                       THE STATE OF SOUTH CAROLINA
                           In The Court of Appeals

              The State, Respondent,

              v.

              David Richard Walker, Jr., Appellant.

              Appellate Case No. 2017-000550



                            Appeal From Lexington County
                        R. Knox McMahon, Circuit Court Judge


                                  Opinion No. 5727
                   Submitted February 18, 2020 – Filed May 20, 2020


                                    AFFIRMED


              Appellate Defendant David Alexander, of Columbia, for
              Appellant.

              Attorney General Alan McCrory Wilson, Deputy
              Attorney General Donald J. Zelenka, Senior Assistant
              Deputy Attorney General Melody Jane Brown, and
              Assistant Attorney General Caroline M. Scrantom, all of
              Columbia, for Respondent.


KONDUROS, J.: David Richard Walker, Jr. appeals his conviction for murder.
On appeal, Walker argues the trial court erred in admitting his statement to police
that he had an outstanding warrant for murder, because he was not informed of his
Miranda1 rights before making the statement. We affirm.

1
    Miranda v. Arizona, 384 U.S. 436 (1966).
FACTS

A grand jury indicted Walker for the murder of Catherine Banty. During pretrial
hearings, Walker testified that on the evening of December 10, 2012, Banty arrived
at their shared home with their three-year-old daughter.2 Walker stated he and
Banty argued over Banty's abusive treatment of their child. Walker claimed that
after the child was put to bed, the argument turned physical, and he manually
strangled Banty to death in an act he alleged to be self-defense. When he realized
Banty was dead, he left the home and walked to the train tracks, leaving his
daughter in the home with Banty's body. Walker testified he got on a train early
the next morning and rode it to Graniteville, where he got off and wandered around
the woods for an indeterminable amount of time. Meanwhile, around noon on
December 11, the child, walking down the sidewalk crying, was spotted by a
neighbor who then went to Banty's home, discovered the body, and contacted law
enforcement.

West Columbia police determined Walker resided in the home where Banty's body
was discovered, and officers attempted to locate him by calling local hotels,
hospitals, and detention centers. After two days of unsuccessful searching, Walker
was declared a missing person, and because of a history of mental illness, he was
entered into the National Crime Information Center (NCIC) database for missing
and endangered persons. Walker resurfaced in Aiken County around 11:00 p.m.
several days later on December 17. Aiken County Officer Darrell Kostyk observed
Walker sitting at a table under an open air garage in the parking lot of a closed
convenience store. Officer Kostyk testified that, based on his training and twenty
years' experience in law enforcement, he believed the man he observed was casing
the convenience store. Officer Kostyk's in-car camera system activated as he
approached Walker in the store parking lot. Officer Kostyk also radioed for back
up.

The video depicts Walker standing and walking toward Officer Kostyk's car as it
pulls up to the front of the store. Officer Kostyk exited his car and asked Walker
what he was doing. Walker placed his hands behind his back, in a manner

2
  Walker testified during his "Stand Your Ground" immunity hearing pursuant to
section 16-11-440(A) of the South Carolina Code (2016) and his Jackson v.
Denno, 378 U.S. 368 (1964) hearing, but did not testify at trial. However, he
proceeded pro se at trial, and his opening statements to the jury mirrored his
testimony from the hearings.
consistent with expecting to be handcuffed, as he continued to walk toward Officer
Kostyk. Officer Kostyk approached Walker and patted him down. Officer Kostyk
testified he patted Walker down for safety reasons and that he would have patted
down anyone in those circumstances. While patting down Walker, Officer Kostyk
paused at Walker's back right pocket and asked whether the object in that pocket
was a knife. Walker's answer was unintelligible on the video. Officer Kostyk
continued to pat down Walker and asked him for his name and birthdate and if he
had any identification. Walker complied. Officer Kostyk asked Walker if he had
any warrants, and Walker indicated he did. Officer Kostyk directed Walker to the
hood of his patrol car where he ordered him to place his hands on the hood of the
car and move his feet back to place him "at a position of disadvantage" for officer
safety. Officer Kostyk radioed Walker's name and date of birth to dispatch. While
he waited for dispatch to respond with information regarding Walker's warrants,
Officer Kostyk asked Walker, "What do you think you've got a warrant for, bud?"
Walker responded, "Murder." Officer Kostyk asked Walker to repeat himself, and
Walker again responded, "Murder."

