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

The State,        Respondent,

v.

Edmond Stanley Adams, III,        Appellant.

Appeal From Richland County
James C. Williams, Jr., Circuit Court Judge

Unpublished Opinion No. 2005-UP-520
Submitted September 1, 2005 – Filed September 15, 2005

  

AFFIRMED  

Tara D. Shurling, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Attorney General Charles H. Richardson; and Solicitor W. Barney Giese, all of Columbia, for Respondent.

PER CURIAM: Edmond Stanley Adams, III., appeals his convictions of  Criminal Sexual Conduct in the First Degree, Armed Robbery and Kidnapping.  We affirm.[1]

FACTS

On Sunday night, August 16, 1998, Adams asked a co-worker, Victim, to give him a ride home after work from Mr. Friendly’s in exchange for a marijuana cigarette.  Victim drove Julie Myrick, another co-worker, home first because her residence was closer.  Afterwards, Victim proceeded to Adams’ house.  On the way to Adams’ house, Adams talked about his girlfriend.  Upon arriving at Adams’ home, Victim stayed in the car, while he went inside to get the marijuana cigarette.  He came back out and told Victim that his girlfriend was awake and wanted to meet her.  Victim went into his house.  Once inside, Adams pretended to have a conversation with someone in the house, and asked Victim to wait in a bedroom to meet his girlfriend.  Victim complied, and shortly thereafter Adams entered the bedroom, alone, with two belts and a knife.  At that time Adams told Victim that she was his girlfriend.

Adams hit Victim and demanded she undress.  He pushed her onto the bed and removed her pants.  He repeatedly struck her head.  When she refused to take off her bra, he put the knife to her throat and threatened her life.  Then he tied her hands behind her back with his belt and forced her to engage in oral sex, as well as vaginal and anal intercourse.  While he was raping her, Victim became ill, and had diarrhea on the sheets.  Adams allowed her to go to the bathroom to clean herself.  When she refused to come out of the bathroom, he barged in and dragged her out.  Adams tied her ankles together with another belt and demanded she tell him if she had any money and where the keys were to her car.  Adams informed Victim that he was going outside to move her car, and if she was not in the exact same position when he returned, he would kill her.  While Adams was gone, she untied the belts and pushed out a window screen.  She jumped out the window, using a curtain to cover herself.  Victim ran down the street screaming and looking for help, but no one heard her.  Eventually, Adams tackled her into a ditch full of water.  He strangled her and held her head down in the ditch, choking her until she passed out.  She woke up screaming, so Adams forced her head into the ditch again and she lost consciousness a second time.  When she awakened, Adams made her drive around for a while.  Later, he made her lie down in the backseat while he drove back to his house.  Adams demanded she shower, and he raped her again. 

Victim’s mother and boyfriend were concerned when Victim did not arrive home as expected that evening.  After she had been missing for a few hours, they called the owner of Mr. Friendly’s, Mr. Krsitian Niemi, and he subsequently called the police.  Niemi informed the police that Victim had offered to drive Myreck and Adams home after work.

As Adams was raping her again, the police knocked at his door.  He answered the door, dressed only in a towel, and the police asked him if Victim was at his house.  She dressed while the officers were questioning him about her whereabouts.  Adams instructed her to tell the officers that “everything was fine.”  She whispered to one of the officers that “Something has happened.”  Officer William Meyer noted that Victim’s voice was not normal.  Finally able to escape, Victim left Adams’ house and drove home. 

Once she arrived at her mother’s house, she told her mother what had transpired, and her mother called the police and EMS.  Victim told law enforcement that it was Adams who had raped her, held her hostage, assaulted her and stolen money from her.  She was taken to the emergency room where her physical injuries were documented, and a rape protocol kit was performed by Dr. Alexis Klock.  She sustained bruising and redness on her neck, bruising and redness to her eye, imprints of finger marks around her neck, scratch marks on her breast, abdomen and stomach, and brush burn marks and abrasions on both knees and thighs.  Dr. Klock’s examination of Victim revealed the presence of blood and fecal matter on Victim.  No spermatozoa was detected, but Dr. Klock indicated that sperm is not always found.  Victim was found to have experienced trauma consistent with vaginal and anal rape.  Victim continued to have difficulty with her eye after the incident.  Several days later, she scheduled an appointment with Dr. John Hindersman, an ophthalmologist.  He diagnosed her with traumatic subconjunctival hemorrhage caused by blunt trauma, most likely a fist, to her eye.  The injury was consistent with her description of Adams’ attack.

