State v. Stanley

Decision Date27 June 2005
Docket NumberNo. 4007.,4007.
Citation615 S.E.2d 455
PartiesThe STATE, Respondent, v. Deral L. STANLEY, Appellant.
CourtSouth Carolina Supreme Court

J.M. Long, III, of Conway, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor J. Gregory Hembree, of Conway, for Respondent.


Deral L. Stanley (Deral) appeals from his conviction for trafficking in crack cocaine. Deral argues: (1) he was prejudiced when the trial court ordered the imprisonment of a witness who contradicted his prior statement to the police on the witness stand, and then later allowed the witness to return to testify; and (2) the trial court erred by failing to grant his motion for a directed verdict. We affirm.


On the night of June 12, 2003, Officer Will Lynch, a traffic officer for the City of North Myrtle Beach, was operating a radar detector on Possum Trot Road. He determined that an oncoming vehicle was traveling approximately twelve miles per hour over the posted speed limit. Officer Lynch, who was on a motorcycle, began to follow the vehicle and activated his blue lights. A high-speed chase ensued. Officer Lynch observed two people in the fleeing vehicle. The driver of the vehicle attempted to pass another car, but instead he struck the median, "spun out," and came to a stop without hitting any other vehicles.

As Officer Lynch approached, the driver exited the disabled vehicle and ran across the street into the parking lot of a nearby miniature golf course. The passenger in the vehicle was Deral Stanley. When Officer Lynch pulled up to the scene of the accident, Deral exited the vehicle and began to walk away. Officer Lynch immediately ordered Deral to get on the ground, handcuffed Deral, and arrested him.

Officer Lynch rolled Deral over to check him for weapons. At that time, he "noticed down on the ground where [Deral] was laying a large bag of what appeared to ... be crack cocaine." Officer Lynch declared: "When I rolled him over, basically, they were right in the area — I guess you would say if I was to roll him back down, basically, around his belly button area." Officer Lynch retrieved the bag, which SLED later determined contained 22.63 grams of crack cocaine. When Officer Lynch patted Deral down, he found $4,220 in cash in his pockets. An inventory search of the vehicle revealed other drug paraphernalia — plastic baggies and digital scales — on the passenger-side floorboard.

The driver of the vehicle was Richard Stanley (Richard), Deral's cousin. Richard was apprehended soon afterward. He was cited for speeding and charged with failure to stop for a blue light and driving without a license.

When he arrived at the police station, Richard waived his rights and gave a statement to Officer Mandy Little. Officer Little wrote down what Richard said and then he signed it at the bottom. The substance of the statement was that Richard was driving Deral to "sell somebody something" when they "saw blue lights." According to Richard, Deral instructed him "to go," and Richard "went because he got scared and had no license."

At trial, the State called Richard. When the State asked Richard if his signature was on his statement, he hesitated. The trial judge sent the jury out and asked whether the statement had been made under oath. The State asserted the statement was made under oath, although defense counsel disagreed.1 The trial judge then warned Richard that if his trial testimony differed substantially from his prior statement he could be indicted for perjury.

When the jury returned, Richard admitted his signature was on the statement. However, he denied any prior mention of selling something, claiming "I ain't said nothing about going to sell nothing." He further denied telling Officer Little that the drugs belonged to Deral. In fact, Richard stated the drugs belonged to him, not Deral. Richard testified he gave the money to Deral during the car chase. He said the baggies and scales were on the center console, but had fallen onto the passenger side floorboard during the accident. Richard declared he threw the bag of drugs when he exited the car, and Deral must have accidentally fallen on it when he was arrested. After his testimony, the trial judge asked Richard to remain in the courtroom because he might be subject to recall.

After the judge dismissed the jury for the afternoon, he called Richard forward and the following colloquy occurred:

THE COURT: Under oath you just testified that you are guilty in trafficking in cocaine. You said that under oath.


THE COURT: Arrest this individual. Put him in jail. Leave him there. He's either guilty by his own admission in trafficking in cocaine or he's guilty of perjury.

He's to go to jail. Have him indicted first thing in the morning.

I will not permit that sort of conduct in my courtroom.

Now, he's, obviously, either guilty of trafficking in cocaine or he's lying.

