Background
Frank Mills was convicted in Spartanburg County of armed robbery, possession of a weapon during the commission of a violent crime, and three counts of kidnapping arising from a hotel robbery. He was sentenced to concurrent terms of life imprisonment without the possibility of parole for armed robbery and each count of kidnapping. Mills raised two evidentiary issues on appeal.
First, during trial the State elicited testimony from a witness who revealed that she knew Mills from their time together at “Jump Start,” a reentry program for current and former prisoners — which signaled to the jury that Mills had previously been incarcerated. The trial court denied Mills’s motion for a mistrial but offered to give a curative instruction. Mills declined the curative instruction. Second, the State introduced booking photographs of Mills taken in connection with the hotel robbery. Mills argued the photographs were needlessly cumulative because the State had already introduced a news-article photograph of him, and that under Rule 403, SCRE, the danger of unfair prejudice substantially outweighed their probative value.
The Court’s Holding
A unanimous panel affirmed. On the mistrial issue, the court held Mills waived any appellate challenge to the witness’s testimony by declining the trial court’s offer to give a curative instruction. South Carolina law is well-established that when a trial court denies a mistrial but offers a curative instruction, a defendant who declines the instruction forfeits the ability to challenge the ruling on appeal. The court cited a consistent line of decisions — State v. Bantan, State v. Tucker, and State v. Watts — all holding that a defendant cannot obtain both the rejection of a curative instruction and appellate relief.
On the booking photographs, the court held they were neither needlessly cumulative nor unfairly prejudicial. Although the State had already introduced a lower-quality photograph from a news article, the booking photos were higher resolution and depicted Mills from multiple angles — important because identity was the central disputed issue. The court further held that the photos did not suggest a prior criminal record because they showed Mills in plain clothes against a plain background with no height markings or other identifying police indicia. The investigating officer’s testimony clarified that they were booking photos from the charged crime, not some prior offense. This analysis tracked State v. Stephens, 398 S.C. 314 (Ct. App. 2012), and distinguished the problematic photos in State v. Traylor, 360 S.C. 74 (2004), which bore height markings suggesting a prior law-enforcement encounter.
Key Takeaways
- In South Carolina, a defendant who requests a mistrial after prejudicial testimony, is denied one, and then declines the trial court’s offered curative instruction waives appellate review of the mistrial ruling; the curative-instruction waiver rule applies even when the defendant fears the instruction will only highlight the error.
- Booking photographs taken in connection with the crime being tried are admissible without implicating State v. Traylor when they lack the indicia — height markings, agency identification, or obvious police-station backdrops — that would suggest a prior criminal record.
- When identity is the primary contested issue at trial, the probative value of higher-quality photographs taken from multiple angles is heightened, reducing the likelihood a Rule 403 challenge will succeed even if lower-quality photographs are already in evidence.
- Defense counsel who wish to preserve both the mistrial issue and the curative-instruction issue must carefully weigh the trial strategy of accepting or declining a curative instruction, understanding that declining forfeits appellate review of the mistrial ruling.
Why It Matters
For South Carolina criminal defense practitioners, Mills is a useful reminder about the curative-instruction waiver trap. When a trial court denies a mistrial but offers a curative instruction, counsel face a strategic choice: accept the instruction, which may highlight the problem for jurors, or decline it, which forecloses the appellate argument that the court should have granted the mistrial. South Carolina’s appellate courts have consistently enforced this waiver rule, and Mills provides another application of it in the context of prior-incarceration references.
The decision also provides practical guidance on the admissibility of booking photographs. Defense counsel can challenge such photographs most effectively by showing that they bear external indicia suggesting a law-enforcement history — such as height markings or location identifiers — rather than arguing they are simply photographs. Where photos are taken in connection with the charged crime and are introduced as such, courts will permit them if they are probative on identity even if other photographs are already in evidence.