Background
Kereen Lee was indicted for attempted criminal sexual conduct involving a young minor girl and convicted as charged. The plea court sentenced him to life without parole under South Carolina’s three-strikes statute, § 17-25-45 of the South Carolina Code, based on his qualifying prior convictions. On appeal, Lee raised four arguments: (1) the child’s recorded forensic interview was improperly admitted; (2) a portion of his own recorded statement was improperly admitted; (3) the trial court should have granted a mistrial after a witness revealed his prior incarceration; and (4) his intellectual disability entitled him to an individualized sentencing hearing before receiving life without parole.
On the evidentiary issues, the defense had pre-trial arguments about the admissibility of the child’s recorded interview under § 17-23-175 of the South Carolina Code (which requires audio and video recording of a child’s out-of-court statement for admission). The child was not visible for a substantial portion of the recorded interview. However, when the State formally moved the video into evidence at trial, defense counsel affirmatively stated there was “no objection.” On the mistrial issue, a witness during cross-examination mentioned that Lee had previously been released from prison, triggering a motion. The trial court denied the mistrial but immediately gave a curative instruction.
The Court’s Holding
Affirmed. The Court of Appeals affirmed on all four issues, with the intellectually-disabled-defendant sentencing question drawing the most extended analysis.
On the recorded child interview: the court held that the issue was waived. Under established South Carolina appellate practice, an affirmative “no objection” when evidence is formally offered at trial waives any preserved pre-trial objection to that evidence. The earlier motion in limine created no appellate preservation when counsel later expressly consented at the moment of admission. Even assuming the merits, the court found any error harmless given the weight of the defendant’s own admissions—including his acknowledgment that he exposed himself while standing over the minor for the purpose of sexual arousal, that he found her attractive, and that he characterized the incident as a “moment of weakness.” Those admissions, introduced without objection, substantially diminished any prejudice from the child’s video statement.
On the mistrial: the witness’s reference to Lee’s prior incarceration was brief and did not reveal the nature of the prior conviction. The trial court acted promptly, issued an immediate curative instruction to disregard the statement, and struck it from the record. South Carolina courts presume juries follow curative instructions, and nothing in the record overcame that presumption. The threshold for a mistrial—“manifest necessity”—was not met.
On the sentencing question, the court addressed the argument squarely and declined to extend existing precedent. Atkins v. Virginia, 536 U.S. 304 (2002), prohibits the execution of intellectually disabled defendants but does not address life without parole. Aiken v. Byars, 410 S.C. 534, 765 S.E.2d 572 (2014), requires individualized sentencing hearings before imposing LWOP on juvenile offenders but is grounded in the principle that minors have a greater “capacity for change” because their characters are not yet fully formed—a rationale specific to youth, not to intellectual disability. The court recognized that Lee’s argument was “not without force” but held that expanding the reach of these decisions is exclusively the province of the Supreme Court: “Whether the boundaries of Atkins and Aiken should be expanded is a question we should leave for those courts to answer.”
Key Takeaways
- Under South Carolina appellate procedure, a pre-trial objection to evidence—including a motion in limine—is waived when counsel affirmatively says “no objection” at the moment evidence is formally offered at trial. A later failure to renew the objection is not enough; the affirmative consent seals the waiver.
- The Court of Appeals will not extend Atkins v. Virginia or Aiken v. Byars to require an individualized sentencing hearing for intellectually disabled adults sentenced to life without parole under the three-strikes statute (§ 17-25-45). That constitutional question must be decided by the South Carolina Supreme Court or the United States Supreme Court.
- A single reference to a defendant’s prior incarceration during trial, met with an immediate curative instruction, does not create the “manifest necessity” required for a mistrial—particularly when the statement did not reveal the nature of the prior conviction and the jury is presumed to have followed the instruction to disregard it.
- Practitioners representing intellectually disabled clients facing LWOP outside the capital context should fully preserve Eighth Amendment arguments for Supreme Court review; the Court of Appeals has now explicitly refused to grant relief on those grounds.
Why It Matters
The sentencing holding in Lee is the most significant aspect of the decision for South Carolina practitioners. The question of whether intellectual disability—like youth under Aiken—should categorically entitle a defendant to an individualized sentencing hearing before a LWOP sentence is imposed is an open and important constitutional question. The Court of Appeals has now drawn a clear line: it will not break new ground. Practitioners who believe the argument has merit should pursue it directly to the South Carolina Supreme Court, where the decision can be made.
The waiver holding is also a practical reminder for trial counsel. A motion in limine creates no permanent, trial-long objection in South Carolina. Counsel must be disciplined at the moment of formal admission—even if the issue was litigated pre-trial, an affirmative “no objection” in court is treated as a fresh consent and forfeits the appeal. In cases involving recorded forensic interviews of child victims, where admission rulings often turn on technical compliance with § 17-23-175, that discipline is especially important.