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2010-UP-356 - State v. Robinson

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.

Darian K. Robinson, Appellant.


Appeal From Greenville County
John C. Few, Circuit Court Judge


Unpublished Opinion No. 2010-UP-356
Submitted June 1, 2010 – Filed July 12, 2010


AFFIRMED


Deputy Chief Appellate Defender for Capital Appeals 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, Senior Assistant Attorney General William Edgar Salter, III, Office of the Attorney General, of Columbia; Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:    Appellant, Darian K. Robinson, was convicted of murder and possession of a weapon during the commission of a violent crime and was sentenced to life without parole.  Robinson appeals, asserting the trial judge denied him his right to confrontation by ruling certain evidence relevant to his defense was inadmissible until such time as Appellant established all four elements of self-defense, resulting in shifting the burden to Appellant and denying him the right to confront the State's witnesses during the State's case-in-chief.  We affirm.[1]

FACTUAL/PROCEDURAL BACKGROUND

This case involves the shooting death of William Godwin (Victim) on January 26, 2005.  Latrice Atkinson, Appellant's live-in girlfriend and the cousin of Victim, testified that in the early hours of the morning before the shooting, she and Appellant argued, at which time Appellant hit Latrice in her face.  Later in the morning, one of Latrice's relatives asked her what was wrong with her eye.  Latrice then observed a mark under her eye.  When the relative pointed the injury out to Keith Williams, the father of Latrice's children, Keith questioned Latrice about what happened.  Latrice told him what occurred but indicated Keith should not be concerned because she intended to take care of the matter.  Keith learned from one of their children that the incident took place in front of the children, but Latrice insisted she would handle the problem by speaking to Appellant's father.  Her injuries consisted of a small bruise under her eye and a swollen lip. 

Sammy Groves testified that on January 26, he came into contact with Appellant outside the Boulder Creek apartment where Appellant lived with Latrice.  At that time, Appellant told Sammy that he had been fighting with Latrice and that he had "smacked" her, resulting in both Keith and Victim confronting Appellant about the matter.  Appellant was concerned about the situation with Victim and Keith.  Sammy advised Appellant he should "fight," and Appellant responded that he had a .38 caliber gun.

Around 11:30 that night, as Sammy and Appellant were still outside talking, Latrice arrived at her apartment with Latrice's mother, Paulette Edens, and Latrice's two children.  As they approached, they saw Appellant standing in front of the door talking to Sammy.  Appellant began asking Latrice why she was "telling these lies," and then told her, "You're people ain't going to be rolling up on me, sitting in the parking lot like they going to do something to me."  Appellant further stated, "They don't know who I am" and referred to why others "call him 187."[2]  Appellant was telling Latrice that her family and her children's father were not going to be "coming at him" and threatening him.  Sammy testified Appellant told Latrice she needed to stop sending her people at him, or he would "lay them down."  After putting her children to bed in her apartment, Latrice went two doors over to her mother's apartment for their customary time of drinking coffee.

Victim, who often joined his cousin and aunt in drinking coffee, then arrived at the building and asked Appellant and Sammy where Latrice was.  Sammy told Victim she was at her mother's apartment.  Victim went inside Paulette's home, came back out shortly thereafter, drove off for a short period of time, and then returned to Paulette's apartment.  During Victim's departure, Sammy went to his girlfriend's apartment to retrieve his phone for Appellant to use.  When Sammy returned, they went inside Latrice and Appellant's apartment and Appellant used the phone to make two calls, one of which was to ask for a ride.  Thereafter, "some guys" arrived at the apartment looking "amped up, like [there] was about to be a fight."  Appellant then walked past the group of people to Paulette's door.  As he passed by, he told the group, "ain't no use in y'all catching a misdemeanor."  Sammy then heard gunshots coming from Paulette's apartment.  When Appellant stepped out of the apartment, he had a gun down by his side.

Latrice testified she, Victim, and her mother were in her mother's kitchen when they heard a knock on the door.  Latrice opened the door and let Appellant into the home.  Appellant followed behind Latrice as she walked to the kitchen, and he continued to confront Latrice about telling lies and her family threatening him.  Latrice indicated to Appellant that she did not know to what he was referring.  When he would not explain, Latrice told Appellant she was not going to keep asking, and she joined her mother and Victim sitting at the kitchen table.  Appellant was upset and mad, and as he continued to talk about Latrice's family, Victim stood up and started walking toward Appellant. According to Latrice, Victim had stopped walking and rested his hand against the wall.  Victim asked Appellant what he meant by "family" and whether he was referring to Victim.  Appellant then took his hands out of his pockets and Latrice heard two, loud firecracker sounds and then three or four more shots.  Victim fell to his knees and then to the ground.  Appellant turned around and walked out the door.

