State v. Lance Antonio Brewton ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Lance Antonio Brewton, Appellant.
Appellate Case No. 2018-001572
Appeal From Spartanburg County
J. Derham Cole, Circuit Court Judge
Opinion No. 5912
Heard November 10, 2021 – Filed May 25, 2022
AFFIRMED
Appellate Defender Adam Sinclair Ruffin, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia, and Solicitor Barry J. Barnette, of
Spartanburg, all for Respondent.
KONDUROS, J.: Lance Antonio Brewton appeals his convictions for murder and
possession of a firearm during the commission of a violent crime. Brewton
contends the trial court erred by (1) failing to instruct the jury on the lesser
included offense of involuntary manslaughter and the defense of accident; (2)
prohibiting his testimony regarding witchcraft and hearing voices in his head; and
(3) allowing the State to impeach him with his 1999 robbery conviction. We
affirm.
FACTS
On the morning of September 25, 2017, Brewton arrived at Natalie Niemitalo's
house. Brewton and Niemitalo had been in an on-again, off-again relationship for
two years. After their friend Kevin Schuerman arrived, the three decided to go
purchase cigarettes and drinks. Niemitalo got into the driver's seat of her mother's
black, two-door Honda Civic, Brewton got into the back seat on the passenger side,
and Schuerman got into the passenger seat.
Once in the car, Niemitalo began putting on makeup. After about five minutes,
Brewton exited the car, walked around to the driver's side, and began arguing with
Niemitalo because he wanted to drive. Shortly after the argument began,
Schuerman heard a gunshot. Schuerman exited the car and ran towards Niemitalo's
garage because he thought he had been shot. After Schuerman realized he had not
been shot, he returned to the driveway and watched Brewton pull Niemitalo out of
the car, get into the driver's seat, and drive away.
Schuerman approached Niemitalo and saw she was gasping for air and in pain.
Schuerman called 9-1-1 and held a towel on Niemitalo's wound until first
responders arrived. While first responders were treating Niemitalo, Brewton drove
by her house in the Honda Civic. Brewton drove by Niemitalo's house a second
time, and an officer initiated a traffic stop by turning on his blue lights; however,
Brewton continued driving for twenty-three miles. Officers apprehended Brewton
after he collided with a vehicle in the driveway of his home.
First responders airlifted Niemitalo to a hospital, but she died from a single
gunshot wound. The doctor that performed Niemitalo's autopsy determined she
bled to death after a bullet entered her upper-left torso and exited nine-and-a-half
inches lower on the right side of her back. Police collected physical evidence
associated with the shooting including the Honda Civic, Brewton's gun, a fired
bullet, and a spent shell casing. Brewton was indicted for murder, possession of a
firearm during the commission of a violent crime, escape, driving under
suspension, and failure to stop when signaled by an officer using a blue light.
A forensic psychologist evaluated Brewton and determined he was competent to
stand trial for an unrelated federal weapons charge.1 In a pretrial motions hearing,
the State presented Brewton's mental evaluation and moved to prevent him from
1
The incident leading to Brewton's federal conviction for "Possession of a Firearm
by a Convicted Felon" occurred nine days before Niemitalo's death.
presenting any evidence regarding mental illness or hearing voices. The State
argued any testimony about mental illness or hearing voices would not be relevant
because the forensic psychologist concluded Brewton did not have a mental illness
and was competent to stand trial. Alternatively, the State contended that if the
testimony was relevant, it would be highly prejudicial.
Brewton argued he was not presenting the testimony about hearing voices as a
defense for his actions; rather, Brewton argued he should be allowed to present the
testimony as an alternative explanation to the State's assertion that he fled due to a
guilty mind. Initially, the trial court indicated the testimony would not be relevant
and would confuse the jury because Brewton did not suffer from a mental illness;
however, the trial court delayed making a final determination until after Brewton
proffered the testimony.
