                THE STATE OF SOUTH CAROLINA 

                     In The Supreme Court 


        The State, Petitioner,

        v.

        Brittany Johnson, Respondent.

        Appellate Case No. 2013-002027



     ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


                    Appeal From Richland County 

               Edward B. Cottingham, Circuit Court Judge 



                         Opinion No. 27565 

              Heard March 4, 2015 – Filed August 19, 2015 



                                 REVERSED


        Attorney General Alan McCrory Wilson, Chief Deputy
        Attorney General John W. McIntosh, Senior Assistant
        Deputy Attorney General Donald J. Zelenka, Assistant
        Attorney General Brendon Jackson McDonald, all of
        Columbia, and Solicitor Jimmy A. Richardson II, of
        Conway, for Petitioner.

        Appellate Defender Benjamin John Tripp, of Columbia,
        for Respondent.


CHIEF JUSTICE TOAL:         The State appeals the court of appeals' decision
reversing Respondent Brittany Johnson's conviction for murder and remanding the
case for a new trial. We reverse the decision of the court of appeals.

                           FACTUAL/PROCEDURAL HISTORY

       On July 2, 2008, Brittany Johnson was arrested in Darlington County by
United States Marshals for the shooting death of Monica Burroughs (the victim),
which occurred on June 24, 2008, in Horry County.1 Following her apprehension
and initial incarceration in the Darlington County Detention Center, Johnson was
transferred to the Conway Police Department in Horry County.

       At trial, the State sought to introduce a videotaped recording of the police's
interrogation of Respondent after she was arrested, and the court held a Jackson v.
Denno2 hearing to assess the voluntariness of the statement.

        At the hearing, the State called Officer John King, who testified he and
another officer interviewed Respondent at the Conway Police Department after she
was arrested. King testified that the interview lasted approximately thirty minutes,
and the videotape represented the extent of his interaction with Respondent. King
testified that Respondent did not appear to be under the influence of alcohol or
drugs when she gave her statement or to suffer from any mental or physical
condition that would impair her ability to understand the questions; did not request
a break from questioning, either to use the restroom or make a telephone call; and
did not request anything to eat or drink. Further, King testified that he neither
threatened Respondent, nor made any promises to her during the interrogation.

     King explained that he orally advised Respondent of her rights pursuant to
Miranda v. Arizona,3 and provided Respondent with an advisement of rights form

1
 Respondent, then seventeen years old, attacked the unarmed victim while the
victim was seated in a friend's vehicle, "pistol-whipped" her, and ultimately shot
her. Two witnesses confirmed the events of the shooting. In her statement to
police, Respondent described a series of confrontations with the victim in the lead
up to the shooting.
2
    378 U.S. 368 (1964).
3
    384 U.S. 436 (1966).
that also listed the Miranda warnings. Specifically, King testified that he advised
Respondent: (1) that she had a right to remain silent; (2) that anything she said
could be used against her in court; (3) that she had a right to an attorney; (4) that if
she could not afford an attorney, one would be provided for her prior to any
questioning; and (5) that if she decided to make a statement, she had the right to
stop speaking to police at any time. King testified that Respondent waived her
rights orally and also by initialing and signing the form provided to her.

      King further testified that he specifically asked Respondent if she desired to
have an attorney present during the questioning, and Respondent replied, "no," and
otherwise did not invoke her right to counsel during the interview.

       Defense counsel called Respondent to testify. Contrary to King's testimony,
Respondent testified that she was neither advised of her rights when she was
arrested in Darlington County, nor when she was "booked" into jail at the
Darlington County Detention Center, where she waited to be transferred to Horry
County. However, Respondent testified that she repeatedly asked for an attorney:

      Q. 	   At any point did you ask for an attorney?

      A. 	   Yes, sir . . . . [T]he first time I asked for an attorney was . . .
             while I was being signed over by whoever [sic] that Marshal
             was . . . . that signed my paperwork.

      Q. 	   And who did you ask, the Marshal or the people who were
             waiting to get you?

      A.     T
             	 he Marshal because at the time I was in, like, a partition where
             it's locked on both sides while he did my fingerprints and . . . .
             signed some paperwork to hand me back over to them.[4]

      Q. 	   Okay. And when you asked this . . . gentleman, what
             specifically did you say regarding an attorney as best you can
             recall?

