Mar 11, 2012 | Criminal Defense, Uncategorized
This SC Supreme Court decision reaffirms the critical importance of issuing warrants. Without the signature of the issuing judge, the warrant is just a “piece of unfinished paper.” Any evidence obtained pursuant to such a “warrant” is, therefore, invalid and must be suppressed. If ever confronted with a law enforcement officer seeking to search your home or business, ask to see the warrant. If not signed, you can object to allowing the police to go forward. If they insist on proceeding, call an experienced criminal defense lawyer immediately and decline to answer any questions until you get advice. Better make sure your attorney knows and understands this complex area of criminal law and is willing to fight to make sure you get a fair and just trial. There is too much at stake to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner/Respondent,
v.
Kevin Covert, Respondent/Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Greenville County
James C. Williams, Jr., Circuit Court Judge
Opinion No. 26632
Heard January 21, 2009 – Filed April 13, 2009
AFFIRMED AS MODIFIED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Robert Mills Ariail, of Greenville, for Petitioner/Respondent.
Katherine Carruth Link, of West Columbia, for Respondent/Petitioner.
JUSTICE PLEICONES: We granted certiorari to review the Court of Appeals decision in State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006)[1] and now affirm, as modified, that court’s decision to grant respondent a new trial. In a split decision, Judges Short and Anderson found reversible error in the jury’s possession of a statute during deliberations; in addition, Judge Short found that evidence should have been suppressed, and Judge Anderson found reversible error in the verdict form.
We hold, as did Judge Short, that an unsigned search warrant is invalid, and agree with Judge Anderson that when a verdict form is submitted to a jury in a criminal case, it must affirmatively offer a “not guilty” option. Finally, while we agree with Judges Short and Anderson that it was error to permit this jury to have a written version of the trafficking statute with it during deliberations, we would not find sufficient prejudice from that error alone to warrant reversal.
ISSUES
| Did Judge Short err in holding that an unsigned search warrant is invalid? |
| Did Judge Anderson err in finding the verdict form here was so prejudicial as to require reversal? |
| Did permitting the jury to have a written version of the trafficking statute with it during deliberations require reversal? |
ANALYSIS
1. Warrant
The search warrant in this case is signed by the magistrate, and dated September 28, 2002; the accompanying two-page affidavit is signed by her on each page, and both these signatures are dated September 26, 2002. The return is signed and dated September 27, 2002. It is undisputed that the warrant was obtained and served on September 26, 2002.
At trial, respondent contended that the warrant was unsigned when it was served, that it was therefore invalid, and that accordingly the evidence seized pursuant to the search should be suppressed. Respondent argued that, without the magistrate’s signature, the warrant was not issued within the meaning of South Carolina’s search warrant statute, S.C. Code Ann. § 17-13-140 (1985). The trial judge refused to suppress the evidence even though he found the warrant had not been signed before it was served, holding that the search warrant statute was subject to a “good faith” exception, and that such an exception was applicable here.
On appeal, Judge Short held that the search warrant was not issued within the meaning of the statute because it lacked a timely signature. Judge Short also held there was a good faith exception to the statutory warrant procedures, but that it was inapplicable here. We agree that the absence of the magistrate’s signature at the time the warrant was served invalidates it, but do not reach the issue whether there exists a “good faith” exception to the statutory warrant requirements since we find, as explained below, that no warrant was ever issued.
We have held, in the context of an arrest warrant, that such a warrant is not lawful where the issuing judicial officer failed to sign the warrant on the space provided on the warrant form. Davis v. Sanders, 40 S.C. 507, 19 S.E 138 (1894). Although the State would characterize such an omission as merely procedural or ministerial, we disagree. The Davis Court gave a persuasive explanation of the signature requirement, albeit in the context of an arrest warrant:
[W]hen it is remembered that a sheriff or other officer, who undertakes to arrest a citizen under a warrant, is bound to show his warrant, if demanded, to the person proposed to be arrested, and if he refuses to do so the arrest may be lawfully resisted [internal citation omitted], we think it would be very dangerous to the peace of society for the court to hold that a paper, which shows on its face that it is an unfinished paper…would be a sufficient justification for an arrest.
The same policy considerations apply to a search warrant, [2] and thus the lack of the issuing officer’s signature is not excusable as merely procedural or ministerial, but rather negates the existence of a warrant, creating instead “an unfinished paper.” As the DavisCourt went on to hold, the fact that the issuing officer intended to sign the warrant and had in fact signed the back was not sufficient to validate it, nor was the arrest legal despite the fact the officers who executed the arrest pursuant to the “warrant” were “entirely innocent of any intentional wrong.”
The Davis requirement that a warrant must be signed by the issuing judicial officer in order to be complete is a common law decision predicated on public policy considerations. The signature is the assurance that a judicial officer has found that law enforcement has made the requisite probable cause showing, and serves as notice to the citizen upon whom the warrant is served that it is a validly issued warrant. Without the signature, it is merely an “unfinished paper.” Davis, supra; see also DuBose v. DuBose, 90 S.C. 87, 72 S.E. 645 (1911) (“But it has been decided [in Davis] that, when an officer is performing the ministerial duty of issuing a paper on compliance with certain conditions prescribed by law, his signature at the foot of the paper he intended to sign is necessary to its validity”).
We consider also whether the unsigned warrant can be upheld in the face of § 17-13-140, the general search warrant statute. The statute contains requirements different from those mandated by the Fourth Amendment, and is in some ways “more strict” than the federal constitution. State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987). While we have recognized a “good faith” exception to the statute’s requirements where the officers make a good faith attempt to comply with the statute’s affidavit procedures,McKnight, supra, explaining State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975), we have left open the question whether a good faith exception would be applied where “the officers reasonably believe the warrant is valid when the search is made, but is subsequently determined to be invalid.” McKnight, supra. Here, we do not reach the question whether there exists a good faith exception to the statute where a defective warrant is issued, since under South Carolina law an unsigned warrant is not a warrant, and is not capable of being issued within the meaning of § 17-13-140. See also Davis, supra (officers good faith irrelevant where warrant is not signed).
The circuit court erred in refusing to suppress the evidence seized pursuant to the unsigned “warrant.” Respondent is therefore entitled to a new trial.
2. Verdict Form
In this case, the jury was given a verdict form which tracked the provisions of the trafficking statute, but did not specifically allow the jury to return a “not guilty” verdict. We agree with Judge Anderson that this was error and hold that henceforth, any verdict form given to a jury for use in a criminal case must specifically include as an option “not guilty.” We therefore overrule State v. Myers, 344 S.C. 532, 544 S.E.2d 851 (Ct. App. 2001) to the extent it holds that a jury charge can negate prejudice from the lack of a “not guilty” choice on a verdict form.
