After being advised of his Miranda rights, Davis asked to speak to his attorney

THIS OPINION HAS NO PREDCEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Unpublished Opinion No. 2004-UP-251
Heard December 9, 2003 – Filed April 15, 2004

PER CURIAM: Arthur Tyrone Davis was convicted of two counts of assault and battery of a high and aggravated nature (“ABHAN”), one count of possession of a weapon during a violent crime, and one count of conspiracy. The circuit court sentenced Davis to ten years imprisonment for each count of ABHAN, five years imprisonment for possession of a weapon during a violent crime, and five years imprisonment for conspiracy, with the sentences to run consecutively. Davis appeals, arguing the circuit court erred by: 1) admitting the confession he gave as a part of the plea agreement; and 2) refusing to enforce his plea agreement. We affirm.

On April 14, 1997, assailants forced two men into the trunk of their car. The victims were driven to a secluded location where they were robbed, beaten, stripped, and shot.

Subsequently, Davis was brought to the police station for questioning. After arriving at the police station, Officer James Hicks advised Davis of his Miranda rights. Because Davis chose not to waive these rights, Officer Hicks did not question Davis at that time. Instead, Officer Hicks assisted Davis in calling his attorney, Murrell Smith. [1] Davis and his attorney spoke privately for approximately twenty minutes. Smith then proposed a deal to Officer Hicks in which Davis would agree to tell the Solicitor about every crime he had been involved in, and in exchange, the Solicitor would agree to allow Davis to plead guilty to all offenses delineated as non-violent and receive a ten-year cap on sentencing. Officer Hicks spoke with a Sumter County Assistant Solicitor and obtained approval to accept the offer. Davis then gave a written confession in which he admitted abducting and shooting the victims. Thereafter, the Solicitor refused to honor the agreement after learning Davis was involved in several crimes he had not disclosed pursuant to the plea agreement.

At a pre-trial hearing, Davis moved to enforce the terms of the plea agreement, denying the Solicitor’s allegation that he had been involved in crimes he had not disclosed pursuant to the agreement. The Solicitor presented testimony and evidence tying Davis to the additional crimes. Specifically, the Solicitor examined a police officer who testified that he had learned of numerous crimes Davis did not report to the Solicitor. The officer also testified he had interviewed a co-defendant concerning Davis’ involvement in crimes not disclosed to the Solicitor and had located documents verifying Davis pawned stolen goods from those crimes. The circuit court found Davis breached the plea agreement and denied Davis’ motion to enforce it.

At the call of the case for trial, Davis moved to suppress the confession he had made to police in connection with the failed plea agreement, arguing it could no longer be considered voluntary. Davis testified in the suppression hearing that his confession was made in reliance on the plea agreement and that he would not otherwise have given such a statement. Davis argued that because the Solicitor chose not to honor the terms of the plea agreement, the circuit court should find his confession was involuntarily given. The circuit court denied the motion to suppress Davis’ confession, finding it was voluntarily given.

At trial, the Solicitor introduced the confession over Davis’ objection. The jury subsequently returned a guilty verdict for two counts of ABHAN, one count of possession of a weapon during a violent crime, and one count of conspiracy. The circuit court sentenced Davis to ten years imprisonment for each count of ABHAN, five years imprisonment for possession of a weapon during a violent crime, and five years imprisonment for conspiracy, with the sentences to run consecutively. Davis appeals.

Davis argues the circuit court erred by admitting Davis’ confession into evidence because the statement was not voluntarily given. [2] We disagree.

In determining whether a confession was voluntarily given by the defendant, the circuit court examines the totality of the circumstances at the time the defendant gave the statement to determine if the conduct of “law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined.” Rogers v. Richmond, 365 U.S. 534, 544 (1961); see State v. Peake, 291 S.C. 138, 139, 352 S.E.2d 487, 488 (1987) (“The test for determining the admissibility of a statement is whether it was knowingly, intelligently, and voluntarily given under the totality of the circumstances.”).

