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2009-UP-439 - State v. Gilbert

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.

Michael Gibert, Appellant.


Appeal From Anderson County
Steven H. John, Circuit Court Judge


Unpublished Opinion No. 2009-UP-439
Submitted September 1, 2009 – Filed September 23, 2009


AFFIRMED


Chief Appellate Defender Joseph L. Savitz, III, 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; and Solicitor Christina T. Adams, of Anderson, for Respondent.

PER CURIAM:  Gibert appeals his conviction for three counts of second-degree criminal sexual conduct with a minor, committing a lewd act on a child, contributing to the delinquency of a minor, and assault with intent to kill.  He contends he was not adequately warned of the dangers of self-representation as required by Faretta v. California, 422 U.S. 806 (1975).  Gibert further argues the State impermissibly commented on his right not to testify as well as its own weighing of the evidence in closing arguments.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities:  Faretta, 422 U.S. at 819-20 (holding the Sixth Amendment provides a defendant may waive the right to counsel and elect to proceed pro se); State v. McLauren, 349 S.C. 488, 493, 563 S.E.2d 346, 348-49 (Ct. App. 2002) ("To establish a valid waiver of counsel, Faretta requires the accused be: (1) advised of his right to counsel; and (2) adequately warned of the dangers of self-representation."); id. at 494, 563 S.E.2d at 349 (holding the appellate court may find a knowing and voluntary waiver when the record shows the defendant had sufficient background to understand the election to proceed without counsel or was apprised of those rights by some other source); State v. Burton, 356 S.C. 259, 265 n.5, 589 S.E.2d 6, 9 n.5 (2003) ("A pro se litigant who knowingly elects to represent himself assumes full responsibility for complying with substantive and procedural requirements of the law."); State v. Patterson, 324 S.C. 5, 18, 482 S.E.2d 760, 766 (1997) (holding when defendant objected to the State's closing argument and objection was sustained, issue was not preserved because defendant did not move to strike or for a curative instruction); State v. Martucci, 380 S.C. 232, 260, 669 S.E.2d 598, 613 (Ct. App. 2008) (finding issue unpreserved when the State was told to move on with questioning but defendant failed to request a curative instruction or motion to strike); State v. Prioleau, 345 S.C. 404, 411, 548 S.E.2d 213, 216 (2001) (stating a defendant cannot argue "one ground at trial and an alternate ground on appeal");  State v. Shuler, 353 S.C. 176, 187, 577 S.E.2d 438, 443 (2003) (finding issue of comment on defendant's right to silence was not preserved for appellate review when objection at trial was the State was shifting burden of proof).

AFFIRMED.

HEARN, C.J., and KONDUROS and LOCKEMY, JJ., concur.


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