State v. Rosier

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 Court of Appeals

The State, Respondent,

v.

David Eugene Rosier, Jr., Appellant.

Appellate Case No. 2013-002259

Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2015-UP-275
Submitted May 1, 2015 – Filed June 3, 2015

AFFIRMED

Appellate Defender LaNelle Cantey DuRant, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General Deborah R.J. Shupe,
both of Columbia; and Solicitor James Strom Thurmond,
Jr., of Aiken, for Respondent.

PER CURIAM: David Eugene Rosier, Jr. appeals his convictions for voluntary
manslaughter and possession of a weapon during the commission of a violent
crime. On appeal, he argues the trial court erred in denying his motion to suppress
jail phone calls or in the alternative denying his motion for a continuance so he
could make a motion to suppress the calls to this court pursuant to the South
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Carolina Homeland Security Act (the Act). He also argues the solicitor made
improper comments during closing arguments that deprived him of the right to a
fair trial. We affirm.

1. We find the trial court did not have jurisdiction to determine whether the calls
should be suppressed under the Act. See § 17-30-110(A)(1) ("Prior to any trial,
hearing, or proceeding in or before any court . . . any aggrieved person may move
to suppress the contents of any intercepted wire, oral, or electronic communication,
or evidence derived therefrom, on the grounds that the . . . communication was
unlawfully intercepted . . . ."); § 17-30-110(A) (requiring any such motion be made
to the "reviewing authority" before trial "unless there was no opportunity to make
the motion or the person was not aware of the grounds of the motion"); § 17-30-
15(9) (defining "[r]eviewing authority" as "a panel of three judges of the South
Carolina Court of Appeals designated by the Chief Judge of the South Carolina
Court of Appeals"); State v. Whitner, 399 S.C. 547, 551, 732 S.E.2d 861, 863
(2012) (finding a trial court lacked subject matter jurisdiction to suppress evidence
under the Act because such motions must be made before a panel of judges of the
court of appeals). Therefore, the trial court's ruling denying the motion to suppress
is void. See DeWitt v. S.C. Dep't of Highways & Pub. Transp., 274 S.C. 184, 187,
262 S.E.2d 28, 30 (1980) ("The acts of a court without jurisdiction are without
effect."). However, because Rosier never made a motion to this court prior to trial
as the statute requires and he does not assert he did not have an opportunity to
make the motion at the appropriate time, we find he waived his opportunity to seek
a determination as to whether the jail phone calls should be suppressed. See § 17-
30-110(A) (requiring motions to suppress be made to this court before trial "unless
there was no opportunity to make the motion or the person was not aware of the
grounds of the motion"). We note the trial court's denial of Rosier's motion for a
continuance did not prevent Rosier from making his motion to suppress to this
court. Had Rosier moved this court to suppress the recordings, the trial would
have been stayed pending this court's ruling, making the continuance for the
purpose of making his motion to this court unnecessary. See id. ("All proceedings
requiring the use of the contents of any intercepted communication that are the
subject of the motion to suppress pursuant to this section are automatically stayed
pending the determination of the motion to suppress."). Furthermore, after the

1
S.C. Code Ann. §§ 17-30-10 to -145 (2014).
trial court initially denied Rosier's motion for a continuance, he informed the trial
court that its ruling did not address the issue of making a motion to suppress under
the Act. He stated the court of appeals was the statutory reviewing authority for
such motions and admitted he had not made a motion to the court of appeals;
nevertheless, he proceeded to argue the merits of the issue. Given that Rosier
acknowledged the court of appeals was the reviewing authority for such a motion
yet sought a ruling from the trial court anyway, he cannot complain on appeal of an
error his own conduct induced. See State v. Carlson, 363 S.C. 586, 595, 611
S.E.2d 283, 287 (Ct. App. 2005) ("A party cannot complain of an error which his
own conduct has induced.").

2. We find the trial court did not commit reversible err in overruling Rosier's
objections to statements made by the solicitor during his closing arguments. See
State v. Harris, 382 S.C. 107, 120, 674 S.E.2d 532, 539 (Ct. App. 2009) ("A trial
court is vested with broad discretion in dealing with the range and propriety of a
closing argument."); id. ("An appellate court will not disturb a trial court's ruling
regarding a closing argument unless the trial court commits an abuse of
discretion."); State v. Tubbs, 333 S.C. 316, 322-21, 509 S.E.2d 815, 818 (1999)
("A new trial will not be granted unless the [solicitor's] comments so infected the
trial with unfairness as to make the resulting conviction a denial of due process.").
Regarding the solicitor's use of Rosier's nickname, "Dollar," we find the six
references to his nickname during closing arguments did not "so infect[] the trial
with unfairness as to make the resulting conviction a denial of due process."
Compare Tubbs, 333 S.C. at 321-22, 509 S.E.2d at 818 (finding the use of
defendant's nickname seven times was "an occasional use" that did not deny the
defendant due process), with State v. Day, 341 S.C. 410, 423-24, 535 S.E.2d 431,
438 (2000) (finding twenty-three references to defendant's nickname, "Outlaw,"
was repetitious and excessive and denied the defendant due process), and State v.
Hawkins, 292 S.C. 418, 420-21, 357 S.E.2d 10, 12 (1987) (finding the use of
defendant's nickname over forty times was "excessive and repetitious" and denied
the defendant the right to a fair trial), overruled on other grounds by State v.
Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991). Additionally, unlike in Day in
which the supreme court found the use of the nickname Outlaw was prejudicial
because it painted the defendant as a person accustomed to and proud of his
abilities in deluding law enforcement, Rosier's nickname, Dollar, does not have a
particularly negative connotation and the solicitor did not attempt to make the
nickname relevant to the crimes alleged in this case. See Day, 341 S.C at 423, 535
S.E.2d at 438. Furthermore, Rosier's assertion the solicitor made an improper
"Golden Rule" argument is not preserved because his objection, "[i]mproper
argument," was not specific enough to alert the trial court the objection was one
based on an improper Golden Rule argument. See State v. Dunbar, 356 S.C. 138,
142, 587 S.E.2d 691, 693 (2003) ("In order for an issue to be preserved for
appellate review, it must have been raised to and ruled upon by the trial [court].");
id. at 142, 587 S.E.2d at 694 ("A party need not use the exact name of a legal
doctrine in order to preserve it, but it must be clear that the argument has been
presented on that ground.").

AFFIRMED.2

THOMAS, KONDUROS, and GEATHERS, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.