During cross-examination, Appellant proffered the testimony of Latrice regarding Victim's prior conviction.  Out of the presence of the jury, Latrice testified she had learned Victim had been in jail on a murder charge, but denied remembering having a discussion with Appellant about it.  She testified, however, she did remember a conversation between Victim and Appellant referring to "the smell of blood or hurting somebody or killing somebody that . . . leaves you with the memory of blood," and that both Victim and Appellant were nodding and agreeing with one another on the subject.  The trial judge found testimony of Latrice's knowledge of Victim's conviction irrelevant as it did not show Appellant's knowledge, but found testimony about the blood conversation between Appellant and Victim admissible.  Also during her cross-examination, Appellant sought to elicit testimony from Latrice regarding Latrice's sister, Jeanetta, and a man she had dated named Rocko.  When asked about a time Rocko "had put his hands on Jeanetta," the State objected and the trial judge sustained the objection to that question, as well as to a question concerning Appellant's presence during a confrontation between Victim and Rocko.  The trial judge gave Appellant the opportunity to thereafter proffer the testimony of Latrice regarding an incident where Victim "put his hands on" Rocko because Rocko had hit Jeanetta, and whether Rocko related the incident between him and Victim in front of Appellant.  Latrice did not remember the confrontation between Victim and Rocko being discussed in front of Appellant but did remember having a conversation with Appellant wherein she related to Appellant the incident that occurred between Jeanetta and Rocko.  The trial judge sustained the State's objection to this proffered testimony in part because Latrice denied knowledge of the discussion regarding the incident between Victim and Rocko taking place in Appellant's presence.

The State also called Paulette to the stand, who testified that when Appellant entered her home, he came into the kitchen and stood near Latrice as the two bickered back and forth.  After Appellant stated, "I'm tired of y'all and y'all family," Victim got out of his chair and started walking and then stopped.  When Victim was shot, he slumped to his knees and fell forward.  After Appellant shot Victim, he turned around and walked out the door as if he had not done anything.

Victim was pronounced dead at the scene.  He suffered a total of three gunshot wounds, with a gunshot to the head being the fatal wound. 

Appellant took the stand in his defense.  He admitted that the night before the shooting he hit Latrice in her face.  According to Appellant, Victim later came to the apartment Appellant shared with Latrice several times that day.  On the first trip, Victim was upset and barged into the apartment, asking what was going on between his cousin and Appellant.  Victim indicated Antonia told him Latrice had injuries to her face.  He then warned Appellant before leaving the apartment that he would kill Appellant if he was still there when he returned.   Less than an hour later, Victim appeared again at the apartment and stated he had already told Appellant if he was still there and he discovered something was wrong with Latrice, he was going to kill Appellant.  Victim then walked away, slamming the apartment door.  About one hour later, Victim returned to the apartment a third time, "bammin' on the door."  This time Appellant did not open the door, but went to an upstairs window and indicated to Victim he did not want any trouble.  Victim continued to knock on the door a few minutes and then left.  Victim returned a fourth time, about twenty to thirty minutes before Latrice came home, and again knocked on the door.  At this point, Appellant maintains he was scared and nervous about Victim's actions.  Victim stayed in the area about five minutes before he eventually left in his car.  As Appellant was looking out the window, he saw Sammy outside and yelled down to him.  Appellant then put on his jacket, which he knew held a gun in the pocket, and went outside to talk to Sammy in order to ask Sammy if he could use his phone.  Appellant explained to Sammy what had occurred and told him about threats made to him by Keith and Victim.    Sammy retrieved his phone and Appellant then made a phone call to his friend Travis, asking for a ride. 

Five to ten minutes after Appellant called Travis, Latrice and her mother arrived at the apartment.  At that time, Appellant asked Latrice why she kept sending her family there to threaten him.  Latrice acted as if she did not know what he was talking about.  After Latrice put her children to bed, she went over to her mother's apartment.  Victim then arrived and asked where Latrice was.  After Sammy told him she had gone to her mother's, Victim went into Paulette's apartment.  Appellant testified he decided to go to Paulette's because when Latrice first arrived she indicated she needed to talk to him and he had not finished discussing the situation with her family with her.  Further, because his ride had arrived, he wanted to lock up their apartment and needed to take the keys to Latrice.