3. Trafficking Statute
Judge Short and Judge Anderson found reversible error in the trial court’s submission to the jury of the trafficking statute, while Judge Goolsby found no error. Since this case was tried and the appeal decided by the Court of Appeals, we have held that it is within the trial judge’s discretion to “submit its instructions on the law to the jury in writing.” State v. Turner, 373 S.C. 121, 644 S.E.2d 693 (2007). We caution the bench again, as we did in Turner, that this practice should be used sparingly, and only where it will aid the jury and where it will not prejudice the defendant. It is never appropriate, however, to give only part of the charge to the jury as was done in this case.
CONCLUSION
The Court of Appeals decision reversing respondent’s convictions and sentences is
AFFIRMED AS MODIFIED.
WALLER, BEATTY, JJ., and Acting Justice James E. Moore, concur. TOAL, C.J., concurring in a separate opinion.
Chief Justice Toal: Although I concur in the decision to affirm the court of appeals’ decision reversing Covert’s conviction, I write separately because I would reach this decision on different grounds.
As a primary matter, I do not find that Davis v. Sanders, 40 S.C. 507, 19 S.E. 138 (1894) controls this case. Davis was decided over one hundred years ago, prior to the passage of § 17-13-140. Moreover, the Davis Court, in the absence of any statutory authority, relied on prior case law in declaring that a warrant must be signed.[3] See State v. Vaughn, 16 S.C.L. (Harp.) 313 (1824) (holding that a warrant that was signed but not sealed was nevertheless a valid warrant). Moreover, I find it significant that the parties inDavis conceded that a warrant had to be signed, thereby leaving only the issue of whether the magistrate’s notation on the warrant constituted a signature for the Court’s determination. Accordingly, I believe that Davis is somewhat irrelevant to the facts of this case and that we must solely look to § 17-13-140 to determine the validity of this warrant.
Section 17-13-140 does not specifically require the magistrate to sign the warrant, but rather, merely requires that a magistrate “issue” the warrant. Nonetheless, a magistrate’s signature indicates that she has made the necessary probable cause finding required before issuing the warrant. Even assuming that an unsigned warrant is defective, I do not believe that this alone necessarily renders the warrant void ab initio.
This Court has held that the good faith exception to the exclusionary rule applies in cases where officers make a good faith attempt to comply with the statute’s affidavit requirements. See State v. McKnight, 291 S.C. 110, 112-13, 352 S.E.2d 471, 472 (1987) (refusing to apply the good faith exception where the officers failed to attempt to comply in good faith to the affidavit requirements);State v. Sachs, 264 S.C. 541, 559, 216 S.E.2d 501, 510 (1975) (allowing evidence to be admitted pursuant to the good faith exception where officers attempted in good faith to comply with the statutory requirements). In my view, the policy reasons for applying the good faith exception to the exclusionary rule in other cases are applicable in this case. See State v. Harvin, 345 S.C. 190, 194, 547 S.E.2d 497, 500 (2001) (recognizing that the main purpose of the exclusionary rule is the deterrence of police misconduct). Covert does not allege that the officers knew the warrant was unsigned or deliberately obtained the warrant without a signature, and the record contains no evidence that he was prejudiced by the statutory violation. Therefore, I would hold that the officers attempted in good faith to comply with § 17-13-140’s requirements and the exclusionary rule should not render the evidence inadmissible.
In my view, the fatal flaw in the State’s case is its failure to present any evidence at trial that the magistrate made a probable cause finding. As the majority observes, the signature on the warrant indicates that a judicial officer found that law enforcement made the requisite probable cause showing, a finding clearly required before a warrant may be issued. The State bore the burden of proving the validity of the warrant and, in my view, while the absence of a magistrate’s signature may be a factor in determining whether the warrant was issued upon probable cause, it is not dispositive of the determination. However, by failing to call the magistrate to testify that she issued the warrant upon finding probable cause, the State failed to present any evidence to show the warrant was valid and therefore did not carry its burden. See Sachs, 264 S.C. at 555, 216 S.E.2d at 508 (recognizing that “all that is necessary to justify the issuance of a warrant is probable cause”); see also U.S. Const. amend. IV and S.C. Const. art. I (mandating that a warrant must be supported by probable cause).
For these reasons, I would hold that the good faith exception is applicable under these circumstances, but that the State failed to carry its burden of proving the magistrate issued the warrant upon finding probable cause. Accordingly, I concur with the majority’s decision to affirm as modified the court of appeals’ opinion.
[1] The facts are fully reported in that opinion, and the verdict form is reproduced in Judge Anderson’s concurring opinion.
[2] See S.C. Code Ann. § 17-13-150 (2003) (copy of warrant and affidavit shall be furnished to person served)
[3] Specifically, the Davis Court found that the lower court properly charged the jury that “a warrant need not be under seal, yet it must be in writing, and signed by the officer issuing.” Id. at 509, 19 S.E. at 139.
Mar 11, 2012 | Criminal Defense, Uncategorized
This SC Supreme Court case deals with a post-conviction relief petition (PCR) by a criminal defendant who claimed he was not properly advised by his lawyer. The Court found against the PCR relief, but this case also shows what can happen when probation is violated and subsequently revoked. In many criminal cases, the defendant is given a long sentence but a fairly short period of probation. As long as the defendant follows the rules, his probation term will end, and he is free to move on with his life. However, any significant violation can cause the probation to be revoked, and the defendant will be sent to prison for his original sentence. In many cases, a probation violation hearing can be defended. Better make sure your attorney knows what to argue here. The stakes of being sent to prison are too high to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Harold B. Turner, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal from Spartanburg County
John M. Milling, Circuit Court Judge
Opinion No. 26708
Submitted April 22, 2009 – Filed August 24, 2009
AFFIRMED
Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Prentiss Counts, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: In this case, the Court granted a writ of certiorari to review the post-conviction relief (PCR) court’s denial of relief to Petitioner Harold B. Turner.
FACTUAL/PROCEDURAL BACKGROUND
In 1994, Petitioner pled guilty to second degree burglary and was sentenced to fifteen years imprisonment, suspended upon time served and five years probation. Subsequently, his probation was revoked. Petitioner did not directly appeal his probation revocation. Petitioner filed an application for PCR alleging probation counsel was ineffective for failing to advise him of his right to a direct appeal.
At the PCR hearing, Petitioner testified that after the revocation hearing, he asked probation counsel, “What can we do?” and that counsel responded “the judge made his ruling,” and testified that he would have requested an appeal if he had known his rights. Probation counsel testified that there were no appealable issues stemming from the probation revocation and that Petitioner never inquired about an appeal. The PCR court found that there were no non-frivolous grounds for an appeal and that no extraordinary circumstances existed and denied Petitioner relief.
