The State v. Wiley

• Decision Date: 31 March 2010
• Docket Number: No. 4667.,4667.
• Citation: 387 S.C. 490,692 S.E.2d 560
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent,v.Kareem T. WILEY, Appellant.

387 S.C. 490

692 S.E.2d 560

The STATE, Respondent,v.Kareem T. WILEY, Appellant.

No. 4667.

Court of Appeals of South Carolina.

Heard March 3, 2010.

Decided March 31, 2010.

Appellate Defender Lanelle C. DuRant, South Carolina Commission, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Assistant Attorney General Mark R. Farthing, Office of the Attorney General and Solicitor Warren Blair Giese, all of Columbia, for Respondent.

WILLIAMS, J.

Kareem T. Wiley (Wiley) appeals his conviction for trafficking cocaine. On appeal, Wiley contends the trial court erred in refusing to grant a mistrial when the State commented on Wiley's unrelated outstanding warrant during opening statements. Wiley further contends the trial court erred in not instructing the jury that the State had the burden of proof when the State commented that Wiley did not contest the legality of the stop or search on cross-examination. We affirm.

FACTS

On January 9, 2007, law enforcement officers with the Richland County Sheriff's Department (the Department) conducted an undercover drug investigation involving Lauren Stuckey (Stuckey). The Department believed Stuckey was working with a cocaine supplier based on her prior drug transactions with Jason Williams (Williams), an undercover narcotics agent with the Department. As a result, Williams called Stuckey to set up a purchase for 125 grams of cocaine, and Stuckey agreed to set up a drug transaction at a Kmart parking lot. Stuckey informed Williams that her “partner” was going to be present at the Kmart.

Damon Robertson (Robertson), an investigator with the Department, conducted surveillance on the Kmart parking lot and saw Stuckey's vehicle and a second vehicle subsequently identified as a Chrysler Sebring (the Sebring) enter the Kmart parking lot. To confirm that the Sebring was actually involved in the drug transaction, Robertson ordered Williams to change the location of the drug transaction to see if the Sebring would follow Stuckey.

Robertson followed the Sebring to a Chick-fil-A restaurant and positively identified Wiley as the individual in the Sebring. The Department arrested Wiley, informed him of his Miranda rights, and conducted a search. The search revealed a “sandwich size bag” of cocaine in Wiley's front right jacket pocket. Robertson testified that Wiley later admitted that he intended to sell the cocaine to Williams.¹

In its opening statement at trial, the State said, “[The Department] know[s] he's under suspension, so they have a legitimate right to stop him. They also know that he has an unrelated warrant outstanding. It's not-.”

At that point, Wiley objected. The trial court sustained the objection and gave the following curative instruction: “All right, ladies and gentlemen, I remind you that the arguments that are made by the attorneys are not considered evidence in the case. It's only their contention as to what the issues are in the case.”

At the close of the State's opening statement, a bench conference was held, and Wiley moved for a mistrial based on the State's reference to Wiley's unrelated warrant. The trial court refused to grant a mistrial and indicated it would give a curative instruction to the jury. Wiley objected to the proposed curative instruction. Following the bench conference, the trial court instructed the jury, in part,

[O]pening statements that are presented by either the State or the defense, they're not to be considered as evidence in this case.... And I'm going to instruct you now that you are not to draw any inferences, you're not to take what the State has said-and also the defense when they make their opening statements, you're not to draw any inferences of

guilt or innocence or inferences to any evidentiary conclusions that might be made from any statements that are made by the lawyers.

The jury subsequently convicted Wiley, and the trial court sentenced him to twenty- five years imprisonment. This appeal followed.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Martucci, 380 S.C. 232, 246, 669 S.E.2d 598, 605-06 (Ct.App.2008). This court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). This court does not reevaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence. State v. Moore, 374 S.C. 468, 473-74, 649 S.E.2d 84, 86 (Ct.App.2007).

LAW/ANALYSIS

A. Opening Statements and Curative Instruction

Wiley argues the trial court erred in refusing to grant a mistrial when the State mentioned Wiley had an unrelated outstanding warrant during opening statements. Specifically, Wiley asserts the State's opening statement constituted improper evidence of prior bad acts. We disagree.

