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.