This Court granted Petitioner’s request for a writ of certiorari, and Petitioner presents the following issue for review:
Did the PCR court err in finding probation counsel was not ineffective in failing to advise Petitioner of his right to a direct appeal from his probation revocation?
STANDARD OF REVIEW
The burden of proof is on the applicant in post-conviction proceedings to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). On certiorari, the PCR court’s ruling should be upheld if it is supported by any evidence of probative value in the record. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). However, this Court will reverse the PCR court’s decision when it is controlled by an error of law. Pierce v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000).
LAW/ANALYSIS
As a primary matter, we must first address the basis upon which Petitioner claims he is entitled to relief. Since Petitioner seeks relief due to ineffective assistance of counsel, Petitioner bases his PCR application on a violation of his Sixth Amendment right to counsel. See Duckson v. State, 355 S.C. 596, 598, 586 S.E.2d 576, 577 (2003), citing McKnight v. State, 320 S.C. 356, 465 S.E.2d 352 (1995) (observing that an ineffective assistance claim is premised on the violation of an individual’s Sixth Amendment right to counsel). However, a probationer does not have a Sixth Amendment right to counsel.[1] Rather, the right to counsel may arise pursuant to the Due Process Clause under the Fifth and Fourteenth Amendments. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973).[2] In South Carolina, however, all persons charged with probation violations have a right to counsel and must be informed of this right pursuant to court rules and case law. Barlet v. State, 288 S.C. 481, 483, 343 S.E.2d 620, 621 (1986); Rule 602(a), SCACR.
In Duckson, the parolee filed an application for PCR alleging that he received ineffective assistance of counsel at his parole revocation hearing. In South Carolina, a parolee has a statutory right to have counsel present at a parole revocation hearing[3] but, similar to a probationer, does not have a Sixth Amendment right to counsel. As Duckson makes clear, neither a parolee nor a probationer has a Sixth Amendment right to counsel. Accordingly, this Court held that because the parolee could not assert a Sixth Amendment violation and because he did not contend his due process rights were violated, the parolee failed to allege the parole revocation was unlawful and thus failed to state a claim cognizable in a PCR action.
We find the Duckson analysis instructive to the instant case. Although parole revocation and probation revocation are different types of proceedings,[4] to the extent there is a constitutional right to counsel in either context, it exists only by virtue of the Due Process Clause. See Gagnon, 411 U.S. 778, 782 n.3 (observing that, despite minor differences between parole and probation, the revocation of probation is constitutionally indistinguishable from the revocation of parole). Petitioner has only alleged a Sixth Amendment violation, namely that probation counsel was ineffective in failing to inform him of his right to a direct appeal, and thus, under Duckson, it appears he has failed to state a cognizable claim in a PCR action.
However, Duckson is distinguishable from the instant case in an important respect. Unlike a parolee, we have held that, pursuant to court rule, a probationer has a right to counsel. See Barlet and Rule 602(a). A parolee’s statutory right to have counsel present is not comparable to a probationer’s absolute right under state law to appointed counsel. We now hold that because a probationer has a right to counsel, albeit not a Sixth Amendment right, the same analysis for ineffectiveness that applies in other PCR proceedings involving claims against counsel should, by analogy, apply in PCR proceedings involving claims against probation counsel. In our view, this approach does not elevate form over substance by, for example, allowing a probationer to proceed on a due process violation but not allowing him to proceed on an ineffective assistance claim despite the fact that both claims stem from the failure to be informed of his right to appeal. Additionally, this approach eases confusion as well as the burden on the lower courts by providing a uniform standard.[5]
To this end, we must determine whether, under our Strickland jurisprudence, probation counsel was ineffective for failing to inform Petitioner of his right to appeal the revocation of his probation. We hold that he was not.
Following a trial, counsel must inform a defendant who has been found guilty of a crime of the possibility of an appeal and the method for taking an appeal. Frasier v. State, 306 S.C. 158, 161, 410 S.E.2d 572, 574 (1991). In a plea proceeding, however, there is no requirement that plea counsel inform a defendant of the right to a direct appeal absent extraordinary circumstances. Weathers v. State, 319 S.C. 59, 61, 459 S.E.2d 838, 839 (1995); see also Roe v. Flores-Ortega, 528 U.S. 470 (2000) (holding that counsel has a constitutional duty to inform a defendant of his right to appeal a guilty plea if there is reason to think that a rational defendant would want to appeal or that the defendant demonstrated an interest in appealing).[6]
We hold that probation counsel is not required to inform a probationer of his right to an appeal absent extraordinary circumstances. This holding is in accord with counsel’s duties at a plea hearing. See Weathers, 319 S.C. at 61, 459 S.E.2d at 839 (holding that, “absent extraordinary circumstances, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea.”). In our view, a probationer should not be afforded additional protections in a probation revocation hearing, a proceeding that is not a stage of criminal prosecution and that occurs after sentencing, which are not constitutionally mandated in a guilty plea hearing. In other words, probation counsel is not held to a higher performance standard than that imposed upon plea counsel.
In the instant case, the PCR court found probation counsel’s testimony more credible than Petitioner’s testimony. Additionally, there is evidence in the record to support the PCR court’s finding that there were no non-frivolous grounds for an appeal and that no extraordinary circumstances existed. Accordingly, because Petitioner failed to show extraordinary circumstances, he is not entitled to relief.
CONCLUSION
For these reasons, we affirm the PCR court’s order denying Petitioner relief.
WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] In Huckaby v. State, 305 S.C. 331, 408 S.E.2d 242 (1991), we held that a probationer must be informed of his right to counsel and he must make a willing and knowing waiver of counsel. We also stated that “a probationer retains his full Sixth Amendment right to counsel.” Id. at 335, 408 S.E.2d at 244. Because a probationer does not have a Sixth Amendment right to counsel, this statement is incorrect, and any interpretation of the opinion asserting that a probationer is afforded the same constitutional protections as an accused is erroneous. A South Carolina probationer’s right to counsel in a probation revocation hearing is grounded in our case law and court rules. A constitutional right to counsel may arise pursuant to the Due Process Clause, but cannot arise pursuant to the Sixth Amendment.
[2] In Gagnon v. Scarpelli, the Supreme Court held that whether a probationer has a constitutional right to counsel in a revocation hearing should be decided on a case-by-case basis, taking into consideration the complexity of alleged violations and whether the probationer can meaningfully contest the alleged violations.
[3] S.C. Code Ann. § 24-21-50 (Supp. 2002).
[4] Parole eligibility is a collateral consequence of sentencing and is a matter that falls within the province of the Board of Probation, Parole, and Pardon Services. Brown v. State, 306 S.C. 381, 382, 412 S.E.2d 399, 400 (1991); S.C. Code Ann. § 24-21-13 (Supp. 2006). Probation, on the other hand, is a matter within the jurisdiction of the trial court and is judicially-imposed at the time of sentencing. Duckson, 355 S.C. at 598 n. 2, 586 S.E.2d at 578 n. 2; S.C. Code Ann. § 24-21-450 (Supp. 2006).
