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State v. Rearick

Supreme Court of South Carolina

August 17, 2016

The State, Respondent
v.
Bryan Rearick, Appellant. Appellate Case No. 2014-001692

          Heard June 15, 2016

         Appeal From Beaufort County Carmen T. Mullen, Circuit Court Judge

          Chief Appellate Defender Robert Michael Dudek, of Columbia, for Appellant

          Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General John Benjamin Aplin, Senior Assistant Deputy Attorney General Deborah R. J. Shupe, all of Columbia, and Solicitor Isaac McDuffie Stone, III, of Bluffton, for Respondent.

          BEATTY JUSTICE

         Following the circuit court judge's declaration of a mistrial over defense counsel's objection, Bryan Rearick moved to bar subsequent prosecution of the charge of felony driving under the influence resulting in death ("felony DUI") on the ground a second trial would violate the Double Jeopardy Clause of the South Carolina and United States Constitutions.[1] Rearick appeals the judge's order denying this motion, arguing: (1) the denial of a motion to dismiss on double jeopardy grounds is immediately appealable; and, if so, (2) the judge's declaration of a mistrial was erroneous in that there was no "manifest necessity" to justify the ruling. We adhere to well-established appealability precedent and dismiss the appeal as interlocutory.

         I. Factual / Procedural History

         During the late evening hours of May 30, 2010, Rearick was involved in a head-on collision on Hilton Head Island that resulted in the death of the driver of the other vehicle. Trooper Thomas Summers with the South Carolina Highway Patrol was dispatched to the accident scene where he found Rearick receiving medical treatment in an ambulance. Trooper Summers followed the ambulance to the hospital, interviewed Rearick, and ordered that blood be drawn for forensic toxicology analysis. On July 22, 2010, a Beaufort County grand jury indicted Rearick for felony DUI.[2]

         Rearick waived his right to a jury trial and the case proceeded as a bench trial on January 30, 2014. At the beginning of the trial, defense counsel raised several pretrial motions. Initially, counsel moved to dismiss the case based on the State's failure to produce the arresting officer's video recording of the incident in violation of section 56-5-2953 of the South Carolina Code.[3] Additionally, counsel moved to suppress the blood sample taken from Rearick on the grounds: (1) it was obtained without a warrant and without any exigency in contravention of Missouri v. McNeely, 133 S.Ct. 1552 (2013);[4] (2) it was obtained in violation of section 56- 5-2950, [5] which requires that a driver who is accused of DUI be offered a breath test before a blood sample is requested; and (3) the chain of custody of the sample was fatally defective in that the State failed to produce as a witness the nurse who allegedly drew the blood at the hospital.

         The State called Trooper Summers as its primary witness during the pretrial hearing. According to Trooper Summers, the video recording device in his patrol car was activated when he turned on his blue lights to respond to the accident scene. When Trooper Summers arrived at the accident site, he encountered the EMS, the fire department, and deputies with the Beaufort County Sheriff's Department. However, he could not recall how many individuals were present and could not identify anyone by name. Yet, he specifically remembered speaking with Rearick at the scene.

         On cross-examination, Trooper Summers admitted that he did not know whether a video recording of the incident had been placed into evidence. Defense counsel further questioned Trooper Summers regarding the contents of his accident report as well as the videotaped interview he provided to the South Carolina Department of Public Safety about the case. When it became evident that Trooper Summers could not recall the details of the incident, the trial judge took a forty-five minute recess to permit Trooper Summers to review his notes, the accident report, and the DVD of his interview.

         Once Trooper Summers resumed his testimony, he recalled that "[t]here were some deputies" at the accident scene. He estimated that he spent approximately thirty to forty-five minutes at the accident scene and that the video recorder in his patrol car was running during that time. After hearing this testimony, defense counsel expressed concern that potentially exculpatory evidence had not been turned over by the State pursuant to Brady[6] and Rule 5, SCRCRimP. Counsel explained that the video recording may have contained images of Rearick's conduct and demeanor at the time of the accident and that Trooper Summers's lapel microphone may have recorded his conversations with Rearick.