Initially, we note, Davis alleges because the plea agreement induced him to confess, his statement became involuntary once the Solicitor decided not to honor the plea agreement. Because the totality of the circumstances is considered to determine if the defendant’s will is overborne by the acts of the police at the time the confession is given, it would be inappropriate to review the circumstances existing after the confession was given. Thus, we examine voluntariness at the time Davis gave his confession.

“When reviewing a trial court’s ruling concerning voluntariness, this Court 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.” State v. Saltz, 346 S.C. 114, 136, 551 S.E.2d 240, 252 (2001); see State v. Rochester, 301 S.C. 196, 200, 391 S.E.2d 244, 247 (1990) (holding the conclusion of the circuit court on issues of fact as to the voluntariness of a confession will not be disturbed on appeal unless so manifestly erroneous as to show an abuse of discretion).

In the circuit court’s consideration of the totality of the circumstances, the only factor that weighed against the voluntariness of the confession was the fact that Davis received a promise of leniency before confessing. Id., at 200, 391 S.E.2d at 246-47 (holding a promise of leniency is a factor to be considered in determining whether a statement was voluntarily given, but does not always necessitate a finding that the statement was involuntarily given).

The remaining factors favored a finding that the confession was voluntarily given. Foremost in this analysis was the fact that Davis’ offer to confess in return for a specific sentence resulted in the promise of leniency from the police officer. See Drew v. State, 503 N.E.2d 613, 617 (Ind. 1987) (“[T]he promise of . . . leniency was not initiated by the State, but rather resulted in response to a specific request by the defendant, who solicited the promise[ ] as a precondition for making a full statement. Thus, the defendant had already manifested the propensity and willingness to make a voluntary statement before the occurrence of any action on the part of the State.”); State v. Harwick, 552 P.2d 987, 990 (Kan. 1976) (“When the promises are solicited by the accused, freely and voluntarily, the accused cannot be heard to say that in accepting the promise he was the victim of a compelling influence.”).

In addition, Davis was advised of his Miranda rights and consulted privately with his attorney prior to making the offer to confess. Cf. Miranda v. Arizona, 384 U.S. 436, 466 (1966) (“The presence of counsel . . . would insure that statements made in the government-established atmosphere are not the product of compulsion.”).

Furthermore, the record does not reflect: 1) the questioning was unreasonably lengthy; 2) the police officer engaged in deceit or trickery; 3) the police officer made physical threats against Davis; or 4) Davis was subjected to physical violence. See Rochester, 301 S.C. at 201, 391 S.E.2d at 247 (holding lengthy questioning, trickery, threats of violence, and the use of violence all weigh against finding a confession was voluntarily given).

After reviewing the totality of the circumstances, the circuit court determined Davis’ confession was voluntarily given. Because the circuit court’s decision was supported by the evidence, the circuit court did not err by making this determination. See Saltz, 346 S.C. at 136, 551 S.E.2d at 252 (“When reviewing a trial court’s ruling concerning voluntariness, this Court . . . simply determines whether the trial court’s ruling is supported by any evidence.”); see also State v. Richardson, 342 S.E.2d 823, 831 (N.C. 1986) (“Promises or other statements indicating to an accused that he will receive some benefit if he confesses do not render his confession involuntary when made in response to a solicitation by the accused.”); People v. Wright, 469 N.E.2d 351, 354 (Ill. Ct. App. 1984) (holding defendant’s confession following State’s promise not to seek death penalty deemed voluntary, as defendant initiated discussion and stated he would not confess unless State promised not to seek death penalty); Taylor v. Commonwealth, 461 S.W.2d 920, 922 (Ky. 1970) (holding “the circumstances of the promise in the instant case were entirely compatible with the exercise by the appellants of a free volition in the giving of the confessions” because one of the defendants proposed the deal to police and the other obtained the advice of counsel before agreeing to the confession deal); Thomas v. State, 531 So.2d 45, 48 (Ala. Crim. App. 1988) (holding a confession is not involuntarily given when the defendant made the request for leniency without being coerced by the police officer). [3]

Davis argues the circuit court erred by refusing to enforce the plea agreement. Specifically, Davis contends the circuit court erred by failing to apply a clear and convincing burden of proof in determining whether Davis breached the terms of the plea agreement. Davis argues the evidence presented by the Solicitor was not sufficient to meet this higher burden of proof. We disagree.

