State v. Smith

GOOLSBY, J.

(dissenting):

I would reverse the order granting Smith a new trial and for that reason I respectfully dissent.

John Doe, Smith’s son, testified that Smith abused him when Doe was six or seven years old during visits to Smith’s home. During Doe’s testimony, several people in the courtroom observed Doe’s aunt, Cynthia, mouthing words and shaking her head up and down and side to side, seemingly in response to the questions Doe was asked.

*411After Doe finished testifying, Smith made a motion for the trial court to remove Cynthia from the courtroom before Richard Roe, Doe’s brother, testified. Smith alleged, based on information from other individuals in the courtroom, inappropriate “motions and mouth movement and things going back and forth” between Cynthia and Doe occurred during Doe’s testimony.

Cynthia left the courtroom voluntarily. Smith did not use this opportunity to advance any further arguments on the coaching issue or move for a mistrial. Smith received the relief he sought in the motion; the removal of Cynthia from the courtroom.4 As a result, Smith’s motion to remove Cynthia from the courtroom did not preserve the coaching issue for further review.

Roe, who was fifteen at the time of trial, testified in an in camera Lyle5 hearing that he suffered similar abuse from Smith. Following Roe’s testimony, Smith moved for a mistrial on the ground that Cynthia coached Doe during Doe’s testimony.6 One of Smith’s attorneys explained to the trial court:

I believe I saw [Doe] looking in the direction of his aunt to seek an answer. It was not until I finished with his questioning that I sat down that I was informed by co[-]counsel and other members of the court, all in the courtroom, that that, in fact, was the magnitude of what was taking place.

Smith waited until after Roe finished testifying before requesting a mistrial.

The trial court ruled that Smith waived the issue because his attorneys knew of Cynthia’s conduct during Doe’s testimony but did not request a mistrial or immediately raise the issue and allow the court the chance to take appropriate *412action.7 Smith renewed his motion for a mistrial at the conclusion of the State’s case and again at the close of evidence. The trial court denied the motions.

After his conviction and sentencing, Smith moved for a new trial. Smith presented testimony from court officials who witnessed Cynthia’s alleged coaching of Doe. One of the witnesses, Stephanie Smart, testified that she observed Cynthia attempting to coach Doe during his testimony and brought it to the attention of one of Smith’s attorneys during Doe’s testimony. As pointed out earlier, Smith did not request a mistrial until after Roe’s testimony, even despite being informed of Cynthia’s misconduct during Doe’s testimony.

The trial court granted Smith’s motion for a new trial. In doing so, the trial court made the following findings of fact: 1) Cynthia used body language and other non-verbal signals in an attempt to communicate with Doe; 2) this communication may have overridden Doe’s free will; and 3) this behavior and the potential for corruption of Doe’s testimony denied Smith his right to a fair trial.

Having ruled that Smith waived the coaching issue during trial and absent a contemporaneous objection by Smith’s counsel, I believe the trial court erred by granting Smith’s motion for a new trial on the same issue.8 I would reverse the order granting Smith a new trial and reinstate his sentence.

. See Bowman v. Bowman, 357 S.C. 146, 160, 591 S.E.2d 654, 661 (Ct.App.2004) (citations omitted) (''[A] party cannot complain when it receives the relief for which it has asked.”).

. State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).

. See State v. Lynn, 277 S.C. 222, 226, 284 S.E.2d 786, 789 (1981) (“Failure to contemporaneously object to the question now advanced as prejudicial cannot be later bootstrapped by a motion for a mistrial.”).

. See State v. Sullivan, 310 S.C. 311, 314, 426 S.E.2d 766, 768 (1993) (noting that an appellant must object at his first opportunity to preserve an issue for appellate review).

. See State v. Groome, 274 S.C. 189, 192, 262 S.E.2d 31, 32 (1980) ("Failure to contemporaneously object to the questions now advanced as prejudicial cannot be later bootstrapped by a motion for a mistrial.”); McElveen v. Ferre, 299 S.C. 377, 381, 385 S.E.2d 39, 41 (Ct.App.1989) (upholding the trial court's denial of a motion for a new trial where the error was not preserved); see also Idaho v. Higgins, 122 Idaho 590, 836 P.2d 536, 550 (1992) (holding the trial court had no basis to grant a new trial where the issue was not properly preserved during the trial); Louisiana v. Marcotte, 817 So.2d 1245, 1250 (La.Ct.App.2002) (“In our opinion, a motion for new trial does not preserve or revive an issue not properly and timely raised by objection. This is true because, by the time a new-trial motion is made, the trial court has lost its best opportunity to correct the error at issue.”); Schacher v. Dunne, 109 Or.App. 607, 820 P.2d 865, 867 (1991) ("An error that is not preserved cannot properly form the basis for a motion for a new *413trial.''); Carlson Mining Co. v. Titan Coal Co., 343 Pa.Super. 364, 494 A.2d 1127 (1985) (noting a trial court may only award a new trial on questions that are preserved); 66 C.J.S. New Trial § 17 (1998) ("Although there is some authority to the contrary, generally matters not properly pleaded, or put in issue, or preserved, may not be raised on a motion for a new trial.”).