State v. Broadway

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.

Samuel Lee Broadway, Appellant.

Appellate Case No. 2017-002104

Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2020-UP-118
Submitted March 1, 2020 – Filed April 29, 2020

AFFIRMED

Christopher Reginald Geel, of Geel Law Firm, LLC, of
Charleston, for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General David A. Spencer, both of
Columbia, and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.

PER CURIAM: Samuel Lee Broadway appeals his conviction for leaving the
scene of an accident that resulted in death and sentence of eighteen years'
imprisonment suspended on the service of eight years. On appeal, Broadway
argues the trial court erred by (1) sustaining the State's hearsay objections and (2)
overruling his pretrial motion to exclude video evidence under Jackson v. Denno.1
We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. The trial court did not abuse its discretion in sustaining the State's hearsay
objections because Broadway offered the statement for the truth of the matter
asserted. See State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002) ("The
admission of evidence is within the discretion of the trial court and will not be
reversed absent an abuse of discretion."); State v. Gault, 375 S.C. 570, 574, 654
S.E.2d 98, 100 (Ct. App. 2007) ("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. ("[T]o warrant reversal based on admission or exclusion of
evidence, the appellant must prove both the error of the ruling and the resulting
prejudice . . . ."); Rule 801(c), SCRE ("'Hearsay' is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted."); Rule 801(a), SCRE ("A 'statement' is (1)
an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by
the person as an assertion."); Assertion, Black's Law Dictionary (11th ed. 2019)
(defining an assertion as "[a] declaration or allegation" or "the act or an instance of
engaging in communicative behavior"). Broadway's various arguments as to why
the statement was admissible do not apply to this case. See Deep Keel, LLC v. Atl.
Private Equity Grp., LLC, 413 S.C. 58, 70, 773 S.E.2d 607, 613 (Ct. App. 2015)
("Signed instruments such as wills, contracts, and promissory notes are writings
that have independent legal significance, and are non[-]hearsay." (quoting Kepner
Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 540 (5th Cir. 1994))); S.C.
Code Ann. § 56-5-1210(A) (2018) ("The driver of a vehicle involved in an
accident resulting in injury to or the death of a person immediately shall stop the
vehicle at the scene of the accident or as close to it as possible. He then shall
return to and in every event shall remain at the scene of the accident . . . .
However, he may temporarily leave the scene to report the accident to the proper
authorities." (emphasis added)); Webb v. Elrod, 308 S.C. 445, 449, 418 S.E.2d
559, 562 (Ct. App. 1992) ("Proof of a statement introduced for the purpose of
showing a party relied and acted upon it is not objectionable on the ground of
hearsay." (emphasis added)); State v. Lewis, 293 S.C. 107, 110-11, 359 S.E.2d 66,
68 (1987) ("[Co-defendant's] testimony regarding what third parties told him as to
Lewis's alleged threats to kill him was not hearsay as it was not offered to prove
that Lewis intended to kill him. Rather it was offered to show [co-defendant's]
state of mind, that is, the reason he bought a gun and had it with him on the night

1
378 U.S. 368 (1964).
of the murder."); State v. Sims, 304 S.C. 409, 420, 405 S.E.2d 377, 383 (1991)
(holding a police officer's testimony that a third party told him Sims had a gun and
was going to kill someone was not hearsay because "it was not offered to prove
that Sims intended to kill" someone; rather, "the evidence was offered to explain
the officer's actions in restraining Sims when he reached towards his pocket.").

2. The trial court's admission of Broadway's confession is supported by evidence in
the record. See State v. Parker, 381 S.C. 68, 74, 671 S.E.2d 619, 621 (Ct. App.
2008) ("In criminal cases, the appellate court sits to review errors of law only.");
id. ("This court is bound by the trial court's factual findings unless they are clearly
erroneous."); id. at 74, 671 S.E.2d at 662 ("The trial [court] determines the
admissibility of a statement upon proof of its voluntariness by a preponderance of
the evidence."); State v. Saltz, 346 S.C. 114, 136, 551 S.E.2d 240, 252 (2001)
("When reviewing a trial court's ruling concerning voluntariness, [an appellate
c]ourt 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."). When questioned by law enforcement, Broadway did not
unambiguously request counsel because his request for law enforcement to call
"Chase Payne" was not sufficiently clear for a reasonable police officer in the
circumstance to understand his request to be a request for an attorney. See Davis v.
United States, 512 U.S. 452, 454 (1994) ("Law enforcement officers must
immediately cease questioning a subject who has clearly asserted his right to have
counsel present during custodial interrogation."); id. at 456-57 ("The Sixth
Amendment right to counsel attaches only at the initiation of adversary criminal
proceedings, . . . and before proceedings are initiated a suspect in a criminal
investigation has no constitutional right to the assistance of counsel."); id. at 457
("Nevertheless, we held in Miranda v. Arizona, 384 U.S. 436 . . . (1966), that a
suspect subject to custodial interrogation has the right to consult with an attorney
and to have counsel present during questioning, and that the police must explain
this right to him before questioning begins."); id. at 459 ("Invocation of the
Miranda right to counsel 'requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire for the assistance of an
attorney.'" (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991))); id. ("[T]he
suspect must unambiguously request counsel."); id. ("[The suspect] must articulate
his desire to have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a request for an
attorney."); id. ("If the statement fails to meet the requisite level of clarity,
Edwards does not require that the officers stop questioning the suspect."); id. at
462 ("[W]e are unwilling to create a third layer of prophylaxis to prevent police
questioning when the suspect might want a lawyer. Unless the suspect actually
requests an attorney, questioning may continue."); State v. Jett, 423 S.C. 415, 420
21, 814 S.E.2d 635, 637 (Ct. App. 2018) (holding the defendant's
statement—"Where my lawyer at?"—and lack of expansion on the statement
before continuing to talk to law enforcement was ambiguous and equivocal such
that a reasonable officer could not determine whether it was an invocation of
counsel); cf. State v. Kennedy, 333 S.C. 426, 430, 510 S.E.2d 714, 715-16 (holding
the defendant's statement—"I think I need a lawyer present"—was unambiguous
and sufficiently clear such that a reasonable police officer in the same
circumstance would understand the statement to be a request for an attorney).
There is evidence to support the trial court's determination that Broadway's
confession was voluntary because law enforcement informed him of his rights
immediately upon contact with him, they did not promise Broadway anything, and
they did not threaten him. See State v. Miller, 375 S.C. 370, 384, 652 S.E.2d 444,
451 (Ct. App. 2007) (holding the test of voluntariness applied by the trial court
takes into consideration the totality of the circumstances of the accused's
interrogation (citing Dickerson v. United States, 530 U.S. 428, 434 (2000))); id. at
386, 652 S.E.2d at 452 (explaining the totality of circumstances test in South
Carolina considers "background, experience, and conduct of the accused; age;
length of custody; police misrepresentations; isolation of a minor from his or her
parent; threats of violence; and promises of leniency" in determining whether a
statement was voluntarily given).

AFFIRMED.2

HUFF, THOMAS, and MCDONALD, JJ., concur.

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