[5] Our holding today does not alter our PCR jurisprudence regarding claims of ineffective assistance of counsel, nor should it be interpreted as creating additional rights to PCR applicants. Indeed, this Court has granted relief based on “ineffective assistance” of PCR counsel despite the fact that the right to PCR counsel arises from Rule 71.1, SCRCP, and not from the constitution. See e.g., Washington v. State, 324 S.C. 232, 478 S.E.2d 833 (1996) (granting PCR where the defendant alleged ineffective assistance of PCR counsel due to so many procedural irregularities) and Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991) (recognizing that the constitutional right to counsel does not extend to discretionary appeals on collateral attack, but allowing a PCR applicant to receive a belated appeal from the denial of his initial PCR application where first PCR counsel failed to file a notice of appeal); but see Aice v. State, 305 S.C. 448, 451, 409 S.E.2d 392, 394 (1991) (holding that an allegation that prior PCR counsel was ineffective is not per se a sufficient reason allowing for a successive PCR application).
[6] Although decided prior to Flores-Ortega, the Weathers analysis is compatible with the Flores-Ortega analysis and remains good law.
Mar 11, 2012 | Criminal Defense, Uncategorized
This SC Supreme Court decision illustrates how timely objections at trial can prove critical to the outcome of a case. Here, the prosecutor, obviously overcome with personal emotion in a child sexual abuse case, crossed a proverbial line and basically asked the jury to “speak for the victim.” While such feelings are natural given the horrific nature of this crime and particular facts involved here, the prosecutor has a duty to remain professional and take steps to make sure every criminal defendant receives a fair trial. It is also the duty and obligation of the criminal defesne attorney to zealously defend his client, regardless of any personal feelings he may have about the case or the defendant. Better make sure your attorney has the professional discipline to aggressively defend your case, especially if the crime is emotionally charged. No matter what the crime, it is your lawyer’s job to do everything possible to get you a fair trial and afford you due process.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Brandon Leandre Brown, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Florence County
Michael Nettles, Circuit Court Judge
Opinion No. 26691
Submitted June 24, 2009 – Filed July 27, 2009
REVERSED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames, all of Columbia, for Petitioner.
Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Respondent.
JUSTICE BEATTY: In this post-conviction relief (PCR) case, this Court granted the State’s petition for a writ of certiorari to review the PCR judge’s order granting Brandon Leandre Brown a new trial for his convictions of first-degree, criminal sexual conduct with a minor (CSC) and transmitting a sexual disease. The State contends the PCR judge erred in finding Brown’s trial counsel was ineffective for failing to object to certain comments made by the solicitor during his closing argument. We reverse.
FACTUAL/PROCEDURAL HISTORY
At trial, four witnesses, all of whom either lived across the street or were visiting across the street from Brown’s residence on August 4, 2001, testified they observed Brown in his three-year-old stepdaughter’s bedroom on top of the child moving his body in a manner that indicated sexual activity. One of the witnesses testified that “[Brown was] humping up and down on her.” The witnesses testified they were able to see the incident through the child’s bedroom window because the blinds were wide open, the light was on in the bedroom, and it was dark outside at 11:30 p.m. One witness, upon his initial observation, retrieved a pair of binoculars to confirm what he thought he had seen. Based on their observations, the witnesses became upset, called the police, and then went to Brown’s residence to assist the child and to confront Brown. All four witnesses testified that when Brown answered the door, he had an erection.
Shortly after the incident, officers with the Timmonsville Police Department responded to Brown’s residence. After interviewing the witnesses for approximately two hours, the officers took Brown to the police station where he gave two audio-taped statements. These statements were admitted at trial. In these statements, Brown denied that he intended to sexually assault his stepdaughter; however, he admitted that he became aroused while wrestling with her and that he may have accidentally penetrated her. In his first statement, Brown explained that he just got too close to the child and that his penis “might have hit her a couple of times.” In his second statement, Brown stated that it was possible that penetration occurred but that he did not intend to penetrate her. Toward the end of the interview, Brown stated “I came . . . into her a couple of times but not intentionally.” When questioned at trial about the incident, Brown testified that he was tickling and wrestling with the child but denied that he penetrated her.
Rhonda Turner, Brown’s ex-wife and the mother of the child, testified that during the time leading up to the incident and the day of the incident, Brown was unemployed and had access to her daughter during the daytime. In describing her relationship with Brown, she stated that they were married for approximately a year and had a son, who was born on July 4, 2001. Rhonda admitted that she contracted gonorrhea from Brown. She testified that she learned of the STD when her physician’s office called her and instructed her to report to the office on the Monday following the August 4, 2001 incident between Brown and her daughter. During that phone call, Rhonda was informed that she had tested positive for gonorrhea and needed to be seen by her doctor. Rhonda delayed this visit for one day because she took her daughter to be medically evaluated on the Monday following the incident. As a result of this evaluation, the child was given a shot for gonorrhea.
When questioned about the incident between Brown and her daughter, Rhonda testified that she spoke with Brown about it at the Timmonsville Police Department. During this conversation, Brown said, “Well, I mean, I may have, you know, been playing with her; and my penis may have fallen out of my boxers; and I may have gotten erected; and her panties may have gone to the side.” Rhonda, however, testified that when she spoke with Brown again during a telephone conversation he said “he didn’t do it.”
As part of its case, the State presented Kathy Saunders as an expert witness in “child sexual assault” and “child sexual abuse.” Saunders testified that she examined the child two days after the incident because she was out-of-town and unable to evaluate the child when she was taken to the emergency room immediately after the incident with Brown. As a result of her examination, Saunders discovered “copious” amounts of green discharge coming from the child’s vaginal opening. Saunders characterized this finding as a “classic” symptom of gonorrhea. Although there was no evidence of an acute injury causing vaginal tearing or bleeding, Saunders noted in her examination that there was redness around the child’s labia and surrounding tissue. Specifically, Saunders testified “[t]here was some mild redness, with what appeared to be resolution of labial lesions or just some type of contact dermatitis.” She further stated the tissue in the surrounding area “appeared kind of red, very thickened or swollen.” Saunders indicated that these physical findings could be consistent with “someone penetrating the [child’s] labia.” In addition to her physical examination, Saunders testified the child’s mother told her that the child had recently been wetting the bed, complained of stomach aches and nightmares, and had vaginal discharge. Saunders believed these symptoms could be indicative of sexual abuse.
