The State v. Bantan

• Court: South Carolina Court of Appeals
• Writing for the Court: KONDUROS, J
• Citation: State v. Bantan, 387 S.C. 412, 692 S.E.2d 201 (S.C. App. 2010)
• Decision Date: 10 March 2010
• Docket Number: No. 4655.,4655.
• Parties: The STATE, Respondent,v.Titus Abraham BANTAN, Appellant.

387 S.C. 412

692 S.E.2d 201

The STATE, Respondent,v.Titus Abraham BANTAN, Appellant.

No. 4655.

Court of Appeals of South Carolina.

Submitted Dec. 1, 2009.

Decided March 10, 2010.

Appellate Defender Robert M. Pachak, of Columbia, 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; Solicitor David Michael Pascoe, Jr., of Summerville, for Respondent.

KONDUROS, J.

Titus Abraham Bantan was convicted of armed robbery, kidnapping, and possession of a weapon. Bantan argues the trial court erred in denying his motions for mistrial when (1) a witness referenced drugs and a gun unrelated to the crime during his testimony; (2) a witness alluded to a videotape showing Bantan when the tape was later held to be inadmissible; and (3) a juror overhead a conversation about Bantan and his co-defendant being involved in another robbery and mentioned the conversation to fellow jurors. We affirm. ¹

FACTUAL/PROCEDURAL BACKGROUND

On November 6, 2006, two men entered Bells' Wagon Wheel, a small bait and tackle shop near Elloree, South Carolina. The men held the shop's owner and several employees on the floor at gunpoint. They demanded money from the safe and cash register, the shop's video surveillance tape, and the owner's gun. After ransacking the store and hitting the owner in the head with the gun, the robbers absconded with over $200 in bills, approximately $580 in rolled coins, and several packs of Newport cigarettes.

After the robbery, police obtained descriptions of the robbers from witnesses and developed Phillip Spears as a suspect. Police went to the house of Spears' ex-girlfriend, Tanesha Adams, who said Spears lived in North Carolina. She said she had spoken with him around 5 a.m. and again around 7 a.m. the morning of the robbery. She testified he asked whether the Wagon Wheel had a surveillance camera. Adams further testified Spears contacted her again after the robbery and told her he had robbed the shop. He arranged to meet her in Orangeburg. Police followed Adams to the meeting, but Spears did not show. Spears called Adams and said he was returning to Charlotte.

Police had information Spears might be at Bantan's trailer in Orangeburg and went there with a warrant for Spears' arrest. Bantan's sister answered the door and said Bantan was not home. Because they heard something “rumbling around,” police conducted a security sweep and found Bantan in the bedroom. Bantan initially consented to a search of the trailer but then withdrew his consent. Officers returned with a search warrant and concluded the search. They found a pair of Timberland boots and army fatigue style pants similar to those worn by the robbers, packs of Newport cigarettes, three boxes of .40 caliber bullets, a roll of pennies, $260 in twenty dollar bills, and a “Coinstar” receipt showing $300 in coins exchanged for cash at a nearby Bi-Lo a few hours after the robbery.

During the robbery, one witness saw Spears drop a cell phone. The witness hid the phone and then turned it over to police. Using the phone, police traced Spears to a house in Charlotte where they found him in a bedroom with a semi-automatic pistol under the mattress and a disassembled cell phone on the dresser.

Bantan and Spears were tried together for the robbery. One witness claimed the gun seized from Spears was similar to the one used in the robbery. Another witness claimed he thought it was like the one used but could not be certain. Additional testimony showed the only weapon that used the type of bullets seized from Bantan was either the full automatic or semiautomatic version of the gun in question. Two witnesses positively identified Bantan from the robbery. Natasha Rivers said she saw Bantan's face when he removed his ski mask in the shop. James Bourgeois likewise identified Bantan.²

Evidence showed numerous numbers in common between the dropped cell phone and the disassembled phone seized from Spears. The dropped phone had the disassembled phone's number as a contact number as well as Adams' number. Seven calls were made from the dropped phone to Adams with the last call being November 2. The last call on the dropped phone was to the seized phone on November 3. The seized phone showed three calls to Adams on the afternoon of the robbery. There were also calls from the seized phone to Bantan on November 7 and 8.

The jury convicted Bantan on all counts. The trial court sentenced him to thirty years' imprisonment for the robbery and kidnapping charges and five years' imprisonment for the weapons charge. This appeal followed.