Plea agreements are contractual in nature, and courts use traditional principles of contract law to interpret and enforce them. See State v. Thrift, 312 S.C. 282, 292-93, 440 S.E.2d 341, 347 (1994) (citation omitted). When the defendant breaches a plea agreement, the Solicitor is released from his obligations thereunder. State v. Tillman, 320 S.C. 61, 63, 463 S.E.2d 94, 96 (Ct. App. 1995). In determining whether the defendant has breached the plea agreement, the circuit court’s “analysis must be more stringent than a contract [analysis] because the rights involved are fundamental and constitutionally based.” Thrift, 312 S.C. at 293, 440 S.E.2d at 347.

Davis argues Thrift requires the circuit court to use a clear and convincing evidence standard to determine whether Davis breached the plea agreement by failing to disclose crimes in which he was involved. See Black’s Law Dictionary 577 (7th ed. 1999) (stating clear and convincing evidence “is a greater burden than preponderance of the evidence, the standard applied in most civil trials”).

We conclude this argument is without merit. Assuming, without deciding, Thrift requires the circuit court to apply a clear and convincing evidence standard, the circuit court did so in the present case. After reviewing the applicable law, the terms of the plea agreement, and the omissions in Davis’ statement, the circuit court found, “[e]ven when holding the State to a higher degree of responsibility, this Court is clearly convinced that the State has presented more than enough evidence to support its contention that Arthur Tyrone Davis breached his plea agreement.” (emphasis added).

Furthermore, the Solicitor presented adequate evidence to support the circuit court’s conclusion. The Solicitor presented a co-defendant’s statement and testimony from an investigating police officer outlining independent corroboration of Davis’ involvement in crimes not disclosed pursuant to the plea agreement, as well as documents verifying Davis pawned stolen goods from those crimes.

Because the circuit court found clear evidence convincing it that Davis was involved in crimes he failed to disclose to the Solicitor, the circuit court did not err by finding Davis breached the plea agreement. See State v. Amerson, 311 S.C. 316, 320, 428 S.E.2d 871, 873 (1993) (“Appellate courts are bound by fact findings in response to motions preliminary to trial when the findings are supported by the evidence and not clearly wrong or controlled by error of law.”). Thus, the circuit court did not err by denying Davis’ motion to enforce the plea agreement.

[1] Smith did not represent Davis at trial.

[2] We note, Rule 410, SCRE, addresses the admissibility of statements obtained in guilty plea negotiations. However, Davis did not raise this statute as a ground for exclusion of the confession, nor did the circuit court rule upon its applicability. Therefore, we cannot address it on appeal. See Humbert v. State, 345 S.C. 332, 337, 548 S.E.2d 862, 865 (2001) (holding to preserve an issue for appellate review, it must have been raised to and ruled upon by the circuit court).

[3] Davis further contends State v. Mathis, 287 S.C. 589, 340 S.E.2d 538 (1986) required the circuit court to exclude the confession he gave as part of the plea agreement. In Mathis, our supreme court stated a defendant’s guilty plea cannot be introduced into evidence. Id. at 592-93, 340 S.E.2d at 540-41. In explaining the ruling, our supreme court distinguished guilty pleas from “prior inconsistent statements (including confessions),” noting confessions may be used as evidence. Id. at 592, 340 S.E.2d at 540; cf. Kercheval v. U.S., 274 U.S. 220, 223 (1927) (“A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession.”). Because Davis moved to suppress his confession at trial, but did not argue evidence of his plea offer was inadmissible, Mathis is inapplicable to the facts of this case. To the extent Davis argues evidence of his plea agreement was inadmissible, this issue is not preserved for appellate review. See Humbert, 345 S.C. at 337, 548 S.E.2d at 865 (holding to preserve an issue for appellate review, it must have been raised to and ruled on by the circuit court).