In addition to Brown’s testimony and the testimony of several character witnesses, the defense presented evidence attempting to refute that Brown could have transmitted gonorrhea to the child during the August 4, 2001 incident. Specifically, the defense presented medical records which indicated that Brown had been treated for gonorrhea on May 23, 2001, and July 26, 2001.
In support of its theory, the defense also offered the testimony of Dr. Elizabeth Lynn Harvey Baker-Gibbs, an expert witness on the “diagnosis and treatment of sexual abuse.” Dr. Baker-Gibbs testified regarding the type and effectiveness of the medication prescribed for the treatment of gonorrhea. When presented with the facts of the instant case, she opined that if Brown had properly taken his prescribed medication on July 26, 2001, he would not have been contagious after July 29, 2001. Based on these facts, she ultimately concluded that Brown would not have been contagious on August 4, 2001, the date of the incident.
Following motions from counsel, the trial concluded with closing arguments. At end of his closing argument, the solicitor stated:
I embrace my burden because I represent the State of South Carolina. And I think someone said at the beginning of this trial this is trying to protect the rights of people. Well, I tell you what. I’m here to protect the innocent. I’m here to protect [child victim] a four-year-old child now. Three-year-old little child at that time. And I am the last person that you’re going to hear speak up for her.
So, I ask you, when you go back in that jury room, you speak up for [child victim]. We can never put her back to where she was before this abuse occurred. But we can make sure that the perpetrator is punished. So when you go back in that jury room to deliberate, ladies and gentlemen, speak up for [child victim].
Brown’s trial counsel did not object to these remarks. The jury convicted Brown of first-degree criminal sexual conduct with a minor and transmitting a sexual disease. Subsequently, the trial judge sentenced Brown to twenty-five years imprisonment for the CSC charge and a concurrent term of thirty days imprisonment for the transmission of a sexual disease charge.
Brown appealed his convictions and sentences to the Court of Appeals. In an unpublished opinion, the Court of Appeals affirmed Brown’s convictions and sentences. State v. Brown, Op. No. 2004-UP-358 (S.C. Ct. App. filed June 4, 2004).
Following the decision of the Court of Appeals, Brown filed a timely PCR application. Once represented by counsel, Brown filed an amended PCR application. In these applications, Brown alleged his trial counsel was ineffective in several respects, including counsel’s failure to object to the remarks made by the solicitor in his closing argument.
At the PCR hearing, Brown’s counsel asserted the solicitor’s comments “to speak up for the victim” amounted to a “Golden Rule” type argument that has been deemed improper by our state appellate courts. Additionally, PCR counsel contended the improper argument was prejudicial because it appealed to the passion and prejudice of the jury by asking the jury to be an advocate for the child victim.
Brown’s trial counsel, the only witness called to testify, admitted that an objection should have been made to the solicitor’s comments. However, he stated the reason “those statements were not objected to was because I didn’t want to exacerbate a bad set of facts to point out to the jury something that would already aggravate what appeared to be a pretty bad case.” Trial counsel also pointed out the “gravity of the evidence” the State presented against Brown. He further noted he did not want to give the jury a reason to dislike or hate his client.
In an oral ruling, the PCR judge informed counsel that he was granting Brown relief in the form of a new trial solely on the ground that trial counsel was ineffective in failing to object to the remarks made by the solicitor during closing argument.
In a detailed written order, the PCR judge explained that trial counsel’s failure to object to the solicitor’s closing argument was “clearly error.” The judge further found that “[t]here is a reasonable probability, based upon the evidence before this Court, that failure to object to this inappropriate argument undermined the confidence in the outcome in this trial.”
In terms of the evidence, the judge concluded that there was not overwhelming evidence of guilt given it “consisted of very questionable eyewitness testimony, [Brown’s] two statements, and the fact that at some point, although not at the time of the incident, [Brown] had gonorrhea.” The judge characterized the eyewitness testimony as “questionable” in light of defense counsel’s contention at trial that due to the position of the child’s bedroom window “there was no possible way the witnesses could have seen what they claimed to have seen.” Additionally, the judge referenced the State’s expert witness testimony that the child could not have tested positive for gonorrhea the day after the incident and the testimony that Brown could not have been contagious on the date of the incident. The judge further noted that Brown denied sexually assaulting the child and that there was no evidence of “tearing or obvious injury to the child’s vagina.”
The judge also rejected the State’s contention that the solicitor’s comments were so limited that they could not have affected the trial. Specifically, the judge stated that “[g]iven the seriousness of the offense and the emotions involved, these comments were more than enough to place the jury in a position of being asked to stand up for, help, protect, and advocate for a very small child.” The judge believed that “[i]t is clear that the Solicitor’s statements encouraged the jury to depart from neutrality and decide the case based on passion and bias rather than the evidence, which led to the jury’s verdict being undermined.” Ultimately, the PCR judge found trial counsel was ineffective and, as a result, granted Brown a new trial as to both of his convictions.
The State petitioned for and was granted a writ of certiorari for this Court to review the PCR judge’s order.
STANDARD OF REVIEW
A defendant has the right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668 (1984). “There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case.” Tate v. State, 351 S.C. 418, 425, 570 S.E.2d 522, 526 (2002).
In a PCR proceeding, the applicant bears the burden of establishing that he is entitled to relief. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). In order to prove that counsel was ineffective, the PCR applicant must show that: (1) counsel’s performance was deficient; and (2) there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different. Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000) (citing Strickland v. Washington, 466 U.S. 668 (1984)). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.” Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007). “Furthermore, when a defendant’s conviction is challenged, ‘the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.’” Id. (quotingStrickland v. Washington, 466 U.S. 668, 695 (1984)).
This Court will uphold the findings of the PCR court if there is any evidence of probative value to support them. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). However, if no probative evidence supports these findings, the Court will not uphold the findings of the PCR court. Jackson v. State, 355 S.C. 568, 570, 586 S.E.2d 562, 563 (2003). “The decision of the PCR judge may be reversed when it is controlled by an error of law.” Hiott v. State, 381 S.C. 622, 625, 674 S.E.2d 491, 492 (2009).
DISCUSSION
The State contends the PCR judge erred in granting Brown a new trial on the ground that his trial counsel was ineffective in failing to object to certain portions of the solicitor’s closing argument. Initially, the State asserts that counsel was not ineffective given he “articulated a valid reason for not objecting when he stated he was worried about the jury hating his client.” In support of this assertion, the State points to the testimony of trial counsel that “there was a lot of evidence against [Brown] and that he did not wish to aggravate an already bad situation.” The State also references trial counsel’s testimony that the solicitor’s comments were limited in that they were made “quickly.” Even if trial counsel’s performance was deficient in that there was no objection to the solicitor’s comments, the State claims that Brown was not prejudiced in view of the overwhelming evidence of guilt presented at trial.
