THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Corey L. Sparkman,        Appellant.

Appeal From Horry County
Steven H. John, Circuit Court Judge

Unpublished Opinion No. 2003-UP-165
Submitted January 10, 2003 – Filed February 27, 2003   

AFFIRMED

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster Chief Deputy Attorney General John W. McIntosh Assistant Deputy Attorney General Charles H. Richardson, of Columbia; John Gregory Hembree, of Conway; for Respondent.

PER CURIAM:  A jury found Corey Sparkman guilty of armed robbery, and he was sentenced to twenty years in prison.  Sparkman appeals his conviction, arguing that his motion for a mistrial should have been granted because the jury foreman failed to reveal he had been a victim of a serious crime.  We affirm.

II.  FACTS/PROCEDURAL HISTORY

Sparkman was accused of robbing the assistant manager of a Days Inn in Myrtle Beach.  He and another man supposedly demanded money from the assistant manager, and when the manager stated that he did not have the combination to the safe, the other perpetrator, not Sparkman, stabbed the manager. The manager testified that, after being stabbed, he was hit on the head by Sparkman. The manager blacked out and called the police as soon as he recovered.  He described his attackers to the police, and several days later, he picked out Sparkman’s picture from the three books of photographs the police showed him. Two days later, he looked at another photo line-up, this one having a different picture of Sparkman included, and the manager again recognized Sparkman as his attacker. The manager’s identification of Sparkman was the only evidence that linked Sparkman to the scene.  Sparkman claimed that he was with his family, mourning the loss of his stepfather, at the time of the robbery, and he presented alibi witnesses in his defense.

The jury asked the judge numerous questions during deliberations, and after six-and-a-half hours, the jurors told the judge they were deadlocked. The judge gave them an Allen [1] charge, and an hour-and-a-half later, the jury reached a guilty verdict.  Because it was late in the evening, sentencing was postponed until the next morning.  During the time between reaching a verdict and sentencing, a member of the jury contacted the public defender’s office because she was concerned the jury foreman had made his decision based on something that had happened to him in the past.  She said that during deliberations, the foreman told his fellow jurors that he had been attacked before and that he believed “once someone does something to you their face you would never forget.” 

The public defender’s office brought this information about the foreman’s potential bias to the attention of the trial judge.  The judge questioned the foreman about the matter, and the foreman stated that he remembered being asked during voir dire whether he had ever been the victim of a serious crime.  He explained that he did not respond affirmatively because he did not remember the attack until jury deliberations.  In describing the attack, the foreman said that roughly forty years ago, two strangers attacked him and his girlfriend (who later became his wife) in a park. He was hit approximately four times and lost a part of his tooth, and his girlfriend was slapped.  No one was ever arrested in the incident. The foreman stated that he did not believe the attack amounted to a serious crime.

After listening to the foreman’s description of the experience, the judge asked the foreman whether the attack prevented him from giving Sparkman a fair trial.  The foreman stated that it did not.  The judge then asked the jury members individually whether the story relayed to them by the foreman impacted their verdict, and each juror stated that the story had no effect on the verdict.  The judge also asked each juror whether the story was told before or after they were given the Allen charge, and each juror who could remember the timeline of events stated that the story was told to them before the charge. 

The defense moved for a mistrial, arguing that the defendant was prejudiced by the foreman’s failure to reveal the attack.  According to the defense attorney, if he had known of the incident, he would have used one of his peremptory strikes to excuse the juror.   The judge denied the motion, finding that the foreman’s nondisclosure was unintentional and that the defendant was not prejudiced because all of the jurors who remembered the statement swore under oath that the story had no impact on their decision.  Sparkman appeals that ruling.

III.  DISCUSSION

A defendant is entitled to a new trial when a juror conceals information inquired into during voir dire if the court finds [1] that the juror intentionally concealed the information, and [2] that the information concealed would have supported a challenge for cause or would have been a material factor in the use of the party’s peremptory challenges.  State v. Woods, 345 S.C. 583, 588, 550 S.E.2d 282, 284 (2001) (citing Thompson v. O’Rourke, 288 S.C. 13, 15, 339 S.E.2d 505, 506 (1986)).  Therefore, our first inquiry is whether the foreman intentionally concealed information during voir dire.  State v. Kelly, 331 S.C. 132, 146, 502 S.E.2d, 99, 106-107 (1998). 

To determine whether a juror intentionally conceals an answer to a voir dire question, the judge must consider whether the question was reasonably comprehensible to the average juror and whether the subject of the inquiry is so significant that it was unreasonable for the juror not to respond.  Woods. 345 S.C. at 588, 550 S.E.2d at 284.  An unintentional concealment of information occurs when the question is ambiguous or confusing to the average juror, or when the subject inquired into is so insignificant or remote in time that under the circumstances, the juror’s failure to respond is reasonable. Id.

Here, the trial judge found no evidence that the foreman intentionally concealed the attack he experienced forty years ago and denied the defense counsel’s motion for a mistrial.  Appellate courts favor the wide discretion of the trial judge in determining the merits of a mistrial motion, and the trial judge’s decision to grant or deny a motion for a mistrial will not be overturned absent an abuse of discretion.  State v. Patterson, 337 S.C. 215, 226, 522 S.E.2d 845, 851 (Ct. App. 1999);   see also  State v. Covington, 343 S.C. 157, 539 S.E.2d 67 (Ct. App. 2000) (stating that when a motion for a new trial is based upon allegations that a juror’s answers on voir dire were incomplete or misleading, the trial judge’s denial of that motion will be affirmed absent a prejudicial abuse of discretion).  In this case, the foreman testified that the attack occurred many years ago and no arrest was ever made.  Furthermore, the foreman explained that he did not recall the event until jury deliberations, and that even if he had recalled the incident during voir dire he would not have considered the attack to be a serious crime.  Based on those facts, the trial judge did not abuse his discretion when he found the foreman’s concealment unintentional.

Because the jury foreman did not intentionally conceal the information about being attacked, we need not determine whether the information would have supported a challenge for cause or would have been a material factor in the defense’s use of a peremptory challenge.  Kelly, 331 S.C. at 146, 502 S.E.2d, at 106-107.  As there was no intentional concealment, Sparkman is not entitled to a new trial. See Woods, 345 S.C. at 588, 550 S.E.2d at 284.

Accordingly, the decision of the trial judge is

AFFIRMED.

HEARN, C.J., GOOLSBY and SHULER, JJ., concur.