State v. Rivers

THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT

BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 239(d)(2),
SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Murphy L. Rivers,       
Appellant.

Appeal From Charleston County

Daniel  F.  Pieper, Circuit Court Judge

Unpublished Opinion No. 2004-UP-636

Submitted December 1, 2004 – Filed December 16, 2004

AFFIRMED

Assistant Appellate Defender
Aileen P. Clare, 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,
all of Columbia, for Respondent.

PER CURIAM:  In this appeal, we must decide
whether the circuit court erred in denying the defendant’s motion for a mistrial
due to alleged juror misconduct.  We find no abuse of discretion and therefore
affirm.

FACTS

Murphy Rivers was indicted for assault with intent
to kill and tried before a jury.  The trial continued over the course of two
days.  On the morning of the second day, defense counsel raised a concern about
possible juror misconduct that allegedly occurred during the previous day’s
proceedings.  The following colloquy took place outside the presence of the
jury:

DEFENSE COUNSEL: Your Honor,
it came to my attention on [sic] yesterday after the close of the testimony
that a member of the jury had been sleeping throughout a substantial part of
the trial, and for that reason we would move for a mistrial.

THE COURT: I would deny that.
It is a little late to bring it to the Court’s attention.

DEFENSE COUNSEL: It wasn’t until
after the jury had left the Court yesterday that people who were in the Courtroom
advised us of that.

THE COURT: Bring in the jury. 

Rivers moved for a mistrial, which was denied. 
The issue of the allegedly sleeping juror was not raised to or addressed by
the circuit judge any further.  At the conclusion of the trial, the jury found
Rivers guilty of the crime charged.  Rivers now appeals the circuit court’s
denial of his motion for a mistrial.

STANDARD OF REVIEW

The decision to grant or deny a motion for a mistrial
is a matter within the sound discretion of the trial court. Creighton v.
Coligny Plaza Ltd. P’ship, 334 S.C. 96, 118, 512 S.E.2d 510, 521 (Ct. App.
1998).  Absent an abuse of discretion, the decision of the trial court will
not be overturned on appeal. Id.  The burden is upon the moving party
to show not only error, but resulting prejudice. State v. Wasson, 299
S.C. 508, 510, 386 S.E.2d 255, 256 (1989). In any event, the grant of a mistrial
is an extreme measure that should not be granted unless absolutely necessary,
and the trial judge should exhaust all other methods to cure possible prejudice
before aborting a trial. Id.

LAW/ANALYSIS

Rivers argues the circuit court abused
its discretion by denying his motion for a mistrial without investigating the
allegations of juror misconduct.  We disagree.

Rivers argues that an abuse of discretion
must be found based on our opinion in State v. Hurd, 325 S.C. 384, 480
S.E.2d 94 (Ct. App. 1996).  In Hurd, the trial court refused the defendant’s
request to question a juror who appeared to be asleep during portions of closing
arguments and jury instructions.  We reversed the defendant’s conviction, stating
that a trial court “should at least attempt to make this determination whenever
a juror appears to be asleep.” Id. at 390, 480 S.E.2d at 97.  The trial
court in Hurd made no such inquiry.   Thus, we held the trial judge “should
have either determined whether the juror was in fact asleep, recharged the entire
jury, or replaced the juror.” Id.

The present case is readily distinguishable
from Hurd.  First, and most importantly, Rivers did not request that
the trial judge conduct any investigation into the matter of alleged juror misconduct. 
Rivers simply accepted the trial judge’s denial of his motion for a mistrial
without asking the court to voir dire the juror or undertake further inquiry. 
Because Rivers bore the burden of showing the juror was asleep or otherwise
engaged in misconduct, his failure to request direct examination of the juror—unlike
the defendant in Hurd—waives any complaint on appeal.  See State
v. Smith, 338 S.C. 66, 75, 525 S.E.2d 263, 268 (Ct. App. 1999) (holding
that defendant’s failure to request that the trial judge investigate allegations
that a juror was asleep during trial “waives any complaint on appeal”); see
also State v. Cooper, 334 S.C. 540, 550-51, 514 S.E.2d 584, 589-90
(1999) (noting that counsel must request that the trial court investigate juror
misconduct).

Further distinguishing the instant case
is the fact that, in Hurd, the defense counsel reported that he actually
saw the juror sleeping, and the trial judge agreed there was cause for concern—declaring
specifically that he “noticed [the juror] nodding off a couple of times” but
that the juror “was alert during most of the charge.” 325 S.C. at 388-89, 480
S.E.2d at 97.  Here, on the other hand, defense counsel based his motion solely
on the statement of an unnamed third party that a juror was asleep.  No assertion
was made that defense counsel or anyone else directly involved in the trial
witnessed any juror misconduct.  It would be difficult indeed to fault the trial
judge for giving little credence to these unsupported, unverifiable allegations. 
These bare assertions clearly fall well short of the necessary showing to warrant
the grant of a motion for mistrial.

CONCLUSION

We find Rivers waived any complaint on
appeal regarding the alleged juror misconduct by failing to request that the
trial judge investigate the matter.  Moreover, we otherwise find no abuse of
discretion by the trial judge given the scant grounds raised in support of the
motion for a mistrial. The ruling of the circuit court is therefore

AFFIRMED. 

HUFF, KITTREDGE, and BEATTY, JJ., concur.