State v. Michaelson

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.

Jeffrey Michaelson, Appellant.

Appellate Case No. 2010-166526

Appeal From Berkeley County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2013-UP-188
Submitted April 1, 2013 – Filed May 8, 2013

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, and Senior
Assistant Deputy Attorney General Donald J. Zelenka, all
of Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, for Respondent.
PER CURIAM: Affirmed pursuant to Rule 220(b), SCACR, and the following
authorities: State v. Meggett, 398 S.C. 516, 523, 728 S.E.2d 492, 496 (Ct. App.
2012) ("The denial of a motion for a continuance is within the sound discretion of
the trial court and will not be disturbed absent a showing of an abuse of discretion
resulting in prejudice."); State v. McKennedy, 348 S.C. 270, 280, 559 S.E.2d 850,
855 (2002) ("[The supreme court] has repeatedly upheld denials of motions for
continuances where there is no showing that any other evidence on behalf of the
defendant could have been introduced, or that any other points could have been
raised, if more time had been granted to prepare for trial."); State v. Colden, 372
S.C. 428, 438, 641 S.E.2d 912, 918 (Ct. App. 2007) ("All components of Rule
7(b), SCRCrimP, including that of the attestation under oath, are strictly required,
and a party asking for a continuance must show due diligence in trying to procure
the testimony of the witness, as well as what the party believes the absent witness
would testify to and the basis for that belief."); id. at 439, 641 S.E.2d at 918-19 ("It
is paramount that the party asking for the continuance show 'due diligence' was
used in trying to procure the absent witness."); United States v. Valenzuela-Bernal,
458 U.S. 858, 867 (1982) (noting "the Sixth Amendment does not by its terms
grant to a criminal defendant the right to secure the attendance and testimony of
any and all witnesses"); State v. Richardson, 253 S.C. 468, 473-74, 171 S.E.2d
717, 719 (1969) (noting "the State is not required to place upon the stand every
witness who has knowledge of material facts connected with the crime charged or
whose name is endorsed upon the indictment"); State v. Charping, 333 S.C. 124,
129, 508 S.E.2d 851, 854 (1998) ("[A]n adverse inference from the unexplained
failure of a party to call an available witness is generally held not warranted where
the material facts assumed to be within the knowledge of the absent witness have
been testified to by other qualified witnesses."); State v. Morris, 376 S.C. 189, 209,
656 S.E.2d 359, 370 (2008) (stating when testimony from unavailable witnesses
would be cumulative, the defendant cannot make a successful argument for a
continuance).

AFFIRMED.1

HUFF, WILLIAMS, and KONDUROS, JJ., concur.

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