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2009-UP-337 - State v. Pendergrass

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.

Terry Lamonte Pendergrass, Appellant.


Appeal From Chester County
Brooks P. Goldsmith, Circuit Court Judge


Unpublished Opinion No. 2009-UP-337
Heard June 9, 2009 – Filed June 15, 2009


AFFIRMED


Kathrine H. Hudgins, 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, Assistant Attorney General Michelle Parsons, all of Columbia, and Solicitor Douglas A. Barfield, Jr., of Lancaster, for Respondent.

PER CURIAM:  In this criminal matter, Terry Lamonte Pendergrass (Pendergrass) appeals his conviction for assault and battery with intent to kill (ABWIK) arguing the trial court erred in (1) refusing a requested jury charge, and (2) failing to conduct an evidentiary hearing regarding two instances of alleged juror misconduct.  We affirm pursuant to Rule 220(b)(2), SCACR, and the following authorities:

1.  As to the jury charge:  State v. Rye, 375 S.C. 119, 123, 651 S.E.2d 321, 323 (2007) (a trial court's decision regarding jury charges will not be reversed where the charges, as a whole, properly charged the law to be applied); State v. Burkhart, 350 S.C. 252, 261, 565 S.E.2d 298, 303 (2002) ("The substance of the law must be charged to the jury, not particular verbiage."); State v. Harris, 382 S.C. 107, 115, 674 S.E.2d 532, 536 (Ct. App. 2009) ("The simple fact that the trial court refused to use the '[gets] the drop on him' language does not render the charge improper.").

2.  As to the purported juror misconduct:  State v. Pittman, 373 S.C. 527, 553, 647 S.E.2d 144, 157 (2007) (stating the trial court's decision regarding allegations of juror misconduct will not be disturbed absent an abuse of discretion).  Specifically, as to the allegation of misconduct concerning the previously dismissed juror:  State v. Aldret, 333 S.C. 307, 312, 509 S.E.2d 811, 813 (1999) (holding a defendant who fails to call the alleged juror misconduct to the trial judge's attention at his first opportunity to do so is procedurally barred from raising the issue on appeal).

AFFIRMED.

HUFF, PIEPER, and GEATHERS, J.J., concur.