State v. Fortune

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.

Oscar Fortune, Appellant.

Appeal From Chesterfield County

 John M. Milling, Circuit Court Judge

Unpublished Opinion No.  2009-UP-259

Submitted May 1, 2009 – Filed June 1, 2009

AFFIRMED

Deputy Chief Appellate Defender Robert M. Dudek, 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 S. Creighton Waters, all of Columbia; and Solicitor Jay
E Hodge, Jr., of Cheraw, for Respondent.

PER CURIAM:  Oscar Fortune appeals his convictions for murder and possession of a
deadly weapon during the commission of a violent crime.  Specifically, Fortune
argues the trial court 1) abused its discretion in proceeding with jury
selection due to the small jury pool, juror biases, and media exposure and 2)
abused its discretion in refusing to grant his request to change venues.  We
affirm[1] pursuant to Rule 220(b), SCACR, and the following
authorities:  

1. 
As to whether the trial court erred in proceeding with trial based on the small
jury pool:  State v. Rogers, 263 S.C. 373, 381, 210 S.E.2d 604, 608 (1974)
("A motion for a continuance is addressed to the sound discretion of the
trial [court]."); S.C. Code Ann. §14-7-200 (Supp. 2008) ("[J]ury commissioners shall proceed to draw at least seventy-five petit
jurors to serve for that week only. The chief administrative judge or the
presiding judge of that circuit may increase or decrease the number of jurors
drawn if he considers it necessary; however, at least seventy-five jurors must
be drawn.");  Rogers, 263
S.C. at 382, 210 S.E.2d at 609 ("[A] full venire is not a pre-requisite to
the commencement of a criminal proceeding. An accused has no right to insist
upon the attendance of all the veniremen directed to be summoned, nor to demand
the presence of the maximum number of jurors provided for by statute to be
drawn or summoned."). 

2. 
As to whether Fortune received a trial by a competent and impartial jury:  Magazine v. State, 361 S.C. 610, 617, 606 S.E.2d 761, 765 (2004) (internal citation
omitted) ("[A] criminal defendant has no right to a trial by any
particular jury, but only a right to a trial by a competent and impartial jury."); Smith v. State, 375 S.C. 507, 518, 654 S.E.2d 523, 529 (2007) (finding
the trial court must ask whether potential jurors have any bias or prejudice
against a party to ensure a fair and impartial jury); State v. Patterson,
324 S.C. 5, 14, 482 S.E.2d 760, 764 (1997) (holding any claim that a jury was
not impartial must focus on the jurors who were ultimately seated); State v.
Rogers, 263 S.C. 373, 382, 210 S.E.2d 604, 609 (1974) ("[T]he general
principle that error must be prejudicial in order to be ground for reversal
applies to rulings on excusing a juror.").

3. 
As to whether the trial court erred in refusing to change venues based on juror
biases:  State v. Manning, 329 S.C. 1, 7, 495 S.E.2d 191, 194 (1997)
("A motion to change venue is addressed to the sound discretion of the
trial [court] and will not be disturbed on appeal absent an abuse of discretion."); State v. Owens, 293 S.C. 161, 167, 359 S.E.2d 275, 278 (1987) (finding there is
no abuse of discretion in refusing to change venue if the trial judge has screened
jurors to insure the defendant a fair trial); State v. Gardner, 332 S.C.
389, 392, 505 S.E.2d 338, 339 (1998) (finding no error when "[t]here is no
showing of actual juror prejudice, nor is there a lack of evidentiary support
for the trial judge's ruling [and] Appellant has failed to demonstrate an abuse
of discretion in the denial of his motion for a change of venue.").

4. 
As to whether the trial court erred in refusing to change venues based on
pretrial publicity:  State v. Manning, 329 S.C. 1, 7, 495 S.E.2d 191,
194 (1997) ("A motion to change venue is addressed to the sound discretion
of the trial [court] and will not be disturbed on appeal absent an abuse of
discretion."); Id. ("When jurors have been exposed to pretrial
publicity, a denial of a change of venue is not error when the jurors are found
to have the ability to set aside any impressions or opinions and render a
verdict based on the evidence presented at trial."); Id.  (finding a
juror is not automatically disqualified because of pretrial publicity); State
v. Evins, 373 S.C. 404, 412-13, 645 S.E.2d 904, 908 (2007) ("The
relevant question is not whether the community remembered the case, but whether
the jurors had such fixed opinions that they could not judge impartially the
guilt of the defendant."); Id. at 413, 645 S.E.2d at 908 (holding the
defendant bears the burden of proving actual juror prejudice from the pretrial
publicity). 

AFFIRMED.

SHORT, WILLIAMS,
and LOCKEMY, JJ., concur.

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