The decision to grant or deny a mistrial is within the sound discretion of the trial court. State v. Harris, 382 S.C. 107, 117, 674 S.E.2d 532, 537 (Ct.App.2009). The trial court's decision will not be overturned on appeal absent an abuse of discretion amounting to an error of law. Id. The power of the trial court to declare a mistrial should be used with the greatest caution under urgent circumstances and for very plain and obvious reasons stated on the record by the trial court. Id. A mistrial should only be granted when absolutely necessary, and a defendant must show both error and resulting prejudice in order to be entitled to a mistrial. Id. The granting of a motion for a mistrial is an extreme measure that should only be taken if an incident is so grievous that the prejudicial effect can be removed in no other way. Id.

In State v. Thompson, 352 S.C. 552, 560-61, 575 S.E.2d 77, 82, (Ct.App.2003), this court concluded a deputy's testimony regarding a single reference to a defendant's warrants was not sufficiently prejudicial to justify a mistrial. The court found the deputy's testimony did not indicate whether Thompson's warrants referred to unrelated charges or other bad acts committed by Thompson. Id. at 561, 575 S.E.2d at 82. As a result, the court concluded a jury could reasonably infer the warrants related to the charged offenses. Id. Moreover, the court concluded a vague reference to a defendant's prior criminal record is not sufficient to justify a mistrial when there is no attempt by the State to introduce evidence that the accused has been convicted of other crimes. Id.

In this case, the State informed the trial court during pre-trial that Wiley had a bench warrant for possession with intent to distribute in Richland County. However, the State did not identify to the jury the substantive nature of the warrant during its opening statements. As a result, the jury was unaware of the precise nature of the warrant. Furthermore, the record reveals the reference to Wiley's warrant was for the purpose of establishing the legality of the traffic stop. Therefore, we believe the State's comment regarding Wiley's warrant was merely a vague reference to his prior criminal record that did not justify granting his motion for mistrial. Furthermore, even if the jury inferred that Wiley committed another crime from the State's opening statement, we believe Wiley was not prejudiced because the State never attempted to prove Wiley was convicted of some other crime. See State v. Robinson, 238 S.C. 140, 119 S.E.2d 671 (1961), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (concluding a reference to a defendant's past conduct was not prejudicial because even if the testimony created the inference in the jury's mind that the accused had committed another crime, the State never attempted to prove the accused had been convicted of some other crime). Therefore, we conclude the State's opening statement regarding Wiley's unrelated outstanding warrant was not sufficiently prejudicial to warrant a mistrial.

Regardless, even if we assume Wiley was prejudiced by the State's reference to an unrelated outstanding warrant, any resulting error is harmless because of the overwhelming evidence of Wiley's guilt. Whether an error is harmless depends on the circumstances of the particular case. In re Care and Treatment of Harvey, 355 S.C. 53, 63, 584 S.E.2d 893, 897 (2003). No definite rule of law governs this finding; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case. Id. Error is harmless when it “could not reasonably have affected the result of the trial.” Id. “When guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached, [an appellate] court should not set aside a conviction because of errors not affecting the results.” State v. Kirton, 381 S.C. 7, 25, 671 S.E.2d 107, 115-16 (Ct.App.2008) (citation omitted).

The State presented overwhelming evidence of Wiley's guilt. Robertson testified Wiley admitted to possessing the cocaine after he was advised of his Miranda rights. Furthermore, Wiley admitted his guilt in open court. Wiley stated, “I guess I want to apologize to the Court for getting myself in this trouble. I should have known better than what I was doing. I had numerous opportunities to stop. I just want to apologize to the Court.” See State v. Sroka, 267 S.C. 664, 665, 230 S.E.2d 816, 817 (1976) (holding appellant's guilt was conclusively shown by the record and any doubt about correctness of guilt was eliminated by the admission of appellant in open court, after conviction and during the pre-sentence inquiry by the trial judge, that the appellant had participated in the robbery). Thus, even if we assume the State's comment was prejudicial, we conclude the trial court's error was harmless based on Robertson's...