State v. McDaniel, No. 21279

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtNESS; LEWIS
Citation268 S.E.2d 585,275 S.C. 222
PartiesThe STATE, Respondent, v. Cecil McDANIEL, Appellant.
Decision Date30 July 1980
Docket NumberNo. 21279

Page 585

268 S.E.2d 585
275 S.C. 222
The STATE, Respondent,
v.
Cecil McDANIEL, Appellant.
No. 21279.
Supreme Court of South Carolina.
July 30, 1980.

Page 586

[275 S.C. 223] Staff Atty. David W. Carpenter of S. C. Commission of Appellate Defense, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbs and Staff Atty. Lindy Pike Funkhouser, Columbia, and Sol. Capers G. Barr, III, Charleston, for respondent.

NESS, Justice:

This is an appeal from a burglary conviction. We affirm.

Appellant asserts the trial court erred in excusing a juror and impaneling an alternate at the conclusion of the testimony. This is without merit.

During the trial, the juror was observed making improper remarks and gestures. Upon being apprised of this, the trial court conducted an in camera hearing to determine the propriety[275 S.C. 224] of the conduct. The challenged juror was replaced with the alternate juror only after the trial court made specific findings of fact on the matter.

While appellant's counsel objected to the procedure used, he made no objection to the seating of the alternate juror and no motion for a mistrial. It is well settled that an issue may not be raised for the first time on appeal. See cases annotated in 7A West's S. C. Digest, Criminal Law, Key No. 1028. We conclude appellant waived the right to raise this issue on appeal. Even assuming the issue was properly before us, the procedure employed by the trial court, however irregular, was not sufficient to deprive appellant of his right to a jury trial. There is no right to be tried by a jury composed of particular individuals. State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 (1974); People v. McManus, 180 Cal.App.2d 19, 4 Cal.Rptr. 642 (1960); 84 A.L.R.2d 1288.

The alternate juror had been approved by both sides at the inception of the trial, and there is no showing that appellant withdrew that approval at the time of substitution. Moreover, appellant has failed to establish in what manner this procedure prejudiced him.

Admittedly, the appropriate remedy for improper communication between jurors and outsiders is the declaration of a mistrial. Nevertheless, whether or not a mistrial should be declared is a matter resting within the trial court's sound discretion. See State v. Wells, 114 S.C. 151, 103 S.E. 515 (1920); 23A C.J.S. Criminal Law § 1364(a); 24 C.J.S. Criminal Law § 1449(2). Absent a motion for mistrial, the trial court adopted a procedure designed...

To continue reading

Request your trial
10 practice notes
  • State v. Smith, No. 3087.
    • United States
    • Court of Appeals of South Carolina
    • December 6, 1999
    ...to dismiss a juror and replace her with an alternate, however, lies within the sound discretion of the trial court. State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980); State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (Ct.App.1996). Accordingly, we will not reverse the court's decision absent ......
  • State v. Gaskins, No. 22217
    • United States
    • United States State Supreme Court of South Carolina
    • September 12, 1984
    ...only has a right to a trial by a competent and impartial jury and no right to a trial by any particular jury or juror. State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 Gaskins argues that he should be allowed to exercise the strategy of s......
  • State v. Williams, No. 24406
    • United States
    • United States State Supreme Court of South Carolina
    • February 20, 1996
    ...S.C. 1, 377 S.E.2d 581 (1989) (failure to raise issue at trial waives right to complain on appeal). In any event, in State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980), this Court held there is no right to be tried by a jury composed of particular individuals. In McDaniel, an alternate ......
  • State v. Coaxum, Appellate Case No. 2012-206607
    • United States
    • United States State Supreme Court of South Carolina
    • October 8, 2014
    ...the trial court's decision to seat an alternate juror midtrial after another juror's impartiality came into question); State v. McDaniel, 275 S.C. 222, 224, 268 S.E.2d 585, 586 (1980) (same). We have previously held that a new trial is required "only when the court finds the juror intention......
  • Request a trial to view additional results
10 cases
  • State v. Smith, No. 3087.
    • United States
    • Court of Appeals of South Carolina
    • December 6, 1999
    ...to dismiss a juror and replace her with an alternate, however, lies within the sound discretion of the trial court. State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980); State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (Ct.App.1996). Accordingly, we will not reverse the court's decision absent ......
  • State v. Gaskins, No. 22217
    • United States
    • United States State Supreme Court of South Carolina
    • September 12, 1984
    ...only has a right to a trial by a competent and impartial jury and no right to a trial by any particular jury or juror. State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980); State v. Rogers, 263 S.C. 373, 210 S.E.2d 604 Gaskins argues that he should be allowed to exercise the strategy of s......
  • State v. Williams, No. 24406
    • United States
    • United States State Supreme Court of South Carolina
    • February 20, 1996
    ...S.C. 1, 377 S.E.2d 581 (1989) (failure to raise issue at trial waives right to complain on appeal). In any event, in State v. McDaniel, 275 S.C. 222, 268 S.E.2d 585 (1980), this Court held there is no right to be tried by a jury composed of particular individuals. In McDaniel, an alternate ......
  • State v. Coaxum, Appellate Case No. 2012-206607
    • United States
    • United States State Supreme Court of South Carolina
    • October 8, 2014
    ...the trial court's decision to seat an alternate juror midtrial after another juror's impartiality came into question); State v. McDaniel, 275 S.C. 222, 224, 268 S.E.2d 585, 586 (1980) (same). We have previously held that a new trial is required "only when the court finds the juror intention......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT