S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Michelle Dial, Personal
Representative of the
Estate of John Mark
Dial, Respondent,
v.
Niggel Associates, Inc.
and Freddie B. George, Petitioners.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Richland County
Costa M. Pleicones, Judge
Opinion No. 24859
Heard February 17, 1998 - Filed November 30, 1998
REVERSED
Ronald E. Boston and Curtis L. Ott, both of
Turner, Padget, Graham & Laney, P.A., of
Columbia, for Petitioner Niggel Associates, Inc.
Robert C. Brown, of Brown & Brehmer,
of Columbia, for Petitioner Freddie B.
George.
David A. Fedor, of Fedor, Massey, Whitlark &
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DIAL v. NIGGEL ASSOCIATES, INC. et al.
Ballou, of Columbia for respondent.
MOORE, A.J.: This case is before us on a writ of certiorari to
review the Court of Appeals' decision1 reversing the jury's verdict on the
ground of inflammatory argument by counsel. We take this opportunity to
clarify the narrowness of our holding in Toyota of Florence, Inc. v. Lynch,
314 S.C. 2571 442 S.E.2d 611 (1994), and reverse.
FACTS
Respondent's (Dial's) husband, a sheriff's deputy, was killed when
the patrol car he was driving collided with a truck owned by petitioner
Niggel Associates and driven by Niggel's employee, petitioner George.
George subsequently pled guilty to felony driving under the influence.
Dial then commenced this wrongful death action to recover for the death
of her husband.2 She alleged George was driving while intoxicated and
caused the wreck by turning left across Deputy Dial's lane of travel.
At trial, proximate cause was a contested issue. Dial argued Deputy
Dial's death was caused solely by George's negligence. In his defense,
George argued the collision was caused by the excessive speed of the
patrol car without headlights (it was dusk) or flashing signals to indicate
speed.
The jury returned a defense verdict. Dial made a post-trial motion
complaining certain remarks by counsel during closing argument were so
inflammatory as to merit a new trial despite the fact that no
contemporaneous objection was made. The trial judge denied the motion.
On appeal, the Court of Appeals reversed relying on this Court's decision
in Toyota.
DISCUSSION
The Court of Appeals held the following remarks by George's counsel
mandated a new trial under Toyota:
1 ___S.C.___ , 476 S.E.2d 700 (Ct. App. 1996).
2 Dial brought the action in her capacity as personal representative of
the deceased's estate. She is apparently the sole statutory beneficiary.
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DIAL v. NIGGEL ASSOCIATES, INC. et al.
[George] was driving on the public highways and he was .27.
That's a D.U.I. He accepted his responsibility, and he got
railroaded. He got railroaded, ladies and gentlemen. Freddie
George is serving 18 years of his life because he got railroaded.
What's going on here? I'll tell you what's going on. This man
is on a set of tracks to prison because a police officer has died.
But yet, a police officer is no better or worse than anybody
else. My client has been railroaded. And he will not be
railroaded today. You will reap what you sew (sic) as they
said
And they have sewed (sic) deceit, deception, lies and
misconception. And they are the ones trying to trick you.
. . . .
Did you see the videotape when they put it on that fancy t.v.
they had here? There were cop cars everywhere, cops crawling
over that place. A police officer has died.
. . . .
Now, if you're drunk and you're driving, you know you're
guilty of D.U.I. and you've got a dead cop and there ain't no
evidence that you can put your hands on that's going to help
you, what else are you going to do? You're a black man and
there's a white police officer dead in the car over there.
a) "Deceit and lies" argument
George contends the statement in argument that: "[T]hey have
sewed (sic) deceit, deception, lies and misconception. They are the ones
trying to trick you. . . ." should not have been considered by the Court of
Appeals because it was not raised in Dial's post-trial motion. We agree.
In Toyota, we found reversible error despite the lack of a
contemporaneous objection where the issue of inflammatory argument was
raised for the first time in post-trial motions. Toyota cites the rule that
"even in the absence of a contemporaneous objection, a new trial motion
should be granted in flagrant cases where a vicious inflammatory
argument results in clear prejudice." 341 S.C. at 263, 442 S.E.2d at 615
(citing South Carolina Highway Dept. v. Nasim 255 S.C. 406 179 S E 2d
211 (1971)).
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Toyota sets forth a narrow exception to the general rule that a party
must make a contemporaneous objection to improper argument or the
objection is waived. See Varnadore v. Nationwide Mut. Ins. Co., 289 S.C.
155, 345 S.E.2d 711 (1986). Under Toyota, the issue of inflammatory
argument must be raised to the trial judge by way of post-trial motion to
preserve the issue for appeal.
In this case, the record indicates the allegation of racial prejudice
was the only complaint Dial raised in her post-trial motion regarding
counsel's argument. This allegation does not encompass counsel's "deceit
and lies" remark. In addressing this issue, the Court of Appeals went
beyond Toyota and improperly considered an issue not preserved by post-
trial motion.
In any event, on the merits, the "deceit and lies" statement does not
rise to the level of a Toyota argument when considered in context. This
statement was in response to accusatory remarks by Dial's counsel
insisting George's failure to testify was a deceptive tactic. For instance,
Dial's counsel stated:
But if they want to hide something or if they want to do it
that way, why didn't they put their man up? I'll tell you why,
but you can infer it in your own way. They didn't want you to
know the truth. They didn't want you to know why George
turned the way he did. They didn't want you to see George.
They didn't want you to judge him.
Why didn't they put him on? They didn't put him on for one
reason. They didn't put him on because they didn't want me
or Jim to cross examine him, to learn the truth that you are
here to get today, the truth.
Dial's counsel also referred to the use of a defense witness's deposition
testimony rather than having the witness testify:
Do you think that's the reason Sease didn't testify and come
up here from the company? The one man from the company
they put up was Mr. Swift who doesn't know anything about
it. He conveniently for his company, not for him, was off sick
at that time. Don't you think if they want the truth they'd
put somebody up here?
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DIAL v. NIGGEL ASSOCIATES, INC. et al.
If they wanted the truth, where is George, where is Sease,
where is (sic) the company people? Not here.
We have held argument of counsel is not so inflammatory as to
constitute a ground for reversal where counsel responds in kind to
previous argument of opposing counsel. State v. Singleton, 284 S.C. 388,
326 S.E.2d 153 (1985). In this case, counsel's "deceit and lies" remark was
in response to opposing counsel's repeated accusation of deception. In
context, this remark was not so inflammatory as to come within the ambit
of our decision in Toyota.
In conclusion, the Court of Appeals should not have considered
counsel's "deceit and lies" argument in reversing the denial of Dial's post-
trial motion. We take this opportunity to reiterate that the exception in
Toyota excusing the failure to make a contemporaneous objection is limited
to instances where the issue is raised to the trial judge by post-trial
motion.
b. Racial prejudice argument
The remainder of counsel's argument found inflammatory by the
Court of Appeals refers to George being "railroaded" because he is a black man
and Deputy Dial was a white police officer. These comments taken
in context refer to George's guilty plea in the related criminal case.3
George contends these remarks do not compel reversal under Toyota. We
agree.
In Toyota, we considered an argument during which counsel used
posters depicting characters with Oriental features involved in bribery and
document shredding. Counsel's argument made an oblique reference to
3Dial's counsel first raised George's guilty plea in his own closing:
If speed was the cause of this death, why did
[G]eorge plead guilty?
. . . .
It was the fault of Dial? Then why is George
pleading guilty to these charges?
. . . .
George was drunk. And for that he pled guilty. It
was his fault.
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DIAL v. NIGGEL ASSOCIATES, INC. et al.
atomic bombs. One of the parties was a regional distributor of Toyota
vehicles, a Japanese automotive brand. We found this argument was
"outrageous" and counsel's conduct "abhorrent" for evoking such racial
prejudice. 314 S.C. at 263., 442 S.E.2d at 615.
In allowing an exception to the contemporaneous objection rule,
Toyota relied on Nasim, supra, a land condemnation case. In that case,
during closing argument, counsel referred to the State's land appraiser as
a "quizzling quivaler" and stated: "Do you remember the 'quizzler' back in
World War II? The ones back in Germany and France, the ones that
sided up with the enemy?" 255 S.C. at 409, 179 S.E.2d at 212. He also
referred to the witness as a "great highway robber" and stated that the
witness was "tr[ying] to steal my client's property." Id. at 409-10, 179
S.E.2d at 212.
Nasim relies on Major v. Alverson, 183 S.C. 1231 190 S.E. 449
(1937), in allowing an exception to the contemporaneous objection rule.
Nasim specifically quotes the conclusion in Major that calling the opposing
party a "bare-faced liar" was not merely improper "but amounted to an
abuse of the witness. . . . In short, where counsel applies to a witness or
litigant abusive epithets, he will do so at his own peril." 255 S.C. at 411,
179 S.E.2d at 212 (quoting Major, 183 S.C. at 125, 190 S.E. at 450
(emphasis added)).
Nasim also cites Edwards v. Union Buffalo Mills Co., 162 S.C. 17,
159 S.E. 818 (1931), where counsel referred to the opposing party's expert
witnesses in argument as follows:
I am casting no reflections on the doctors, but I think it was
one distinguished Chief Justice who said, that there are two
classes of liars. One., he said is the plain liars, and the other
is the experts. Don't take that literally; I don't mean that, but
I do mean that when you have money you can line up doctors
on one side and doctors on the other, as many as you want to,
and they will try to out-swear each other.
162 S.C. at 26, 159 S.E. at 821. In reversing and remanding for a new
trial, Edwards specifically noted that "witnesses are entitled to the
protection of the Court." Id. at 28, 159 S.E. at 822.
Toyota and the line of cases preceding it concern abuse of a witness
or litigant. Accordingly, we now clarify that our holding in Toyota excuses
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DIAL v. NIGGEL ASSOCIATES, INC. et al.
the failure to make a contemporaneous objection only where the challenged
argument constitutes abuse of a party or witness.
Counsel's "railroading" and racial remarks, while objectionable,4 do
not constitute abuse of a litigant or witness in this case. Counsel's
remarks were directed toward the circumstances of George's guilty plea
and not the opposing party or witnesses in this civil trial. Further, in
Toyota we noted the element of surprise and found prejudice because
counsel could not refute such a personal attack. In this case, Dial's
counsel chose not to object but responded to the racial reference in his
rebuttal argument.
We caution that our decision today in no way condones the sort of
racial argument employed by counsel in this case. When there is no
factual basis for such an argument, the injection of race is clearly
objectionable. Had counsel objected, this case would be in a completely
different posture. We find no reason, however, to extend the narrow
exception of Toyota to cases not involving abuse of a party or witness.
REVERSED.
Acting Associate Justices George T. Gregory, Jr. and
L. Henry McKellar, concur. TOAL, A.J., and FINNEY, C.J.,
dissenting in separate opinion.
4There is nothing in the record indicating these remarks were supported
by the facts surrounding George's guilty plea.
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TOAL, A.J.: The majority holds that Toyota of Florence, Inc. v. Lynch,
314 S.C. 257, 442 S.E.2d 611 (1994) excuses the failure to make a
contemporaneous objection, only where the challenged argument constitutes
abuse of a party or witness. Such a holding is not supported by our case
precedent. Accordingly, I dissent.
A reading of Toyota and its predecessor cases reveals that they address
prejudicial arguments by counsel generally, and not just those arguments
that concern witnesses or litigants. The cases cited by the majority support
this analysis. In Edwards. v. Union Buffalo Mills Co., 162 S.C. 17, 29, 159
S.E. 818, 822 (1931), we found that "the language complained of in the case
under review was highly prejudicial, calculated to arouse the prejudices of the
jurors, and did undoubtedly contribute to induce the verdict which was
rendered." In Major v. Alverson, 183 S.C. 123~ 126, 190 S.E. 449, 451 (1937),
it was held:
[W]here counsel, as in this case, uses improper and abusive
language in his argument to the jury, to the clear hurt and
prejudice of the complaining party, we feel that it is our duty to
remand the case for trial in accordance with correct and proper
rules of procedure and conduct.
In fact, Major clearly distinguished between improper arguments and abuse
of witnesses: "Such a statement was not only highly improper as an
argument, but amounted to an abuse of the witness and tended to greatly
prejudice defendant's case in the eyes of the jury." Id. at 125, 190 S.E. at
450 (emphasis added).
The majority also cites South Carolina State Highway Department v.
Nasim, 255 S.C. 406, 179 S.E.2d 211 (1971). The clear holding of Nasim is
that objection to improper argument is required, except in flagrant cases and
where prejudice appears. The Nasim Court quoted Johnson v. Charleston &
Western Carolina Railway Company, 234 S.C. 448, 108 S.E.2d 777 (1959) for
the following proposition:
It has been settled by many decisions of this court that, except
in flagrant cases and where prejudice clearly appears, objection
to improper argument of counsel should be made then and there,
and comes too late if not made until after the verdict has been
rendered.
Nasim, 255 S.C. at 410, 179 S.E.2d at 212.
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Nasim then declared: "We adhere to that rule. We reverse the case
before us because the argument falls within the exception." This holding was
again confirmed in the case:
While it is true that the trial judge has very broad discretion in
the conduct of trial, the rule does make exception for "flagrant
cases and where prejudice clearly appears." In light of the
vicious inflammatory nature of the remarks made we conclude
that this case presents the exception allowed by our rule in
Johnson, supra.
Nasim, 255 S.C. at 411, 179 S.E.2d at 213. Further,
It is a general rule of law that inflammatory remarks made
by counsel in argument which are calculated to appeal to the
passions or prejudices of a jury should be affirmatively
condemned by the trial court.
In the final analysis, whether or not the particular arguments are
so prejudicial as to constitute reversible error depends upon the
nature of the utterances and the circumstances under which they
were made. Here the remarks were so vicious and the likelihood
of prejudice so strong that we are persuaded that the highway
department did not receive a fair and impartial trial which is the
inherent right of every litigant.
Nasim, 255 S.C. at 411-12, 179 S.E.2d at 213. Nowhere is there any mention
in Nasim that its rule is confined. to abuse of witnesses and litigants.
Most significantly, there is no indication in Toyota that it is restricted
to arguments abusive to a party or witness. Toyota's explicit holding is as
follows:
The general rule is that the lack of a contemporaneous objection
to an improper argument acts as a waiver. This Court has held,
however, that even in the absence of a contemporaneous
objection, a new trial motion should be granted in flagrant cases
where a vicious, inflammatory argument results in clear
prejudice. We can hardly conceive of a more outrageous
argument than that made here.
Toyota, 314 S.C. at 263, 442 S.E.2d at 615 (citations omitted)(emphasis
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DIAL v. NIGGEL ASSOCIATES, INC. et al.
added). The focus of the opinion is on the improper closing argument. To
suggest that Toyota applies only to arguments that abuse witnesses or
litigants is to add to the case a restriction it does not contain. The Court of
Appeals has also recognized the clear holding of Toyota: "We realize the
Supreme Court has held, even in the absence of a contemporaneous objection,
a new trial should be granted in flagrant cases where a vicious, inflammatory
argument results in clear prejudice." State v. Peay, 321 S.C. 405, 412-13, 468
S.E.2d 669, 673 (Ct. App. 1996).
The Toyota rule seeks to prevent "vicious, inflammatory" arguments.
This rule protects witnesses and litigants; however, its principal purpose is
to ensure a fair trial by discouraging attorneys from making outrageous and
highly prejudicial arguments. It is not analytically convincing to suggest that
this rule should apply only to abusive comments about witnesses and
litigants, but not to other equally inappropriate comments that do not directly
concern witnesses and litigants. For example, under the majority's rule, if
during closing argument, an attorney referred to opposing counsel (or even
the judge) as "one who makes Adolf Hitler look like Mother Teresa," then
Toyota would be inapplicable, despite the grossly inflammatory and
prejudicial nature of the comment. However, if the very same statement
were made about an expert witness in the case, then the Toyota rule would
be applicable. There is no reasoned justification for the distinction between
the two. Perhaps it is for this reason that our case law has never restricted
the Toyota rule to abusive comments about witnesses and litigants.
It is understandable that in most situations the prejudicial comments
of counsel would probably concern litigants or witnesses; however, simply
because this may be the typical situation does not mean that Toyota is
confined to such situations. Attorneys are clever enough to find other objects
for their inflammatory comments in order to improperly influence the jury.
The facts of the instant case are illustrative. Here, although counsel's
comments did not constitute abuse of a witness or litigant, they were
nevertheless inflammatory and intended to prejudice the jury by "playing the
race card." Counsel, in the course of his argument, deliberately painted the
image of Niggel's driver, Freddie George, being railroaded. The word
"railroaded" was repeatedly mentioned in the course of the argument.
Counsel stated George is "on a set of tracks" to prison because a police officer
had died. He then said:
Now, if you're drunk and you're driving, you know you're guilty
of D.U.I. and you've got a dead cop and there ain't no evidence
that you can put your hands on that's going to help you, what
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else you going to do? You're a black man and there's a white
police officer dead in the car over there.
Counsel set up the "railroaded" argument to ultimately play on the racial
feelings of the jury. His evident purpose was to plant in the jury's mind the
idea that defendant George's guilty plea to felony driving under the influence
was somehow the product of a racially discriminatory prosecution. There is
absolutely nothing in the record to support counsel's veiled charge of racism.
This sort of unjustifiable attack on the integrity of a previous, legitimate
court proceeding, in order to gain advantage in another court proceeding,
undermines the very foundation of the American jury trial system. This
Court should not countenance or reward such conduct. I find this to be
entirely improper and would grant a new trial under Toyota.
FINNEY, C.J., concurs.
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