State v. John I. Duncan, III

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.

John Ira Duncan, III, Appellant.

Appellate Case No. 2019-001919

Appeal From Beaufort County
Brooks P. Goldsmith, Circuit Court Judge

Unpublished Opinion No. 2023-UP-049
Submitted January 1, 2023 – Filed February 8, 2023

AFFIRMED

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia, and Solicitor Isaac McDuffie
Stone, III, of Bluffton for Respondent.

PER CURIAM: John Ira Duncan, III, appeals his conviction for murder and
sentence of thirty-seven years' imprisonment. On appeal, he argues the trial court
erred by (1) admitting a video of a witness's police interviews as extrinsic evidence
of three prior inconsistent statements, (2) allowing the State to publish the video to
the jury with subtitles based on a transcript prepared by the State, and
(3) instructing the jury that the implication of malice may arise if one intentionally
kills another with a deadly weapon when Duncan presented evidence he acted in
self-defense. We affirm pursuant to Rule 220(b), SCACR.

1. We hold Duncan's argument regarding whether the State laid a proper
foundation for the admission of the video as extrinsic evidence is not preserved for
appellate review because at trial, Duncan acquiesced that the State met the
requirements of Rule 613, SCRE. See State v. Bryant, 372 S.C. 305, 315-16, 642
S.E.2d 582, 588 (2007) (finding a defendant cannot concede an issue at trial then
raise it on appeal). We also hold Duncan's argument that the trial court erred in
admitting one of the prior inconsistent statements because the witness did not deny
or not recall saying it is not preserved for appellate review because he did not raise
this argument to the trial court. See State v. Dunbar, 356 S.C. 138, 142, 587
S.E.2d 691, 693 (2003) ("In order for an issue to be preserved for appellate review,
it must have been raised to and ruled upon by the trial [court]."); id. at 142, 587
S.E.2d at 693-94 ("A party may not argue one ground at trial and an alternate
ground on appeal.").

2. We hold the trial court did not err in allowing the jury to view the video of the
police interviews with subtitles. See United States v. Collazo, 732 F.2d 1200, 1203
(4th Cir. 1984) ("Whether to allow the use of transcripts to aid in the presentation
of tape recorded evidence is within the [trial] court's sound discretion."); State v.
Winkler, 388 S.C. 574, 585, 698 S.E.2d 596, 602 (2010) (holding the trial court did
not abuse its discretion by allowing the jury to review a 911 call transcript while
the 911 recording was played in the courtroom); Collazo, 732 F.2d at 1203 (finding
the trial court's instruction "cured any prejudice that might have resulted from
discrepancies between tape and transcript"); id. at 1204 (stating the lack of
challenges made by the defendant to specific discrepancies between the transcript
and the audio "suggests either that the transcripts were substantially accurate or
that defendants waived specific opportunities to challenge the transcripts'
veracity").
3. We hold Duncan's argument regarding the trial court's jury instruction on
implied malice is not preserved for appellate review because although Duncan
objected to the charge during the charge conference, the trial court did not rule on
the objection. See Dunbar, 356 S.C. at 142, 587 S.E.2d at 693 ("In order for an
issue to be preserved for appellate review, it must have been raised to and ruled
upon by the trial [court].").
AFFIRMED. 1

KONDUROS, HEWITT, and VINSON, JJ., concur.

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