“A solicitor’s closing argument must be carefully tailored so as not to appeal to the personal biases of the jury.” Von Dohlen v. State, 360 S.C. 598, 609, 602 S.E.2d 738, 744 (2004). “The argument must not be calculated to arouse the jurors’ passions or prejudices, and its content should stay within the record and reasonable inferences that may be drawn therefrom.” Id. at 609-10, 602 S.E.2d at 744.
“‘While the solicitor should prosecute vigorously, his duty is not to convict a defendant but to see justice done.’” State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 881 (2007) (quoting State v. Linder, 276 S.C. 304, 312, 278 S.E.2d 335, 339 (1981)). “‘The solicitor’s closing argument must, of course, be based on this principle.’” Id. “A Golden Rule argument asking the jurors to place themselves in the victim’s shoes tends to completely destroy all sense of impartiality of the jurors, and its effect is to arouse passion and prejudice.” State v. Reese, 370 S.C. 31, 38, 633 S.E.2d 898, 901 (2006).
“On appeal, the appellate court will view the alleged impropriety of the solicitor’s argument in the context of the entire record, including whether the trial judge’s instructions adequately cured the improper argument and whether there is overwhelming evidence of the defendant’s guilt.” Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998). “Improper comments do not automatically require reversal if they are not prejudicial to the defendant, and the appellant has the burden of proving he did not receive a fair trial because of the alleged improper argument.” Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002). “The relevant question is whether the solicitor’s comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id.; see State v. Hornsby, 326 S.C. 121, 129, 484 S.E.2d 869, 873 (1997) (“A denial of due process occurs when a defendant in a criminal trial is denied the fundamental fairness essential to the concept of justice.”).
Turning to the facts of the instant case, we find the PCR judge correctly concluded the solicitor’s remarks were improper in that they amounted to an impermissible “Golden Rule” type argument. See State v. Reese, 359 S.C. 260, 271, 597 S.E.2d 169, 175 (Ct. App. 2004) (recognizing that a “Golden Rule” argument which suggests to jurors to put themselves in the shoes of one of the parties is generally impermissible because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than evidence), aff’d in part and rev’d in part, 370 S.C. 31, 633 S.E.2d 898 (2006) (affirming the Court of Appeals’ finding that the defendant was entitled to a new trial based on the solicitor’s “Golden Rule” closing argument in which he repeatedly asked jurors to “speak” for the murdered victim).
Here, it is indisputable that the case was “emotionally charged” given it involved sexual misconduct with a three-year-old child. Thus, the solicitor’s remarks imploring the jurors to “speak for” the victim undeniably asked the jurors to set aside their impartiality and, instead, consider the evidence from the subjective position of the child victim.
In view of this improper argument, we agree with the PCR judge that it was incumbent upon Brown’s trial counsel to object to the solicitor’s closing remarks. Furthermore, although we do not believe trial counsel was disingenuous in articulating a trial strategy to explain his failure to object to these comments, we find this “strategy” cannot be construed as a valid one given the evident impropriety of the solicitor’s remarks. Cf. Stokes v. State, 308 S.C. 546, 548, 419 S.E.2d 778, 779 (1992) (“Where . . . counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel.”);Whitehead v. State, 308 S.C. 119, 122, 417 S.E.2d 529, 531 (1992) (recognizing that “[c]ourts must be wary of second-guessing counsel’s trial tactics; and where counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel”).
Based on the foregoing, we hold trial counsel was deficient in failing to object to the challenged portion of the solicitor’s closing argument because it constituted a “Golden Rule” argument which impermissibly appealed to the passion of the jurors by asking them to “speak up” for the child victim. However, we find Brown did not satisfy his requisite burden of proving that there was a reasonable probability that but for counsel’s deficient performance the result of his trial would have been different.
First, the solicitor’s comments came at the very end of his closing argument and were limited in duration. Thus, we find the solicitor’s comments did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. SeeSmith v. State, 375 S.C. 507, 654 S.E.2d 523 (2007) (concluding any impropriety in the solicitor’s closing argument was not sufficient to grant defendant post-conviction relief where solicitor’s improper use of the pronoun “I” was limited, did not recur throughout his argument, there was overwhelming evidence of the defendant’s guilt, and the trial judge instructed the jury not to consider counsel’s statements as evidence); see also Von Dohlen, 360 S.C. at 613-14, 602 S.E.2d at 746 (holding trial counsel, during the penalty phase of a capital case, was deficient in failing to object to solicitor’s comment for the jurors to put themselves in the victim’s shoes, but finding such deficient performance was not prejudicial); cf. State v. McDaniel, 320 S.C. 33, 462 S.E.2d 882 (Ct. App. 1995) (finding solicitor’s use of “you” forty-five times during closing argument asking the jurors to put themselves in the place of the victim constituted reversible error and warranted a new trial).
Secondly, there was overwhelming evidence of Brown’s guilt. The State presented four eyewitnesses who testified to seeing Brown commit the sexual misconduct against the child. Each of the witnesses testified they could see into the child’s bedroom window because the blinds were wide open, it was dark outside, and there was a light on in the bedroom. They further explained that they were able to see more clearly when they approached the window to confront Brown by banging on the bedroom window. Additionally, each witness testified that when Brown opened the door, he had an erection.
Although Brown’s defense counsel attempted to establish that the witnesses’ testimony differed from their written statements regarding certain details, the witnesses were adamant that they could clearly see through the child’s bedroom window. They also explained that they wrote their statements for the police immediately after witnessing the incident while sitting in the dark on top of the police cars.
The State also presented the two audio-taped statements given by Brown in which he admitted to “accidental” or “possible” penetration of the child. Brown’s ex-wife also testified that when she spoke with Brown at the police station he admitted that he had been playing with the child and said, “my penis may have fallen out of my boxers; and I may have gotten erected; and her panties may have gone to the side.”
Additionally, the State’s expert witness testified that the child exhibited physical and psychological symptoms which were indicative of sexual abuse. This expert witness also confirmed that the child had been diagnosed with gonorrhea. Although the defense presented evidence that Brown may not have been contagious on the day of the incident, there was testimony that prior to the incident he was diagnosed with gonorrhea and had access to the child alone during the day.
Finally, the jury only deliberated for thirty-eight minutes before finding Brown guilty of both charges. Notably, the trial judge also recognized that the evidence of guilt was overwhelming when he stated during sentencing:
I want to say to you also that the evidence in this case, sir, was overwhelming, including four eyewitnesses, which is very unusual for a crime which generally occurs in secret; your obvious and your unnatural state of arousal when you went to the door or when you were confronted about this; the transmission of gonorrhea to a child victim; and your own admissions that are contained in your own statements, sir. All of these are overwhelming evidence in the view of this court.
Based on the foregoing, we hold that any impropriety in the solicitor’s closing argument was not sufficient to warrant the PCR judge’s decision to grant a new trial.
