State v. Matthews

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Malik Matthews, Appellant.

Appellate Case No. 2011-204287

Appeal From Florence County
D. Craig Brown, Circuit Court Judge

Unpublished Opinion No. 2014-UP-063
Heard January 7, 2014 – Filed February 12, 2014

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Jennifer Ellis Roberts, of Columbia, for
Respondent.

PER CURIAM: Malik Matthews appeals his conviction for grand larceny,
arguing the trial court erred in: (1) refusing to grant a mistrial based upon a
prosecution witness's improper comment upon his post-arrest exercise of his right
to silence, which violated his Fifth Amendment right to silence and his right to a
fair trial as guaranteed by the Sixth and Fourteenth Amendments; (2) denying his
request for a continuance to permit him to obtain the transcript from his first trial
that ended in a mistrial due to a hung jury, which denied him his Sixth Amendment
right to counsel and a fair trial; and (3) admitting into evidence the in-court
identification of him by the owner of the burglarized home because the owner's
identification was tainted by his view of Matthews' booking photograph on the
internet shortly after his arrest, which violated his right to due process of law and a
fair trial guaranteed by the Sixth and Fourteenth Amendments. We affirm pursuant
to Rule 220(b), SCACR, and the following authorities:

1. As to the witness's comment on Matthews' post-arrest exercise of his right to
silence, we find the trial court did not err in denying Matthews' motion for a
mistrial and correctly cured any possible prejudice by issuing a curative instruction
to the jury. See State v. Smith, 290 S.C. 393, 395, 350 S.E.2d 923, 924 (1986)
("The jury should be specifically instructed to disregard the evidence, and not to
consider it for any purpose during deliberations."); State v. White, 371 S.C. 439,
445, 639 S.E.2d 160, 163 (Ct. App. 2006) ("If the trial [court] sustains a timely
objection to evidence and gives the jury a curative instruction that it be
disregarded, the error is deemed to have been cured by the instruction."); State v.
Walker, 366 S.C. 643, 658, 623 S.E.2d 122, 129 (Ct. App. 2005) ("Generally, a
curative instruction is deemed to have cured any alleged error.").

2. As to the request for a continuance, we find the trial court did not err in
denying Matthews' motion when he admitted he had not even requested a copy of
the transcript from the first trial prior to the second trial, and Matthews was able to
use his notes from the first trial to question the officers about their inconsistent
testimony. See State v. Asbury, 328 S.C. 187, 195, 493 S.E.2d 349, 353 (1997)
(finding the trial court correctly denied Asbury's motion for a continuance, ruling
the transcript would have been beneficial, but was not essential when Asbury had
not established any prejudice from the lack of access to the transcript from his first
trial because the court reporter's backup tapes from the first trial were available and
he could have requested use of these tapes, if necessary, to impeach a witness
during trial); State v. Owenby, 267 S.C. 666, 668, 230 S.E.2d 898, 898 (1976) ("[I]t
is preferable to have available the written transcript taken at the former [trial], but
the unavailability of such transcript does not preclude the utilization of other
means of proving to the court what the witness stated on a prior occasion."); State
v. Mansfield, 343 S.C. 66, 77, 538 S.E.2d 257, 262-63 (Ct. App. 2000)
(determining the trial court did not abuse its discretion in denying Mansfield's
motion for a continuance to obtain the trial transcript when he could have served
the court reporter with a subpoena to appear in court and a subpoena duces tecum
to bring the tapes with her); cf. State v. McMillan, 349 S.C. 17, 24, 561 S.E.2d 602,
605 (2002) (holding the trial court erred in denying a request for a continuance
when the defendant's basis for the continuance was to obtain the transcripts from
the first trial to use as impeachment for the retrial; however, McMillan requested
the transcripts from the first trial prior to the second trial, he had not received the
transcripts when the case was called for retrial, and no court-reporter back-up tapes
were available).

3. As to the in-court identification of Matthews by the owner of the burglarized
home, we find the trial court did not abuse its discretion and properly denied
Matthews' motion to suppress the in-court identification because Matthews' due
process rights were not violated by the admission of the identification testimony
when (1) the owner was fully cross-examined regarding his identification and the
suggestiveness of the media identification; (2) the owner looked at the online
booking photographs for his own interest, and the record does not indicate he
reported viewing the photograph to law enforcement or that it was used as an out-
of-court identification; (3) the owner observed Matthews' booking photograph
within one week of the robbery; (4) the owner testified he had ample time to
observe the robber; (5) the owner testified he was one-hundred percent certain of
his identification; (6) Matthews was found in the truck that matched the description
the owner gave 911; and (7) Matthews was holding the items from the owner's
house in his lap when the police stopped the truck. See State v. Tisdale, 338 S.C.
607, 613-15, 527 S.E.2d 389, 393 (Ct. App. 2000) (determining Tisdale's due
process rights were not violated by the admission of the identification testimony
because: (1) the witnesses were fully cross-examined regarding their descriptions
and the suggestiveness of the media identification; (2) the amount of time between
the robbery and the media identification was short; (3) the witnesses had ample
time to observe the robber; (4) the witnesses were certain of their identifications;
and (5) other evidence was presented against the defendant).

AFFIRMED.

SHORT, WILLIAMS, and THOMAS, JJ., concur.