Officer Kostyk testified dispatch advised him Walker had been declared a missing
endangered person by West Columbia Police but had no warrants for his arrest.
Officer Kostyk then handcuffed Walker and placed him in the backseat of his
patrol car. Officer Kostyk transported Walker to Aiken Regional Medical Center,
where he was given a mental evaluation and released. After Walker's release from
the medical center, Officer Kostyk offered him a ride back to Lexington County,
which he accepted. A Lexington County officer met Officer Kostyk and Walker at
a truck stop on I-20 in Lexington County and took Walker from Officer Kostyk.
Walker was released to his father's care early the next morning. The investigation
into Banty's death continued, and Walker was ultimately arrested on March 4,
2013, approximately two-and-a-half months after his December 17, 2012 stop.

Prior to trial, Walker, proceeding pro se, moved to exclude Officer Kostyk's in-car
camera footage, asserting Officer Kostyk violated his constitutional rights by not
informing him of his Miranda rights. Walker argued his statements to Officer
Kostyk regarding having an outstanding murder warrant were the product of a
custodial interrogation and thus, should be suppressed. The trial court ruled
Officer Kostyk initiated a valid Terry3 stop and that "at no time during the period
of time at which certain identifying information was given and questions were
asked to [Walker] by [Officer Kostyk] was [Walker] in custody." Therefore, the


3
    Terry v. Ohio, 392 U.S. 1 (1968).
trial court ruled Walker's statement regarding the outstanding murder warrant was
admissible.

At trial, the State called Officer Kostyk to testify to his interaction with Walker.
During his testimony, the State moved to introduce the video recording of the
interaction into evidence. Walker objected as follows:

             Walker: Um, um, um objection, same one.

             The Court: What what's the, uh, basis of your objection?

             Walker: Same rules: relevancy and others.

             The Court: Relevancy and –

             Walker: Uh, relevancy, Your Honor, I'll –

             The Court: Alright, well I will find that, uh, it is, uh,
             relevant under Rule 401 so, uh, State's 45 did you say?

The video was subsequently admitted as evidence and published to the jury.

The jury convicted Walker of murder, and the trial court sentenced him to fifty
years' imprisonment. This appeal followed.

STANDARD OF REVIEW

"Appellate review of whether a person is in custody is confined to a determination
of whether the ruling by the trial judge is supported by the record." State v. Evans,
354 S.C. 579, 583, 582 S.E.2d 407, 409 (2003); see also State v. Navy, 386 S.C.
294, 301, 688 S.E.2d 838, 841 (2010) (upholding the trial court's ruling when the
question of whether the defendant was in custody was debatable and the ruling was
therefore supported by the record).

LAW/ANALYSIS

Walker contends the trial court erred in admitting the videotape of his statement
regarding an outstanding murder warrant because police failed to advise him of his
Miranda rights. We disagree.
As an initial matter, the State contends Walker's issue on appeal is unpreserved,
because he offered one basis for his objection during his motion in limine and a
different basis at the time of his contemporaneous objection to the videotape's
introduction. We find this argument unpersuasive.

As noted from the colloquy above, Walker renewed his objection to admission of
the video when the State sought to introduce it. The record illustrates Walker told
the judge his objection was "the same one" and "the same rules: relevancy and
others." This was sufficient to inform the court his objection was still premised on
a Miranda violation that was the subject of the motion in limine hearing. Any
objection on the grounds of relevance was in addition to his Miranda objection.
See Rule 103(a)(1), SCRE (stating for alleged errors in evidentiary rulings to be
preserved, "a timely objection or motion to strike" must appear in the record
"stating the specific ground of objection, if the specific ground was not apparent
from the context " (emphasis added)). Additionally, it appears the trial court
preempted what may have been a further explanation from Walker as to the basis
for his objection. Consequently, we are reluctant to apply the rules of preservation
so strictly as to prevent a review of Walker's claims on the merits. See Atl. Coast
Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 330, 730 S.E.2d 282, 285
(2012) (noting it is "good practice for us to reach the merits of an issue when error
preservation is doubtful").

Turning to the merits, "Miranda rights attach only if the suspect is subject to
custodial interrogation." State v. Lynch, 375 S.C. 628, 633, 654 S.E.2d 292, 295
(Ct. App. 2007).

             Custodial interrogation is "questioning initiated by law
             enforcement officers after a person has been taken into
             custody or otherwise deprived of his freedom of action in
             any significant way." Miranda, 384 U.S. at 444.
             "Interrogation is defined as express questioning, or its
             functional equivalent which includes words or actions on
             the part of the police (other than those normally
             attendant to arrest and custody) that the police should
             know are reasonably likely to elicit an incriminating
             response." State v. Sims, 304 S.C. 409, 416-17, 405
             S.E.2d 377, 381-82 (1991).

