State v. BlackState v. Black
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Frank H. Black appeals a circuit court order affirming his magistrate court conviction
On May 25, 1993, Black was stopped by State Trooper J.S. Gilstrap of the South Carolina Highway Patrol while travel-ling north on Interstate 77 in York County. He was issued a traffic ticket charging him with violating
Prior to trial, Black’s attorney made a motion to set aside the entire jury panel on the ground that the panel was chosen in violation of
At trial, Trooper Gilstrap acted as the prosecuting authority. He was also the State’s only witness. Black was the only witness to testify on his behalf. After Trooper Gilstrap’s closing argument to the jury, Black’s attorney made a motion for a mistrial on the ground of presecutorial misconduct in that the trooper “testified” to matters in his jury summation that were not a part of the record. The motion for mistrial was denied by the magistrate. After deliberations, the jury found Black guilty and he was fined $270. Black’s attorney then moved for a new trial on the basis of his prior motion for a mistrial as well as on the Court’s denial of his pretrial motion to set aside the entire jury panel. This motion was also denied.
Black then appealed to the circuit court. In denying the appeal, the circuit court concluded the jury was not chosen in violation of South Carolina law and the statements made by the trooper did not constitute prosecutorial misconduct or affect the outcome of the case.
I.
On appeal, Black first contends the disparity between the methods for choosing magistrate court juries and circuit court juries is violative of both the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article I, Section 3 of the South Carolina Constitution as well as the Due Process Clause of the Fifth Amendment of the United States Constitution and Arti ele I, Section 3 of the South Carolina Constitution. 2 In support of this contention Black maintains that the classification system whereby individuals whose cases fall within the purview of magistrate’s court jurisdiction have a different jury pool than those individuals whose cases are heard in circuit court is purely arbitrary and void of legislative purpose. We disagree.
The jury list in this case was prepared by using the voter registration list from the Fort Mill Township pursuant to South Carolina Code Ann. § 22-2-50 (1989). This Code Section states in pertinent part:
The State Election Commission shall annually provide the chief magistrate for administration of each county, at no cost, a precinct-by-precinct list of qualified electors residing within the county. The chief magistrate for administration of the county shall use such list in preparing, for each Jury Area, a list of the qualifiedelectors therein and shall forward these lists to their respective magistrates.
The list of eligible jurors which the State Election Commission furnishes the chief magistrates should not include the names of persons holding state driver’s licenses or identification cards who are not also registered voters; to be eligible to serve as a juror in a magistrate’s court pursuant to Section 22-2-50 of the Code, an individual must be a registered voter.
Id. at 377.
All rules of statutory construction must yield to the principle that courts should endeavor to ascertain the real intention of the Legislature. Horn v. Davis Elec. Constructors, Inc., 307 S.C. 559, 416 S.E. (2d) 634 (1992). In construing statutory language, the statute must be read as a whole and sections which are part of the same general statutory law must be construed together and each given effect, if it can be done by any reasonable construction. Higgins v. State, 307 S.C. 446, 415 S.E. (2d) 799 (1992); see also The Lite House, Inc. v. J.C. Roy Co., Inc., 309 S.C. 50, 419 S.E. (2d) 817 (Ct. App. 1992) (statutes pertaining to the same subject matter must be harmonized if at all possible).
Black nevertheless contends that § 22-2-50, as it now stands, is unconstitutional because it allows magistrate courts of this state to systematically exclude an identifiable class of persons from jury service, i.e., those persons who hold state driver’s licenses or identification cards but are not also registered voters.
To satisfy the essential requirements of equal protection, a legislative classification must: (1) bear some reasonable relation to the legislative purpose; (2) the members of the class must be treated alike under similar circumstances and conditions; and (3) the classification must rest on some reasonable basis. Samson v. Greenville Hospital System, 295 S.C. 359, 368 S.E. (2d) 665 (1988); State ex rel Medlock v. S.C. Family Farm Dev. Auth., 279 S.C. 316, 306 S.E. (2d) 605 (1983).
