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24859 - Dial v. Niggel Associates, Inc.

Davis Adv. Sh. No. XX
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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DIAL v. NIGGEL ASSOCIATES, INC. et al.





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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DIAL v. NIGGEL ASSOCIATES, INC. et al.







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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DIAL v. NIGGEL ASSOCIATES, INC. et al.







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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