State v. Sweet, 3232.

• Citation: 342 S.C. 342,536 S.E.2d 91
• Decision Date: 31 July 2000
• Docket Number: No. 3232.,3232.
• Court: Court of Appeals of South Carolina
• Parties: The STATE, Respondent, v. Tony Tjuan SWEET, Appellant.

342 S.C. 342

536 S.E.2d 91

The STATE, Respondent, v. Tony Tjuan SWEET, Appellant.

No. 3232.

Court of Appeals of South Carolina.

Heard April 11, 2000.

Decided July 31, 2000.

Regan A. Pendleton, of Greenville, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Toyya Brawley Gray, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for respondent.

CONNOR, Judge:

A jury found Tony Tjuan Sweet guilty of first degree burglary and grand larceny. The trial court sentenced him to fifteen years and ten concurrent years respectively. Sweet appeals. We reverse and remand.

FACTS/PROCEDURAL BACKGROUND

During the late evening of January 1, 1998, or early morning hours of January 2, 1998, someone broke into Andrew and Robin Caroll's home, removing thousands of dollars worth of personal property. The Carolls provided police with a list of items taken from the home. Items taken from the home included a TV, a VCR, a CD player, a flute, a jewelry box, a cellular telephone, and two rings. Officers recovered a CD player, a pearl flute, and a ring with several diamond stones from local pawn shops. Angela Holliday pawned the flute and ring. Tina Verba pawned the CD player. When questioned by an investigator, Holliday and Verba confessed to the burglary and implicated Sweet.

The Greenville County Grand Jury subsequently indicted Sweet on charges of first degree burglary and grand larceny. At Sweet's trial, Holliday and Verba testified they, along with Sweet, burglarized the Carolls' home. They explained Sweet entered the home through a window and then opened the door. They also claimed the three made several trips to the home. Verba testified that between trips Sweet called the home using the cellular telephone to ensure no one was home before returning for another trip. In addition to the items pawned by Verba and Holliday, the State introduced evidence Sweet pawned a one-half karat marquise cut diamond ring on January 4. However, the State offered no evidence that the ring Sweet pawned matched any ring taken from the Carolls' home. According to Verba and Holliday, they and Sweet used the money from the pawn shops to buy drugs and alcohol.

Sweet did not testify or call witnesses. The jury convicted him of first degree burglary and grand larceny.

DISCUSSION

Although Sweet raises three separate arguments, he primarily asserts the solicitor's closing argument shifted the burden of proof from the State to the defense by impermissibly commenting on his failure to testify. Thus, he maintains the trial court abused its discretion in denying his motion for a mistrial. The challenged portion of the State's closing argument is as follows:

Common sense would tell you that when you have two people that were there, nobody else knows what happened that night except Tony Sweet and those two girls. Those girls came in, they confessed, I mean, their testimony is now of record. There is no way on earth for them to back out of the fact that they are guilty of these crimes. They have confessed to you, to the Court, to everybody. And as part of their confession they told you that Tony Sweet was there. Part of that statement has been corroborated. They told you about the cell phone calls, we got the cell phone statements in. They told you the fact that Tony got jewelry, we got jewelry that Tony pawned two days after the burglary. There isn't any testimony that conflicts with those statements.

(Emphasis added).

Immediately following this comment, Sweet's counsel objected, stating, "Your Honor, may we please regarding that comment?" The judge did not rule on the objection, but simply responded, "I note your objection." Counsel then asked the court to also note the "appropriate motion." The judge then charged the jury before allowing Sweet to more formally present his objection and motion.

Subsequently, the judge stated on the record that he wanted to protect Sweet's counsel concerning his motion. The judge recognized that Sweet's counsel was "going to argue the shifting of the burden of proof or a comment." Sweet's counsel then argued his objection and requested a mistrial on the ground the solicitor directly commented on Sweet's failure to testify. The judge refused to immediately rule on the motion until after the jury reached its verdict, making a mistrial an impossibility. See Howell v. Davis, 278 S.C. 510, 299 S.E.2d 336 (1983)

(A mistrial cannot be granted after the jury reaches a verdict.).

