Markese East v. State ( 2024 )

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
Markese East, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2022-000557
Appeal From Aiken County
Robert J. Bonds, Circuit Court Judge
Unpublished Opinion No. 2024-UP-379
Submitted October 1, 2024 – Filed November 6, 2024
AFFIRMED
Appellate Defender Jessica M. Saxon, of Columbia, for
Petitioner.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Joshua Abraham Edwards, both of
Columbia, for Respondent.
PER CURIAM: Petitioner seeks a writ of certiorari from an order of the circuit
court denying his application for post-conviction relief (PCR) but finding he was
entitled to a belated review of his direct appeal issue pursuant to White v. State,
263 S.C. 110, 208 S.E.2d 35 (1974).
Because there is sufficient evidence to support the PCR court's finding that
Petitioner did not knowingly and intelligently waive his right to a direct appeal, we
grant certiorari on Petitioner's Question 1 and proceed with a review of the direct
appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986). We
deny certiorari on Petitioner's Question 2.
On appeal, Petitioner argues the trial court erred by denying his request for a
mistrial following his objection to the State's closing arguments because the
comments (1) went beyond the facts and reasonable inferences from the facts, (2)
implied defense counsel was making up facts, (3) impermissibly shifted the burden
to Petitioner, and (4) improperly appealed to the jury's passions. We affirm
pursuant to Rule 220(b), SCACR.
We hold this issue is not preserved for appellate review because Petitioner did not
contemporaneously object to the State's arguments and only raised the issue after
the State finished and the jury recessed for a break. See Webb v. CSX Transp.,
Inc., 364 S.C. 639, 657, 615 S.E.2d 440, 450 (2005) (holding a contemporaneous
objection is required to preserve issues for appellate review); State v. Black, 319
S.C. 515, 521, 462 S.E.2d 311, 315 (Ct. App. 1995) ("The proper course to be
pursued when counsel makes an improper argument is for opposing counsel to
immediately object and to have a record made of the statements or language
complained of and to ask the court for a distinct ruling thereon."). Furthermore,
the State's comments did not constitute the abuse of a party or witness. See In re
McCracken, 346 S.C. 87, 93, 551 S.E.2d 235, 238-39 (2001) ("The failure to make
a contemporaneous objection can be excused only when the challenged argument
constitutes abuse of a party or witness."); State v. Bennett, 369 S.C. 219, 231, 632
S.E.2d 281, 288 (2006) ("Under certain circumstances, this [c]ourt will grant a new
trial despite the aggrieved party's failure to contemporaneously object to the
argument if the prejudice caused by the argument is clear."); id. ("The arguments
must be viewed in the context of the entire record, and the relevant question is
whether the comments infected the trial with unfairness so as to make the resulting
conviction a denial of due process.").
AFFIRMED. 1
WILLIAMS, C.J., and KONDUROS and GEATHERS, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.