         The judge determined that a videotape from Trooper Summers's vehicle was not required under the circumstances and, thus, denied counsel's motion on that basis. However, the judge shared counsel's concern that the other deputies on the scene may have videotaped Rearick's conduct and that those recordings were either not available or had not been provided to defense counsel. When defense counsel moved to dismiss the case based on the State's failure to provide these videotapes, the trial judge took the motion under advisement.

         With respect to defense counsel's remaining pretrial motions, the judge found no violation of the implied consent statute and ruled that any statements Rearick gave to Trooper Summers at the hospital were admissible. Still, the judge took under advisement defense counsel's motion to suppress Rearick's blood alcohol content.

         When trial testimony began, the State presented several witnesses to establish the chain of custody of Rearick's blood draw at the hospital after the accident. At the conclusion of this testimony, the judge found the State had established the chain of custody and admitted the toxicology results of Rearick's blood alcohol content subject to defense counsel's ongoing, yet unresolved, objection that the blood evidence was obtained without a warrant.

         The State then called Trooper Scott Ashe, a member of the Multi-Disciplinary Accident Investigation Team ("MAIT") and an expert in accident reconstruction, who testified regarding MAIT's conclusions regarding the accident. Following this testimony, defense counsel advised the judge that the State and Trooper Ashe had referred to documents that were not included in the materials turned over to her as part of discovery. The judge recessed to allow the State time to ascertain what was not included in the discovery materials provided to the defense, to obtain the identities of any Beaufort County deputies present at the accident scene, and to determine whether there were any video recordings of the accident scene.

         Once the trial reconvened the following week, the judge inquired whether all discovery material had been turned over to defense counsel. Defense counsel acknowledged that she received the missing MAIT notes the afternoon the court recessed, but stated she was also provided a number of pages identifying vehicle recall information regarding both vehicles involved in the accident. As a result, defense counsel moved for a dismissal on the ground that Rearick's due process rights had been violated by the State's failure to provide evidence that may have been exculpatory. In response, the State asserted that a continuance was the more appropriate remedy. The judge, however, declared a mistrial over the objection of defense counsel.

         Nine days later, defense counsel filed a motion to bar subsequent prosecution on the ground a second trial would violate the Double Jeopardy Clause of the South Carolina and United States Constitutions. The judge denied this motion. While the judge noted the problems with the State's evidence and questioned whether certain exculpatory evidence had been turned over to the defense, the judge found there was no prosecutorial misconduct. The judge then explained that she considered the competing alternative remedies of a continuance, a dismissal, and a mistrial. After assessing these options, the judge determined there was "a high degree of necessity to declare a mistrial in the instant circumstance[s]." Having granted the mistrial "out of manifest necessity, " the judge ruled that double jeopardy had not attached and, thus, the State was not barred from prosecuting the felony DUI charge.

         Rearick appealed this order to the Court of Appeals and, subsequently, filed a motion to certify the appeal to this Court pursuant to Rule 204(b), SCACR. The State filed a motion to dismiss the appeal as interlocutory. This Court granted Rearick's motion to certify the appeal and denied the State's motion to dismiss.

         II. Discussion

         A. Appealability of An Order Denying A Double Jeopardy Claim

         1. Arguments

         Rearick readily acknowledges this Court in State v. Miller, 289 S.C. 426, 346 S.E.2d 705 (1986), expressly held that an order denying a double jeopardy claim is not immediately appealable. However, he contends Miller conflicts with the United States Supreme Court's ("USSC") decision in Abney v. United States, 431 U.S. 651 (1977), which held that a pretrial order denying a defendant's motion to dismiss on double jeopardy grounds was a "final decision" and is "immediately appealable." Referencing Abney's "substantial analysis of the Federal constitutional ban against double jeopardy, " Rearick maintains Abney "demonstrates why an appeal now is required." Ultimately, Rearick seeks for this Court to overrule Miller and related precedent, ...


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