State v. Brown, 389 S.C. 84, 92, 697 S.E.2d 622, 627 (Ct. App. 2010) (emphasis by
court).
"To determine whether a suspect is in custody, the trial court must examine the
totality of the circumstances, which include factors such as the place, purpose, and
length of interrogation, as well as whether the suspect was free to leave the place
of questioning." Evans, 354 S.C. at 583, 582 S.E.2d at 410. "The custodial
determination is an objective analysis based on whether a reasonable person would
have concluded that he was in police custody." Id. "Drawing weapons,
handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or
threatening to use force does not necessarily elevate a lawful stop into a custodial
arrest for Miranda purposes." State v. Corley, 383 S.C. 232, 244, 679 S.E.2d 187,
193 (Ct. App. 2009), aff'd as modified, 392 S.C. 125, 708 S.E.2d 217 (2011)
(quoting United States v. Sullivan, 138 F.3d 126, 132 (4th Cir. 1998)).

Walker does not challenge the validity of the initial Terry stop by Officer Kostyk.4
However, an examination of the encounter after the initial stop may help clarify
whether the Terry stop evolved into a custodial interrogation, which would
implicate Walker's Fifth Amendment rights and Miranda.

Once he approached Walker, Officer Kostyk asked Walker "What are you doing,
guy?" Walker walked toward Officer Kostyk placing his hands behind his back.
This conduct gave rise to two possibilities—Walker might be reaching for a
weapon or he might be positioning his hands in anticipation of handcuffs. Either
possibility would render Officer Kostyk's conduct in patting down Walker and/or
inquiring about outstanding warrants reasonable under the circumstances as the
situation was developing. Rodriguez v. United States, 575 U.S. 348, 356 (2015)
(recognizing warrant checks are justified as a part of ensuring officer safety during
traffic stops). Only after Walker responded yes, he had an outstanding warrant, did
Officer Kostyk inquire about the nature of the warrant and ask Walker to lean over
the hood of the patrol car. The video refutes Walker's suggestion that Officer
Kostyk was overly aggressive or "right behind him" or that the other two officers
who had arrived at the scene contributed to a sense of being overpowered. Officer
Kostyk spoke in a reasonable tone and kept a reasonable distance from Walker.

4
  Officer Kostyk testified he observed Walker sitting suspiciously outside a closed
convenience store known to be a popular target for robberies during the latter
months of the year. Officer Kostyk stated that, based on his twenty-two years of
experience in law enforcement, he believed Walker was casing the convenience
store for a robbery. This may have provided reasonable suspicion to justify
Kostyk's initial interaction with Walker but as that point is not appealed, we need
not address it.
The other officers stood aside as the interaction between Officer Kostyk and
Walker occurred.

Although Walker argues he did not feel free to leave, our courts have indicated it
takes a higher threshold, something beyond the detainee's subjective belief, to rise
to the level of custody. Evans, 354 S.C. at 583, 582 S.E.2d at 410 ("The custodial
determination is an objective analysis based on whether a reasonable person would
have concluded that he was in police custody."). Although Walker's freedom was
deprived to an extent, that deprivation was not "significant" at the time of Officer
Kostyk's question. See Lynch, 375 S.C. at 633-34, 654 S.E.2d at 295 (explaining
custodial interrogation is "questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action
in any significant way"). The stop was short in duration, approximately two
minutes at the time of the disputed statement, and although at night, was in an
open, public location. Officer Kostyk's asking Walker to lean over the car was the
reasonable, permitted progression of the Terry stop that had been initiated and did
not preclude the possibility that the encounter would come to a relatively swift and
innocuous conclusion. Furthermore, Officer Kostyk's questions were not designed
to elicit incriminating responses about a particular crime but to gather information
relevant to his safety under the circumstances.

Based on all of the foregoing, we find the question of whether an objectively
reasonable person would have considered himself in custody was at least debatable
and was supported by the record. See Evans, 354 S.C. at 583, 582 S.E.2d at 409
("Appellate review of whether a person is in custody is confined to a determination
of whether the ruling by the trial judge is supported by the record."). Therefore the
trial court's ruling is

AFFIRMED.5

WILLIAMS and HILL, JJ., concur.




5
    We decide this case without oral argument pursuant to Rule 215, SCACR.
