THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
Maurice Ward, Appellant.
Appeal From Horry County
Steven H. John, Circuit Court Judge
Unpublished Opinion No. 2003-UP-736
Submitted October 6, 2003 – Filed December 16, 2003
Chief Attorney Daniel T. Stacey, 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(s).
BEATTY, J.: Maurice Ward appeals from his conviction for second-degree burglary and possession of a stolen automobile. He appeals the trial court’s denial of his motion for mistrial as the result of the solicitor’s closing argument. Additionally, he appeals the admission of alleged hearsay testimony. We affirm.
William Anderson, a Havoline Fast Lube manager, responded to an alarm notice from the shop’s security system in the early morning hours of July 8, 2001. Arriving at the shop, Anderson observed an unfamiliar Dodge pickup truck in the parking lot. Anderson also noticed a broken window in the back door; heard the sound of glass breaking from inside the store; and witnessed a black male standing inside.
The man was approximately five foot ten inches tall and wore dark pants with a multi-colored shirt. Anderson contacted the police. The black male exited the shop and disappeared into bushes near a grocery store.
Upon arriving at the scene, the responding police officer consulted with Anderson and inspected the Dodge truck. The officer then walked towards the grocery store in the direction Anderson saw the suspect flee. While walking toward the vegetation, the officer observed an individual matching the suspect’s description “laying down . . . attempting not to be seen.” Anderson heard the officer order the individual to “put his hands up.” Anderson later testified the same individual he earlier saw in the store then ran across the road.
The officer captured the individual, identified as Ward, arrested and Mirandized him. The officer testified Ward admitted to breaking into the store to obtain money for drugs. Ward also stated, according to the police officer, that he borrowed the car from someone in Myrtle Beach.
Ward did not testify at trial nor did he put up a defense beyond cross-examining the State’s witnesses.
During closing the Solicitor stated to the jury:
Now during the course of her cross-examinition [the defense attorney] started talking about some stuff. She started asking about Police Officer Holt and she must have said Police Officer Holt’s name six or seven times and he’s not here. Well, although the Defendant has no requirement – and I’m not suggesting otherwise to put up any proof – certainly they can call witnesses the same as State. They have the same powers we do.
The defense objected, stating “[c]learly we have no burden to call any people . . . ” The judge sustained the objection and assured Ward that he would “properly instruct the jury as to the law.”
The court, in its jury charge, referenced Ward’s constitutional right to remain silent. It did not, however, advise the jury that Ward was not obligated to call witnesses. Following the judge’s instructions to the jury, Ward’s counsel moved for a mistrial stating that the solicitor, during closing remarks, improperly shifted the burden of proof to the defendant. The court denied Ward’s motion for mistrial stating he had given proper instructions to the jury and that he had properly counseled the solicitor about the comments.
The jury found Ward guilty of 2nd degree burglary. Ward appeals.
1. Did the court err in denying Ward’s motion for mistrial and failing to issue adequate curative instructions regarding the state’s closing argument?
2. Did the trial court err in permitting hearsay, which bolstered the victim’s identification of Ward?
“The decision to grant or deny a motion for a mistrial is within the sound discretion of the trial judge and will not be overturned on appeal absent an abuse of discretion amounting to an error of law.” State v. Patterson, 337 S.C. 215, 226, 522 S.E.2d 845, 851 (Ct.App. 1999). “A mistrial should only be granted in cases of manifest necessity and with the greatest caution for very plain and obvious reasons.” Id. at 227, 522 S.E.2d at 851. The moving party has the burden to show not only error, but resulting prejudice. Id.
A. Solicitor’s Closing Comments
I. Issue Preservation
The State argues the issue of the propriety of the solicitor’s comments is not preserved for review because Ward failed to make a contemporaneous motion for a mistrial. We disagree.
Ward argues the trial court erred by failing to grant a mistrial or issue a curative instruction specifically tailored to the solicitor’s comment. Additionally, Ward argues the trial court’s failure to do so prejudiced him by impermissibly shifting the burden of proof. The State disagrees and initially attacks Ward’s position by arguing the issue is not preserved for appellate review.
It is clear from the record that defense counsel objected at the time of the solicitor’s comments. The court sustained the objection, counseled the solicitor not to make any comments on impermissible subjects, and assured defense counsel that he would later properly instruct the jury.
After charging the jury on Ward’s right not to testify, defense counsel noted the court failed to instruct the jury that Ward was not obligated to call witnesses on his behalf. Counsel then moved for a mistrial noting the burden shifting aspect of the solicitor’s comments. The court denied the motion.
Since “a trial court's curative instruction is considered to cure any error regarding improper testimony, a party must contemporaneously object to a curative instruction as insufficient or move for a mistrial to preserve an issue for review.” Patterson, 337 S.C. at 226, 522 S.E.2d at 850. Counsel’s motion for a mistrial following the court’s charging of the jury preserved the issue of solicitor’s comments for our review.
