State v. Lounds

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA In The Court of Appeals

The State, Respondent,

v.

Anthony Lounds, Appellant.

Appellate Case No. 2011-196208

Appeal From Greenville County C. Victor Pyle, Jr., Circuit Court Judge

Unpublished Opinion No. 2013-UP-289 Heard June 12, 2013 – Filed June 26, 2013

AFFIRMED

Appellate Defender Susan B. Hackett, of Columbia, for Appellant.

Attorney General Alan Wilson and Assistant Attorney General Christina J. Catoe, both of Columbia, for Respondent.

PER CURIAM: Appellant Anthony Lounds seeks review of his convictions for armed robbery and possession of a weapon during the commission of a violent crime. Appellant argues the trial judge erred in declining to recuse himself because he presided over a previous trial of Appellant. Appellant also argues the

trial court erred in denying his motion for a mistrial when a juror waited until after she had been seated to disclose that she had been the victim of a violent crime. We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to Appellant's motion for recusal: Canon 3(B)(1) of the Code of Judicial Conduct, Rule 501, SCACR [hereinafter Canon 3(B)(1)] ("A judge shall hear and decide matters assigned to the judge except those in which disqualification is required." (emphasis added)); Canon 3(E)(1) of the Code of Judicial Conduct, Rule 501, SCACR [hereinafter Canon 3(E)(1)] (requiring a judge to "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned" (emphasis added)); State v. Howard, 384 S.C. 212, 218, 682 S.E.2d 42, 45 (Ct. App. 2009) ("[A] judge is not disqualified in a criminal action because of an adverse decision in a former case involving entirely different and unrelated criminal charges against the same party." (citation omitted)); Simpson v. Simpson, 377 S.C. 519, 523-24, 660 S.E.2d 274, 276-77 (Ct. App. 2008) (interpreting Canon 3(E)(1), supra, and the requirement of Canon 2 of the Code of Judicial Conduct, Rule 501, SCACR, for a judge to avoid the appearance of impropriety and holding when a party offers no evidence to support a claim of partiality, the trial judge is correct to deny a motion for recusal); id. at 525-26, 660 S.E.2d at 278 (finding Canon 3(B)(1), supra, controlling when there was "no evidence that could question the impartiality of [the trial judge], or any other reason requiring her recusal"); State v. Jackson, 353 S.C. 625, 627, 578 S.E.2d 744, 745 (Ct. App. 2003) (holding a judge's alleged bias or prejudice must stem from an extra-judicial source and result in a decision based on information other than what the judge learned from his or her participation in the case as a judge); State v. Cheatham, 349 S.C. 101, 111, 561 S.E.2d 618, 624 (Ct. App. 2002) ("A judge must exercise sound judicial discretion in determining whether his impartiality might reasonably be questioned."); id. ("It is not enough for a party seeking disqualification to simply allege bias. The party must show some evidence of bias.").

2. As to Appellant's mistrial motion: State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) ("A party may not argue one ground at trial and an alternate ground on appeal."); State v. Patterson, 324 S.C. 5, 19, 482 S.E.2d 760, 767 (1997) (observing the appellant was limited to the grounds raised at trial); State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 627-28 (2000) ("The granting or refusing of a motion for a mistrial lies within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent an abuse of discretion amounting to an error of law."); id. at 63, 530 S.E.2d at 628 ("In order to receive a mistrial, the defendant must show error and resulting prejudice."); State v.

Bonneau, 276 S.C. 122, 125, 276 S.E.2d 300, 301 (1981) ("It is, of course, incumbent upon an appellant in this court to prove that he was denied a fair trial.").

AFFIRMED.

FEW, C.J., GEATHERS, J., and CURETON, A.J., concur.