State v. Russell ( 2015 )

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.
Christopher E. Russell, Appellant.
Appellate Case No. 2013-000381
Appeal From Greenville County
R. Lawton McIntosh, Circuit Court Judge
Unpublished Opinion No. 2015-UP-435
Heard March 2, 2015 – Filed August 19, 2015
AFFIRMED
David Bryant Morgen, of Saratoga Springs, NY; Chief
Appellate Defender Robert Michael Dudek, and
Appellate Defender Laura Ruth Baer, both of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Assistant
Attorney General Mark Reynolds Farthing, and Assistant
Attorney General Jennifer Ellis Roberts, all of Columbia;
and Solicitor William Walter Wilkins, III, of Greenville,
for Respondent.
PER CURIAM: Christopher E. Russell (Russell) appeals his convictions for
conspiracy, kidnapping, armed robbery, and first-degree burglary, arguing the
circuit court erred in (1) allowing the rebuttal testimony of the courtroom deputy;
(2) denying Russell's motion to suppress evidence; and (3) denying Russell's
motion for a mistrial after the solicitor challenged the defendant's alibi defense
during closing argument. We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:
1. As to whether the circuit court erred in allowing the rebuttal testimony of the
courtroom deputy: Gause v. Smithers, 403 S.C. 140, 151, 742 S.E.2d 644, 650
(2013) (holding that an "issue cannot be raised for the first time on appeal, but
must have been raised to and ruled upon by the trial judge to be preserved for
appellate review"); State v. Wise, 359 S.C. 14, 21, 596 S.E.2d 475, 478 (2004)
("The admission or exclusion of evidence is a matter addressed to the sound
discretion of the trial court and its ruling will not be disturbed in the absence of a
manifest abuse of discretion accompanied by probable prejudice.") (citations
omitted)).
2. As to whether the circuit court erred in denying Russell's motion to suppress
evidence obtained pursuant to a search warrant that allegedly contained false
information: State v. Taylor, 401 S.C. 104, 108, 736 S.E.2d 663, 665 (2013) ("A
trial court's Fourth Amendment suppression ruling must be affirmed if supported
by any evidence, and an appellate court may reverse only when there is clear
error."); State v. Gore, 408 S.C. 237, 247, 758 S.E.2d 717, 722 (Ct. App. 2014),
cert. granted (Jan. 16, 2015) ("An appellate court reviewing the decision to issue a
search warrant should decide whether the magistrate had a substantial basis for
concluding probable cause existed. This review, like the determination by the
magistrate, is governed by the 'totality of the circumstances' test. The appellate
court should give great deference to a magistrate's determination of probable
cause.") (citations omitted)).
3. As to whether the circuit court erred in denying Russell's motion for a
mistrial after the State challenged Russell's alibi defense during closing arguments:
Vasquez v. State, 388 S.C. 447, 458, 698 S.E.2d 561, 566 (2010) ("'On appeal, the
appellate court will view the alleged impropriety of the solicitor's argument in the
context of the entire record, including whether the trial judge's instructions
adequately cured the improper argument and whether there is overwhelming
evidence of the defendant's guilt.' 'Improper comments do not automatically
require reversal if they are not prejudicial to the defendant, and the appellant has
the burden of proving he did not receive a fair trial because of the alleged improper
argument.'") (citations omitted)).
AFFIRMED.
SHORT, LOCKEMY, and MCDONALD, JJ., concur.