II. Mistrial Motion
Ward argues the trial judge should have granted a mistrial as the solicitor’s closing argument shifted the burden of proof to Ward. The State does not assert the solicitor’s comments were permissible.  Instead, the State argues the trial court properly denied Ward’s motion for a mistrial because the comments were not prejudicial. We agree.
The determination of whether an error is harmless depends on the circumstances of the particular case. State v. Reeves, 301 S.C. 191, 193, 391 S.E.2d 241, 243 (1990). 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).
“[W]here a review of the entire record establishes the error is harmless beyond a reasonable doubt, the conviction should not be reversed.” State v. Pickens, 320 S.C. 528, 531, 466 S.E.2d 364, 366 (1996). An appellate court may consider a variety of factors to determine whether a solicitor’s reference to a defendant’s failure to call witnesses on his behalf is harmless. These factors include: 1) whether the reference was one which was not later repeated or alluded to; 2) whether the solicitor tied the defendant’s silence directly to his exculpatory story; 3) whether defendant’s exculpatory story was totally implausible; and 4) whether there was overwhelming evidence of defendant’s guilt. Id.
Here, the solicitor’s reference was singular in nature and was neither repeated nor alluded to during the trial. Neither was the solicitor’s comments tied directly to Ward’s exculpatory story. The solicitor’s remarks related to defense counsel’s cross-examination questions dealing with the State’s failure to call witnesses to link Ward to the crime such as forensic or crime scene experts.
Ward’s theory of the case was that his confession was not voluntary and that he was simply in the wrong place at the wrong time. Ward attempted to bolster this defense by questioning the State’s failure to call witnesses to corroborate Anderson’s eyewitness description with forensic evidence, such as fingerprints, to place him inside of the store.
We find harmless error based on State v. Primus and State v. Pickens, supra. In Primus, our state Supreme Court did not conduct a review applying each specific Pickens factor to determine whether any error was harmless. Instead, the Court focused exclusively on whether there was overwhelming evidence of guilt.
As in Primus, this case hinged on the identity of the perpetrator and whether the accused could be linked directly to the crime. Although the State did not present any physical evidence placing Ward in the store, we believe there was an overwhelming amount of evidence with which to convict him.
Ward fit the general description of the man Anderson saw inside of the store. When Anderson saw a man fleeing from the police who matched that description, Anderson testified he had no doubt it was the same man he saw inside the store. That man was Ward.
Importantly Ward confessed to the crime. Although the defense attempted to discredit that confession as involuntary there is nothing in the record to conclude the confession was not voluntary.
Ward’s attempt to discredit the confession relies almost exclusively on the argument that the officer’s testimony concerning the confession should not be trusted because it was not audio or videotaped. Neither failure, we believe, undermines the trustworthiness of the confession. Further, whether the officer’s testimony concerning the confession was trustworthy is a jury question.
“The granting of the motion for a mistrial is an extreme measure which should be taken only where an incident is so grievous that prejudicial effect can be removed in no other way.” Patterson, 337 S.C. at 227, 522 at 851. After considering Pickens and Primus we find no prejudice to Ward. Therefore, the trial court did not err in denying the mistrial motion.
During the solicitor’s questioning of Officer Parker, the following
testimony was elicited:
Q: Now do you recall Mr. Anderson making an indication relative to your arrest of the defendant?
A: Yes. As we walked him back to the vehicle from the cut down area Officer Olsen was in closer proximity and had relayed tome that Mr. Anderson positively identified him.
Ward’s Attorney: Objection, hearsay.
Court: Yes, ma’am. Solicitor, please rephrase your question, please.
Solicitor (continuing) Q: To your knowledge was an identification made by Mr. Anderson relative to the person you had arrested?
Ward’s Attorney: Objection.
Court: Ma’am, grounds?
Ward’s Attorney: Hearsay.
Court: I’ll allow it, thank you.
Ward argues that the court erred in permitting Officer Parker’s
testimony as it amounts to bolstering hearsay. We disagree.
“Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. Johnson, 324 S.C. 38, 42, 476 S.E.2d 681, 682-683 (1996); Rule 801(c), SCRE. “Evidence is not hearsay unless it is an out of court statement offered to prove the truth of the matter asserted.” State v. Kirby, 325 S.C. 390, 394, 481 S.E.2d 150, 152 (Ct.App. 1996).
The question posed to Officer Parker was not objectionable hearsay under our rules of evidence. The officer answered, based on his own personal knowledge, whether he knew Mr. Anderson had made an identification relative to the person arrested. Trial counsel did not query Mr. Anderson as to the source of his information. Anderson’s testimony was not hearsay as it was not an out of court statement, other than one made by the declarant, offered to prove the truth of any matter asserted. Further, even if the testimony was hearsay and its admission error, the error was clearly harmless as Ward admitted to the arresting officer that he committed the crime for which he was charged.
For the foregoing reasons, the ruling of the trial court is
GOOLSBY and HUFF, JJ., concur.
 “[W]hen the accused neither testifies nor offers any witnesses, it is error for the solicitor to comment upon the defendant's failure to call witnesses on his behalf.” State v. Primus, 349 S.C. 576, 584, 564 S.E.2d 103, 107 (2002).