State v. Horlbeck

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.

Rafael Horlbeck, Appellant.

Appellate Case No. 2010-160770

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

Unpublished Opinion No. 2012-UP-393
Heard June 6, 2012 – Filed June 27, 2012

AFFIRMED

Deputy Chief Appellate Defender Wanda H. Carter, of
South Carolina Commission on Indigent Defense, of
Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney
General John W. McIntosh, Senior Assistant Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Attorney General William Edgar Salter, III, all of
Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, for Respondent.
PER CURIAM: Appellant Rafael Horlbeck appeals his conviction and sentence
for murder, arguing the trial court erred by allowing the State to introduce into
evidence a former codefendant's proffer agreement and accompanying letter.
Horlbeck claims this evidence constituted improper bolstering because it showed
the solicitor's personal belief that the former codefendant's testimony was truthful.
We affirm.

1. As to the proffer agreement, we find this evidence did not constitute improper
bolstering because Horlbeck, not the State, was the first party to mention the
proffer agreement and the witness' obligations pursuant to the agreement.
Furthermore, the record does not indicate that the State vouched for or made any
assurances of the witness' veracity. See State v. Shuler, 344 S.C. 604, 630, 545
S.E.2d 805, 818 (2001) ("A witness' testimony concerning a plea agreement with
the prosecution does not necessarily constitute improper [bolstering]."); id.
("Improper [bolstering] occurs when the prosecution places the government's
prestige behind a witness by making explicit personal assurances of a witness'
veracity, or where a prosecutor implicitly vouches for a witness' veracity by
indicating information not presented to the jury supports the testimony." (citation
omitted)); id. at 631, 545 S.E.2d at 819 (finding the prosecution did not improperly
bolster the witness' testimony because the solicitor did not go into the details of the
plea agreement until after the defense attacked the credibility of the witness on
cross-examination and the solicitor did not imply special knowledge or express a
personal belief as to the truth of witness' testimony).

2. As to the letter accompanying the proffer agreement, we find the issue
unpreserved because Horlbeck expressly stated he had no objection to the State's
motion to enter the letter into evidence. See State v. Byers, 392 S.C. 438, 444, 710
S.E.2d 55, 58 (2011) ("For an objection to be preserved for appellate review, the
objection must be made at the time the evidence is presented . . . ." (citation
omitted)); State v. Schumpert, 312 S.C. 502, 507, 435 S.E.2d 859, 862 (1993)
("Unless an objection is made at the time the evidence is offered and a final ruling
made, the issue is not preserved for review." (citation omitted)). Even if Horlbeck
did properly preserve this issue, the letter did not constitute improper bolstering for
the same reasons the proffer agreement did not constitute improper bolstering.

AFFIRMED.

PIEPER, KONDUROS, and GEATHERS, JJ., concur.