Appellant knocked on Paulette's door and Latrice let him into the apartment.  Latrice walked into the kitchen, while Appellant stood between the kitchen and living room trying to explain to Latrice what had been happening.  Appellant told Latrice she needed to stop sending her family to threaten him.  Latrice acted as if she did not know what was going on and had not said anything to her family.  At some point, Victim stood up and said, "Who are you talking to?  Me?"  Appellant described Victim as walking toward him in a "rush" with his hand balled up and running toward him.  Appellant testified he was much smaller than Victim and did not know if Victim possessed a weapon or was going to try to fight him.  Appellant stated he was intimidated and feared he was about to be hurt.  As Victim rushed toward him, Appellant pulled his gun out and started shooting out of fear. 

During the State's presentation of evidence, the trial judge ruled various testimony that the defense sought to elicit on cross-examination, including that discussed in regard to Latrice, was inadmissible for various reasons including, but not limited to, his determination the evidence was irrelevant, it was relevant but the relevance was outweighed by other factors, and the proffered testimony showed the witness denied knowledge.  After the State rested, Appellant proffered certain testimony of his sister, Alicia, seeking to introduce evidence of Appellant's knowledge before the shooting that Victim had been convicted of murdering his stepfather.  The judge granted the State's motion in limine to exclude the conviction, based upon the fact that the violence associated with the conviction was not directed toward the Appellant and it was not closely connected in point of time or occasion, but noted his ruling was preliminary and subject to change.[3]  The judge further sustained the State's relevancy objection to defense counsel's question to Appellant's sister as to whether she knew that Keith owned or possessed a gun.

At the start of Appellant's testimony, the trial judge initially ruled evidence concerning Appellant's interaction with Keith on the day of the shooting, proffered to show Appellant's state of mind in regard to self-defense, was inadmissible because the evidence at that point did not support a charge of self-defense.  However, after hearing Appellant's testimony and further argument of counsel, the judge changed his mind and determined self-defense should be submitted to the jury.  The judge further noted his reconsideration of the matter raised a question of what additional evidence should be allowed.  The only evidence pointed out by defense counsel at this juncture was evidence of the interaction between Keith and Appellant, and evidence of Victim's prior conviction.  The trial judge thereafter ruled evidence concerning Keith's actions toward Appellant on that day was relevant and admissible.  He further ruled admissible evidence of Victim's prior conviction.

Thereafter, Appellant testified regarding a conversation he had with Victim in which Victim stated he had been to jail, and "whatever he went to jail for he used to taste blood."  At certain times when Victim was around Appellant, Victim would indicate he had committed the murder of his stepfather.  Appellant further testified that on the evening of January 26, 2005, before Victim made his first appearance at the apartment, Keith came over and asked Appellant what happened between him and Latrice.  Appellant stated that Keith was upset, wanting to know why Appellant hit Latrice in front of Keith and Latrice's daughter.  During this time, Appellant observed that Keith held a gun in his hand.  Keith indicated Antonia had been the source of his information regarding Latrice's injury.  When Victim later came over and said the same thing to him, and indicated the source of information was Antonia, Appellant began thinking Victim and Keith had been in contact about the matter.  This made Appellant scared, and he felt he needed to talk to Latrice so she could explain things to her family.  Appellant maintained when he decided to go to Paulette's apartment he did not believe he was walking into a violent situation, because he did not think Victim would do anything in front of his aunt, Paulette.  However, because he had been threatened repeatedly that day, when Victim rushed toward him with his hands balled up, Appellant feared for his life and he started shooting.  At the close of the evidence, upon the request of the defense, the trial judge informed the jury he took judicial notice of the fact that Victim had been convicted of second degree murder in North Carolina in 1989.

