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
In The Court of Appeals
The State, Respondent,
Robert Gibson, Appellant.
Unpublished Opinion No. 2006-UP-275
Submitted June 1, 2006 – Filed June 8, 2006
Assistant Appellate Defender Eleanor Duffy Cleary, of
Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor Warren Blair Giese, of Columbia; for Respondent.
PER CURIAM: Robert Gibson appeals his convictions for armed robbery and kidnapping. He contends the circuit court erred in declining to grant a mistrial after a witness referred to his status as a parolee. We affirm.
At approximately 10:15 p.m. on May 22, 2002, Michael Bethel left work and drove his uncle’s 1990 white Cadillac to Rush’s on
After retrieving his wallet,
The robber instructed
An investigation by the Richland County Sheriff’s Department revealed that
Later in the day, Gibson drove to
Gibson led officers on a high-speed chase through commercial and residential areas. Porche testified that Sanders discarded the gun during the chase. Ultimately, Gibson lost control of the car and jumped out while it was still in motion. The officers were able to apprehend Gibson, Sanders, and Porche after the car crashed into a tree and caught on fire.
On May 28, 2002,
Gibson argues the trial judge erred in declining to grant his request for a mistrial after Porche testified regarding his status as a parolee. We disagree.
During direct examination of Porche, the solicitor questioned her regarding the high-speed chase. Specifically, he inquired:
Q. Were they talking at all in the front seat during all this?
A. No, there wasn’t much talk. I was asking [Gibson] why he was running? And he says something about parole. And . . . he was asking the passenger was I all right after we went over 52 and the car was airborne. But there wasn’t much of a conversation in the car.
Without objection, the solicitor continued his direct examination and asked Porche eight more questions. At the conclusion of Porche’s direct examination, Gibson’s counsel approached the judge and requested a conference outside the presence of the jury. During this hearing, counsel stated:
At this point in time I move for a mistrial on this case. The basis for the motion is [the solicitor] asked Ms. Porche about any conversation she heard in the car, asked him—asked him why he was running from the police.
And her response was that he indicated something about him being on parole, that’s a reference to prior criminal conviction.
The record is clear I didn’t jump up at that moment in time and object, but the damage had already been done. I prefer not to ring the bell as loud as possible making an objection at that point in time. I addressed the court in the matter as soon as possible without making a big deal about it in front of the jury.
But it does place his prior criminal history at issue in front of this jury when he has not so placed it himself. It is a valid basis for a mistrial motion in that regard, and I would so move.
In response, the solicitor asserted the testimony was admissible as part of the res gestae of the offenses and that he intentionally elicited testimony. In the alternative, the solicitor contended the testimony did not constitute hearsay because it was not offered for the truth of the matter asserted. Even if the testimony was inadmissible, the solicitor argued that a mistrial was not warranted given it was a single statement that was “fairly vague and innocuous.”
After hearing arguments from counsel, the trial judge determined the testimony improperly placed Gibson’s character into evidence. Despite this holding, the court found a mistrial was not warranted. Gibson’s counsel declined the judge’s offer to give a curative instruction to the jury.
As a threshold matter, we question whether Gibson properly preserved this issue for appellate review. Gibson’s counsel did not immediately object to Porche’s reference to Gibson’s status as a parolee. Counsel allowed the State to complete its direct examination before any objection to the testimony was verbalized. Instead of contemporaneously objecting to the testimony, counsel moved for a mistrial. Additionally, Gibson’s counsel refused the trial judge’s offer to issue a curative instruction. In view of these procedural errors, we believe Gibson waived any challenge to Porche’s statement. See State v. Moultrie, 316 S.C. 547, 555-56, 451 S.E.2d 34, 39 (
Even if properly preserved, we find Gibson’s argument to be without merit. The decision whether to grant or deny a motion for a mistrial is within the sound discretion of the trial judge and will not be overturned on appeal absent an abuse of discretion amounting to an error of law. State v. Council, 335 S.C. 1, 12, 515 S.E.2d 508, 514 (1999). “The power of a court to declare a mistrial ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes” stated on the record by the trial judge. State v. Kirby, 269 S.C. 25, 28, 236 S.E.2d 33, 34 (1977).
A mistrial should only be granted when “absolutely necessary,” and a defendant must show both error and resulting prejudice in order to be entitled to a mistrial. State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 628 (2000). “Whether a mistrial is manifestly necessary is a fact specific inquiry.” State v. Rowlands, 343 S.C. 454, 457, 539 S.E.2d 717, 719 (Ct. App. 2000). “[T]he trial judge should exhaust other methods to cure possible prejudice before aborting a trial.” Council, 335 S.C. at 13, 515 S.E.2d at 514.
In the instant case, Porche’s statement was a vague and isolated comment regarding Gibson status as a parolee. Moreover, our appellate courts have found a mistrial was not warranted where a trial judge admitted even more egregious testimony implicating a defendant’s prior record. See, e.g., Council, 335 S.C. at 12-13, 515 S.E.2d at 513-14 (affirming trial judge’s refusal to grant a mistrial where SLED agent testified that he retrieved defendant’s fingerprint card from SLED records for comparison); State v. George, 323 S.C. 496, 510-11, 476 S.E.2d 903, 912 (1996) (finding mistrial was not warranted where witness’s reference to defendant’s possible drug dealing was vague and no testimony was presented establishing this behavior); State v. Creech, 314 S.C. 76, 81-82, 441 S.E.2d 635, 638 (Ct. App. 1993) (holding trial judge did not abuse his discretion in denying defendant’s motion for a mistrial where officer testified that he obtained warrants for defendant’s arrest and contacted “the Probation Officer”). Accordingly, we conclude the trial judge did not abuse his discretion in denying Gibson’s motion for a mistrial.
Even if the judge’s decision to deny Gibson’s motion for a mistrial constituted error, we find any error would be deemed harmless. Whether an error is harmless depends upon the circumstances of the specific case. State v. Taylor, 333 S.C. 159, 172, 508 S.E.2d 870, 876 (1998). Error is harmless when it could not have reasonably affected the result of the trial. State v. Key, 256 S.C. 90, 93-94, 180 S.E.2d 888, 889-90 (1971). “[W]here a review of the entire record establishes the error is harmless beyond a reasonable doubt, the conviction should not be reversed.” State v. Pickens, 320 S.C. 528, 531, 466 S.E.2d 364, 366 (1996).
Based on the foregoing, Gibson’s convictions and sentences are
HUFF, STILWELL, and BEATTY, JJ., concur.
 Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.