      A. 	   I just asked him was I going to need an attorney.

4
 Respondent could not recall any identifying features or names of the arresting
officers or the two officers who transferred her to Horry County.
Q. 	   Okay. You asked if you were going to need an attorney?

A.     	Uh-huh.

Q. 	   Okay. And what did the Marshal say?

A. 	   He was pretty sure I would.

Q. 	   Okay. And after that did you ever ask anyone regarding
       receiving legal assistance?

A.     	Yes, sir.

Q. 	   Okay. And tell the Court about that. When and what were the
       circumstances under which you made that request?

A. 	   When we got back to Conway, upon entering the . . . police
       department . . . , I thought . . . I would just be, like, booked in
       and then put in jail but when I got there and they opened up the
       door to the interview room and when I went in there, I realized
       what was going on, and I said, "I need an attorney for this, don't
       I?"

Q.     	Uh-huh.

A. 	   And I said, "I need an attorney for this."

Q.     	All right.

A. 	   And their response was, "The Judge will . . . take care of that.
       When you get downtown, he issues a warrant."

Q.     	Uh-huh.

A. 	   And that was the end of that.

Q. 	   So, you said, "I need an attorney for this."
      ....

      Q. 	   And once you received that response, once you requested an
             attorney and were told that the Judge would take care of it later,
             did you believe you had the right at that point to not answer any
             questions?

      A. 	   I was under the impression that it was okay. It was okay to talk.

       During cross-examination, the State sought to discredit Respondent's
testimony by eliciting testimony that she was experienced with the criminal justice
system and had been represented by counsel in the past in the juvenile justice
system. In addition, Respondent acknowledged that despite understanding her
rights, she wished to waive them at that time, and further confirmed the recorded
statement displayed her telling officers that she wished to waive her rights.

      Based on this testimony, the trial court determined "beyond a reasonable
doubt . . . that the confession or statement obtained by the defendant was freely and
voluntarily given and that the same was given without duress, without coercion and
without undue influence and without any threats, inducements or hope of reward."
Moreover, the trial court found that Respondent,

      in compliance with Miranda v. Arizona[,] was advised of her
      constitutional rights; that is, the right to have an attorney present with
      her during the interview and the interrogation; that the Court would
      appoint an attorney for her if she was without funds to employ one
      without cost to her; that she had the right to remain silent; that she had
      the right to terminate after the interrogation at any time and not to
      answer any questions and that anything the defendant said could be
      used against her as evidenced in this case.

Finally, the trial court found that Respondent "knowingly[] understood these rights
and intelligently waived such rights under the Fifth Amendment to remain silent
and to have counsel present with her at the interview and interrogation," that "the
decision to make the statement was a product of the defendant's own unfettered
will," and that Respondent "had the capacity to comprehend the meaning and
effects of waiving her constitutional rights." Therefore, the trial court found that
the statement, if offered during trial, would be admitted into evidence.
       Defense counsel objected to the ruling, explaining that it was
"uncontradicted" that Respondent specifically said "I need an attorney for this" to a
member of law enforcement, and therefore, the interviewing officers had no legal
right to question Respondent "unless and until [Respondent] indicate[d] that [she]
wish[ed] to speak." Consequently, defense counsel argued that the statement
should not be admitted into evidence because Respondent invoked her right to
counsel. On the other hand, the State argued that there was no evidence—other
than Respondent's own testimony—that Respondent invoked her right to counsel,
emphasizing Respondent's subsequent waiver of her rights and the videotaped
interview in which she never invoked her right to counsel.

        The trial court concluded that Respondent's testimony regarding her
invocation of her right to counsel was "simply not plausible in that with Officer
King she had ample opportunity to express her desire for . . . an attorney . . . ,
indicated not only on Mr. King's testimony but on the video itself," and therefore,
his ruling regarding the voluntariness of Respondent's statement would remain in
effect.

       The State subsequently introduced Respondent's videotaped statement at
trial over defense counsel's objection.5 In her recorded statement, Respondent
admitted she hit the victim with a gun before shooting her. The jury ultimately
found Respondent guilty of murder, and the trial court sentenced her to thirty years'
imprisonment.