After closing arguments but prior to the court charging the jury, defense counsel made a motion for mistrial arguing the trial judge's initial rulings that excluded certain evidence relevant to his self-defense claim precluded him the right to confront the State's witnesses and created a shift in burden.  The trial judge asked counsel to point to specific instances, other than that of a witness concerning whether she knew Appellant had knowledge of Victim's conviction, where an objection was made during cross-examination resulting in the defense being unable to present the evidence.  Counsel asserted "Keith Williams and his connection," the murder conviction of Victim, Latrice's knowledge regarding Keith ever having a gun, and the showing of the gun to Appellant on the night in question had also been excluded.   The trial judge found Appellant had not been denied the right to confront Latrice, as she was present during the entire trial and Appellant could have recalled her.  The judge inquired as to whether Appellant would like to call Latrice and put her on the stand, but Appellant declined.  The trial judge charged the law of self-defense to the jury.  The jury ultimately returned guilty verdicts on both the murder and weapons possession charge. 

ISSUE

"Whether the court denied appellant his right to confrontation and legitimate cross-examination of state's witnesses about matters probative of self-defense where the court prohibited cross-examination of State's witnesses until such time as the court deemed there was evidence establishing all four elements of self-defense, since this ruling was procedurally unfair, and it also was burden shifting?"

STANDARD OF REVIEW

The decision to grant or deny a mistrial is within the sound discretion of the trial court and will not be overturned on appeal absent an abuse of discretion amounting to an error of law.  State v. Council, 335 S.C. 1, 12, 515 S.E.2d 508, 514 (1999).  The power of a court to grant a mistrial ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious causes stated into the record by the trial court.  State v. Stanley, 365 S.C. 24, 34, 615 S.E.2d 455, 460 (Ct. App. 2005).  "A mistrial should only be granted when 'absolutely necessary,' and a defendant must show both error and resulting prejudice in order to be entitled to a mistrial."  Id.  "The granting of a motion for a mistrial is an extreme measure which should be taken only where an incident is so grievous that prejudicial effect can be removed in no other way."  Id.[4]  

LAW/ANALYSIS

Appellant contends he was denied his right to confront witnesses against him when the trial judge ruled certain evidence relevant to his self-defense claim inadmissible, finding the evidence was not a legitimate area of cross-examination until all four elements of self-defense were established.  He asserts this ruling was burden shifting, that Appellant had the right to confront the witnesses during the State's case-in-chief, and the ruling was arbitrary and unreasonable.  We find no reversible error.

"The Confrontation Clause of the Sixth Amendment, which was extended to the states by the Fourteenth Amendment, guarantees the right of a criminal defendant to confront witnesses against him, and this includes the right to cross-examine witnesses."  State v. Holder, 382 S.C. 278, 283, 676 S.E.2d 690, 693 (2009).

The right to present a defense is not unlimited, but must bow to accommodate other legitimate interests in the criminal trial process.  The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.  Defendants are entitled to a fair opportunity to present a full and complete defense, but this right does not supplant the rules of evidence and all proffered evidence or testimony must comply with any applicable evidentiary rules prior to admission.  

State v. Lyles, 379 S.C. 328, 342-43, 665 S.E.2d 201, 209 (Ct. App. 2008) (internal citations and quotation marks omitted).  Included in the defendant's Sixth Amendment right to confront his accusers is the right to a meaningful cross-examination of an adverse witness, but this does not mean the trial court conducting a criminal trial loses its usual discretion to limit the scope of cross-examination.  State v. Turner, 373 S.C. 121, 130, 644 S.E.2d 693, 698 (2007).  Rather, "trial courts retain wide latitude, insofar as the Confrontation Clause is concerned, to impose reasonable limits on such cross-examination based on concerns about, among other things, prejudice, confusion of the issues, or interrogation that is only marginally relevant."  Id.  "[A]s to cross-examination specifically, the Confrontation Clause 'guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'"  State v. Stokes, 381 S.C. 390, 401-02, 673 S.E.2d 434, 439 (2009), quoting United States v. Owens, 484 U.S. 554, 559 (1988).  In Stokes, the court held admission of extrinsic evidence of a witness's prior inconsistent statement did not violate defendant's Sixth Amendment right of confrontation at a murder trial, even though the witness denied making the statement, where defendant had an opportunity to cross-examine the witness given that the witness appeared at trial, was available for cross-examination, could have been recalled after the extrinsic evidence was admitted, and was not restricted in any way from testifying.  Id. at 398-403, 673 S.E.2d at 438-441.