Once Victim was at the hospital, Officer Meyer went back to the scene.  He found a bare footprint in the mud near Adams’ residence as well as a ditch full of water.  The next day, her bracelet was found in the ditch, and dirt and debris were found in her car.  A search warrant was executed for Adams’ home.

After knocking and announcing their presence at the front and side doors to no avail, the officers broke into the side door of Adams’ home.  They entered, discovered Adams hiding under the couch and arrested him.  At the house, they found dirt and debris in the bathtub, as well as long blond-brown hair in the drain.  Upon further investigation, they found a window screen that had been pushed-out onto the ground.  All of the other screens were intact in their respective windows.  The window with the missing screen had broken cobwebs, evidence of being recently opened.  Additionally, the officers found paint chips and flecks on the window sill and on the bricks below the window.  The paint had recently been chipped, because the wood where the paint was missing was lighter than wood on other areas of the house exposed to the weather.  Moreover, because of recent rain in the area, the officers knew that the window had just been pushed out because the paint chips and flecks had not yet been washed away.

Dr. Donna Schwartz-Watts, an expert in the field of forensic psychiatry, said that Victim’s reaction to the officers when they appeared at Adams’ house the night of the kidnapping and rape was normal.  Victim was desperately trying to escape and was not thinking rationally.  Dr. Schwartz-Watts averred that Victim is suffering from Post Traumatic Stress Disorder due to the incident.

Adams represented himself at trial. The trial judge appointed Mr. McCulloch as standby counsel.  The trial proceeded and the jury convicted him of all three charges, criminal sexual assault, kidnapping and armed robbery.  He was sentenced to twenty-five years for kidnapping, twenty-five years for first degree criminal sexual assault and fifteen years for armed robbery to be served consecutively.

STANDARD OF REVIEW

The appellate court may review criminal cases for errors of law only.  State v. Wilson, 345 S.C. at 5, 545 S.E.2d 827, 829 (2001), State v. Wood, 362 S.C. 520, 608 S.E.2d 435 (Ct. App. 2004), State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct. App. 2003).  Unless clearly erroneous, this court is bound by the trial court’s factual findings.  Id. at 6, 545 S.E.2d at 829.  Upon review, this court is limited to determining whether or not the trial judge abused his discretion.  Id. 

DISCUSSION

I.       Delay of Trial

Adams argued that delaying his case beyond 180 days violated the South Carolina Constitution and his right to a speedy trial.  We disagree.

The South Carolina Supreme Court affirmed the trial court that refused to quash an indictment due to the State’s failure to act upon the warrant within 90 days as provided by then Circuit Court Rule 95 because the rule was administrative rather than jurisdictional.  State v. Culbreath, 282 S.C. 38, 39, 316 S.E.2d 681, 681 (1984).  The court explained:

Rule 95 is an administrative rule adopted for the purpose of insuring an orderly and prompt disposition of cases in the Circuit Court. While the rule is designed to secure a prompt handling of cases, it was not intended to be the criterion for determining whether the constitutional guaranty of a speedy trial has been met.  Therefore, the failure of the solicitor to act upon a warrant within ninety (90) days, as required by Rule 95, does not within itself invalidate a warrant or prevent subsequent prosecution.

Id. at 39-40, 316 S.E.2d at 681. Circuit Court Rule 95, the predecessor to Rule 3, was crafted to insure an orderly and prompt disposition of cases in the Circuit Court.  Id.  Although the rule was created to insure the prompt handling of cases, the rule was not designed to be a constitutional guaranty of a speedy trial.  Id.  Adams has no right to a trial within 180 days. 

