State v. Greer

• Court: Court of Appeals of South Carolina
• Decided: November 7, 2007
• Docket: 2007-UP-512
• Status: Unpublished

Opinion

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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The State, Respondent,

v.

Joshua Greer, Appellant.

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Appeal from Spartanburg County
Wyatt T. Saunders, Jr., Circuit Court Judge

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Unpublished Opinion No. 2007-UP-512
Submitted November 1, 2007 – Filed November 7, 2007

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AFFIRMED

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Chief Attorney Joseph L. Savitz, III, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Melody J. Brown, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

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PER CURIAM:  Joshua Greer (Greer) appeals from his convictions of murder and armed robbery.  He contends the trial court erred in excluding third-party guilt evidence.  We affirm.[1]

FACTS

In the early morning hours of August 20, 2002, Paul “Doc” Reagan (Reagan) was beaten and robbed in his home.  Eleven days later, he died from his injuries, never regaining consciousness.  After being confronted with the inconsistencies in his first statement, Greer confessed to Reagan’s murder.

In his opening statement, defense counsel maintained:  “Now, I’m sure the State is going to disagree with me with what I’m going to say but I believe there are two people who knew what happened in that house on that night and neither one of them are in this courtroom.”  The State anticipated that Greer would attempt to cast doubt on his own guilt by directing suspicion toward William Frank “Butch” Green (Green), a witness at trial.  The State moved, in limine, for the exclusion of any third-party guilt evidence Greer might proffer. 

The trial judge granted the State’s motion, stating:

The record will show that counsel for the State and the defendant came into chambers and the State has prepared a motion in limine as to third-party guilt.  That was not studied by the Court but discussed fairly extensively by all parties present.  The conclusion was that counsel for the defense will be prohibited from casting doubt upon the guilt of his client simply by pointing to third party guilt by such inferences or presumptions that may arise out of the evidence but that only cause a suspicion by conjecture or speculation that the commission of the crime was by another person.  That will not be permitted.  That has not been revealed, nothing of that nature has been revealed to the State.

It was the Court’s understanding and counsel I believe has a clear understanding that there is nothing to prevent a complete exploration of the facts as they were revealed to you and will be revealed during the testimony but your cross-examination will not attempt to point to the guilt of another but simply point out facts at [sic] they may be.

Defense counsel agreed with the court’s ruling, responding:  “Yes, sir, in order for the jury to get a full understanding of the work that was done by the police on this case.”  When the judge inquired if the defense wanted to say anything else before the jurors came in, counsel answered:  “No, sir.”

During Green’s cross-examination, Greer did not move to admit third-party guilt evidence or elicit testimony that implicated Green as the responsible party.  In closing, defense counsel reiterated Greer’s innocence, but did not cast suspicion on any other individual:

At the beginning of this case I told you that there were two people who knew what happened that night and neither one of them are in this courtroom.  When I said that I didn’t suggest, I wasn’t suggesting that I was going to point the finger at someone, merely maintaining Joshua Greer’s innocence, maintaining his innocence, that he was not the one that swung that hammer.

The jury found Greer guilty of murder and armed robbery, and the trial judge imposed consecutive sentences of thirty years for murder and twenty years for armed robbery.

DISCUSSION

Greer contends the trial court erred by excluding third-party guilt evidence.  In response, the State maintains Greer never sought to argue evidence of third-party guilt and, therefore, failed to preserve this issue for our review.  We agree with the State and decline to address the merits of Greer’s appeal.

It is well settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon first by the trial judge to be preserved for appellate review.  State v. Freiburger, 366 S.C. 125, 135, 620 S.E.2d 737, 742 (2005).  Trial counsel is responsible for preserving issues for appellate review.  State v. Passmore, 363 S.C. 568, 583, 611 S.E.2d 273, 281 (Ct. App. 2005) (citing Jackson v. Speed, 326 S.C. 289, 306, 486 S.E.2d 750, 759 (1997)).  Moreover, the objection in the trial court must have been made by the party raising the issue on appeal.  Tupper v. Dorchester County, 326 S.C. 318, 324, 487 S.E.2d 187, 190 (1997).  South Carolina appellate courts do not recognize the “plain error” rule, under which a court in certain circumstances is allowed to consider and rectify an error not raised below by the party.  Elam v. South Carolina Dep’t of Transp., 361 S.C. 9, 23-24, 602 S.E.2d 772, 779-780 (2004);

Error preservation requirements enable the trial court to rule properly after it has considered all relevant facts, law, and arguments.  Elam, 361 S.C. at 24, 602 S.E.2d at 780; Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000).  Without an initial resolution by the trial court, a reviewing court simply would not be able to evaluate whether the trial court committed error.  Staubes, 339 S.C. at 412, 529 S.E.2d at 546; Floyd v. Floyd, 365 S.C. 56, 73, 615 S.E.2d 465, 474 (Ct. App. 2005).

A motion in limine seeks a pretrial declaration obviating the disclosure of potentially prejudicial matter to the jury.  State v. Hill, 331 S.C. 94, 100-101, 501 S.E.2d 122, 125-126 (1998).  This preliminary ruling by the judge and the testimony encapsulated within that proceeding is, in essence, a temporary decision on admissibility.  State v. Floyd, 295 S.C. 518, 521, 369 S.E.2d 842, 843 (1988). 

A proffer of testimony excluded in the preliminary ruling is required to preserve the issue of whether the exclusion was proper.  State v. Simmons, 360 S.C. 33, 46, 599 S.E.2d 448, 454 (2004).  A reviewing court may not consider error alleged in the exclusion of testimony unless the record on appeal shows fairly what the rejected testimony would have been.  Greenville Memorial Auditorium v. Martin, 301 S.C. 242, 244, 391 S.E.2d 546, 547 (1990).  If it is clear from the record that prejudice exists, the issue will be preserved on appeal despite the absence of a proffer.  State v. Myers, 301 S.C. 251, 257-259, 391 S.E.2d 551, 555 (1990). 

An appellant may waive his right to appeal a decision by the trial judge through acquiescence.  State v. Jackson, 364 S.C. 329, 334-335, 613 S.E.2d 374, 376-377 (2005).  An issue is not preserved if it has been conceded in the trial court.  State v. Benton, 338 S.C. 151, 156-57, 526 S.E.2d 228, 231 (2000). 

Greer asserts for the first time on appeal that the trial court erred by excluding third-party guilt evidence.  Greer did not argue the issue of third-party guilt to the trial court, object to the trial court’s exclusion of third-party guilt evidence, or proffer evidence of third-party guilt at trial.  In fact, when the court explained the parameters of its preliminary decision, defense counsel indicated he understood and agreed with the scope of examination the court would allow.  Moreover, in his closing statement Greer clarified his earlier comment on opening, explaining he “wasn’t suggesting that [he] was going to point the finger at someone,” but was “merely maintaining Joshua Greer’s innocence.”  Consequently, there is no issue raised by the appellant for our review.

Prejudice from the exclusion of third-party guilt evidence is not apparent from this record on appeal.  On direct examination Green admitted he was a prime suspect in Reagan’s murder because of his history and his record.  Green testified he was “interviewed quite extensively by the Spartanburg Police Department over a very extended period of time.”  Ultimately, the authorities concluded he was not involved with the murder.  Without a proffer of what more Greer might offer, apart from Green’s testimony, as evidence of third-party guilt, we are unable to discern if the trial court’s ruling was prejudicial error.  

Accordingly, Greer’s issue on appeal is not preserved for our review.

AFFIRMED.

ANDERSON, SHORT and WILLIAMS, JJ., concur.

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