State v. Matthews, Appellate Case No. 2011-204287

• Decision Date: 12 February 2014
• Docket Number: Appellate Case No. 2011-204287,Unpublished Opinion No. 2014-UP-063
• Court: South Carolina Court of Appeals
• Parties: The State, Respondent, v. Malik Matthews, Appellant.

The State, Respondent, v. Malik Matthews, Appellant.

Appellate Case No. 2011-204287

Unpublished Opinion No. 2014-UP-063

STATE OF SOUTH CAROLINA In The Court of Appeals

Heard January 7, 2014

Filed February 12, 2014

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE

CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Appeal From Florence County

D. Craig Brown, Circuit Court Judge

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General Jennifer Ellis Roberts, of Columbia, for Respondent.

PER CURIAM: Malik Matthews appeals his conviction for grand larceny, arguing the trial court erred in: (1) refusing to grant a mistrial based upon a prosecution witness's improper comment upon his post-arrest exercise of his rightto silence, which violated his Fifth Amendment right to silence and his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments; (2) denying his request for a continuance to permit him to obtain the transcript from his first trial that ended in a mistrial due to a hung jury, which denied him his Sixth Amendment right to counsel and a fair trial; and (3) admitting into evidence the in-court identification of him by the owner of the burglarized home because the owner's identification was tainted by his view of Matthews' booking photograph on the internet shortly after his arrest, which violated his right to due process of law and a fair trial guaranteed by the Sixth and Fourteenth Amendments. We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to the witness's comment on Matthews' post-arrest exercise of his right to silence, we find the trial court did not err in denying Matthews' motion for a mistrial and correctly cured any possible prejudice by issuing a curative instruction to the jury. See State v. Smith, 290 S.C. 393, 395, 350 S.E.2d 923, 924 (1986) ("The jury should be specifically instructed to disregard the evidence, and not to consider it for any purpose during deliberations."); State v. White, 371 S.C. 439, 445, 639 S.E.2d 160, 163 (Ct. App. 2006) ("If the trial [court] sustains a timely objection to evidence and gives the jury a curative instruction that it be disregarded, the error is deemed to have been cured by the instruction."); State v. Walker, 366 S.C. 643, 658, 623 S.E.2d 122, 129 (Ct. App. 2005) ("Generally, a curative instruction is deemed to have cured any alleged error.").

2. As to the request for a continuance, we find the trial court did not err in denying Matthews' motion when he admitted he had not even requested a copy of the transcript from the first trial prior to the second trial, and Matthews was able to use his notes from the first trial to question the officers about their inconsistent testimony. See State v. Asbury, 328 S.C. 187, 195, 493 S.E.2d 349, 353 (1997) (finding the trial court correctly denied Asbury's motion for a continuance, ruling the transcript would have been beneficial, but was not essential when Asbury had not established any prejudice from the lack of access to the transcript from his first trial because the court reporter's backup tapes from the first trial were available and he could have requested use of these tapes, if necessary, to impeach a witness during trial); State v. Owenby, 267 S.C. 666, 668, 230 S.E.2d 898, 898 (1976) ("[I]t is preferable to have available the written transcript taken at the former [trial], but the unavailability of such transcript does not preclude the utilization of other means of proving to the court what the witness stated on a prior occasion."); State v. Mansfield, 343 S.C. 66, 77, 538 S.E.2d 257, 262-63 (Ct. App. 2000) (determining the trial court did not abuse its discretion in denying...