Additionally, the State disclosed it planned to introduce Brewton's federal weapons
conviction and two common law robbery convictions from 1999 and 2008.
Brewton argued the federal weapons conviction was not relevant, but the State
maintained it would preclude an accident jury instruction because Brewton was not
allowed to possess a weapon. Brewton also moved to prevent the State from using
any remote convictions; again, the trial court delayed making a final determination.
Brewton proceeded to trial for murder and possession of a weapon during the
commission of a violent crime after he pled guilty to escape, driving under
suspension, and failing to stop when signaled by an officer. Schuerman testified
that Brewton was "acting erratic" and "on edge" when he got to Niemitalo's house
but recalled Brewton's behavior had not concerned him. Schuerman stated the
argument between Brewton and Niemitalo was not out of the ordinary and
elaborated he had seen Brewton and Niemitalo in worse arguments; however,
Schuerman clarified he had never seen any violence during their arguments.
Schuerman also testified he did not see Brewton with a gun the morning of
Niemitalo's death.
An expert in firearm examination, Chad Smith, testified the gun involved did not
have an external safety mechanism, which is typically thought of as a button that
would prevent the gun from firing. Smith explained the gun would fire once five-
and-a-half pounds of pressure was applied to its trigger, even if the pressure was
applied unintentionally. Smith opined:
The trigger guard is here . . . to guard that trigger from
any kind of unintentional pressure against the trigger.
But I suppose . . . something . . . could enter into the
trigger guard . . . and if the firearm was pushed against
that object and enough pressure . . . [was] exerted on that
trigger, then it could fire.
Still, Smith explained the gun would not fire unless its slide had been pulled back
while it was loaded with ammunition. Smith testified he performed several tests
on the weapon and concluded the recovered bullet and spent shell casing both
came from Brewton's gun.
At the conclusion of the State's case-in-chief, Brewton proffered his testimony
regarding witchcraft and hearing voices in his head. Brewton testified he believed
Niemitalo's mother and her friend Aaron2 practiced witchcraft and one of them had
cast a spell on him that caused him to hear the voices. Brewton admitted
Niemitalo's mother denied practicing witchcraft and Niemitalo never told him her
mother practiced witchcraft; nevertheless, Brewton believed Niemitalo's mother
practiced witchcraft because he believed she had also cast a spell on Aaron and
Niemitalo told him she knew about the voices. Brewton estimated he had
intermittently been under a spell for eight or ten months.
Brewton described "experiencing paranoia" at Niemitalo's house on the morning of
her death because the voices were telling him his family was being murdered.
Brewton explained he got in the car's back seat because the voices were telling him
people were trying to kill him. Brewton testified that while the group was sitting
in the car, he observed a cement truck drive past Niemitalo's house, and the voices
told him it was going to bury his family alive.
Brewton recalled he wanted to drive so he could follow the cement truck, and he
felt that Niemitalo was not putting on her makeup "fast enough." Brewton stated
he left Niemitalo's house to find the cement truck. Brewton explained he did not
stop to check on Niemitalo the first time he drove by her house because
paramedics were already there and he wanted to keep looking for the cement truck.
Brewton testified he drove by Niemitalo's house a second time because he could
not find the cement truck and the voices had stopped speaking to him. Brewton
admitted he did not stop the second time because police officers were there and he
had drugs in the car.
2
The record does not contain Aaron's surname.
The State objected to Brewton's proffer at its conclusion and argued it was filled
with hearsay, not relevant, and highly prejudicial if relevant. Brewton responded
he had the absolute right to testify, the hearsay would be omitted in front of the
jury, and the probative value of his testimony would not be substantially
outweighed by unfair prejudice. Brewton insisted he should be allowed to give an
alternative reason for leaving the scene other than a guilty mind.
The trial court ruled Brewton could not testify about witchcraft or hearing voices.
