Toomer v. State ( 2013 )

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 Supreme Court
Sylvester Toomer, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2011-192933
ON WRIT OF CERTIORARI
Appeal from Jasper County
Perry M Buckner, III, Trial Judge
D. Craig Brown, Post-Conviction Relief Judge
Memorandum Opinion No. 2013-MO-032
Submitted July 25, 2013 – Filed October 30, 2013
AFFIRMED
Deputy Chief Appellate Defender Wanda H. Carter, of
Columbia, for Petitioner.
Attorney General Alan M. Wilson and Assistant Attorney
General Ashleigh R. Wilson, of Columbia, for
Respondent.
PER CURIAM: This Court granted certiorari to review Sylvester Toomer's
conviction through a belated appeal pursuant to White v. State, 263 S.C. 110, 208
S.E.2d 35 (1974). Toomer argues the trial court erred in allowing the State to
reference the September 11, 2001 terrorist attacks in its closing argument.
Although he acknowledges he did not object to the statements, he contends the
nature of the statements were so clearly prejudicial that the Court should disregard
the rules of preservation and grant him a new trial. We disagree and affirm
pursuant to Rule 220(b)(1), SCACR, and the following authorities: State v.
Sheppard, 391 S.C. 415, 420–21, 706 S.E.2d 16, 19 (2011) ("Our law is clear that
a party must make a contemporaneous objection that is ruled upon by the trial
judge to preserve an issue for appellate review."); Toyota of Florence, Inc. v.
Lynch, 314 S.C. 257, 263, 442 S.E.2d 611, 615 (1994) (holding the vicious and
inflammatory use of racial prejudice in counsel's closing argument resulted in clear
prejudice such that the appellant was entitled to a new trial); S.C. State Highway
Dep't v. Nasim, 255 S.C. 406, 411–12, 179 S.E.2d 211, 213 (1971) (finding
counsel's "vicious" use of "abusive epithets" against an adverse witness warranted
the grant of a new trial); cf. Vasquez v. State, 388 S.C. 447, 460, 698 S.E.2d 561,
567 (2010) (finding defense counsel's failure to object was prejudicial where
solicitor unnecessarily injected religious prejudice into the trial by describing the
Muslim defendant as a "domestic terrorist" and comparing the charged crimes to
the attacks on September 11, 2001); State v. Jones, 320 S.C. 555, 558, 466 S.E.2d
733, 734 (Ct. App. 1996) (noting that for error to be reversible, "improper
statements must materially prejudice the right of the defendant to obtain a fair and
impartial trial").
AFFIRMED.
TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.