State v. Greer

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.

Joshua Greer, Appellant.

Appeal from Spartanburg County

Wyatt T. Saunders, Jr., Circuit Court Judge

Unpublished Opinion No. 2007-UP-512

Submitted November 1, 2007 – Filed November 7, 2007

AFFIRMED

Chief Attorney Joseph L. Savitz, III, of South Carolina Commission on Indigent Defense,
Division of Appellate Defense, of Columbia, for
Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka,
Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor
Harold W. Gowdy, III, of Spartanburg, for Respondent.

PER
CURIAM:  Joshua Greer (Greer) appeals
from his convictions of murder and armed robbery.  He contends the trial court
erred in excluding third-party guilt evidence.  We affirm.[1]

FACTS

In
the early morning hours of August 20, 2002, Paul “Doc” Reagan (Reagan) was
beaten and robbed in his home.  Eleven days later, he died from his injuries,
never regaining consciousness.  After being confronted with the inconsistencies
in his first statement, Greer confessed to Reagan’s murder.

In his opening
statement, defense counsel maintained:  “Now, I’m sure the State is going to
disagree with me with what I’m going to say but I believe there are two people
who knew what happened in that house on that night and neither one of them are
in this courtroom.”  The State anticipated that Greer would attempt to cast
doubt on his own guilt by directing suspicion toward William Frank “Butch”
Green (Green), a witness at trial.  The State moved, in limine, for the
exclusion of any third-party guilt evidence Greer might proffer. 

The trial judge
granted the State’s motion, stating:

The
record will show that counsel for the State and the defendant came into
chambers and the State has prepared a motion in limine as to third-party
guilt.  That was not studied by the Court but discussed fairly extensively by
all parties present.  The conclusion was that counsel for the defense will be
prohibited from casting doubt upon the guilt of his client simply by pointing
to third party guilt by such inferences or presumptions that may arise out of
the evidence but that only cause a suspicion by conjecture or speculation that
the commission of the crime was by another person.  That will not be
permitted.  That has not been revealed, nothing of that nature has been
revealed to the State.

It was
the Court’s understanding and counsel I believe has a clear understanding that
there is nothing to prevent a complete exploration of the facts as they were
revealed to you and will be revealed during the testimony but your
cross-examination will not attempt to point to the guilt of another but simply
point out facts at [sic] they may be.

Defense counsel agreed
with the court’s ruling, responding:  “Yes, sir, in order for the jury to get a
full understanding of the work that was done by the police on this case.”  When
the judge inquired if the defense wanted to say anything else before the jurors
came in, counsel answered:  “No, sir.”

During Green’s cross-examination,
Greer did not move to admit third-party guilt evidence or elicit testimony that
implicated Green as the responsible party.  In closing, defense counsel reiterated
Greer’s innocence, but did not cast suspicion on any other individual:

At the
beginning of this case I told you that there were two people who knew what
happened that night and neither one of them are in this courtroom.  When I said
that I didn’t suggest, I wasn’t suggesting that I was going to point the finger
at someone, merely maintaining Joshua Greer’s innocence, maintaining his
innocence, that he was not the one that swung that hammer.

The jury found
Greer guilty of murder and armed robbery, and the trial judge imposed
consecutive sentences of thirty years for murder and twenty years for armed
robbery.

DISCUSSION

Greer contends the
trial court erred by excluding third-party guilt evidence.  In response, the
State maintains Greer never sought to argue evidence of third-party guilt and,
therefore, failed to preserve this issue for our review.  We agree with the
State and decline to address the merits of Greer’s appeal.