Three days later, the judge held a hearing on the motion. Because the jury had returned a verdict, Sweet's counsel made a motion for a new trial on the same grounds asserted for the mistrial motion. The judge denied the motion. He found there was evidence that implicated Sweet, in particular letters that Holliday and Sweet had written to each other. The judge concluded this evidence combined with his "strong" jury instruction which addressed a defendant's right not to testify was sufficient to cure any prejudice to Sweet.

As a threshold issue, we disagree with the State's contention that Sweet did not properly preserve this issue for appeal because Sweet failed to make a specific objection, because the motion for mistrial was not timely, and because the trial judge never ruled on the objection or motion for a mistrial. Sweet's counsel immediately objected to the solicitor's comment and attempted to move for a mistrial. Although he did not state a specific objection, it is clear from the trial judge's comments he was aware of the grounds for the objection. Moreover, the judge's failure to immediately rule on the objection and motion deprived Sweet of an opportunity to present argument about the comment before the jury began deliberations. Accordingly, we find the error is preserved. See Rule 103(a)(1), SCRE (a party's objection must be accompanied with a specific ground unless the specific ground is contextually apparent); see also State v. Holliday, 333 S.C. 332, 509 S.E.2d 280 (Ct.App.1998)

(whether trial court erred in allowing solicitor to use defendant's post-arrest silence to impeach his testimony at trial was preserved for appellate review where trial court and attorneys discussed the issue and the trial court stated on the record that it understood defense counsel's objection); cf. City of Columbia v. Myers, 278 S.C. 288, 294 S.E.2d 787 (1982) (issue of improper closing argument was preserved for appellate review despite failure of defense counsel to request curative instruction, mistrial, or new trial after his objection had been overruled).

We now analyze the merits of Sweet's appeal. The appropriateness of a solicitor's closing argument is left largely to the trial court's sound discretion, including the decision of whether to grant a defendant's motion for mistrial. State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996). Ordinarily, a trial court's rulings on closing arguments will not be disturbed. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997),cert. denied, Patterson v. South Carolina, 522 U.S. 853, 118 S.Ct. 146, 139 L.Ed.2d 92 (1997). Prosecutorial comment, whether direct or indirect, on the defendant's failure to testify is impermissible. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999). Where the solicitor refers to certain evidence as uncontradicted and the defendant is the only person who could contradict that particular evidence, the statement is viewed as a comment on the defendant's failure to testify. State v. Robinson, 238 S.C. 140, 119 S.E.2d 671 (1961),overruled in part on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)

(abolishing in favorem vitae review).

In this case, the assistant solicitor stated only Sweet could rebut Verba and Holliday's testimony. Specifically, he told the jury "nobody else knows what happened that night except Tony Sweet and those two girls," and then stated "[t]here isn't any testimony that conflicts with [the statements of the two girls]." Clearly, the comment referenced Sweet's failure to testify and was not merely a comment on the evidence. Cf. State v. Rouse, 262 S.C. 581, 584-85, 206 S.E.2d 873, 874 (1974)

(holding solicitor's closing argument statement, "As I stated earlier it is uncontradicted what happened in that store that day," did not constitute a comment on defendant's failure to testify, given appellant's defense was alibi and the comment did not state that it was uncontradicted as to appellant's participation in the events in question, but rather, simply referred to what actually took place); Robinson, 238 S.C. at 158-59,

119 S.E.2d at 680 (where solicitor's closing remarks could have applied to evidence other than that which might have been introduced on the defendant's behalf, trial judge did not err in refusing to grant defendant a new trial).

Having determined the solicitor's closing argument constituted an impermissible comment on Sweet's failure to testify, we must decide whether reversal of his conviction is warranted. Although it is improper for a solicitor to directly or indirectly comment on a defendant's failure to testify, such comments do not necessarily mandate reversal of a conviction. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). The appellant bears the burden of demonstrating the solicitor's words denied him a fair trial. Id. Furthermore, "any alleged impropriety must be examined on appeal in light of the entire record." State v. Brown, 333 S.C. 185, 191, 508 S.E.2d 38, 41 (Ct.App.1998). A criminal defendant is entitled to a fair trial, not a perfect one. State v. Mizell, 332 S.C. 273, 504 S.E.2d 338 (Ct.App.1998), cert. denied (Apr. 12, 1999). We believe Sweet demonstrated the assistant solicitor's comments deprived him of a fair trial. The State's case against Sweet was far from overwhelming. Although pawn tickets linked Verba and Holliday to the...