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,
Murphy L. Rivers, Appellant.
Appeal From Charleston County
Daniel F. Pieper, Circuit Court Judge
Unpublished Opinion No. 2004-UP-636
Submitted December 1, 2004 – Filed December 16, 2004
Assistant Appellate Defender Aileen P. Clare, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, for Respondent.
PER CURIAM: In this appeal, we must decide whether the circuit court erred in denying the defendant’s motion for a mistrial due to alleged juror misconduct. We find no abuse of discretion and therefore affirm.
Murphy Rivers was indicted for assault with intent to kill and tried before a jury. The trial continued over the course of two days. On the morning of the second day, defense counsel raised a concern about possible juror misconduct that allegedly occurred during the previous day’s proceedings. The following colloquy took place outside the presence of the jury:
DEFENSE COUNSEL: Your Honor, it came to my attention on [sic] yesterday after the close of the testimony that a member of the jury had been sleeping throughout a substantial part of the trial, and for that reason we would move for a mistrial.
THE COURT: I would deny that. It is a little late to bring it to the Court’s attention.
DEFENSE COUNSEL: It wasn’t until after the jury had left the Court yesterday that people who were in the Courtroom advised us of that.
THE COURT: Bring in the jury.
Rivers moved for a mistrial, which was denied. The issue of the allegedly sleeping juror was not raised to or addressed by the circuit judge any further. At the conclusion of the trial, the jury found Rivers guilty of the crime charged. Rivers now appeals the circuit court’s denial of his motion for a mistrial.
STANDARD OF REVIEW
The decision to grant or deny a motion for a mistrial is a matter within the sound discretion of the trial court. Creighton v. Coligny Plaza Ltd. P’ship, 334 S.C. 96, 118, 512 S.E.2d 510, 521 (Ct. App. 1998). Absent an abuse of discretion, the decision of the trial court will not be overturned on appeal. Id. The burden is upon the moving party to show not only error, but resulting prejudice. State v. Wasson, 299 S.C. 508, 510, 386 S.E.2d 255, 256 (1989). In any event, the grant of a mistrial is an extreme measure that should not be granted unless absolutely necessary, and the trial judge should exhaust all other methods to cure possible prejudice before aborting a trial. Id.
Rivers argues the circuit court abused its discretion by denying his motion for a mistrial without investigating the allegations of juror misconduct. We disagree.
Rivers argues that an abuse of discretion must be found based on our opinion in State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (Ct. App. 1996). In Hurd, the trial court refused the defendant’s request to question a juror who appeared to be asleep during portions of closing arguments and jury instructions. We reversed the defendant’s conviction, stating that a trial court “should at least attempt to make this determination whenever a juror appears to be asleep.” Id. at 390, 480 S.E.2d at 97. The trial court in Hurd made no such inquiry. Thus, we held the trial judge “should have either determined whether the juror was in fact asleep, recharged the entire jury, or replaced the juror.” Id.
The present case is readily distinguishable from Hurd. First, and most importantly, Rivers did not request that the trial judge conduct any investigation into the matter of alleged juror misconduct. Rivers simply accepted the trial judge’s denial of his motion for a mistrial without asking the court to voir dire the juror or undertake further inquiry. Because Rivers bore the burden of showing the juror was asleep or otherwise engaged in misconduct, his failure to request direct examination of the juror—unlike the defendant in Hurd—waives any complaint on appeal. See State v. Smith, 338 S.C. 66, 75, 525 S.E.2d 263, 268 (Ct. App. 1999) (holding that defendant’s failure to request that the trial judge investigate allegations that a juror was asleep during trial “waives any complaint on appeal”); see also State v. Cooper, 334 S.C. 540, 550-51, 514 S.E.2d 584, 589-90 (1999) (noting that counsel must request that the trial court investigate juror misconduct).
Further distinguishing the instant case is the fact that, in Hurd, the defense counsel reported that he actually saw the juror sleeping, and the trial judge agreed there was cause for concern—declaring specifically that he “noticed [the juror] nodding off a couple of times” but that the juror “was alert during most of the charge.” 325 S.C. at 388-89, 480 S.E.2d at 97. Here, on the other hand, defense counsel based his motion solely on the statement of an unnamed third party that a juror was asleep. No assertion was made that defense counsel or anyone else directly involved in the trial witnessed any juror misconduct. It would be difficult indeed to fault the trial judge for giving little credence to these unsupported, unverifiable allegations. These bare assertions clearly fall well short of the necessary showing to warrant the grant of a motion for mistrial.
We find Rivers waived any complaint on appeal regarding the alleged juror misconduct by failing to request that the trial judge investigate the matter. Moreover, we otherwise find no abuse of discretion by the trial judge given the scant grounds raised in support of the motion for a mistrial. The ruling of the circuit court is therefore
HUFF, KITTREDGE, and BEATTY, JJ., concur.