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2010-MO-020 - State v. Jones

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 Supreme Court


The State, Respondent,

v.

Damon Jacquise Jones, Petitioner.


ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


Appeal from Spartanburg County
Paul M. Burch, Circuit Court Judge


Memorandum Opinion No. 2010-MO-020
Heard June 24, 2010 – Filed August 23, 2010


AFFIRMED


Chief Appellate Defender Robert M. Dudek, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia, and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.


PER CURIAM:  Petitioner Damon Jones was convicted of the murder of Sigida Long and was sentenced to life in prison.  At trial, Petitioner asserted that Long was shot when a gun discharged during a struggle.  On certiorari, he argues the Court of Appeals erred in upholding the trial court's decision to refuse to admit into evidence his videotaped interrogation, which he contends corroborates his version of events.  State v. Jones, Op. No. 2008-UP-424 (Ct. App. July 23, 2008).  We affirm.

FACTS

Sigida Long was shot on the street in front of his mother's house in Spartanburg.  At trial, Petitioner provided the following version of events:  Petitioner was sitting in his car after dropping off a friend when Long approached Petitioner, pulled him from the vehicle, and struck him on the head.  Petitioner fell back into the vehicle, retrieved a gun from the glove box, cocked the gun, and told Long to back away.  Long rushed Petitioner, the two struggled, and the gun discharged during the struggle, fatally wounding Long in the head.

Petitioner's counsel attempted to introduce into evidence a videotape of a police interrogation of Petitioner after the incident, which Petitioner argued corroborated his version of events.  The trial court sustained the State's objection to the videotape as self-serving hearsay.  Petitioner then attempted to introduce only that portion of the tape before Petitioner makes any statements[1], but the trial judge declined to allow it.[2]  Petitioner was convicted of murder and sentenced to life in prison.

On appeal to the Court of Appeals, Petitioner argued the trial court erred in refusing to admit the tape.  The Court of Appeals affirmed, holding that even if the videotaped interrogation was improperly excluded, Petitioner was not prejudiced because the evidence would have been merely cumulative to the other evidence in the record.  This Court granted Petitioner's petition for a writ of certiorari.

ISSUE

Did the Court of Appeals err in finding the trial court did not abuse its discretion in excluding the videotaped evidence?

DISCUSSION

A trial judge's decision to admit or exclude evidence is reviewed under an abuse of discretion standard.  See State v. Jones, 343 S.C. 562, 541 S.E.2d 813 (2001).  Petitioner argues that he had a right to present the videotape as it is powerful corroborating evidence of his defense.  We find that the Court of Appeals correctly affirmed the trial court's exclusion of the videotape.

Petitioner argued to the trial court that the videotape is admissible, in whole or in part, because it meets a hearsay exclusion and because he contended the hearsay was not self-serving hearsay.  He now argues to this Court only that the tape is admissible because (1) the wrongful exclusion of corroborating evidence is prejudicial to the Petitioner's substantial rights, and (2) it is "fundamentally unfair" for the State to prevent Petitioner from presenting corroborating evidence and to then attack Petitioner's self-defense claim as unworthy of belief.  As Petitioner did not present these latter arguments to the trial court, they are not properly before this Court.  See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) (appellate court generally will not address an issue unless the issue was raised to and ruled upon by the trial court).  Additionally, as the argument presented to the trial court is not presented in Petitioner's brief, it is also not before this Court.  See Glasscock, Inc. v. U.S. Fidelity & Guar. Co., 348 S.C. 76 (Ct. App. 2001) (issues not argued in the body of appellant's initial brief are deemed abandoned on appeal). 

Consequently, we find Petitioner's arguments are not preserved for our review.  Were we to reach the merits, we would find that the trial court did not err in excluding the videotape.

CONCLUSION

Petitioner's arguments are not preserved for our review.  The opinion of the Court of Appeals is therefore

AFFIRMED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.


[1] It is unclear what portion of the videotape Petitioner refers to.  The videotaped interrogation filed with this Court begins with Petitioner responding to questions.  If an essential portion of the tape has been omitted from the record, this Court cannot reverse on this ground.  See Morris v. Donahue, 212 S.C. 122, 124, 46 S.E.2d 664, 665 (1948) (Supreme Court can act only on such matters as are contained in the record); Rule 210(h), SCACR (appellate court will not consider any fact which does not appear in the Record on Appeal).  Petitioner may be referring to State’s Exhibit 1, which is a video from a police cruiser camera on the night of the incident.  An emotional Petitioner can be heard on the tape, but soon after the tape begins, Petitioner can be heard making statements regarding the events.

[2] Petitioner asserted at oral argument that he asked the trial court to allow him to play the videotape without audio, for the jury.  The record does not support this assertion.