State v. Franklin

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, Appellant,

v.

Raymond Franklin, Respondent.

Appellate Case No. 2012-212013

Appeal From Laurens County
Eugene C. Griffith, Jr., Circuit Court Judge

Unpublished Opinion No. 2014-UP-110
Heard February 4, 2014 – Filed March 12, 2014

REVERSED AND REMANDED

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia, for Appellant.

Matthew Price Turner, of Turner & Burney, PC, of
Laurens, for Respondent.

PER CURIAM: A grand jury indicted Raymond Franklin for second-degree
assault and battery. Franklin gave two statements to the police, and following a
pre-trial hearing, the trial court suppressed Franklin's second statement, finding the
statement was involuntary. The State appeals, arguing the trial court erred in
suppressing Franklin's second statement because the evidence in the record
indicates the statement was not induced by threats or violence, obtained by any
direct or implied promises, nor was it obtained by exertion of improper influence
such that Franklin's will was overborne. Additionally, the State contends the trial
court erred in relying on the officers' fact suggestions to find the statement was
involuntary. We reverse and remand.

FACTS

On August 6, 2010, Franklin met with Agent Jeff Kindly, of the State Law
Enforcement Division, and gave his first statement. Kindly explained he advised
Franklin of his Miranda1 rights by giving him a departmental form, including a
waiver section at the bottom of the form. Kindly averred Franklin appeared to
understand his rights, did not have difficulty understanding the waiver form, and
did not appear to be under the influence of any alcohol or drugs at the time he
signed the form.

On August 25, 2010, Franklin voluntarily returned to the police station to submit to
a polygraph test. Sergeant Nate Brooks, an investigator and forensic interviewer
with the Greenville County Sheriff's Office, conducted the polygraph test with only
him and Franklin in the room. Brooks maintained he advised Franklin of his
Miranda rights by providing him with a copy of the office's "standard waiver-of-
rights form" that the office uses when conducting interviews. Brooks explained he
"basically read [the form] off to [Franklin] and asked him if he understood it, and
[Franklin] said he did. And [Franklin] initialed beside each section that [Brooks]
read off and then signed it down at the bottom." According to Brooks, Franklin
did not have any difficulty understanding his rights.

After the polygraph test, Brooks left the room and Kindly again met with Franklin.
During this meeting, Franklin gave his second statement. Brooks admitted there
was a two hour gap between the time Franklin signed the waiver form and time
Franklin spoke with Kindly.

Prior to trial, after listening to relevant portions of the August 25, 2010 recorded
meeting with Franklin, the trial court found Franklin's second statement was

1
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
involuntary. The trial court stated it was concerned with the officers saying things
such as "they're going to want to know about this, and you need to put something
in there about that." The trial court found the officers made suggestions as to the
facts Franklin should include in the statement. Accordingly, the trial court granted
Franklin's motion to suppress the second statement. When the parties returned the
next day to begin trial, the State indicated it had filed a notice of appeal and moved
the trial court for a continuance, arguing it could not properly proceed without the
suppressed statement. Franklin objected to the continuance. The trial court stated
it lost its jurisdiction when the State filed its notice of appeal. Therefore, the trial
court did not make any further rulings and the action was stayed. This appeal
followed.

LAW/ANALYSIS

I. Immediately Appealable

Franklin argues the trial court's order is not immediately appealable. We disagree.

"An appeal ordinarily may be pursued only after a party has obtained a final
judgment." Hagood v. Sommerville, 362 S.C. 191, 194, 607 S.E.2d 707, 708
(2005). However, "[a] pre-trial order granting the suppression of evidence which
significantly impairs the prosecution of a criminal case is directly appealable."
State v. McKnight, 287 S.C. 167, 168, 337 S.E.2d 208, 209 (1985). "Under
McKnight, the State has the right to immediately appeal a trial court's suppression
of evidence which significantly impairs the prosecution of the case." State v.
Belviso, 360 S.C. 112, 115, 600 S.E.2d 68, 70 (Ct. App. 2004).

Franklin's second statement provides additional details as to his interactions with
the victim. In his first statement, Franklin only admitted to kissing the victim and
touching the victim's back to view a tattoo. However, in the second statement,
Franklin admits to actually touching the victim's breast, thus, confirming the
victim's claim. Therefore, the second statement is critical to prove the charges
against Franklin, and the suppression of the statement would significantly impair
the State's case. Accordingly, we hold the trial court's order is immediately
appealable. See McKnight, 287 S.C. at 168, 337 S.E.2d at 209 (holding a pre-trial
order granting the suppression of evidence that significantly impairs the
prosecution of a criminal case is directly appealable).