The trial court found Brewton's proffer was largely based on hearsay and the
danger of unfair prejudice substantially outweighed any probative value because it
seemed to give rise to an unasserted mental illness defense. Additionally, the trial
court determined Brewton's right to testify was not violated because he was not
entirely prevented from testifying. The trial court explained Brewton could testify
he was fearful and felt like he needed to leave Niemitalo's house.
After Brewton elected to testify,3 the trial court ruled both of his robbery
convictions were admissible because they were part of a "continuous course of
conduct." The trial court also ruled that if the convictions were remote, their
probative value substantially outweighed any danger of unfair prejudice. Brewton
argued his 1999 conviction was remote because it was a separate charge from his
2008 conviction. The trial court reiterated Brewton's convictions were a
continuous criminal history because they were similar offenses that all occurred
without a passage of ten years. Brewton maintained his 1999 conviction was
remote because he finished serving that sentence in 2004 and he would be
testifying in 2018. Brewton also asserted the probative value of that conviction
was outweighed by unfair prejudice because there was limited value in attacking
his credibility.
However, Brewton asked the trial court if his convictions would be referred to as
common law robbery convictions or as crimes involving dishonesty. The State
responded it was willing to refer to the convictions as crimes of dishonesty, and the
trial court concluded the convictions would be referred to as crimes of dishonesty.
Brewton did not object.
3
The record indicates Brewton stated "I will not testify" after the trial court
prohibited him from testifying about witchcraft and the voices. However, this
appears to be a scrivener's error because Brewton went on to testify and it was not
mentioned on appeal.
Brewton's testimony was mostly consistent with Schuerman's, but Brewton
admitted he was not legally allowed to possess a weapon, he had been on a drug
binge that made him unable to sleep for the three days preceding Niemitalo's death,
and he had used drugs the morning of Niemitalo's death. Brewton also testified
that his gun fell out of his pocket as he got out of the car. Brewton explained he
kept the gun in his hand after he picked it up because he assumed Niemitalo was
going to let him drive and he preferred to keep it in the car's center console while
driving.
Brewton maintained he did not intentionally kill Niemitalo and claimed "the gun
went off" when Niemitalo pushed his hand back as he reached into the car to grab
its keys. Brewton testified he did not stop when signaled by officers because he
had drugs in the car. Brewton explained he drove all the way to his house because
he was afraid officers would shoot him. At the end of his direct examination,
Brewton admitted he had been convicted of two crimes of dishonesty. The State
did not mention crimes of dishonesty during its cross-examination of Brewton.
After the defense rested, Brewton requested the trial court instruct the jury on
involuntary manslaughter and accident. The State objected and asserted (1) an
involuntary manslaughter instruction was improper because Brewton was not
armed in self-defense and (2) an accident instruction was improper because
Brewton was not legally able to possess a weapon. Brewton argued that even
though his possession of the gun was unlawful, it was not the proximate cause of
Niemitalo's death.
The trial court declined to instruct the jury on either involuntary manslaughter or
accident. The trial court reasoned Brewton was acting unlawfully by possessing
the gun and trying to take the car from Niemitalo. Additionally, the trial court
concluded Brewton was not exercising reasonable care in handling the gun.
Following jury deliberations, Brewton was convicted of murder and possession of
a firearm during the commission of a violent crime. The trial court sentenced
Brewton to life in prison without the possibility of parole. This appeal followed.
STANDARD OF REVIEW
"In criminal cases, the appellate court sits to review errors of law only." State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "The conduct of a criminal
trial is left largely to the sound discretion of the trial judge, who will not be
reversed in the absence of a prejudicial abuse of discretion." State v. Bryant, 372
S.C. 305, 312, 642 S.E.2d 582, 586 (2007). "An abuse of discretion occurs when a
trial court's decision is unsupported by the evidence or controlled by an error of
law." Id.LAW/ANALYSIS
I. Jury Instructions
Brewton argues the trial court erred by failing to give an involuntary manslaughter
jury instruction because Brewton testified the shooting was unintentional and the
record contained sufficient evidence Brewton acted recklessly in handling the gun.