The only argument made by Appellant to the trial judge regarding the denial of his right to confront the State's witnesses and a resulting shifting of the burden was in his motion for mistrial.  There, the discussion of excluded evidence centered around the testimony of Latrice, and Appellant pointed to the following specific evidence as having been improperly excluded:  (1) evidence the witness knew Appellant had knowledge of Victim's conviction; (2) "Keith Williams and his connection," (3) the murder conviction of Victim, (4) Latrice's knowledge regarding Keith ever having a gun, and (5) the showing of the gun to Appellant on the night in question.  On appeal, although Appellant points to several rulings of the trial judge excluding evidence from Sammy, Latrice and Alicia in his recitation of the facts, he only specifically argues error in regard to the exclusion of evidence from Latrice.  Further, while Appellant does also mention in his summary of excluded evidence that of Sammy regarding whether the neighborhood was unsafe and whether it was common for people in the area to carry guns, these matters clearly were not raised in Appellants motion for mistrial.[5]  Thus, the only exclusion of evidence Appellant argues on appeal that is preserved for review involves the testimony of Latrice.[6]  Though Appellant now asserts error in the exclusion of testimony from Latrice regarding a confrontation between the boyfriend of Latrice's sister, Rocko, and Victim when the boyfriend hit Latrice's sister, as well as testimony from Latrice regarding her knowledge of Victim's prior murder charge, trial counsel did not specifically point to the exclusion of the evidence from Latrice regarding the confrontation between Rocko and Victim.  Thus, the only argument preserved for review is the exclusion of Latrice's testimony regarding Victim's prior conviction.

As noted by the trial judge, Latrice's knowledge of Victim's murder conviction was irrelevant, as it did not show Appellant's knowledge.  Accordingly, this evidence would not be relevant to the issue of Appellant's self-defense.  Therefore the trial judge did not err in excluding it.  See Rule 401, SCRE (providing evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence); State v. Stokes, 339 S.C. 154, 159, 528 S.E.2d 430, 432 (Ct. App. 2000) (stating evidence should be excluded if it is calculated to arouse the sympathy or prejudice of the jury or is irrelevant or unnecessary to substantiate the facts).  Additionally, the trial judge took judicial notice of Victims prior conviction, and the jury was therefore apprised of that conviction. Further, evidence of Appellant's knowledge of Victim's prior conviction was admitted through Appellant's testimony.  See State v. Mercer, 381 S.C. 149, 163, 672 S.E.2d 556, 563 (2009) (finding no prejudice from the exclusion of cumulative evidence).  

Even if we were to find trial counsel's general assertion of error in the exclusion of Latrice's testimony sufficiently preserved Appellant's argument concerning Latrice's proffered testimony in regard to the incident between Victim and Rocko, we conclude the trial judge correctly found the testimony of Latrice concerning the alleged incident between Victim and Rocko was inadmissible because Latrice testified she did not remember the confrontation between Victim and Rocko being discussed in front of Appellant.  The proffered testimony of Latrice showed only that Appellant knew of the incident occurring between Rocko and Jeanetta, and not that Appellant had knowledge of a confrontation between Rocko and Victim.  Thus, this evidence likewise would not be relevant to support Appellant's claim of self-defense.

Finally, we find no merit to Appellant's assertion that the exclusion of Latrice's testimony in the State's case-in-chief violated her right to confrontation.  See  Turner, 373 S.C. at 130, 644 S.E.2d at 698 (holding the trial courts retain wide latitude, insofar as the Confrontation Clause is concerned, to impose reasonable limits on such cross-examination based on concerns about, among other things, prejudice, confusion of the issues, or interrogation that is only marginally relevant); Stokes, 381 S.C. at 401-02, 673 S.E.2d at 439 (holding as to cross-examination specifically, the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish).  Even if the excluded matters complained of by Appellant were relevant such that admission would have been proper during cross-examination, Appellant either elicited the evidence through other means or was given the opportunity to present the evidence when the trial judge changed his ruling and determined self-defense would be submitted to the jury.  Before Appellant had concluded the presentation of evidence, the trial judge specifically asked what additional evidence the defense would like to present based upon this reconsideration of self-defense, and counsel only pointed to the incident between Keith and Appellant on the day of the shooting and evidence concerning Victim's prior conviction.  The trial judge ruled both of these admissible, and Appellant then presented evidence on both.  As noted by the trial judge in his ruling on Appellant's motion for mistrial, Latrice remained present throughout the trial and was available for Appellant to recall, but he failed to take advantage of that opportunity.  Appellant cites no law in support of his proposition that he was entitled to present this evidence on cross-examination during the State's case-in-chief such that any opportunity to subsequently recall the State's witness would be ineffective and he was thereby denied his Sixth Amendment right of confronting witnesses against him.  See Stokes, 381 S.C. at 398-403, 673 S.E.2d at 438-441 (wherein the court held admission of extrinsic evidence of a witness's prior inconsistent statement did not violate defendant's Sixth Amendment right of confrontation at a murder trial, even though the witness denied making the statement, where defendant had an opportunity to cross-examine the witness given that the witness appeared at trial, was available for cross-examination, could have been recalled after the extrinsic evidence was admitted, and was not restricted in any way from testifying).  Further, we are persuaded beyond a reasonable doubt that, even if any violation of the Confrontation Clause occurred, it was so insignificant that it did not affect the verdict and further find that Appellant has failed to show he was unfairly prejudiced by any limitation on cross-examination of Latrice.  See Turner, 373 S.C. at 131, 644 S.E.2d at 698 (noting it is reversible error if the defendant establishes he was unfairly prejudiced by the limitation on cross-examination, and finding no reversible error where the gist of the evidence Appellant desired was elicited through other testimony); State v. Whaley, 290 S.C. 463, 465, 351 S.E.2d 340, 341 (1986) (recognizing a criminal defendant is entitled to a fair trial, not a perfect one); see also Stanley, 365 S.C. at 34, 615 S.E.2d at 460 (holding a defendant must show both error and resulting prejudice in order to be entitled to a mistrial).         