CONCLUSION
Although we find the PCR judge correctly determined that trial counsel was deficient in failing to object to the solicitor’s “Golden Rule” closing argument, we hold Brown failed to prove that there was a reasonable probability that but for this error the result of his trial would have been different. Accordingly, the decision of the PCR judge is
REVERSED.
TOAL, C.J., WALLER, PLEICONES and KITTREDGE, JJ., concur.
Mar 3, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This SC Supreme Court decision demonstrates how important every detail can be in a criminal case. Here, the trial judge sentenced the defendant to a statutorily required 25 years in prison and a $100,000 fine for trafficking cocaine based upon an amount of cocaine not proven by the State. However, on appeal, it was concluded that the jury was charged inappropriately and could only support a greatly reduced sentence of 3-10 years and a $25,000 fine. Every nuance in a criminal case can make all the difference. Better make sure your defense attorney investigates every aspect of your case and knows how to take full advantage at trial. There is too much at stake to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Gina L. Dervin, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARO
Appeal From Kershaw County
L. Casey Manning, Circuit Court Judge
Opinion No. 26755
Submitted November 18, 2009 – Filed December 21, 2009
REVERSED AND REMANDED
Appellate Defender Kathrine H. Hudgins, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Brian T. Petrano, all of Columbia, for Respondent.
JUSTICE WALLER: We granted a writ of certiorari to perform an Austin v. State review of the denial of Petitioner Gina Dervin’s application for post conviction relief (PCR). We reverse and remand for resentencing.
FACTS
Dervin was indicted for trafficking cocaine. The indictment alleged she had trafficked between 200-400 grams of cocaine. During her trial, the court twice instructed the jury that Dervin could be convicted of trafficking if she was in actual or constructive possession of ten grams or more of cocaine. The jury found her guilty.
At sentencing, Dervin requested the judge sentence her to the minimum possible sentence, to which the court responded:
Trafficking in cocaine — and in this case trafficking in cocaine in a substantial amount — the amount in this case is from 200 grams – more than 200 grams but less than 400 grams. And that I will tell you is the second highest category or volume of traffic of cocaine provided for in the trafficking statute. . . .
Our Legislature has mandated a sentence in a trafficking case, and that is a mandatory 25-year sentence and a mandatory $100,000 fine. So I have no choice other than to impose the sentence required by law.
Accordingly, Dervin was sentenced to twenty-five years and a $100,000 fine for trafficking. The Court of Appeals affirmed her convictions and sentences on direct appeal. State v. Dervin, Op. No. 2003-UP-484 (S.C. Ct. App. filed August 20, 2003).
Dervin’s first PCR application was denied, and no appeal was filed. Dervin filed this subsequent PCR application in May 2007, alleging PCR counsel was ineffective in failing to appeal the denial of the first PCR application. The court held Dervin was entitled to a belated review of the denial of her first application pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), and we granted certiorari.
ISSUE
Was trial counsel ineffective in failing to object to Dervin’s twenty-five year sentence for trafficking more than 200 grams of cocaine when the trial judge only charged the jury to consider whether petitioner was guilty of trafficking ten or more grams of cocaine?
DISCUSSION
Dervin contends trial counsel was ineffective in failing to object to imposition of a twenty-five year sentence for trafficking between 200-400 grams of cocaine, because the jury was only required to determine she trafficked ten or more grams of cocaine, but that it did not necessarily determine she possessed over 200 grams. Dervin contends the United States Supreme Court’s decisions inApprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) require the amount of drugs to be submitted to the jury to be proven beyond a reasonable doubt. We agree.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), the United State Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” See also Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (court explained that “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant).
The state asserts there is no Apprendi violation because the twenty-five year sentence imposed here is within the statutory maximum. While the state is correct in asserting that S.C. Code Ann. § 44-53-370(e)(2)(e) permits up to a thirty year sentence and a $200,000 fine for trafficking over 400 grams of cocaine, the only amount actually charged to the jury here was that it could convict Dervin if it found she possessed “more than 10 grams.” There is no indication in the jury’s verdict that it found anything more than this amount. Accordingly, given the trial court’s instruction, the applicable sentence for possession of ten grams falls under § 44-53-370(e)(2)(a)(1) and is a maximum of ten years and a $25,000 fine. Accord United States v. Booker, 543 U.S. 220 (2005) (statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant).
Due process requires the State to prove every element of a criminal offense beyond a reasonable doubt. State v. Brown, 360 S.C. 581, 602 S.E.2d 392 (2004) (citing In re Winship, 397 U.S. 358 (1970)). A defendant, therefore, cannot “be exposed to a greater punishment than that authorized by the jury’s guilty verdict.” United States v. Page, 232 F.3d 536, 543 (6th Cir. 2000).
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court reiterated its holding inApprendi that, under the Sixth Amendment, all facts used to increase a defendant’s sentence beyond the statutory maximum must be charged and proven to a jury. 542 U.S. at —-, 124 S.Ct. at 2536. The relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Simpson v. United States, 376 F.3d 679 (7th Cir. 2004). See also United States v. Booker, 375 F.3d 508 (7th Cir. 2004). UnderBlakely, the relevant statutory maximum “is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303-304, 124 S.Ct. at 2537.
We find the maximum permissible sentence here, pursuant to Apprendi and Blakely, is controlled by the amount which was specifically submitted to the jury, i.e., that it could convict Dervin of trafficking if it believed she possessed ten or more grams of cocaine. Accordingly, the maximum sentence in the present case should have been that for trafficking between 10-28 grams, which is 3-10 years, and a $25,000 fine. Therefore, the trial court’s imposition of a twenty-five year sentence for trafficking between 200-400 grams of cocaine violated Apprendi because the jury did not find beyond a reasonable doubt that Dervin possessed that amount of cocaine. Further, we find counsel was ineffective in failing to object to impostion of a 25 year sentence. We reverse the denial of PCR and remand for resentencing.[1]
REVERSED AND REMANDED FOR RESENTENCING.
TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Although an Apprendi error may be deemed harmless, Washington v. Recuenco, 548 U.S. 212 (2006), we do not find the error harmless in the present case.
Feb 28, 2012 | Criminal Defense, Uncategorized
This recent SC Court of Appeals decision demonstrates what is expected and required of attorneys in complex criminal cases, including pre-trial investigation and court room presentation. Every potential defense must be evaluated and called at trial to properly defend a criminal defendant. Alibi witnesses, DNA evidence, any discrepancies in testimony must be aggressively pursued as part of your client’s defense. If these requirements are not met, your client can pay for a crime they may not have committed. It is the criminal defense attorney’s role to pursue every lead, every possible avenue. Better make sure your attorney knows where to look and what to look for and is willing to fight every aspect of the case against you in court.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Joseph Walker, Respondent,
v.