You agree with that, [Defense Counsel]. He can't have it both ways.

MR. LONG: That's correct, Your Honor.

THE COURT: Alright.

He will remain in jail.

Let the record reflect that I'm also putting him in jail tonight in the event we will need him for further testimony in the morning. He may be subject to recall, being under that I want to make sure he's here for recall by either the State or the defendant.

But I want him indicted in the morning.

The following morning, the judge appointed the Senior Public Defender to act as counsel for Richard and asked her to speak with him along with the Solicitor. Richard was not served with a warrant at that time. Richard was then brought into the courtroom and charged as follows:

THE COURT: They [are] going to put you back on the stand under oath and all the Court wants from you — I'm not interested in who you help or hurt. All I'm interested in is you tell us the truth and the absolute truth and nothing but the truth. Do you understand that?

Richard responded, "Yes, sir." Richard then recanted his earlier testimony. Richard professed that the drugs belonged to Deral and that Deral was going to sell them. On cross-examination, defense counsel elicited testimony that Richard had been "locked up" the night before and threatened with service of warrants for trafficking in cocaine and perjury.

After the State rested, defense counsel moved for a directed verdict of not guilty. Additionally, defense counsel moved for a mistrial based on the trial judge's handling of Richard's testimony. The judge denied both motions.

Deral testified in his own defense. Deral claimed Richard was driving because he had been drinking. Deral stated Richard gave him the money during the car chase. He denied possessing the drugs, vowing "I didn't have no drugs on me." On cross-examination, Deral admitted having conversations with Richard in which he learned that Richard would "take the blame" for the drug charge.

At the close of the evidence, defense counsel renewed his motions for a directed verdict and a mistrial. Both motions were again denied. The jury found Deral guilty of trafficking in crack cocaine. Because Deral had two prior convictions, he received the mandatory minimum sentence of twenty-five years. Defense counsel made post-trial motions for a mistrial, a new trial, and judgment notwithstanding the verdict, which the judge denied.

I. Motion for Mistrial

Deral argues the trial judge's handling of Richard's testimony was erroneous. Deral alleges prejudice in that the trial judge's conduct amounted to intimidation of a witness. He claims the judge should have granted his motion for a mistrial. We disagree.

A. Issue Preservation

Initially, we note this issue may not have been properly preserved. Although defense counsel moved for a mistrial after the State rested, no contemporaneous objection was made. Instead, when the trial judge ordered Richard sent to jail, he stated: "You agree with that, Mr. Long. He can't have it both ways." Deral's attorney replied: "That's correct, Your Honor." Our courts have held a failure to contemporaneously object to the introduction of evidence claimed to be prejudicial cannot be later bootstrapped by a motion for a mistrial. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981); State v. Moultrie, 316 S.C. 547, 451 S.E.2d 34 (Ct.App.1994); State v. Wilkins, 310 S.C. 81, 425 S.E.2d 68 (Ct.App.1992); see also State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004) (contemporaneous objection required to preserve error for appellate review); State v. Atchison, 268 S.C. 588, 235 S.E.2d 294 (1977) (noting that if a party fails to make a proper contemporaneous objection to the admission of evidence, he cannot later raise the issue by a motion for mistrial); State v. Crosby, 348 S.C. 387, 398-399, 559 S.E.2d 352, 358-59 (Ct.App.2001), rev'd on other grounds, 355 S.C. 47, 584 S.E.2d 110 (2003) (holding that no issue is preserved for appellate review if the objecting party accepts the judge's ruling and does not contemporaneously make an additional objection to sufficiency of the curative charge or move for a mistrial).

B. Mistrial

In any event, even if preserved, we find the issue to be without merit.

The decision to grant or deny a mistrial is within the sound discretion of the trial judge. State v. Vazquez, 364 S.C. 293, 613 S.E.2d 359 (2005); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct.App.2003); State v. Thompson, 352 S.C. 552, 575 S.E.2d 77 (Ct.App.2003). The court's decision will not be overturned on appeal absent an abuse of discretion amounting to an error of law. State v. Harris, 340 S.C. 59, 530 S.E.2d 626 (2000); State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998); see also State v. Arnold, 266 S.C. 153, 157, 221 S.E.2d 867, 868 (1976) (...

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