must . . . show the person being advised of
his Miranda rights"); State v. Taylor, 436 S.C. 28, 35, 870 S.E.2d 168, 172 (2022)
(holding "that in order for a DUI recording to 'show' a defendant being advised of
his Miranda rights, the defendant and arresting officer must be visually seen and
audibly heard" (italics added)).
We respectfully reject the State's argument that the officer's failure to comply with
the statute was excused by the exceptions listed in section 56-5-2953(B). See
§ 56-5-2953(B) ("In circumstances including, but not limited to, road blocks,
traffic accident investigations, and citizens' arrests, where an arrest has been made
and the video recording equipment has not been activated by blue lights, the failure
by the arresting officer to produce the video recordings required by this section is
not alone a ground for dismissal. However, as soon as video recording is
practicable in these circumstances, video recording must begin and conform with
the provisions of this section. 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 . . . ."). First, we hold the lack of
compliance is not excused under the traffic accident exception because the accident
was not the reason the video recording failed to fully show Atwater or the officer
during the advisement of his Miranda rights. See State v. Kinard, 427 S.C. 367,
373, 376-77, 831 S.E.2d 138, 141, 143 (Ct. App. 2019) (indicating the traffic
accident exception did not excuse noncompliance with the video recording
requirements listed in section 56-5-2953(A) because the accident was "not the
reason [the defendant] could not be videotaped"). Second, we hold the totality of

1
Miranda v. Arizona, 384 U.S. 436 (1966).
the circumstances does not excuse the noncompliance because although Atwater
laid down in the backseat of the patrol car, police could have taken reasonable
measures, including adjusting the body-worn camera or utilizing a dash camera, to
visibly show Atwater during the advisement of his Miranda rights. Finally, the
audio from the video recording indicates police instructed Atwater during the
advisement of the Miranda rights to "sit up" because he was "falling asleep,"
which does not ensure Atwater understood his rights or could knowingly waive his
rights.

Even so, our supreme court has explained this error does not mandate dismissal.
Taylor, 436 S.C. at 39, 870 S.E.2d at 174 (employing logic from an earlier
precedent when determining suppression was the proper remedy and noting it
"believe[d] this approach [wa]s consistent with the evolution of" South Carolina
case law). In our unpublished opinion State v. Belk, we affirmed the trial court's
denial of Belk's motion to dismiss because suppression of Belk's statements was
the proper remedy for failure to comply with the DUI recording statute.
2023-UP-089 (S.C. Ct. App. filed Mar. 15, 2023). In State v. Lowery, we found
the video recording did not comply with section 56-5-2953 and although "[u]ntil
recently, dismissal of a DUI charge was an appropriate remedy if a police officer
failed to" comply with section 56-5-2953, the proper remedy after Taylor was not
dismissal. 436 S.C. 349, 361, 872 S.E.2d 197, 203 (Ct. App. 2022), cert. granted
(Aug. 10, 2023).
Given precedent's explanation that suppression, not dismissal, is the appropriate
remedy, we must analyze whether admitting the video was a harmless error. See
State v. Black, 400 S.C. 10, 27, 732 S.E.2d 880, 890 (2012) ("An appellate court
generally will decline to set aside a conviction due to insubstantial errors not
affecting the result."); § 56-5-2945 ("A person who, while under the influence of
alcohol, drugs, or the combination of alcohol and drugs, drives a motor vehicle and
when driving a motor vehicle does any act forbidden by law or neglects any duty
imposed by law in the driving of the motor vehicle, which act or neglect
proximately causes great bodily injury or death to another person, is guilty of the
offense of felony [DUI] . . . ."). One of the officers responding to the traffic
accident testified Atwater admitted he had been driving at the time of the wreck
after waiving his Miranda rights. Police also advised Atwater of his Miranda
rights in the DataMaster room, Atwater waived his rights, and Atwater admitted he
was driving at the time of the wreck and had been drinking earlier in the day.
Further, Atwater's blood alcohol concentration was 0.11 and his blood alcohol
content was 0.105 percent. Moreover, an insurance investigator testified without
objection that Atwater admitted he had been drinking on the day in question. In
short, there was ample other evidence independent of the deficient recording
conclusively proving Atwater's guilt beyond a reasonable doubt. For that reason,
his conviction and sentence are
AFFIRMED. 2

WILLIAMS, C.J., and HEWITT and VERDIN, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.