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2004-UP-494 - State v. Stevens
THIS OPINION HAS NO PRECEDENTIAL VALUE

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Roger A. Stevens,        Appellant.


Appeal From Saluda County
William P. Keesley, Circuit Court Judge


Unpublished Opinion No. 2004-UP-494
Submitted September 14, 2004 – Filed September 22, 2004


AFFIRMED


Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McMaster, Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

PER CURIAM:  Roger A. Stevens appeals his convictions of murder and first-degree burglary.  His complaint centers on the solicitor’s opening statement.  He argues the trial judge should have more fully sustained his objection to the statement or should have declared a mistrial.  We affirm. [1]

In his opening statement, the solicitor said the following:

Mr. Bankston Derrick had devoted most of his life to the service of others.  He lived in Saluda County.  He worked in the school system.  He had reached that point in life that all that hard work would be rewarded in retirement.  He was in his mid-sixties.

Defense counsel objected. 

After the trial judge sent the jury to its room, defense counsel argued:

The defense objects that the State has gone into the victim’s character and what a great person he was and how much he did for the community and what a great service to the community he was.  None of that is admissible.  It’s all prejudicial.  It’s appealing to the passion and prejudice of the jury and just telling them what a great hero this guy was, and it has nothing to do with the issues which are who killed him. 

Defense counsel also moved for a mistrial.   

The trial judge ruled the objection was “sustained in part and overruled in part” and denied the “motion for mistrial in full.”  When the jury returned to the courtroom, the trial judge stated that the objection had been “sustained in part; overruled in part.”  The solicitor then told the jurors where the victim had lived and continued his opening statement.

1.       Regarding the question of whether the trial judge should have more fully sustained the objection of Stevens to the solicitor’s opening statement, the issue is not preserved.  Defense counsel never asked the trial judge to explain which part of the objection he had sustained and which part he had overruled.  See State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003) (holding arguments not raised to or ruled upon by the trial court are not preserved for appellate review).

2.       As to the question of whether the trial judge should have declared a mistrial because of the solicitor’s remarks, we find no abuse of its discretion in this instance because the defendant failed to demonstrate prejudice.  See State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999) (holding the question of whether to grant or deny a mistrial is within the sound discretion of the trial court and its ruling will not be disturbed on appeal unless an abuse of discretion amounting to an error of law occurs); State v. Harris, 340 S.C. 59, 530 S.E.2d 626 (2000) (holding a mistrial should be granted only when absolutely necessary and to receive a mistrial the defendant must show error and resulting prejudice).  The solicitor’s opening statement could not have prejudiced Stevens because evidence, to which Stevens did not object, supported each of the solicitor’s challenged remarks.  Cf. St. Louis-San Francisco Rwy. Co. v. King, 278 P.2d 845 (Okla. 1954) (permitting the plaintiff’s counsel, over objection, to disclose in his opening statement that the plaintiff had a wife and two minor children, to introduce proof to that effect, and to refer in his closing argument to the plaintiff’s family responsibilities, the court stating that if there was any error it was not prejudicial because the defendant voluntarily introduced three sworn statements containing testimony of substantially the same character as that objected to), abrogated on other grounds, Garrett v. Union Pac. R.R., 828 P.2d 994 (Okla Ct. App. 1992).

As to the statement “Mr. Bankston Derrick had devoted most of his life to the service of others,” George Todd testified he had known the victim since 1964 when he was Todd’s sixth and seventh grade teacher and Annette Derrick, the victim’s sister, testified the victim was a retired elementary school principal, an organist for two churches, and a part-time worker in a church office. 

As to the statement “He lived in Saluda County,” Chief Deputy Charles Collard testified the victim’s residence lay in Saluda County while the victim’s sister testified the victim lived two-tenths of a mile from her house. 

As to the statement “He worked in the school system,” the victim’s sister, as noted above, testified the victim had retired as an elementary school principal. 

As to the statement “He had reached that point in life that all that hard work would be rewarded in retirement,” the victim’s sister, again as noted above, testified the victim had retired after serving as an elementary school principal. 

As to the statement “He was in his mid-sixties,” the victim’s sister testified her brother was “maybe 66” years old.

AFFIRMED.

GOOLSBY, ANDERSON, and WILLIAMS, JJ., concur.


[1]   Because oral argument would not aid the court in resolving the issue on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.