Since there is no guarantee to a speedy trial and only a promise of efficiency, Adams must prove that he was prejudiced by the delay in trial and that the State was negligent and willful in denying him a more prompt trial.  State v. Dukes, 256 S.C. 218, 182 S.E.2d 286 at 288 (1971).  This appellate court must carefully consider the length of delay, reason for delay, defendant’s assertion of a right to a speedy trial and any prejudice to the defendant caused by the delay.  Barker v. Wingo, 407 U.S. 514 (1972).  The appellant was held for twenty-one months without a trial.  However, since his arrest, the appellant has been appointed six attorneys and has released six attorneys.  On the eve of a scheduled date for trial, one of the experts for the state suffered a heart attack.  Another time, the trial was delayed to wait for a psychiatric report on Adams to make certain he was competent to stand trial.  Moreover, before the jury was struck in this case, Adams made a motion for a continuance claiming that he had not been able to put forth a meaningful defense.  Adams failed to show that the state acted willfully and negligently or that he was prejudiced.  The trial judge correctly ruled that there was no prejudice caused by the delay in Adams’ trial.

II.       Indictments—Filing

Adams asserts that the indictments were not properly filed with the Clerk of Court, in violation of Rule 3 of SCRCrimP rendering the Circuit Court without jurisdiction to hear his case.  We disagree.

This argument is without merit.  All three indictments were properly filed with the clerk of court’s office as is evidenced on the face of the documents.

III.     Sufficiency of the Indictment

Adams argues that the Circuit Court lacked subject matter jurisdiction because the kidnapping indictment did not sufficiently notify him of what he had to meet at trial.  We disagree.

Cases combining the concept of the sufficiency of an indictment with the concept of subject matter jurisdiction were overruled by State v. Gentry, 363 S.C. 93, 105, 610 S.E.2d 494, 501 (2005).  “The indictment is the charge of the state against the defendant, the pleading by which he is informed of the fact, and the nature and scope of the accusation.”  Id. at 102, 610 S.E.2d at 499.  The Gentry court explained:

The indictment is a notice document. A challenge to the indictment on the ground of insufficiency must be made before the jury is sworn as provided by § 17-19-90. If the objection is timely made, the circuit court should judge the sufficiency of the indictment by determining whether (1) the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon; and (2) whether it apprises the defendant of the elements of the offense that is intended to be charged.  In determining whether an indictment meets the sufficiency standard, the court must look at the indictment with a practical eye in view of all the surrounding circumstances.  Further, whether the indictment could be more definite or certain is irrelevant.


Id. at 102-03, 610 S.E.2d at 500 (internal citations omitted).  

Upon viewing the indictment with a practical eye, the indictment must provide Adams and the court with sufficient certainty of the crime committed.  State v. Reddick, 348 S.C.631, 560 S.E.2d 441 (Ct. App. 2002).  “An indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, the defendant to know what he is called upon to answer, and if an acquittal or a conviction thereon may be pleaded as a bar to any subsequent prosecution.”  State v. Towery, 300 S.C. 86, 386 S.E.2d 462 (1989).   

The indictment stated, “That Edmond Stanley Adams III, did in Richland County on or about August 17th,1998, unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any person to wit Victim by any means whatsoever without an authority of law”.  The indictment was clear upon its face.  When Adams received this indictment he was made aware that he was being charged for his illegal confinement of Victim on August 17, 1998.  As required, the indictment contained the necessary elements of the offense charged and adequately informed Adams as to what he had to meet at trial.  There was no challenge to the indictment prior to the jury being sworn, and the indictment meets the practical eye requirement.  Viewing the indictment with a practical eye pursuant to § 17-19-90 and the Supreme Court’s holding in Gentry, we find that the trial court did not err in finding the indictment sufficient.

IV.      Post-Trial Motions

Adams states that he should have received a written order granting or denying his post-trial motion(s).  We disagree.

Adams is relying on Rule 29 SCRCrimP regarding this issue on appeal.  However, this issue is without merit. Rule 29 SCRCrimP states:

“The time for appeal for all parties shall be stayed by a timely post trial motion and shall run from the receipt of written notice of entry of the order granting or denying such motion.”

All of Adams post-trial motions were denied after a hearing, and Rule 29 does not require a separate written order.  Such a requirement would be unduly burdensome on the courts.  We observe that Adams was the party who filed the intent to appeal which transferred jurisdiction to this court.  The trial court did not err by omitting written post-trial orders.

V.      Search Warrant

Adams claims that he was not properly served with a search warrant and thus the evidence found in his house should have been suppressed.  We disagree.