Brewton contends the trial court erred by failing to give an accident jury
instruction because he testified the shooting was unintentional and the record
contained sufficient evidence he used due care in handling the gun. Brewton
maintains his illegal possession of a firearm did not preclude either jury instruction
because his illegal possession did not proximately cause Niemitalo's death. We
disagree.
"[T]he trial court is required to charge only the current and correct law of South
Carolina." State v. Marin, 415 S.C. 475, 482, 783 S.E.2d 808, 812 (2016)
(alteration in original) (quoting State v. Brandt, 393 S.C. 526, 549, 713 S.E.2d 591,
603 (2011)). "The law to be charged to the jury is determined by the evidence
presented at trial." State v. Brown, 362 S.C. 258, 261-62, 607 S.E.2d 93, 95 (Ct.
App. 2004) (quoting State v. Hill, 315 S.C. 260, 262, 433 S.E.2d 848, 849 (1993)).
"If there is any evidence to support a jury charge, the trial [court] should grant the
request." Id. at 262, 607 S.E.2d at 95. "To warrant reversal, a trial [court]'s refusal
to give a requested jury charge must be both erroneous and prejudicial to the
defendant." Id.
Involuntary manslaughter is a lesser-included offense of
murder, and "is defined as the unintentional killing of
another without malice while engaged in either (1) the
commission of some unlawful act not amounting to a
felony and not naturally tending to cause death or great
bodily harm, or (2) the doing of a lawful act with a
reckless disregard for the safety of others."
State v. Scott, 414 S.C. 482, 487, 779 S.E.2d 529, 531 (2015) (quoting State v.
Sams, 410 S.C. 303, 309, 764 S.E.2d 511, 514 (2014)).
"If there is any evidence warranting a charge on involuntary manslaughter, then the
charge must be given." State v. Wharton, 381 S.C. 209, 216, 672 S.E.2d 786, 789
(2009). "In determining whether to charge the lesser included offense of
manslaughter[,] the court must view the evidence in the light most favorable to the
defendant." State v. Gibson, 390 S.C. 347, 356, 701 S.E.2d 766, 770 (Ct. App.
2010). "Declining to charge the lesser included offense is warranted when it 'very
clearly appear[s] that . . . no evidence whatsoever [exists] tending to reduce the
crime from murder to manslaughter.'" Id. (alterations in original) (quoting State v.
Brayboy, 387 S.C. 174, 179, 691 S.E.2d 482, 485 (Ct. App. 2010)).
Additionally, "[f]or a homicide to be excusable on the ground of accident, it must
be shown that the killing was unintentional, the defendant was acting lawfully, and
due care was exercised in the handling of the weapon." Wharton, 381 S.C. at 216,
672 S.E.2d at 789. "Evidence of an accidental discharge of a gun will support a
charge of accident where the defendant lawfully arms himself in self-defense." Id."[U]nlawful possession of a firearm can . . . constitute an unlawful activity . . .
[that] preclude[s] an accident defense if it is the proximate cause of the killing."
State v. Burriss, 334 S.C. 256, 262 n.5, 513 S.E.2d 104, 107 n.5 (1999). "[I]t
would be incongruous not to apply this same reasoning in the context of
involuntary manslaughter." Id. at 265, 513 S.E.2d at 109. "[T]he State [must]
prove beyond a reasonable doubt that the unlawful act in which the [defendant]
was engaged was at least the proximate cause of the homicide." Id. at 262, 513
S.E.2d at 107 (quoting State v. Goodson, 312 S.C. 278, 280 n.1, 440 S.E.2d 370,
372 n.1 (1994)).
