State v. Pontoo

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.

Raphael Pontoo, Appellant.

Appellate Case No. 2015-000323

Appeal From Lexington County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2017-UP-467
Heard November 14, 2017 – Filed December 28, 2017

AFFIRMED

Donald L. McCune, Jr., of Savage Law Firm, of
Charleston; and Chief Appellate Defender Robert M.
Dudek, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark R. Farthing, both of Columbia;
and Solicitor Samuel R. Hubbard, III, of Lexington, for
Respondent.

PER CURIAM: Appellant Raphael Pontoo appeals his convictions of armed
robbery and failure to stop for a blue light resulting in death, for which he received
a cumulative sentence of thirty years' imprisonment. Pontoo argues the circuit court
erred by (1) giving jury instructions that shifted the burden of proof, (2) allowing the
State to impeach him with his silence, and (3) permitting an in-court identification
process that did not comport with due process. We affirm.

1. The circuit court correctly instructed the jury on the affirmative defense of
duress, and the instructions were consistent with the relevant and applicable South
Carolina law. See State v. New, 371 S.C. 523, 527, 640 S.E.2d 871, 873 (2007)
("Generally, affirmative defenses must be established by a preponderance of the
evidence."); id. (finding the burden is on the defendant "to prove his defense of
duress by a preponderance of the evidence"); State v. Attardo, 263 S.C. 546, 551,
211 S.E.2d 868, 870 (1975) (recognizing the burden of proof is on the party asserting
an affirmative defense); see also Sheppard v. State, 357 S.C. 646, 665, 594 S.E.2d
462, 472–73 (2004) (recognizing a jury charge is correct if it correctly defines the
applicable law when read as a whole).

Additionally, Pontoo's argument that the circuit court failed to charge the
current and correct law for the offense of Failure to Stop for a Blue Light—
specifically, that an element, "in the absence of mitigating circumstances," was
omitted from the jury instruction—is not preserved because Pontoo did not raise the
argument to the circuit court. See State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d
691, 693–94 (2003) ("In order for an issue to be preserved for appellate review, it
must have been raised to and ruled upon by the [circuit court]. Issues not raised and
ruled upon in the [circuit] court will not be considered on appeal.").

2. The circuit court properly permitted the State to impeach Pontoo with his
inconsistent statement and pre-arrest silence because Pontoo was not in custody
when he was interviewed at the hospital. See State v. McIntosh, 358 S.C. 432, 443,
595 S.E.2d 484, 490 (2004) ("The State may point out a defendant's silence prior to
arrest, or his silence after arrest but prior to the giving of Miranda[1] warnings, in
order to impeach the defendant's testimony at trial.").

The evidence supports the circuit court's finding that Pontoo was not in
custody when he was questioned at the hospital because the questioning was purely
investigative, thus not warranting Miranda warnings. See State v. Doby, 273 S.C.
704, 707, 258 S.E.2d 896, 899 (1979) ("Miranda applies 'only where there has been
such a restriction on a person's freedom as to render him "in custody"'" (quoting
State v. Neely, 271 S.C. 33, 41–42, 244 S.E.2d 522, 527 (1978))); State v. Morgan,

1
Miranda v. Arizona, 384 U.S. 436 (1966).
282 S.C. 409, 411, 319 S.E.2d 335, 336 (1984) ("Miranda warnings are not required
if the defendant is not in custody or significantly deprived of his freedom."); id. at
411–12, 319 S.E.2d at 336–37 (holding Miranda warnings are not required when
statements are made in response to routine investigation); State v. Lynch, 375 S.C.
628, 633, 654 S.E.2d 292, 295 (Ct. App. 2007) ("Miranda rights attach only if the
suspect is subject to custodial interrogation." (footnote omitted)); State v. Simmons,
329 S.C. 154, 157, 494 S.E.2d 460, 462 (Ct. App. 1997) ("The mere giving of
Miranda warnings does not convert an otherwise non-custodial situation into a
'custodial interrogation.'"); see also United States v. Jamison, 509 F.3d 623, 633 (4th
Cir. 2007) (holding a defendant was not in custody, such that the privilege against
self-incrimination would attach, when police questioned him in the hospital
emergency room).

Additionally, Pontoo's argument that his cross-examination and impeachment
by the State constituted a Doyle2 violation is not preserved because Pontoo did not
raise the argument to the circuit court. See State v. Morris, 307 S.C. 480, 485, 415
S.E.2d 819, 823 (Ct. App. 1991) ("Whe[n] an objection and the ground therefor is
not stated in the record, there is no basis for appellate review.").

Even if the argument was preserved, the argument is meritless because Doyle
is not applicable to the facts of this case. Doyle prohibits a prosecutor from
impeaching and cross-examining a defendant about his failure to tell his exculpatory
story to police after receiving Miranda warnings at the time of his arrest. See Doyle,
426 U.S. at 619 ("We hold that the use for impeachment purposes of petitioners'
silence, at the time of arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment."). Our supreme court has held the
State commenting on a defendant's post-arrest silence is a violation of due process.
See McIntosh, 358 S.C. at 444, 595 S.E.2d at 490. However, Pontoo was not arrested
or in custody; instead, he was given Miranda warnings out of an abundance of
caution, and his pre-arrest, but post-Miranda silence was used against him. We find
Doyle does not apply in light of the South Carolina cases that have found Miranda
and its protections inapplicable when a defendant is given Miranda warnings but not
subjected to custodial interrogation. See, e.g., Simmons, 329 S.C. at 157, 494 S.E.2d
at 462 (finding field sobriety tests admissible even though the State failed to show
the defendant, who had been given Miranda warnings, waived Miranda rights
because the tests were administered pursuant to a routine traffic stop, which did not
constitute detainment sufficient to rise to the level of custodial interrogation, and
therefore, the defendant was not entitled to Miranda warnings at all); Doby, 273 S.C.

2
Doyle v. Ohio, 426 U.S. 610 (1976).
at 707–08, 258 S.E.2d at 898–99 (1979) (finding the principles of Miranda were
inapplicable at the time the defendant waived his rights because he was not placed
under arrest prior to or while giving his confession).

3. Pontoo's argument the circuit court erred in allowing the in-court
identification of him—specifically, arguing the Neil v. Biggers3 hearing was unduly
suggestive—is not preserved because Pontoo did not raise this specific argument to
the trial court. See State v. Patterson, 324 S.C. 5, 19, 482 S.E.2d 760, 767 (1997)
("Appellant is limited to the grounds raised at trial."); State v. Thomason, 355 S.C.
278, 288, 584 S.E.2d 143, 148 (Ct. App. 2003) ("[A] party cannot argue one theory
at trial and a different theory on appeal.").

Although not preserved, the circuit court did not abuse its discretion in
permitting the in-court identification of Pontoo at the Neil v. Biggers hearing.
Pontoo's argument the hearing was unduly suggestive because the first time he was
positively identified was when he was sitting at the defense table is without merit.
See State v. Lewis, 363 S.C. 37, 42, 609 S.E.2d 515, 518 (2005) ("The United States
Supreme Court has not extended its exclusionary rule to in-court identification
procedures that are suggestive because of the trial setting."); id. at 43, 609 S.E.2d at
518 ("[W]e conclude Neil v. Biggers does not apply to a first-time in-court
identification because the judge is present and can adequately address relevant
problems; the jury is physically present to witness the identification, rather than
merely hearing testimony about it; and cross-examination offers defendants an
adequate safeguard or remedy against suggestive examinations.").

AFFIRMED.

SHORT, KONDUROS, and GEATHERS, JJ., concur.

3
Neil v. Biggers, 409 U.S. 188 (1972).