In The Court of Appeals

The State, Appellant,


Phillips Hungerford, Respondent.

Appeal From Greenville County
 John C. Few, Circuit Court Judge

Unpublished Opinion No. 2008-UP-133
Submitted February 1, 2008 – Filed February 27, 2008  


Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Office of the Attorney General, all of Columbia;  and Solicitor Robert M. Ariail, of Greenville, for Appellant.

Howard W. Paschal, Jr. and Catherine O. Fayssoux, both of Greenville, for Respondent.

PER CURIAM:  The State appeals the circuit court’s reversal of Hungerford’s driving under the influence (DUI) conviction arguing it was based on a ground not raised during the trial before the magistrate court.  We affirm.[1]


In the early morning hours of October 7, 2001, Phillips Hungerford was returning home after attending a wedding reception.   Russell Thompson, a State Trooper with the South Carolina Highway Patrol, followed Hungerford as he drove through a construction zone on Highway 291, a highway with three lanes of travel in each direction.  Trooper Thompson noticed Hungerford having trouble “maintaining his lane” of travel.  Initially, Trooper Thompson attributed Hungerford’s improper driving to confusion in negotiating the construction zone.  Trooper Thompson continued to follow Hungerford and observed him driving erratically after leaving the construction zone.  This prompted Trooper Thompson to initiate a traffic stop.  During the traffic stop, Trooper Thompson had Hungerford attempt two field sobriety tests.  Hungerford failed both tests.  As a result, Hungerford was placed under arrest for Driving Under the Influence. 

On September 22, 2005, Hungerford had a jury trial in magistrate court for the DUI offense.  Prior to jury selection, Hungerford’s attorney made a motion to exclude video footage of his client, which had been made at the time of and following his arrest.  The video footage was contained on two tapes.  The first video tape begins with Trooper Thompson’s initial questioning of Hungerford during the traffic stop and continues until Trooper Thompson and Hungerford arrive at the county jail. 

The second video tape, which was made at the county jail, shows Trooper Thompson’s attempts at getting Hungerford to take a Datamaster/Breathalyzer test.  At the beginning of the second video tape, Trooper Thompson advises Hungerford of his Miranda[2] rights.  The second video tape includes Hungerford attempting to invoke his right to counsel seventeen times.  Hungerford makes numerous statements which are similar to “I am not refusing to take the test. I am saying I want to talk to my attorney before I take the test.”  Trooper Thompson interprets Hungerford’s invocations as refusals to take the Datamaster/Breathalyzer test.  The video tape shows Trooper Thompson informing Hungerford he has refused to take the test.                   

During the pre-trial motion hearing before the magistrate, Hungerford’s attorney argued, inter alia, the footage should be excluded “as a violation of [Hungerford’s] Fifth Amendment rights, and the Miranda warnings, and in particular the portion of the tape after the arrest.”  The magistrate ruled the tapes were admissible and replied to Hungerford’s attorney: “I understand. You’re preserved well on the record, Counsel, and I’ll be glad - - I’ll look forward to hearing from the appeals in this matter so that we can get some better guidance.”       

Trooper Thompson was the first witness called during the trial.  At the conclusion of his testimony, both video tapes were played for the jury. The jury found Hungerford guilty.  Hungerford appealed his conviction to the circuit court arguing, inter alia, his invocation of rights guaranteed under Miranda, after being advised of a right to invoke said rights, prohibited the introduction at trial of: 1) the fact that he invoked his right to counsel; and 2) the fact that he refused to take the Datamaster/Breathalyzer test based on the State’s refusal to allow him to speak with counsel.[3]  Hungerford argued the fact that he the invoked his Miranda rights, after being advised of said rights, could not be used against a him at trial given the United States Supreme Court’s holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976). 

The State argued, inter alia, Hungerford’s issues on appeal had not been raised below and, therefore, were not preserved for appeal.  The State contended the arguments made during the motion hearing were limited to the first video tape, Hungerford’s attorney had not mentioned Doyle during the proceedings before the magistrate, and Hungerford’s attorney failed to make a contemporaneous objection to the second video tape when it was introduced at trial.   Hungerford’s attorney countered that because Hungerford waived his rights in the first video tape, the only Constitutional or Miranda issue in the case was in the second video tape and, accordingly, the second video tape was target for his objection.    

After considering the wording of Hungerford’s objection at the motion hearing, the magistrate’s assurance that Hungerford’s arguments were understood and preserved, and the fact that the only Constitutional or Miranda issue in the case was in the second video tape, the circuit court found Hungerford’s arguments were preserved for appeal.  The circuit court reversed Hungerford’s conviction and ordered the matter remanded for a new trial.  This appeal follows.


Appeals from magistrate court convictions are made to the circuit court. S.C. Code Ann. § 18-3-10 (Supp. 2006). The circuit court, acting as the appellate court, reviews the matters raised in the notice of appeal. S.C. Code Ann. § 18-3-70 (Supp. 2006) (“The appeal must be heard by the Court of Common Pleas upon the grounds of exceptions made and upon the papers required under this chapter, without the examination of witnesses....”). “In criminal appeals from magistrate or municipal court, the circuit court does not conduct a de novo review, but instead reviews for preserved error raised to it by appropriate exception.”  State v. Henderson, 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct. App. 2001).  An issue is not preserved when one ground is raised to the trial court and another ground is raised on appeal. State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005).  “Constitutional issues, like most others, must be raised to and ruled upon by the trial court to be preserved for appeal.” In re Care & Treatment of Corley, 365 S.C. 252, 258, 616 S.E.2d 441, 444 (Ct. App. 2005).  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 State appeals arguing the circuit court reversed Hungerford’s conviction based on a ground not raised in the magistrate court.[4]  The State contends the arguments during the motion hearing were limited to the first video tape, Hungerford’s attorney did not mention Doyle during the proceedings before the magistrate, and Hungerford’s attorney failed to make a contemporaneous objection to the second video tape when it was introduced at trial. 

After reviewing the transcript from the magistrate court, we find the issues relied on by the circuit court were preserved for appellate review.  “A party need not use the exact name of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground.”  State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003).  In order to preserve for review an alleged error in admitting evidence an objection should be sufficiently specific to bring into focus the precise nature of the alleged error so it can be reasonably understood by the trial judge.  State v. Prioleau, 345 S.C. 404, 411, 548 S.E.2d 213, 216 (2001). 

Hungerford’s attorney specifically stated that he had an additional objection based on a violation of his client’s “Fifth Amendment rights, and the Miranda warnings, and in particular the portion of the tape after the arrest.”  In response, the magistrate assured him that his objection was understood and he was “preserved well on the record.”    We, as an appellate court, are not in a position to second guess the understanding of the magistrate.  Additionally, there was no need for a contemporaneous objection because the video tapes were admitted immediately following the motion hearing.  See State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001) (“Where a judge makes a ruling on the admission of evidence on the record immediately prior to the introduction of the evidence in question, the aggrieved party does not need to renew the objection.”).


For the reasons stated above, the order of the circuit court is



[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

[3] Hungerford has not argued he had a right to meet with or speak with counsel prior to taking the Datamaster/Breathalyzer test. 

[4] This preservation argument is the only issue argued by the State on appeal.  Accordingly, we are not reviewing the underlying merits of the circuit court’s reversal.