STANDARD OF REVIEW

The decision to grant or deny a mistrial is within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion amounting to an error of law. State v. Cooper, 334 S.C. 540, 551, 514 S.E.2d 584, 590 (1999). The granting of a motion for mistrial is an extreme measure that should be taken only when the incident is so grievous the prejudicial effect can be removed in no other way. State v. Beckham, 334 S.C. 302, 310, 513 S.E.2d 606, 610 (1999). A mistrial should be granted only when absolutely necessary and a defendant must show both error and resulting prejudice to be entitled to a mistrial. State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 628 (2000). “A mistrial should only be granted in cases of manifest necessity and with the greatest caution for very plain and obvious reasons.” State v. Patterson, 337 S.C. 215, 227, 522 S.E.2d 845, 851 (Ct.App.1999). “Whether a mistrial is manifestly necessary is a fact specific inquiry. ‘It is not a mechanically applied standard, but rather is a determination that must be made in the context of the specific difficulty facing the trial judge.’ ” State v. Rowlands, 343 S.C. 454, 457-58, 539 S.E.2d 717, 719 (Ct.App.2000) (quoting Gilliam v. Foster, 75 F.3d 881, 895 (4th Cir.1996)). The trial court should exhaust other methods to cure possible prejudice before aborting a trial. State v. Council, 335 S.C. 1, 13, 515 S.E.2d 508, 514 (1999).

LAW/ANALYSIS

I. Evidence of Unrelated Weapon and Drugs

Bantan argues a witness's mention of drugs and a shotgun unrelated to the robbery was prejudicial to his case, requiring a mistrial. We disagree.

At trial, the State asked Investigator Chris Golden what was recovered from Bantan's trailer. He responded:

Coin receipt, Timberland boots was recovered, the dark clothing pants, a ball cap I believe was recovered, Newport cigarettes was recovered, penny wrapper was recovered, and I believed some case or currency was seized at that time, some bullets, 40 caliber, a shotgun. Plus, there was some drugs found.

Bantan objected, requesting a mistrial and the matter was discussed outside the jury's presence. The court denied the motion for mistrial and offered a curative instruction either specifically telling the jury to disavow any testimony regarding drugs or the shotgun, or telling the jury to disregard the ten to fifteen seconds of testimony given just prior to the break. Bantan declined both proposed curative instructions, arguing the prejudicial impact of the testimony could not be cured.

This issue is not preserved for our review. By rejecting the trial court's offer to give a curative instruction, Bantan waived any challenge to the offending testimony on appeal. See State v. Tucker, 324 S.C. 155, 169, 478 S.E.2d 260, 267 (1996) (finding issue unpreserved when defendant refused trial court's curative instruction); see also Cock-N-Bull Steak House, Inc. v. Generali Ins. Co., 321 S.C. 1, 11, 466 S.E.2d 727, 732 (1996) (finding party waived right to complain of error when trial court's offer of curative instruction refused); State v. Watts, 321 S.C. 158, 164, 467 S.E.2d 272, 276 (Ct.App.1996) (“In rejecting the trial court's offer to strike the testimony or give a curative instruction, [the defendant] waived any complaint he had to the challenged testimony.”); State v. Hartley, 307 S.C. 239, 245-46, 414 S.E.2d 182, 186 (Ct.App.1992) (finding error waived when defendant failed to prepare a requested curative instruction).

II. Statement Regarding Video Surveillance

Bantan next argues the trial court erred in denying his motion for mistrial after Officer Stanley Graham testified Bantan could be seen on surveillance footage at an area Bi-Lo during the time $300 in coins were exchanged for cash through a Coinstar machine at the store. We disagree.

The relevant testimony was as follows:

A. I needed [the Bi-Lo store manager] to review the surveillance tapes to see if we had either of the two subjects that were identified in the photo lineup at that store.

Q. Okay. And were you able to obtain a video tape?

A. We were able to-to obtain-a CD-

Q. Uh-huh.

A. -of Mr. Titus Bantan.

Bantan objected to the testimony and moved for a mistrial because the CD of the surveillance footage had yet to be introduced into evidence and the quality of the CD was so poor he anticipated it would not be admitted. The trial court expressed concern about Officer Graham's comment and decided to send the jury to lunch to have an opportunity to review the surveillance footage. After viewing the CD, the trial court found it to be inadmissible because the quality was so poor it merely invited speculation as to who could be seen on it. The trial court informed the parties of its decision and proposed a curative instruction. Bantan again argued for a mistrial and the motion was again rejected. The trial court issued the following curative instruction to the jury:

Before the lunch break, Officer Graham made reference to a-a tape or CD. And ladies and gentlemen, I'm going to instruct that with regards to this comment regarding any CD or tape that you disregard that testimony and you disavow it from your minds. I have, ladies and gentlemen, reviewed that CD-that tape as a piece of offered

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