It is well settled
that an issue cannot be raised for the first time on appeal, but must have been
raised to and ruled upon first by the trial judge to be preserved for appellate
review.  State v. Freiburger, 366 S.C. 125, 135, 620 S.E.2d 737, 742
(2005).  Trial counsel is responsible for preserving issues for appellate review.
 State v. Passmore, 363 S.C. 568, 583, 611 S.E.2d 273, 281 (Ct. App.
2005) (citing Jackson v. Speed, 326 S.C. 289, 306, 486 S.E.2d 750, 759
(1997)).  Moreover, the objection in the trial court must have been made by the
party raising the issue on appeal.  Tupper v. Dorchester County, 326 S.C. 318, 324, 487 S.E.2d 187, 190 (1997).  South Carolina appellate courts do
not recognize the “plain error” rule, under which a court in certain
circumstances is allowed to consider and rectify an error not raised below by
the party.  Elam v. South Carolina Dep’t of Transp., 361 S.C. 9, 23-24,
602 S.E.2d 772, 779-780 (2004);

Error
preservation requirements enable the trial court to rule properly after it has
considered all relevant facts, law, and arguments.  Elam, 361 S.C. at
24, 602 S.E.2d at 780; Staubes v. City of Folly Beach, 339 S.C. 406,
412, 529 S.E.2d 543, 546 (2000).  Without an initial resolution by the trial
court, a reviewing court simply would not be able to evaluate whether the trial
court committed error.  Staubes, 339 S.C. at 412, 529 S.E.2d at 546; Floyd
v. Floyd, 365 S.C. 56, 73, 615 S.E.2d 465, 474 (Ct. App. 2005).

A
motion in limine seeks a pretrial declaration obviating the disclosure of
potentially prejudicial matter to the jury.  State v. Hill, 331 S.C. 94,
100-101, 501 S.E.2d 122, 125-126 (1998).  This preliminary ruling by the judge
and the testimony encapsulated within that proceeding is, in essence, a
temporary decision on admissibility.  State v. Floyd, 295 S.C. 518, 521,
369 S.E.2d 842, 843 (1988). 

A
proffer of testimony excluded in the preliminary ruling is required to preserve
the issue of whether the exclusion was proper.  State v. Simmons, 360
S.C. 33, 46, 599 S.E.2d 448, 454 (2004).  A reviewing court may not consider
error alleged in the exclusion of testimony unless the record on appeal shows
fairly what the rejected testimony would have been.  Greenville Memorial Auditorium v. Martin, 301 S.C. 242, 244, 391 S.E.2d 546, 547
(1990).  If it is clear from the record that prejudice exists, the issue will
be preserved on appeal despite the absence of a proffer.  State v. Myers,
301 S.C. 251, 257-259, 391 S.E.2d 551, 555 (1990). 

An
appellant may waive his right to appeal a decision by the trial judge through
acquiescence.  State v. Jackson, 364 S.C. 329, 334-335, 613 S.E.2d 374,
376-377 (2005).  An issue is not preserved if it has been conceded in the trial
court.  State v. Benton, 338 S.C. 151, 156-57, 526 S.E.2d 228, 231
(2000). 

Greer
asserts for the first time on appeal that the trial court erred by excluding
third-party guilt evidence.  Greer did not argue the issue of third-party guilt
to the trial court, object to the trial court’s exclusion of third-party guilt
evidence, or proffer evidence of third-party guilt at trial.  In fact, when the
court explained the parameters of its preliminary decision, defense counsel
indicated he understood and agreed with the scope of examination the court
would allow.  Moreover, in his closing statement Greer clarified his earlier comment
on opening, explaining he “wasn’t suggesting that [he] was going to point the
finger at someone,” but was “merely maintaining Joshua Greer’s innocence.”  Consequently,
there is no issue raised by the appellant for our review.

Prejudice
from the exclusion of third-party guilt evidence is not apparent from this
record on appeal.  On direct examination Green admitted he was a prime suspect
in Reagan’s murder because of his history and his record.  Green testified he
was “interviewed quite extensively by the Spartanburg Police Department over a
very extended period of time.”  Ultimately, the authorities concluded he was
not involved with the murder.  Without a proffer of what more Greer might
offer, apart from Green’s testimony, as evidence of third-party guilt, we are
unable to discern if the trial court’s ruling was prejudicial error.  

Accordingly,
Greer’s issue on appeal is not preserved for our review.

AFFIRMED.

ANDERSON, SHORT
and WILLIAMS, JJ., concur.

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