State v. Gilbert

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.

Michael Gibert, Appellant.

Appeal From Anderson County

Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2009-UP-439

Submitted September 1, 2009 – Filed
September 23, 2009

AFFIRMED

Chief
Appellate Defender Joseph L. Savitz, III, 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; and Solicitor Christina T. Adams,
of Anderson, for Respondent.

PER CURIAM:  Gibert appeals his conviction for three
counts of second-degree criminal sexual conduct with a minor, committing a lewd
act on a child, contributing to the delinquency of a minor, and assault with
intent to kill.  He contends he was not adequately warned of the dangers of
self-representation as required by Faretta v. California, 422 U.S. 806
(1975).  Gibert further argues the State impermissibly commented on his right
not to testify as well as its own weighing of the evidence in closing
arguments.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:  Faretta,
422 U.S. at 819-20 (holding the Sixth
Amendment provides a defendant may waive the right to counsel and elect to proceed pro se); State v. McLauren, 349 S.C. 488, 493,
563 S.E.2d 346, 348-49 (Ct. App. 2002) ("To establish a
valid waiver of counsel, Faretta requires the accused be: (1) advised of
his right to counsel; and (2) adequately warned of the dangers of
self-representation."); id. at 494, 563 S.E.2d at 349 (holding the
appellate court may find a knowing and voluntary waiver when the record shows
the defendant had sufficient background to understand the election to proceed
without counsel or was apprised of those rights by some other source); State v. Burton, 356 S.C. 259,
265 n.5, 589 S.E.2d 6, 9 n.5 (2003) ("A pro se litigant who
knowingly elects to represent himself assumes full responsibility for complying
with substantive and procedural requirements of the law."); State
v. Patterson, 324 S.C. 5, 18, 482 S.E.2d 760, 766 (1997) (holding when defendant
objected to the State's closing argument and objection was sustained, issue was
not preserved because defendant did not move to strike or for a curative
instruction); State v. Martucci, 380 S.C. 232, 260, 669 S.E.2d 598, 613
(Ct. App. 2008) (finding issue unpreserved when the State was told to move on
with questioning but defendant failed to request a curative instruction or
motion to strike); State v. Prioleau, 345 S.C. 404, 411, 548 S.E.2d 213, 216
(2001) (stating a defendant cannot argue "one ground at trial and an
alternate ground on appeal");  State v. Shuler, 353 S.C. 176, 187,
577 S.E.2d 438, 443 (2003) (finding issue of comment on defendant's right to
silence was not preserved for appellate review when objection at trial was the State
was shifting burden of proof).

AFFIRMED.

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

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.