The issue of whether a defendant is entitled to involuntary manslaughter and
accident jury instructions despite unlawfully possessing a firearm was developed in
Goodson and Burriss. In Goodson, our supreme court determined the illegally
armed defendant was not entitled to an accident jury instruction. 312 S.C. at 281,
440 S.E.2d at 372. In that case, the defendant was drinking while playing pool at a
bar and got into an argument with another player over a bet. Id. at 279, 440 S.E.2d
at 371. The other player threatened the defendant with a pool stick, and the
defendant responded by drawing a gun from his pocket. Id. The bar's owner
intervened and escorted the defendant outside. Id. While outside, the defendant
shot and killed the owner. Id. at 279, 440 S.E.2d at 371-72. The defendant
claimed the gun "just went off" as the owner approached him. Id. at 279, 440
S.E.2d at 372.
The Goodson court rejected the State's proposition that unlawful possession of a
firearm always precluded an accident jury instruction. Id. at 280 n.1, 440 S.E.2d at372 n.1. The Goodson court noted the State must prove beyond a reasonable doubt
the defendant's unlawful act proximately caused the homicide. Id. However, the
Goodson court reasoned the defendant was not entitled to an accident jury
instruction because he did not present any evidence that he was lawfully acting in
self-defense. Id. at 281, 440 S.E.2d at 372.
In a concurring opinion, Justice Toal stated she would have held the defendant was
not entitled to an accident jury instruction because he was not lawfully armed when
he shot the victim. Id. at 281, 440 S.E.2d at 372-73 (Toal, J., concurring). Justice
Toal reasoned any right the defendant had to be armed due to the dispute with the
other pool player ended when the owner removed him from that situation. Id. at
282, 440 S.E.2d at 373 (Toal, J. concurring). Still, Justice Toal agreed with the
majority that the defendant's unlawful possession must have proximately caused
the victim's injury to preclude an accident jury instruction. Id. (Toal, J.,
concurring). Justice Toal concluded "where, as here, the defendant unlawfully
possesses a firearm, has been drinking heavily all day, and kills the [victim] with
the unlawful firearm, the unlawful possession of the firearm is a proximate cause
of the injury." Id. (Toal, J., concurring).
In Burriss, our supreme court held the illegally armed defendant was entitled to
involuntary manslaughter and accident jury instructions. 334 S.C. at 264-65, 513
S.E.2d at 109. In that case, two men attempted to rob the defendant. Id. at 258,
513 S.E.2d at 106. After the attackers threw the defendant to the ground, the
defendant drew a gun from his pocket and fired two shots into the ground. Id. at
258-59, 513 S.E.2d 106. The attackers initially backed away, but one of the
attackers advanced again as the defendant was getting up. Id. at 259, 513 S.E.2d
106. When the defendant picked up his gun, it fired a shot that killed the
advancing attacker. Id.The Burriss court agreed with Justice Toal's analysis in her Goodson concurrence
and clarified Goodson as holding "unlawful possession of a firearm can . . .
constitute an unlawful activity . . . [that] preclude[s] an accident defense if it is the
proximate cause of the killing." Id. at 262 n.5, 513 S.E.2d at 107 n.5. The Burriss
court reasoned "a person can be acting lawfully, even if he is in unlawful
possession of a weapon, if he was entitled to arm himself in self-defense at the
time of the shooting." Id. at 262, 513 S.E.2d at 108. Further, the Burriss court
determined "it would be incongruous not to apply this same reasoning in the
context of involuntary manslaughter." Id. at 265, 513 S.E.2d at 109. The Burriss
court concluded the defendant was entitled to both accident and involuntary
manslaughter jury instructions because evidence in the record supported his claim
that he was lawfully armed in self-defense when the shooting occurred. Id. at
262-63, 265, 513 S.E.2d at 108-09.
Here, the trial court did not err by refusing to give involuntary manslaughter or
accident jury instructions. Brewton directs this court to State v. Slater4 and State v.
