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2009-UP-324 - State v. Deasman

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.

Maverick Deasman, Appellant.


Appeal From Richland County
 G. Thomas Cooper, Jr., Circuit Court Judge


Unpublished Opinion No. 2009-UP-324
Submitted June 1, 2009 – Filed June 15, 2009 


AFFIRMED


Appellate Defender Robert M. Pachak, 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 Julie M.

Thames, and Solicitor Warren Blair Giese, all of Columbia, for Respondent.

PER CURIAM:  Maverick Deasman appeals his conviction and sentence for first-degree robbery arguing the trial court erred in refusing to grant a mistrial after the prosecution cross-examined him over his post-arrest silence.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:  Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (use of post-arrest silence for impeachment purposes is allowed when no Miranda warnings are given); Fletcher v. Weir, 455 U.S. 603, 607 (1982) ("In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post[-]arrest silence when a defendant chooses to take the stand."); Doyle v. Ohio, 426 U.S. 610, 619 (1976) (holding use of a defendant's silence at the time of arrest and after receiving Miranda warnings violates the Due Process Clause of the Fourteenth Amendment); Brown v. State, 375 S.C. 464, 480, 652 S.E.2d 765, 773-74 (Ct. App. 2007) (holding PCR applicant failed to prove Doyle violation where no evidence showed he had been given Miranda warnings);  State v. Bell, 347 S.C. 267, 271, 554 S.E.2d 435, 437 (Ct. App. 2001) (recognizing where there is no evidence in the record of a defendant having received Miranda warnings, there will be no presumption the warnings were given at the time of arrest).

AFFIRMED.

HUFF, PIEPER and GEATHERS, JJ., concur.


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