After a complete review of the record, we find that § 22-2-50 satisifies the criteria outlined above and is not violative of equal protection. In reaching this conclusion, we rely on the reasoning of the memorandum of the South Carolina Court Administration dated May 5,1992 which was submitted as part of the Return by the magistrate and adopted by reference by the circuit court judge. In pertinent part, it states:
Selecting jurors solely from the list of registered voters does not systematically exclude an identifiable class of persons from the group from which juries are drawn such that it would constitute an equal protection violation. Franklin v. South Carolina, 218 U.S. 161, 30 S.Ct. 640, 54 L.Ed 980 (1910); Moorer v. State, 244 S.C. 102, 135 S.E. (2d) 713, cert. denied, 379 U.S. 860, 85 S.Ct. 119, 13 L.Ed. (2d) 63 (1964). ... A legislative classification will satisfy equal protection if the classification bears some reasonable relation to the legislative purpose; the members of the class are treated alike under similar circumstances and conditions; and the classification rests on some reasonable basis. Brown v. The County of Horry, Op. No. 23633 [308 S.C. 180, 417 S.E. (2d) 565] (S.C. Sup. Ct. filed April 13 1992);Samson v. Greenville Hospital System, 295 S.C. 359, 368 S.E. (2d) 665 (1988).
There is a rational basis for the distinction made between jury lists in circuit and probate courts and jury lists in magistrate’s and municipal courts. The jurors in magistrate’s court must be residents of the precinct in which the magistrate sits.
II.
Black next contends the trial judge erred in not granting his motion for a mistrial on the grounds of prosecutorial misconduct. The alleged prosecutorial misconduct involves Trooper Gilstrap’s summation to the jury. During closing argument, Trooper Gilstrap stated he was driving an unmarked car. However, during the trial, he did not testify as to the type of car he was driving. Black asserts this portion of the closing argument constitutes testimony as to a matter that was not a part of the record, and by making this comment in closing argument Instead of while he was on the witness stand, Gilstrap denied Black his right to cross-examine him. Accordingly, Black argues, this comment was highly prejudicial and amounted to prosecutorial misconduct.
We first note that Black did not properly object and ask for a mistrial during Trooper Gilstrap’s closing argument. Although he interrupted Trooper Gilstrap’s argument by saying, “[y]our Honor, I am going to object and ask for a mistrial in this matter. .. . [Trooper Gilstrap] can finish but I will ex-pain to the court later on if you want me to,” he did not give a ground for his objection and motion for a mistrial at that time. Instead, he waited until after the charge and after the jury had retired to deliberate before stating the basis for his objection and motion for a mistrial.
It Is a fundamental principle that a contemporaneous objection is required at trial to properly preserve an error for appellate review. State v. Hoffman, 312 S.C. 386, 440 S.E. (2d) 869 (1994); see also White v. Wilbanks, 298 S.C. 225, 379 S.E. (2d) 298 (Ct. App. 1989). 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. Varnadore v. Nationwide Mut. Ins. Co., 289 S.C. 155, 345 S.E. (2d) 711 (1986). Failure to object when the evidence is offered constitutes a waiver of right to object. Cogdill v. Watson, 289 S.C. 531, 347 S.E. (2d) 126 (Ct. App. 1986). An issue which is not properly preserved cannot be raised for the first time on appeal. Hoffman, 312 S.C. 386, 440 S.E. (2d) 869; State v. Vanderbilt, 287 S.C. 597, 340 S.E. (2d) 543 (1986). Accordingly, Black’s objection was not timely and this issue is not available for appellate review.
Even if we entertained this argument, however, Trooper Gilstrap’s alleged transgression affords no basis for reversal of Black’s conviction. In
State v. Durden,
264 S.C. 86, 212 S.E. (2d) 587 (1975), our Supreme Court held that the test for granting a new trial for alleged improper closing argument of counsel is whether the defendant was prejudiced
Affirmed.
Shaw and Connor, JJ., concur.
Notes
Because oral arguments would not aid the court in resolving the issues, we decide this case without oral argument.
Although Black claims
We note, however, that in the case of State ex rel McLeod v. Crowe, 272 S.C. 41, 249 S.E. (2d) 772 (1978) our Supreme Court concluded that Article V, Sections 1 and 23 of the South Carolina Constitution mandates jurisdiction of magistrates be uniform thoughout the State. In order to accomplish such uniformity, the court conferred countywide jurisdiction upon magistrates. Thus, while magistrates have territorial assignments, their jurisdiction is limited only by the bounds of the county lines.