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2011-UP-373 - State v. Middleton

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.

George Thomas Middleton, Appellant.


Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge


Unpublished Opinion No. 2011-UP-373
Submitted June 1, 2011 – Filed July 21, 2011   


AFFIRMED


Benjamin Allen Stitely, of Lexington, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General David Spencer, all of Columbia, for Respondent.

PER CURIAM:  George Middleton appeals his conviction for distribution of crack cocaine, arguing the trial court erred in selecting a new jury from the balance of the jury panel after his first trial ended in a mistrial.  Middleton also argues the trial court erred in denying his motion for a mistrial in his second trial after a witness testified regarding his prior booking photo.  We affirm[1] pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1.   As to whether the trial court erred in selecting a new jury from the balance of the jury panel after Middleton's first trial ended in a mistrial:  State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 628 (2000) (holding the trial court is in the best position to determine the credibility of the jurors, and therefore, it is granted broad deference on this issue);  State v. Johnson, 248 S.C. 153, 163, 149 S.E.2d 348, 353 (1966) (holding the question of the impartiality of a juror is addressed to the discretion of the trial judge);  State v. Loftis, 232 S.C. 35, 45, 100 S.E.2d 671, 676 (1957) (refusing to interfere with the discretion of a trial judge in matters involving the jury because the trial judge has the opportunity to consider the credibility of the jurors).

2.   As to whether the trial court erred in denying Middleton's motion for a mistrial after a witness testified regarding Middleton's prior booking photo:  State v. Culbreath, 377 S.C. 326, 331, 659 S.E.2d 268, 271 (Ct. App. 2008) (holding the decision whether to grant or deny a mistrial motion is within the sound discretion of the trial court, and the trial court's decision will not be disturbed on appeal absent an abuse of discretion amounting to an error of law);  Id. (stating a mistrial should not be granted unless absolutely necessary, and in order to receive a mistrial the defendant must show error and resulting prejudice);  State v. Washington, 315 S.C. 108, 110, 432 S.E.2d 448, 449 (1992) (holding a witness' reference to defendant's "booking report" from a previous arrest did not warrant a mistrial, where the reference was elicited by defendant's own counsel and was responsive to counsel's questions).

AFFIRMED.

FEW, C.J, PIEPER and LOCKEMY, JJ., concur. 


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