The appellate court is bound by the trial court’s factual findings, including preliminary factual findings in determining the admissibility of certain evidence in criminal cases, unless they are clearly erroneous.  State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001).  The trial court held a pre-trial hearing on the validity of the search warrant, and found the search warrant to be valid.  Adams argued before, during and after trial that he was not served with a copy of the search warrant.  This is in direct opposition to the pre-trial hearing testimony of Officer Thomas Thomas who stated that he read the search warrant to Adams.  Officer Thomas left the search warrant on the kitchen table at Adams’ home while Adams was being transported to Richland County Detention Center.  We conclude that the search warrant was properly executed and that the trial court did not err by refusing to suppress evidence.    

This issue may not be preserved for review because Adams did not object to the admission of the photographs of his home based on the service of the search warrant.  See State v. Tucker, 319 S.C. 425, 428, 462 S.E.2d 263, 265 (1995) (mentioning a party cannot argue one ground below and then argue another ground on appeal).  However, if preserved, the issue is without merit.

VI.      Batson Issue

Adams asserts that his rights were violated when the judge sat five of the jurors he struck.  We disagree.

 The Equal Protection Clause does not allow the State “to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.”  Batson v. Kentucky, 476 U.S. 79, 89 (1986).  Likewise, the Equal Protection Clause prohibits a criminal defendant from engaging in purposeful discrimination on grounds of race in the exercise of peremptory challenges.  See generally Georgia v. McCollum, 505 U.S. 42 (1992).  Before the jury was chosen, the judge explained to the state and to Adams that if a juror was struck solely because of race or gender, that juror would automatically be seated.  Both the state and Adams stated that they understood the judge’s instructions.  After the state made the Batson motion, Adams gave race neutral reasons for only five of his ten strikes.  By Adams own admission, five of the strikes were based purely on discriminatory reasons.  State v. Ford, 334 S.C. 59, 512 S.E.2d 500 (1999).  State v. Smalls, 336 S.C. 301, 519 S.E.2d 793 (Ct. App. 1999).

Furthermore, Adams did not object when the subsequent jurors were sat.  Adams is therefore precluded from raising an issue on appeal that he failed to object to during the procedure.  State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (Ct. App. 1996).  He is estopped from raising this issue because he failed to object contemporaneously and on a specified ground.  No issue may be raised for the first time on appeal, instead it must have been raised at trial in order to preserve the issue for appeal.  State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997).  The trial judge correctly sat the jurors in question.

VII.     Juror #126

Adams argues that Juror #126 should have been removed.  We disagree.

After the trial began, Juror #126 made it known to the court and to counsel that he did know one of the potential witnesses in the case.  When asked originally if he knew an April Weber, the Juror responded in the negative.  His reason for such is that he did not know her by her last name.  The potential witness, who was not called to testify in the trial, worked as a switchboard operator at the place where the Juror was employed.  The Juror was employed at that business for twenty years, whereas the potential witness had only worked there for a year.   

The question of the impartiality of the juror is addressed to the discretion of the trial Judge . . . and the scope of inquiry on Voir dire is within the sound discretion of the Circuit Judge, . . . and he has the exclusive power to determine a juror’s competency and a finding on such is not reviewable except for error of law . . . If the question of the indifference of a juror is a mere question of fact, it is not reviewable upon appeal unless the conclusion of the trial Judge is wholly unsupported by the evidence . . . If there is evidence, however, tending to support the finding of the juror’s competency, there is no error of law.

State v. Johnson, 248 S.C. 153, 163-64, 149 S.E.2d 348, 353 (1966) (internal citations omitted).  The trial judge asked the Juror whether or not his knowledge of the potential witness would affect his ability to be a fair and impartial juror.  The Juror answered in the negative, and stated that he would not have any difficulty being fair or impartial.  By asking the juror if he would be prejudiced towards Adams’ and upon hearing that no such prejudice would occur, the trial judge properly sat the juror pursuant to his discretion and in accordance with Johnson. 

Adams neglected to raise the issue of juror #126 at trial.  Therefore it is not preserved for appellate review.  Hurd, 325 S.C. 384, 480 S.E.2d 94; Nichols, 325 S.C. 111, 481 S.E.2d 118.  The trial court did not err in allowing Juror #126 to sit on the jury panel.

