State v. Polite

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.

Wayne Gary Polite, Appellant.

Appellate Case No. 2015-001843

Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge

Unpublished Opinion No. 2017-UP-021
Submitted November 1, 2016 – Filed January 11, 2017

AFFIRMED

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

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, for Respondent.

PER CURIAM: Wayne Gary Polite appeals his conviction for obtaining property
valued at ten thousand dollars or more by false pretenses and his sentence to seven
years' imprisonment. On appeal, Polite argues the trial court erred by (1) denying
his request to represent himself at trial and (2) failing to charge the jury on lesser-
included offenses involving property worth less than ten thousand dollars. We
affirm1 pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to issue 1: State v. Samuel, 414 S.C. 206, 211, 777 S.E.2d. 398, 401 (Ct.
App. 2015) ("The question of whether court appointed counsel should be
discharged is a matter addressed to the discretion of the trial [court]. Only in a
case of abuse of discretion will this [c]ourt interfere." (second alteration by court)
(quoting State v. Sims, 304 S.C. 409, 414, 405 S.E.2d 377, 380 (1991))), cert.
granted; id. ("A defendant has a constitutional right to self-representation under the
Sixth and Fourteenth Amendments [to the United States Constitution]. However,
the right of self-representation is not absolute.") (citation omitted); State v. Reed,
332 S.C. 35, 41, 503 S.E.2d 747, 750 (1998) ("Although a defendant's decision to
proceed pro se may be to the defendant's own detriment, it 'must be honored out of
that respect for the individual which is the lifeblood of the law.'" (quoting Faretta
v. California, 422 U.S. 806, 834 (1975))); Samuel, 414 S.C. at 212, 777 S.E.2d at
401 ("A defendant's assertion of his right to self-representation must be: '(1) clear
and unequivocal; (2) knowing, intelligent and voluntary; and (3) timely.'" (quoting
United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000))); id. ("The right of
self-representation does not exist to be used as a tactic for delay, for disruption, for
distortion of the system, or for manipulation of the trial process."); State v. Fuller,
337 S.C. 236, 241, 523 S.E.2d 168, 171 (1999) ("[I]t is incumbent upon the trial
court to determine whether the request is made for purposes of delay or to gain
tactical advantage, and whether the lateness of the request may hinder the
administration of justice." (quoting People v. Mogul, 812 P.2d 705, 709 (Colo. Ct.
App. 1991))); id. at 242, 523 S.E.2d at 171 (stating a trial court commits reversible
error when it fails "to conduct an adequate hearing to fully assess the purpose
behind [the d]efendant's request or to determine what effect granting the request
would have . . . on the proceedings").

2. As to issue 2: State v. Gilmore, 396 S.C. 72, 77, 719 S.E.2d 688, 690-91 (Ct.
App. 2011) ("We must reverse and remand for a new trial if the evidence in the
record is such that the jury could have found the defendant guilty of the lesser
offense instead of the crime charged."); Sellers v. State, 362 S.C. 182, 189, 607
S.E.2d 82, 85 (2005) ("A [trial court] is only required to charge a jury on a lesser-
included offense if evidence exists that suggests that the lesser, rather than the
greater, crime was committed."); id. ("There must be evidence that the defendant
committed the lesser-included offense to entitle him to a jury charge on the

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
offense."); S.C. Code Ann. § 16-13-240 (2015) ("A person who by false pretense
or representation obtains the signature of a person to a written instrument or
obtains from another person any chattel, money, valuable security, or other
property, real or personal, with the intent to cheat and defraud a person of that
property is guilty of a: (1) felony and, upon conviction, must be fined not more
than five hundred dollars and imprisoned not more than ten years if the value of the
property is ten thousand dollars or more . . . .").

AFFIRMED.

LOCKEMY, C.J., and KONDUROS and MCDONALD, JJ., concur.