II. Voluntariness of the Second Statement
The State argues the trial court abused its discretion in finding Franklin's second
statement was involuntary. We agree.

"The admission of evidence is within the discretion of the trial court and will not
be reversed absent an abuse of discretion." State v. Pagan, 369 S.C. 201, 208, 631
S.E.2d 262, 265 (2006). "An abuse of discretion occurs when the conclusions of
the trial court either lack evidentiary support or are controlled by an error of law."
Id. The test of voluntariness is whether a defendant's will was overborne by the
circumstances surrounding the giving of a confession. Dickerson v. United States,
530 U.S. 428, 434 (2000).

"Coercive police activity is a necessary predicate to finding a statement is not
voluntary." State v. Miller, 375 S.C. 370, 386, 652 S.E.2d 444, 452 (Ct. App.
2007). "Coercion is determined from the perspective of the suspect." Id. "A
statement may not be 'extracted by any sort of threats or violence, [or] obtained by
any direct or implied promises, however slight, [or] obtained by the exertion of
improper influence.'" Id. (alterations in original) (quoting State v. Rochester, 301
S.C. 196, 200, 391 S.E.2d 244, 246 (1990)).

Given the totality of the circumstances, we find the trial court erred in finding
Franklin's second statement was involuntary. State v. Parker, 381 S.C. 68, 85, 671
S.E.2d 619, 627 (Ct. App. 2008). Franklin voluntarily went to the police station on
both occasions. Prior to his first statement on August 6, 2010, and his polygraph
test on August 25, 2010, the officers read Franklin his rights, and Franklin
acknowledged he understood them when he placed his initials on the line next to
each. The officers testified they never promised Franklin anything in return for
making a confession and denied ever threatening him.

Moreover, the conditions surrounding Franklin's confession do not indicate his
statement was induced by coercion or by an oppressive environment. Franklin was
present at the police station for approximately three hours before signing the
second statement, which was not excessive under the circumstances. The
recording shows Franklin's general demeanor was relaxed, calm, and cooperative.
Further, when Franklin provided the second statement, he was not in a police-
dominated atmosphere as only Kindly was present in the room. Likewise,
contrary to Franklin's contentions, Brooks's statements to Franklin that he was
concerned about Franklin's position at the sheriff's office, there were problems with
his answers during the polygraph examination, there were "shades of gray" that
needed to be clarified, and Franklin needed to fill in the gaps regarding the facts in
the statement, were not tantamount to coercion. Accepting as true Franklin's claim
and the trial court's finding the officers suggested to Franklin that he should put
something in his statement about the location of his touching of the victim, such
suggestion does not amount to coercion. Franklin was sixty-three years old, a
former deputy with the Laurens County Sheriff's Department with several years of
experience in law enforcement, and he provided a medical waiver to participate in
the police interviews.

Finally, although Franklin appears to argue his statement is inadmissible because
he was not apprised of his Miranda rights directly before the second statement, he
never asserted he was in custody and, therefore, entitled to his Miranda rights at
the time he gave the statement. Conversely, the State maintains Franklin was
never in custody and, therefore, his Miranda rights were never triggered. State v.
Silver, 314 S.C. 483, 486, 431 S.E.2d 250, 251 (1993). We find the record
establishes Franklin was not in custody at the time he gave the statement.
Moreover, as previously noted, the officers advised him of the Miranda warnings
twice before he gave the second statement.

Therefore, we find Franklin voluntarily gave the statement at issue. The evidence
presented supports the conclusion that the State met its burden of establishing, by a
preponderance of the evidence, the statement was given freely and voluntarily.
Accordingly, we reverse because the trial court's suppression of Franklin's
statement was an abuse of discretion. State v. Pagan, 369 S.C. at 208, 631 S.E.2d
at 265 ("The admission of evidence is within the discretion of the trial court and
will not be reversed absent an abuse of discretion.").

CONCLUSION

We hold the order is immediately appealable and the totality of circumstances
surrounding Franklin's second statement establishes the trial court abused its
discretion in finding the statement was involuntarily given and thus inadmissible at
trial.

REVERSED AND REMANDED.

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