Heard: May 6, 2014.
Appeal From Richland County. Clifton Newman, Circuit Court Judge.
Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Chief Deputy, Attorney General John W. McIntosh, and Senior, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, for Respondent.
GEATHERS, J. SHORT, J., concurs. FEW, C.J., dissenting.
[410 S.C. 57] GEATHERS, J.:
Victor White was convicted of murder and armed robbery stemming from a shooting during an arranged marijuana purchase. The incident took place inside of the victim's vehicle at an empty Kentucky Fried Chicken (KFC) parking lot. White appeals his convictions, arguing the trial court erred in admitting his recorded statement because the statement was the direct product of the impermissible tactic of " question first, give Miranda  rights later," which has been expressly forbidden by the Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and our supreme court in State v. Navy, 386 S.C. 294, 688 S.E.2d 838 (2010). We affirm.
1. Voluntariness and Admissibility of White's Statement
In both Seibert and Navy, the courts emphasized that Miranda 's warnings requirement cannot be skirted by interrogative tactics that undermine the very purpose of Miranda, i.e., unless and until such warnings and waiver are given, no evidence obtained as a result of interrogation can be used against a defendant at trial. See Miranda, 384 U.S. at 478-79; Seibert, 542 U.S. at 617; Navy, 386 S.C. at 303-04, 688 S.E.2d at 842.
[410 S.C. 58] Here, there is conflicting evidence as to whether White's statement was taken in violation of our supreme court's holding in Navy. By White's testimony, alone, he presents evidence that Navy 's forbidden " question-first, give Miranda warnings later" tactic was employed in his interrogation. On the other hand, the State points to the testimony of two investigators who stressed they did not elicit any information from White prior to his signing of the Miranda rights waiver form. The State argues the investigators' testimony is further corroborated by the waiver form, which indicates White voluntarily waived his rights prior to answering any questions.
Because there is conflicting evidence, the trial court was charged with making a finding that White received Miranda warnings and intelligently waived his right to silence prior to making a statement. See State v. Silver, 307 S.C. 326, 330, 414 S.E.2d 813, 815 (Ct. App. 1992) ( " Where there is conflicting evidence regarding the statements, the court must make a finding as to their validity." ). White concedes his statement was given " voluntarily." However, he contests the timing of the Miranda warnings, which necessarily implicates State v. Navy and the issue of whether he intelligently and voluntarily waived his right to remain silent prior to making a statement. See State v. Miller, 375 S.C. 370, 380, 652 S.E.2d 444, 449 (Ct. App. 2007) (finding the " intelligent waiver mandate" is in addition to the voluntariness requirement of Miranda ).
In the pre-trial Jackson v. Denno hearing, the trial court did not make an explicit finding as to whether White's statement was taken in ...