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2011-UP-138 - State v, Rivera

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.

Raymondeze L. Rivera, Appellant.


Appeal From Anderson County
 J. C. Nicholson, Jr., Circuit Court Judge


Unpublished Opinion No. 2011-UP-138
Heard February 16, 2011 – Filed April 5, 2011   


AFFIRMED


Chief Appellate Defender Robert M. Dudek and Senior Appellate Defender Joseph L. Savitz, III, both of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia; and Solicitor Christina Theos Adams, of Anderson, for Respondent.

FEW, C.J.: Raymondeze Rivera was tried and convicted for the murder of Asha Wiley.  At trial, Rivera testified on his own behalf and implicated himself not only in Wiley's murder but also in the murder of another woman, Kwana Burns.  After the State cross-examined Rivera, he rested his case.  Defense counsel explained to the court:

What he's left us with now is a confession to two murders.  . . .  The only argument I can make to a jury at this point in time is, "Thank you for being here."  I mean, really, I cannot say anything to that jury and be ethical about it. . . .  So, if he wants a closing statement, since he's gone loose on the witness stand, I think it is up to him to act in his own behalf to do it.  Because we ethically can not do it.

The trial court responded, "I understand.  I understand.  Mr. Rivera, if you want to make a closing statement to the jury, at the appropriate time I will give you that opportunity.  Do you understand?"  Rivera declined the opportunity.  After the verdict, defense counsel continued to represent Rivera during post-trial motions and sentencing.  This appeal followed.

LAW/ANALYSIS

Rivera contends the trial court's response to counsel constituted a sanction of counsel's concerns with making a closing argument, and that, as a result, it became the judge's decision not to present a closing argument.  He argues further that this decision by the trial court relieved him of counsel in violation of his Sixth Amendment rights.  We disagree.    

First, we find that the judge's response to defense counsel's concerns was not a ruling.  The trial court's response, "I understand.  I understand." was not a binding decision.  It neither forced Rivera or defense counsel to do anything nor prohibited it.  What remained was a situation in which defense counsel could have refrained from closing without the trial court's permission and could have decided to make a closing argument despite the trial judge's response. 

Second, we find that the trial court did not relieve defense counsel.  Defense counsel did not move to be relieved, and the trial court did not make a ruling to that effect.  Further, the trial court did not deny Rivera the right to make a closing argument or the right to consult his lawyer in delivering it, if he chose.  At all points of the trial through sentencing, Rivera was represented by counsel.[1] 

AFFIRMED.

SHORT and KONDUROS, JJ., concur.


[1] "[T]he right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'"  Brewer v. Williams, 430 U.S. 387, 398 (1977) (citations omitted).  The right to counsel does not mandate that defense counsel make a closing argument.  See Bell v. Cone, 535 U.S. 685, 701-02 (2002) (holding that it is not unreasonable for a state court to consider the waiving of a closing argument a "tactical decision" and not a per se violation of the right to counsel).