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2011-UP-494 - State v. Mahaffey

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.

Johnny Mahaffey, Appellant.


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


Unpublished Opinion No.  2011-UP-494 
Heard September 14, 2011 – Filed November 7, 2011


AFFIRMED


Chief Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

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

PER CURIAM: Johnny Mahaffey appeals his conviction for murder and possession of a firearm during the commission of a violent crime and sentence of life imprisonment plus five years to run consecutively.  On appeal he argues (1) the trial court erred in denying his right to recross-examine the State's expert medical examiner, Dr. Brett Woodard, (2) the trial court erred in allowing the State to use a demonstrative prop containing the victim's photograph, and (3) the trial court erred in denying Mahaffey's motion for a mistrial after the victim's mother held a photograph of the victim to her chest and coughed to attract the attention of jurors during the jury charge.  We affirm.

1.  In order to warrant a new trial, the defendant must demonstrate the trial court's ruling was both erroneous and prejudicial.  See State v. China, 312 S.C. 335, 342, 440 S.E.2d 382, 386 (Ct. App. 1993) (finding defendant's assignment of error in trial court's refusal to allow recross-examination unpreserved when proffer of testimony was not in record and therefore could not establish prejudice); FCX Coop. Serv., Inc., v. Bryant, 242 S.C. 511, 516-17, 131 S.E.2d 702, 704 (1963) (finding issue regarding limitation of recross-examination without merit when defendant failed to establish prejudice or abuse of discretion).  We find no prejudice in the trial court's refusal to allow recross-examination of Dr. Woodard regarding his opinion on self-defense when Mahaffey did not pursue self-defense as a trial strategy and did not request a self-defense charge at the close of trial.[1]

2. At oral argument, counsel conceded he could not attest or demonstrate with certainty in the record that a demonstrative prop containing the victim's photograph was actually used at trial.  Therefore, we deem this issue abandoned as there is no factual underpinning to support any legal argument.  See State v. Wise, 33 S.C. 582, 590, 12 S.E. 556, 557-58 (1891) (stating an exception based on a misapprehension of the facts was properly abandoned).

3. With respect to Mahaffey's motion for mistrial based on the conduct of the victim's mother, the trial court questioned jurors to determine any prejudicial impact and replaced one juror with an alternate as a result of that process.  After these curative steps were taken, Mahaffey failed to object to the curative measures or to renew the motion for a mistrial.  Therefore, we find this issue to be unpreserved for our review.  See State v. George, 323 S.C. 496, 510, 476 S.E.2d 903, 912 (1996) ("No issue is preserved for appellate review if the objecting party accepts the judge's ruling and does not contemporaneously make an additional objection to the sufficiency of the curative charge or move for a mistrial.").

AFFIRMED.

FEW, C.J., and THOMAS and KONDUROS, JJ., concur.


[1] The circumstances of each case are different and require the exercise of judicial discretion in determining whether further examination of a witness is proper.