VIII.    Juror Impartiality

Adams questions the impartiality of the jury on appeal.  Post-trial, he informed the trial judge that he had sued the South Carolina Department of Mental Health and that several of the jurors were employed by the Department of Mental Health.  However, Adams heard the places of employment of all the jurors when they were polled prior to trial.  Moreover, the jurors who worked for the Department of Mental Health were struck and did not serve on the jury.  This argument is without merit.

Adams states that there were “major conflicts” with the other jurors.  However, he has failed to identify what these “major conflicts” are.  Additionally, he did not object at trial; therefore, there is no issue preserved for appeal.  State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991).

IX.      Closing Argument

Adams appeals on the grounds that the solicitor’s comments in her closing argument were improper and that she showed inappropriate pictures. Adams’ argues that he should be granted a mistrial based on the comments regarding the Weber incident.  We disagree

Not every improper argument requires reversal as long as it is not prejudicial to the defendant.  State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999).  The trial judge is given considerable discretion in considering the scope and appropriateness of the closing argument of the solicitor.  State v. Durden, 264 S.C. 86, 212 S.E.2d 587 (1975).  The control of arguments is usually within the sound discretion of the trial judge, and that discretion will not be questioned unless there is evidence of clear abuse.  State v. Stroman, 281 S.C. 508, 514, 316 S.E.2d 395 (1984).  The trial judge did not err by not declaring a mistrial. 

The Solicitor must stay within the record and its reasonable inferences.  State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981).  The judge warned Adams of “opening the door” to the Weber incident.  However, on cross-examination of Officer Thomas, Adams insisted upon asking Officer Thomas about the Weber case.  The court then gave the state permission to question Officer Thomas regarding Weber, because Adams had “opened the door”.  Selective testimony about Weber was heard during trial.

Curative instruction to disregard incompetent evidence and not to consider it during deliberation is deemed to have cured any alleged error in its admission.  State v. Kesley, 331 S.C. 50, 502 S.E.2d 63 (1998).  During the closing argument, the state presented:  “And we were limited to how much we could get into it, but is before you now, ladies and gentlemen, as we know that on July the 4th, 1997, another young girl accused this man of the same thing.  Criminal sexual conduct in the first degree and kidnapping.”  Adams objected, arguing he was not charged with criminal sexual conduct in the first degree.  The State explained he was charged with such, and the trial court said, “[T]he jury will remember what evidence has been introduced and you will make your decision based on those elements and not what either one of these lawyers tell you.”  The State was allowed to proceed.  The solicitor referencing Adams’ house said, “[h]is house where he brutally raped and kidnapped another young woman.”  Adams objected again.  The trial court agreed the reference was improper, and reminded the jury of his previous limiting instruction making it clear that he would again give a limiting instruction in the jury charge.  

Assuming error by the Solicitor, the trial court ruled with Adams and gave a curative instruction.  Such an instruction is deemed to have cured the alleged error.  In light of the entire record, the instruction adequately cured any improper arguments.  The record reveals overwhelming evidence of Adams’ guilt.  Furthermore, because Adams fails to demonstrate both error and prejudice, the trial court did not abuse its discretion in denying the motion for mistrial.

 Adams argues that the State showed pictures of Weber during the closing argument that were not introduced into evidence.  Upon examination of the record based on the cite that Adams provided, there were no pictures introduced in the closing argument. 

We conclude that any error was harmless.  “Whether an error is harmless depends on the circumstances of the particular case.  No definite rule of law governs this finding; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case.”  State v. Mitchell, 286 S.C. 572, 573 336 S.E.2d 150, 151 (1985).  Abundant evidence in the record points to Adams’ guilt, and, thus, any defects in the State’s closing argument would not have affected the outcome of the trial.  Id. (“Error is harmless when it ‘could not reasonably have affected the result of the trial.’”) (quoting State v. Key, 256 S.C. 90, 93-94, 180 S.E.2d 888, 890 (1971)).

CONCLUSION

Accordingly, Adams’ convictions and sentences are

AFFIRMED.

ANDERSON, HUFF and WILLIAMS, JJ., concur    

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