State v. Sparkman

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Corey L. Sparkman,       
Appellant.

Appeal From Horry County

Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2003-UP-165

Submitted January 10, 2003 – Filed February
27, 2003   

AFFIRMED

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia;
for Appellant.

Attorney General Henry Dargan McMaster
Chief Deputy Attorney General John W. McIntosh
Assistant Deputy Attorney General Charles H. Richardson, of
Columbia; John Gregory Hembree, of Conway; for Respondent.

PER CURIAM:  A jury found Corey Sparkman guilty
of armed robbery, and he was sentenced to twenty years in prison.  Sparkman
appeals his conviction, arguing that his motion for a mistrial should have been
granted because the jury foreman failed to reveal he had been a victim of a
serious crime.  We affirm.

II.  FACTS/PROCEDURAL HISTORY

Sparkman was accused of robbing the assistant manager
of a Days Inn in Myrtle Beach.  He and another man supposedly demanded money
from the assistant manager, and when the manager stated that he did not have
the combination to the safe, the other perpetrator, not Sparkman, stabbed the
manager. The manager testified that, after being stabbed, he was hit on the
head by Sparkman. The manager blacked out and called the police as soon as he
recovered.  He described his attackers to the police, and several days later,
he picked out Sparkman’s picture from the three books of photographs the police
showed him. Two days later, he looked at another photo line-up, this one having
a different picture of Sparkman included, and the manager again recognized Sparkman
as his attacker. The manager’s identification of Sparkman was the only evidence
that linked Sparkman to the scene.  Sparkman claimed that he was with his family,
mourning the loss of his stepfather, at the time of the robbery, and he presented
alibi witnesses in his defense.

The jury asked the judge numerous questions during
deliberations, and after six-and-a-half hours, the jurors told the judge they
were deadlocked. The judge gave them an Allen
[1] charge, and an hour-and-a-half later, the jury reached a guilty verdict. 
Because it was late in the evening, sentencing was postponed until the next
morning.  During the time between reaching a verdict and sentencing, a member
of the jury contacted the public defender’s office because she was concerned
the jury foreman had made his decision based on something that had happened
to him in the past.  She said that during deliberations, the foreman told his
fellow jurors that he had been attacked before and that he believed “once someone
does something to you their face you would never forget.” 

The public defender’s office brought this information
about the foreman’s potential bias to the attention of the trial judge.  The
judge questioned the foreman about the matter, and the foreman stated that he
remembered being asked during voir dire whether he had ever been the
victim of a serious crime.  He explained that he did not respond affirmatively
because he did not remember the attack until jury deliberations.  In describing
the attack, the foreman said that roughly forty years ago, two strangers attacked
him and his girlfriend (who later became his wife) in a park. He was hit approximately
four times and lost a part of his tooth, and his girlfriend was slapped.  No
one was ever arrested in the incident. The foreman stated that he did not believe
the attack amounted to a serious crime.

After listening to the foreman’s description of the
experience, the judge asked the foreman whether the attack prevented him from
giving Sparkman a fair trial.  The foreman stated that it did not.  The judge
then asked the jury members individually whether the story relayed to them by
the foreman impacted their verdict, and each juror stated that the story had
no effect on the verdict.  The judge also asked each juror whether the story
was told before or after they were given the Allen charge, and each juror
who could remember the timeline of events stated that the story was told to
them before the charge. 

The defense moved for a mistrial, arguing that the
defendant was prejudiced by the foreman’s failure to reveal the attack.  According
to the defense attorney, if he had known of the incident, he would have used
one of his peremptory strikes to excuse the juror.   The judge denied the motion,
finding that the foreman’s nondisclosure was unintentional and that the defendant
was not prejudiced because all of the jurors who remembered the statement swore
under oath that the story had no impact on their decision.  Sparkman appeals
that ruling.

III.  DISCUSSION

A defendant is entitled to a
new trial when a juror conceals information inquired into during voir dire
if the court finds [1] that the juror intentionally concealed the information,
and [2] that the information concealed would have supported a challenge for
cause or would have been a material factor in the use of the party’s peremptory
challenges.  State v. Woods, 345 S.C. 583, 588, 550 S.E.2d 282, 284 (2001)
(citing Thompson v. O’Rourke, 288 S.C. 13, 15, 339 S.E.2d 505, 506 (1986)). 
Therefore, our first inquiry is whether the foreman intentionally concealed
information during voir dire.  State v. Kelly, 331 S.C. 132, 146,
502 S.E.2d, 99, 106-107 (1998). 

To determine whether a juror
intentionally conceals an answer to a voir dire question, the judge must
consider whether the question was reasonably comprehensible to the average juror
and whether the subject of the inquiry is so significant that it was unreasonable
for the juror not to respond.  Woods. 345 S.C. at 588, 550 S.E.2d at
284.  An unintentional concealment of information occurs when the question is
ambiguous or confusing to the average juror, or when the subject inquired into
is so insignificant or remote in time that under the circumstances, the juror’s
failure to respond is reasonable. Id.

Here, the trial judge
found no evidence that the foreman intentionally concealed the attack he experienced
forty years ago and denied the defense counsel’s motion for a mistrial.  Appellate
courts favor the wide discretion of the trial judge in determining the merits
of a mistrial motion, and the trial judge’s decision to grant or deny a motion
for a mistrial will not be overturned absent an abuse of discretion.  State
v. Patterson, 337 S.C. 215, 226, 522 S.E.2d 845, 851 (Ct. App. 1999);  
see also  State v. Covington, 343 S.C. 157, 539 S.E.2d 67 (Ct.
App. 2000) (stating that when a motion for a new trial is based upon allegations
that a juror’s answers on voir dire were incomplete or misleading, the
trial judge’s denial of that motion will be affirmed absent a prejudicial abuse
of discretion).  In this case, the foreman testified that the attack occurred
many years ago and no arrest was ever made.  Furthermore, the foreman explained
that he did not recall the event until jury deliberations, and that even if
he had recalled the incident during voir dire he would not have considered
the attack to be a serious crime.  Based on those facts, the trial judge did
not abuse his discretion when he found the foreman’s concealment unintentional.

Because the jury foreman
did not intentionally conceal the information about being attacked, we need
not determine whether the information would have supported a challenge for cause
or would have been a material factor in the defense’s use of a peremptory challenge. 
Kelly, 331 S.C. at 146, 502 S.E.2d, at 106-107.  As there was no intentional
concealment, Sparkman is not entitled to a new trial. See Woods,
345 S.C. at 588, 550 S.E.2d at 284.

Accordingly, the decision of the trial judge is

AFFIRMED.

HEARN, C.J., GOOLSBY and SHULER, JJ., concur.

[1] Allen v. U.S., 164 U.S. 492 (1896).