State v. Toomer

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.

Tommy Toomer, Appellant.

Appellate Case No. 2009-129146

Appeal From Horry County
Edward B. Cottingham, Circuit Court Judge

Unpublished Opinion No. 2012-UP-439
Heard June 6, 2012 – Filed July 18, 2012

AFFIRMED

Chief Appellate Defender Robert M. Dudek, of
Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Salley W. Elliott, Assistant
Attorney General Brendan Jackson McDonald, all of
Columbia, and Solicitor J. Gregory Hembree, of Conway,
for Respondent.
PER CURIAM: Tommy Toomer appeals his murder conviction. The incident
giving rise to the charge against him occurred at his residence. The two issues he
raises on appeal concern the testimony of his housemate, Wanda Garrett, who
appeared as a witness for the State. We affirm.

1. Toomer first argues the trial judge erred in admitting testimony from Garrett that
on previous occasions he grabbed a heavy tree limb from a bedroom window and
hit her with it. We hold Toomer failed to take adequate measures to preserve this
issue for appeal. The record shows only that Toomer objected to the testimony
under Rule 404(b), SCRE. The trial judge then held a bench conference that the
jurors, though not excused from the courtroom, were unable to hear. The trial
judge announced immediately after the bench conference that he permitted the
disputed testimony; however, there is no explanation as to why the trial judge ruled
as he did. In its respondent's brief, the State has suggested several grounds to
support the admission of this statement, including (1) that it was probative of
Toomer's intent, (2) that it demonstrated the absence of mistake or accident, and
(3) that it was admissible pursuant to a res gestae theory. Without any information
as to why the trial judge admitted Garrett's testimony about Toomer's alleged prior
bad act, we cannot determine whether the ruling was in error. See State v. Hutto,
279 S.C. 131, 132, 303 S.E.2d 90, 91 (1983) (finding no error because the
appellant did not meet his burden of presenting a record that was sufficiently
complete for appellate review of the trial judge's actions); In re Richard D, 388
S.C. 95, 100, 693 S.E.2d 447, 450 (Ct. App. 2010) (acknowledging that an issue on
appeal may have been discussed during an off-the-record bench conference but
holding this court "cannot review issues not contained in the record").

2. Toomer also contends the trial judge erred in allowing the State to have a
portion of a tape-recorded statement that Garrett gave to the police played during
her redirect examination. Garrett gave the tape-recorded statement to the police a
few days after the incident from which the charge against Toomer arose. In this
statement, Garrett said that Toomer left their residence to purchase drugs shortly
before he fatally injured the victim; however, she did not attest to this fact in either
of two written statements she provided to law enforcement that same day. The
question before us is whether the statement was admissible as a prior consistent
statement under Rule 801(d), SCRE. We hold the trial judge properly allowed the
jury to hear a portion of the tape.

Under Rule 801(d)(1)(B), SCRE, a prior statement is not hearsay if (1) the
declarant testifies at trial and is subject to cross-examination concerning the
statement and (2) the statement is consistent with the declarant's testimony and is
offered to rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive, provided that the statement was made
before the alleged fabrication or before the alleged improper influence or motive
arose.

When cross-examining Garrett, Toomer asked her numerous questions that
evidenced an attempt not only to discredit her veracity but also to suggest she
altered her version of the events to include an assertion that he left their residence
to purchase drugs before he killed the victim. First, Toomer asked Garrett why he
would have to leave the residence, which she described as a "crack house," to buy
drugs. When Garrett explained that the crack sold at the residence was adulterated
with other substances, Toomer retorted, "You didn't tell the police that when you
gave them a written statement on May 21st, did you?" Toomer also attempted to
impeach Garrett with one of her written statements, noting that in the statement she
said only that "[Toomer] left for a while . . . and we didn't know where he went to"
and then pointing out that "today you're telling this jury he left to buy crack."
(emphasis added). When cross-examining Garrett, Toomer further sought to
emphasize the absence in her written statements of any mention that he left to
purchase drugs by asking, "Suffice it to say you did not say in your written
statement that Mr. Toomer went to get crack, did you?" The trial judge's decision
to allow the State to have a portion of Garrett's tape-recorded statement played was
therefore amply supported by the record. See State v. Banda, 371 S.C. 245, 251,
639 S.E.2d 36, 39 (2006) (stating an appellate court is bound by the trial judge's
preliminary factual findings in determining the admissibility of certain evidence in
criminal cases unless the findings are clearly erroneous).

AFFIRMED.

WILLIAMS, THOMAS, and LOCKEMY, JJ., concur.