State v. Reid

¶1dissenting:

¶2I respectfully dissent.

¶3The comment on Reid’s silence was improper, but I find that it was cured by the judge’s general instructions to the jury. An instruction to disregard incompetent evidence usually is deemed to have cured the error unless on the facts of the particular case it is probable that, notwithstanding such instruction, the accused was prejudiced. State v. Craig, 267 S.C. 262, 227 S.E.2d 306 (1976). In this case, the court *81charged: “Now, a person arrested for a crime has a constitutional right to remain silent and not say anything that could be used to incriminate himself. The fact that he does not say anything about any particular issue or fact in this ease cannot be used against the defendant in any way or for any purpose.” It is not probable that notwithstanding the instruction, the accused was prejudiced. Hence, any error should be deemed cured with this instruction.

¶4Even if it is assumed that the instruction to the jury did not cure the error, the error does not require reversal, because the entire record establishes that any error was harmless beyond a reasonable doubt. See State v. Truesdale, 285 S.C. 13, 328 S.E.2d 53 (1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1878, 85 L.Ed.2d 170 (1985). Since the United States Supreme Court’s landmark decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in which it adopted the general rule that a constitutional error does not automatically require reversal of a conviction, it has applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), the Court held that a prosecutor’s improper comment on a defendant’s silence was subject to harmless error analysis. Accordingly, we may determine whether the error about which Reid complains was harmless.

¶5A review of Reid’s high speed chase reveals overwhelming evidence of malice. Video cameras mounted in two of the highway patrol vehicles that followed Reid captured the chase, which ended in the crash killing one of Reid’s passengers. On the video, Reid’s Honda Prelude is shown to be speeding at an unbelievable rate. Reid is travelling at such high speeds that, in comparison, the other vehicles cruising at the normal highway speed of 55-60 M.P.H. appear to be barely moving. He was recorded as driving as fast as 119 M.P.H., some 64 M.P.H. greater than the speed limit of 55 M.P.H. on Interstate 20! In addition to endangering others with his uncontrolled speed, Reid also put others in significant danger by his weaving in and out of traffic in order to evade the police and *82dodge other vehicles. At one point, he even runs off the road in order to avoid running into other vehicles.

¶6Furthermore, such reckless driving was not just confined to a few seconds, but continued for a number of minutes (and hence, miles) through heavy traffic on Interstate 20. The chase terminates when Reid attempts to exit the highway, changes his mind, attempts to reenter the highway, and runs his Honda into a bridge abutment, crushing the vehicle, causing himself and one passenger to be hurled from the car, and instantly killing the second passenger.

¶7Reid’s high speed chase provides clear evidence of “a general malignant recklessness of the lives and safety of others.” State v. Mouzon, 231 S.C. 655, 662, 99 S.E.2d 672, 675-76 (1957). In Mouzon, the Court found malice where the intoxicated defendant was driving 70 to 80 M.P.H. in a 35 M.P.H. zone when he hit a pedestrian. The actions of the defendant here were even more egregious.1 A finding of malice is evidenced not only by Reid’s driving at speeds nearing 120 M.P.H., but also by his response (or lack thereof) to his passengers. The record reveals the terrifying, and ultimately tragic, scene of the two women in Reid’s vehicle begging him to stop, screaming for assistance, pounding on the window for help, and crying out for fear of their lives. To such hysteria, Reid reacted with cocky indifference:

A: Rochelle was crying ... and I laid down in the backseat and I said, oh, God, Rochelle, we are going to die. And she just was just crying and calling for her mama and after that, I didn’t — I mean I just heard her just whimpering____ And I got up and that’s when I saw the highway patrolman ... and I started beating on the window telling him to help us and—

Q: To help y’all. Who did you need help from?

A: Because he wasn’t stopping.

Q: Did you ask him to stop?

A: Yes, I did. I asked him a lot of times.

*83Q: What did he say?

A: He ignored me. He ignored me.

Q: What was his demeanor? How did he appear to you when you were asking him to stop when the highway patrol was chasing you?

A: Real cocky. Like he just didn’t—

Q: Real cocky?

A: Yes, he didn’t — he wasn’t — he was tuning us out. Our cries. He was tuning us out.

Q: And what were you doing? Were you calm when you were asking him to stop?

A: No, I was hysterical because I was holding onto the seat and saying, please, please, stop. Turning sideways to try and face him, telling him to stop so I could see am I getting to him, would he stop. But he never did.

Q: What, if anything, did he tell you why he wasn’t going to stop?

A: He said that there’s no way he’s going to jail. He said he’s not going to jail.

Q: Okay. Now, during this entire process, did Rochelle ever ask him to stop?

A: Yes, she did. She said stop the car, boy. You better stop this car. Stop the car now. He wouldn’t.

Q: Now, as you came up 1-20, were you conscious when this wreck occurred?

A: No, I wasn’t?

Q: Why not?

A: Because when I saw — after I seen the highway patrolman, I was beating on the window and asking them to help us. I then turned around to see where we were going and I saw him — he was still driving real fast and I saw him getting ready to hit this car in the back and it just scared me until I just screamed so loud, and, I guess I just scared myself and I passed out. Because I don’t remember anything after that.

¶8Reid’s reaction to his passengers’ beseeching him to stop reveals a complete disregard of the lives and safety of others. *84The reason for his actions, as indicated by the testimony above and as corroborated by another officer, was that he did not want to go jail. It is difficult to conceive of a more malignant recklessness than that displayed in the present case. Thus, in the context of the entire record and its overwhelming evidence of malice, the officer’s statements constituted harmless error beyond a reasonable doubt. I would affirm Reid’s conviction.