       Respondent appealed to the court of appeals. On appeal, she argued, inter
alia, that the trial court erred in admitting her statement to police into evidence
after she invoked her right to counsel. Specifically, Respondent, citing Edwards v.
Arizona, 451 U.S. 477 (1981), argued that because she allegedly invoked her right
to counsel while in custody, the trial court—despite finding her testimony "not
plausible"—erred in finding she knowingly, freely and voluntarily, waived her
Miranda rights as required in a pretrial Jackson v. Denno hearing.

      Without discussion, the court of appeals reversed and remanded
Respondent's conviction, finding the trial court erred in admitting Respondent's
statement to police. See State v. Johnson, No. 2013-UP-288 (S.C. Ct. App. June
26, 2013) (citing State v. Wannamaker, 346 S.C. 495, 499, 552 S.E.2d 284, 286

5
  The testimony surrounding the voluntariness of Respondent's statement that the
jury heard was similar to the testimony adduced at the Jackson v. Denno hearing.
(2001) ("If a suspect invokes her right to counsel, police interrogation must cease
unless the suspect herself initiates further communication with police."); State v.
Franklin, 299 S.C. 133, 137, 382 S.E.2d 911, 913 (1989) (noting the State has the
burden to prove a defendant validly waived his Miranda rights); State v.
Middleton, 288 S.C. 21, 25, 339 S.E.2d 692, 694 (1986) (noting the trial court must
make an affirmative finding that there was no violation of Miranda during a
Jackson v. Denno hearing before admitting a statement into evidence).

       On appeal, the State asserts that the court of appeals (1) applied an incorrect
appellate standard of review in assessing the trial judge's factual findings, (2) erred
in reversing the trial court's ruling where Respondent was not being interrogated
when she inquired about counsel and did not unequivocally invoke her right to
counsel, and (3) failed to consider if Respondent was prejudiced by the admission
of the evidence.

                               STANDARD OF REVIEW

       In criminal cases, the appellate court sits to review errors of law only. State
v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). The admission or
exclusion of evidence rests in the sound discretion of the trial judge, and will not
be reversed on appeal absent an abuse of discretion. State v. Gaster, 349 S.C. 545,
557, 564 S.E.2d 87, 93 (2002) (citation omitted); see also State v. Kelly, 319 S.C.
173, 176, 460 S.E.2d 368, 370 (1995) ("A trial judge has considerable latitude in
ruling on the admissibility of evidence and his rulings will not be disturbed absent
a showing of probable prejudice." (citation omitted)). "An abuse of discretion
occurs when the trial court's ruling is based on an error of law or, when grounded
in factual conclusions, is without evidentiary support." State v. Jennings, 394 S.C.
473, 477–78, 716 S.E.2d 91, 93 (2011) (quoting Clark v. Cantrell, 339 S.C. 369,
389, 529 S.E.2d 528, 539 (2000)).

                                   LAW/ANALYSIS

       With respect to the dispositive issue on appeal, the State asks this Court to
reverse the decision of the court of appeals because the trial court, as the
preliminary fact-finder in a pre-trial evidentiary hearing, determined that
Respondent's testimony was not credible, and the court of appeals was required
under the applicable standard of review to accept this finding unless unsupported
by the evidence. On the other hand, Respondent argues the trial court abused its
discretion by employing a rule that responding to police questioning without an
attorney precludes the possibility that a defendant requested an attorney before the
questioning.

        When analyzing a criminal defendant's invocation of her right to counsel, a
trial court must make two separate inquiries:

      First, courts must determine whether the accused actually invoked his
      right to counsel. See, e.g., Edwards v. Arizona, 451 U.S., at 484–85
      (whether accused "expressed his desire" for, or "clearly asserted" his
      right to, the assistance of counsel); Miranda v. Arizona, 384 U.S. at
      444–45 (whether accused "indicate[d] in any manner and at any stage
      of the process that he wish[ed] to consult with an attorney before
      speaking"). Second, if the accused invoked his right to counsel, courts
      may admit his responses to further questioning only on finding that he
      (a) initiated further discussions with the police, and (b) knowingly and
      intelligently waived the right he had invoked. Edwards v. Arizona,
      451 U.S. at 485, 486, n.9.

Smith v. Illinois, 469 U.S. 91, 95 (1984) (per curiam).