As to Appellant's assertion that the trial judge's rulings excluding evidence on cross-examination somehow shifted the burden to him, he makes no argument and cites no law in support of this proposition.  Accordingly, it is deemed abandoned on appeal.  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (holding an issue is abandoned where the appellant fails to provide argument or supporting authority); Wright v. Craft, 372 S.C. 1, 20, 640 S.E.2d 486, 497 (Ct. App. 2006) (noting an issue raised on appeal but not argued in the brief is deemed abandoned and will not be considered by the appellate court); Mulherin-Howell v. Cobb, 362 S.C. 588, 600, 608 S.E.2d 587, 593-94 (Ct. App. 2005) (providing when an appellant fails to cite any supporting authority for his position and makes conclusory arguments, the appellant abandons the issue on appeal).

For the foregoing reasons, we find no error in the trial judge's denial of Appellant's motion for a mistrial.  Accordingly, his convictions are

AFFIRMED.  

HUFF, SHORT, and WILLIAMS, JJ., concur.                                      


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

[2] A witness qualified as an expert in the area of street slang testified the term "187" derives from that section of the California Penal Code for murder, and is the term used for murder.

[3] See State v. Day, 341 S.C. 410, 419-20, 535 S.E.2d 431, 436 (2000); State v. Amburgey, 206 S.C. 426, 429, 34 S.E.2d 779, 780 (1945) (holding, in murder prosecution of one pleading self-defense against an attack by deceased, evidence of other specific instances of violence on deceased's part is inadmissible, unless the instances of violence were directed against defendant or, if directed against others, were so closely connected in point of time or occasion with the homicide as reasonably to indicate deceased's state of mind at time of the homicide, or to produce reasonable apprehension of great bodily harm).

[4] Although Appellant does not specifically assert the trial judge erred in denying his motion for mistrial, it is only in his motion for mistrial that he raised the issue he now argues on appeal.  We therefore find the proper standard of review to apply is that for a ruling on a motion for mistrial.

[5] It should further be noted the trial judge did not exclude this evidence from Sammy on the basis that Appellant had not yet shown the four elements of self-defense were present.  Rather, the trial judge sustained the objection to the unsafe neighborhood question and why people would carry guns finding only marginal relevance, and determined the relevance was outweighed by the need to focus the issues and avoid confusing the jury with extraneous matter.  See Rule 403, SCRE ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.").  As to the testimony from Sammy regarding whether it was common for people in that area to carry guns, the trial judge sustained the State's relevancy objection without comment.  The judge did not find that all the elements of self-defense would have to be shown before this evidence became admissible.

[6] Further, while Appellant mentions the exclusion of certain evidence from Appellant's sister, Alicia, in his recitation of relevant facts, he does not argue any error in the exclusion in his brief.  At any rate, this testimony was not from a State's witness, but from Appellant's own witness, and was not ruled inadmissible during cross-examination, but during direct.  Thus, there would be no merit to any argument that this evidence was wrongfully excluded cross-examination of a State's witness thereby denying Appellant his right of confrontation.