Williams5 as support for his proposition that his illegal possession of a weapon did
not preclude involuntary manslaughter or accident jury instructions. However, we
find those cases inapplicable because they revolved around whether the defendants
were lawfully armed in self-defense. See Slater, 373 S.C. at 71, 644 S.E.2d at 53
(noting "where the defendant's unlawful possession of a weapon is merely
incidental to the defendant's lawful act of arming himself in self-defense, the
unlawful possession of the weapon will not prevent the use of an accident
defense"); Williams, 427 S.C. at 254 n.4, 830 S.E.2d at 908 n.4 (clarifying "the
question is whether [the weapon] is the proximate cause of the 'difficulty' or
'occasion' that led to the killing" in determining whether a defendant is precluded
from a self-defense jury instruction).
In stark contrast to the defendants' arguments in Goodson, Burriss, Slater, and
Williams, Brewton does not argue he was lawfully armed in self-defense. Indeed,
this record contains no evidence Brewton was defending himself at the time of the
shooting. Brewton and Schuerman both testified Brewton and Niemitalo were
arguing but not physically fighting. Further, Brewton testified the gun fired when
Niemitalo pushed his hand back as he reached for the car keys; Brewton did not
testify that Niemitalo attempted to take or control the gun. Consequently, like the
defendant in Goodson, Brewton presented no evidence he was lawfully armed in
self-defense.
Therefore, the dispositive question of this issue is whether Brewton's illegal
possession proximately caused Niemitalo's death; we determine it did. Like the
defendant in Goodson, Brewton admitted he was unlawfully handling a loaded
firearm while intoxicated. Brewton testified he had been on an illegal drug binge
that prevented him from sleeping the three days preceding Niemitalo's death;
Brewton also admitted he used illegal drugs the morning of Niemitalo's death.6
Additionally, Brewton testified the gun fell out of his pocket as he got out of the
4
373 S.C. 66, 644 S.E.2d 50 (2007).
5
427 S.C. 246, 830 S.E.2d 904 (2019).
6
The record indicates the shooting also occurred during the morning hours.
car, he held the gun in his hand while arguing with Niemitalo, and he still held the
gun in his hand when he reached into the car to take its keys. Further, Brewton
held a gun that would fire once it had five-and-a-half pounds of pressure applied to
its trigger, even if that pressure was unintentional. Finally, like the defendant in
Goodson, Brewton's illegally possessed gun fired the shot that killed Niemitalo.
Therefore, Brewton's unlawful possession proximately caused Niemitalo's death.
Accordingly, we affirm the trial court's decision to refuse to instruct the jury on
involuntary manslaughter and accident.7
II. Brewton's Proffered Testimony
Brewton asserts the trial court erred by prohibiting him from testifying about
witchcraft and hearing voices. Brewton contends he should have been able to
testify the voices caused him to flee the scene after the shooting. Brewton argues
that testimony was relevant to rebut the State's assertion that he fled the scene due
to a guilty conscience, which allowed the jury to infer malice. Brewton insists his
inability to explain the cause of his flight to the jury in his own words violated his
fundamental right to testify in his own defense. We disagree.
"[A]n exception to the trial court's ruling will be deemed abandoned where the
appellant fails to specifically argue it in his brief." State v. Black, 319 S.C. 515,
518 n.2, 462 S.E.2d 311, 313 n.2 (Ct. App. 1995). "[S]hort, conclusory statements
made without supporting authority are deemed abandoned on appeal and therefore
not presented for review." State v. Jones, 392 S.C. 647, 655, 709 S.E.2d 696, 700
(Ct. App. 2011) (quoting Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76,
81, 557 S.E.2d 689, 691 (Ct. App. 2001)). "[A]n unappealed ruling, right or
wrong, is the law of the case." Atl. Coast Builders & Contractors, LLC v. Lewis,
398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012); see also State v. Williams, 427
S.C. 148, 157, 829 S.E.2d 702, 706-07 (2019) (explaining an unappealed jury
instruction became the law of the case).