       Because the trial court found Respondent's testimony that she actually
invoked her right to counsel was "simply not plausible"—or lacked credibility—
Petitioner cannot satisfy the first prong of the inquiry.6

       Credibility findings are treated as factual findings, and therefore, the
appellate inquiry is limited to reviewing whether the trial court's factual findings
are supported by any evidence in the record. See, e.g., State v. Banda, 371 S.C.
245, 251, 639 S.E.2d 36, 39 (2006) (stating that in preliminary evidentiary matters,
appellate court review is limited to reviewing whether the trial court's factual
findings are supported by any evidence in the record). Moreover, it is well-
established under South Carolina law that credibility determinations are entitled to

6
  If an accused invokes her right to counsel, she may only be questioned thereafter
in the presence of counsel, and her responses to further questioning outside the
presence of counsel are admissible only if she initiates further questioning and then
knowingly and intelligently waives her previously invoked right to counsel. See,
e.g., Smith v. Illinois, 469 U.S. at 94–99. Here, the State admits that if the Court
found Respondent clearly and unequivocally invoked her right to counsel, then the
subsequent statement to police would have been inadmissible.
great deference. See, e.g., State v. Cutro, 332 S.C. 100, 117, 504 S.E.2d 324, 333
(1998) (Toal, J., dissenting) ("On appeal, [the appellate court is] to ascertain
whether the trial court abused its discretion in admitting the evidence. Our task is
not to engage in a de novo review of the evidence. Nor are we to usurp the
authority of the trial court by attempting to judge the credibility of witnesses. The
determination of credibility must be left to the trial judge who saw and heard the
witnesses and is therefore in a better position to evaluate their veracity." (citations
omitted)); Sumpter v. State, 312 S.C. 221, 224, 439 S.E.2d 842, 844 (1994)
("Because the trial court's findings . . . rest largely on his evaluation of demeanor
and credibility, those findings are given great deference.").

       Here, the trial court's finding that Respondent lacked credibility is supported
by the record. Not only did the trial court find that Respondent's testimony was not
credible in assessing Respondent's actual demeanor on the witness stand, we note
that Respondent could not recall with much specificity where or to whom she
invoked her right to counsel, and fumbled in her responses as to whether her
request was unequivocal. Cf. State v. Stephenson, 878 S.W.2d 530, 547 (Tenn.
1994) (finding the trial court did not err when it found defendant's testimony that
he requested counsel was not credible); Thomas v. State, 738 S.E.2d 571, 574 (Ga.
2013) (affirming the trial court's ruling that testimony by the accused during a
Jackson v. Denno hearing that he invoked his right to counsel both before and
during his interview was not credible). Further, there is no requirement under the
law that the trial court must believe a criminal defendant's version of events. See
State v. Boone, 228 S.C. 438, 444, 90 S.E.2d 640, 643 (1955), overruled on other
grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (stating that
when deciding preliminary questions of admissibility, the trial court is "not bound
to accept as true the defendant's testimony" (citation omitted)); Black v. Hodge,
306 S.C. 196, 198, 410 S.E.2d 595, 596 (Ct. App. 1991) ("The fact that testimony
is not contradicted directly does not render it undisputed." (citation omitted)). The
practical effect of the trial court's finding that Respondent lacked credibility is that
no invocation (either equivocal or unequivocal) occurred, as there was no other
evidence that Respondent invoked her right to counsel prior to giving her
statement.

      Because the effect of the credibility finding is that Respondent did not
unequivocally invoke her right to counsel, we further uphold the trial court's
finding that Respondent's statement was voluntary. See Berghuis v. Thompkins,
560 U.S. 370, 382 (2010) ("Even absent the accused's invocation of the right to
remain silent, the accused's statement during a custodial interrogation is
inadmissible at trial unless the prosecution can establish that the accused 'in fact
knowingly and voluntarily waived [Miranda] rights' when making the statement.")
(quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979))).7

                                   CONCLUSION

      For the foregoing reasons, the decision of the court of appeals is

REVERSED.

PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.




7
  We need not reach the issues of whether Respondent was subjected to custodial
interrogation when she allegedly invoked her right to counsel and whether
Respondent was prejudiced by the trial court's admission of the videotape at trial
because the credibility issue is dispositive. See Futch v. McAllister Towing of
Georgetown, Inc., 355 S.C. 598, 578 S.E.2d 591 (1999).
