Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2009-UP-259 - 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Unpublished Opinion No.  2009-UP-259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.