Here, the trial court limited the scope of Brewton's testimony to prohibit the jury
from hearing about witchcraft and hearing voices because it determined his
testimony (1) was largely based on hearsay and (2) would result in unfair prejudice
by confusing the jury. The trial court also determined prohibiting Brewton from
7
Additionally, Brewton was precluded from an accident jury instruction because
he was not exercising due care in handling the weapon. See Wharton, 381 S.C. at
216, 672 S.E.2d at 789 (stating a defendant must have been exercising due care in
handling the weapon for a homicide to be excusable by accident).
testifying about witchcraft and hearing voices did not violate his right to testify
because Brewton was not entirely prohibited from testifying; indeed, Brewton
testified in his own defense.
While Brewton objected to the trial court's ruling on all grounds, he only argues on
appeal that his right to testify was violated. Brewton's brief provides no authority
regarding the trial court's ruling that Brewton's proffered testimony was largely
based on hearsay and would result in unfair prejudice. Consequently, Brewton
abandoned his arguments that his proffered testimony was not hearsay and would
not result in unfair prejudice. As a result, the trial court's ruling that Brewton's
proffered testimony was hearsay and unfairly prejudicial became the law of the
case. Accordingly, we affirm the trial court's decision to prohibit Brewton from
testifying about witchcraft and hearing voices.
III. Impeachment
Brewton asserts the trial court erred by allowing the State to impeach him with his
1999 common law robbery conviction. Brewton contends that conviction was
remote because his sentence expired in 2004 and he testified in 2018.
Additionally, Brewton argues the trial court did not conduct the required State v.
Colf 8 analysis. We disagree.
"To preserve an issue for review[,] there must be a contemporaneous objection that
is ruled upon by the trial court." State v. Johnson, 363 S.C. 53, 58, 609 S.E.2d
520, 523 (2005). An appellant is barred from arguing an issue on appeal if trial
"counsel acquiesced [to a ruling] . . . and made no other objections regarding [that
ruling] . . . ." State v. Mitchell, 330 S.C. 189, 195, 498 S.E.2d 642, 645 (1998); see
also State v. McKinney, 258 S.C. 570, 190 S.E.2d 30 (1972) (finding the appellant
waived his objection to certain testimony by cross-examining a witness regarding
that testimony without reserving his previous objection).
Brewton ultimately waived for appellate review his contention the trial court erred
by allowing the State to impeach him with his 1999 common law robbery
conviction. Brewton initially objected to the trial court's ruling that the State could
impeach him with his 1999 conviction and argued it was remote. However,
Brewton asked if his convictions would be referred to by their name or as crimes of
dishonesty. The State agreed to refer to both convictions as crimes of dishonesty,
8
337 S.C. 622, 525 S.E.2d 246 (2000).
and the trial court allowed both convictions to be referred to as crimes of
dishonesty. Critically, Brewton did not object or reserve his previous objection.
Brewton testified on direct examination he had been convicted of two crimes of
dishonesty. Before the parties presented their closing arguments, Brewton
renewed all of his objections; however, the record indicates the trial court did not
respond. In its closing argument, the State referred to Brewton's convictions as
crimes of dishonesty. Again, Brewton did not object. Consequently, Brewton
waived his objection that his 1999 conviction was remote because he acquiesced to
referring to it as a crime of dishonesty.
CONCLUSION
In short, the trial court properly refused to instruct the jury on involuntary
manslaughter and accident. Additionally, the trial court's decision to prohibit
Brewton's proffered testimony became the law of the case. Finally, Brewton failed
to preserve for appellate review the trial court's decision to allow the State to
impeach him with his 1999 conviction. Accordingly, Brewton's convictions for
murder and possession of a firearm during the commission of a violent crime are
AFFIRMED.
HILL and HEWITT, JJ., concur.