State of South Carolina, Petitioner.
Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge
Opinion No. 4946
Heard October 5, 2011 – Filed February 22, 2012
REVERSED
Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mary S. Williams, Assistant Attorney General Robert D. Corney, all of Columbia, for Petitioner.
Appellate Defender Kathrine H. Hudgins, of Columbia, for Respondent.
FEW, C.J.: This is a post-conviction relief (PCR) action arising out of Joseph Walker’s convictions for kidnapping and first-degree criminal sexual conduct. The circuit court granted Walker’s PCR application based on trial counsel’s failure to investigate a potential alibi witness and the cumulative prejudicial effect of three other alleged instances of deficient performance. We agree with the PCR court that trial counsel’s performance regarding the alibi witness was deficient under the Sixth Amendment. However, we find the witness’s testimony presented at the PCR hearing did not meet the legal definition of an alibi, and thus Walker failed to prove prejudice. We also find the PCR court erred in granting relief based on the cumulative effect of counsel’s deficient performance. We reverse.
I. Facts and Procedural History
The victim testified that on March 2, 2002, she sought a man’s help in fixing her broken-down car at a BP gas station in Denmark, South Carolina. The man fixed her car with a wire he purchased nearby for $30. The victim did not have enough money with her, so she told the man to follow her home so she could pay him. She said the man came into her house uninvited, blindfolded her, drove her to his house, and raped her throughout the night. Early the next morning the man blindfolded her again, drove her home, and threatened to kill her if she told anyone. The victim testified that a few hours after she got home, she drank a rum and coke to calm her nerves.
The victim identified a man in the surveillance videotape from the BP station as her assailant. The BP store manager then identified the man as Joseph Walker. Prior to this incident, the victim had never met Walker or been to his house. However, the police were able to match precisely the detailed descriptions the victim gave of her assailant’s truck and house with Walker’s truck and house. Walker was arrested on March 22, 2002, twenty days after the alleged crime. He submitted to a video interview with the police in which he claimed he was with his girlfriend, Robina Reed, on the night of the crime. Walker was convicted of first-degree criminal sexual conduct and kidnapping. The trial court sentenced him to concurrent terms of twenty-four years in prison. This court affirmed the convictions and sentences. State v. Walker, Op. No. 2004-UP-618 (S.C. Ct. App. filed Dec. 9, 2004).
In January 2005, Walker filed a PCR application alleging ineffective assistance of counsel. Walker argued trial counsel was ineffective because she did not (1) investigate Reed as an alibi witness, (2) ask for a continuance to await the written results of a DNA test, (3) cross-examine the victim about her alcohol use, and (4) cross-examine the victim and call other witnesses about the victim’s conflicting statements as to the time of the incident.
Trial counsel testified at the PCR hearing that she watched the DVD of Walker’s interview. In the interview, Walker referred to Reed numerous times and claimed he could not have committed the crimes because he spent the night with her on March 2, 2002. Specifically, Walker admitted he was at the BP station on March 2, but denied helping the victim fix her car. He said he left the BP station and went to see Reed at Hardee’s, where she worked as a manager. Walker said he then stayed at a friend’s house until about 10:00 p.m., when he drove to Reed’s house to spend the night.
Despite watching the DVD of the interview, trial counsel did not investigate Reed as a potential witness. At the PCR hearing, she claimed she thought her investigator was following up on Reed. Walker testified he told the investigator about Reed, and the investigator wrote Reed’s name in the case file. Trial counsel said she did not know what, if anything, her investigator did to investigate Reed. She also testified she “was not aware of any claim that [Walker] was with anyone on” the night of the crime. The PCR court summed up trial counsel’s knowledge of Reed as a potential alibi witness in the following question:
The court: So, there is an interview tape of the defendant that says he was with . . . Ms. Reed on the night of the incident. That name appears in the file, but we don’t know what was done as far as finding out what Ms. Reed would or would not have said; is that correct?
[Trial counsel]: Yes, your honor.
Reed testified at the PCR hearing that Walker was her boyfriend on March 2, 2002. She said Walker had a key to her house and spent most weekend nights with her. When asked if she and Walker spent the night together on March 2, 2002, Reed answered: “I guess I did.” The judge asked Reed: “You’re telling me that you spent – [Walker] was staying with you that first weekend in March of 2002.” Reed answered “Yes.” On cross-examination, however, she changed her answer as follows:
Q: 2002 is when y’all broke up?
A: Yea.
Q: You know the exact date?
A: No, sir.
Q: But you knew he was with you that night?
A: Huh?
Q: You knew he was with you on March 2?
A: Well, I know he was with me, but I can’t say a particular date. No, I don’t know what date y’all want.
Q: But you can’t remember the date y’all broke up?
A: Right.
Q: Do you know what you were doing the night of March 1, 2002?
A: No, I can’t go back that far.
Q: Well, that’s just the day before when you said Mr. Walker was with you?
A: You said he was with me, but that’s all I can say.
Q: So, you don’t know what you were doing March 1, 2002?
A: We could have been together in 2002. I don’t even know what day that was.
Q: But you don’t know specifically?
A: Right, that’s what I’m saying.
Q: But you know specifically right now what you were doing March 2, 2002?
A: No, I ain’t said that.
Q: So, you don’t know what you were doing March 2, 2002 that night?
The Court: Ma’am, do you know whether or not you were with this man over here Mr. Walker?
The Witness: I know we spent a lot of days together. I can’t tell you no particular day.
Q: So you can’t tell –
A: A particular day; right.
Q: You can’t tell us you were with him March 2, 2002?
A: Right.
As to Reed’s testimony, the PCR court found:
[Walker] and Reed had an intimate relationship that was ongoing at the time of the alleged incident . . . . [Reed] further testified that [Walker] was usually with her during the time frame of [the] incident. [Walker] testified that he had been spending many nights, and most, if not all, weekends with Reed prior to, and including, the date of the alleged incident . . . . While Reed’s memory of specific dates is not perfect since it has been approximately five years since the incident, and approximately four years since the trial, her testimony corroborated that of [Walker].
. . . [T]he Court finds that the testimony of Reed at the PCR hearing was credible.
The jury would have weighed the credibility of the testimony of the witness, and it is reasonable to assume that the outcome of the deliberations may have been different had this witness testified in light of the facts of this case.
The PCR court granted Walker’s application on two grounds. First, the court found the failure to investigate the alibi witness was deficient and prejudiced the defense. Second, the court found Walker independently established a second ground for prejudice with the cumulative effect of Trial Counsel’s error in her failure to investigate [the victim’s] alcohol use, her failure to move to continue the hearing to await the written results of the forensic testing, her failure to cross-examine the witnesses as to the discrepancy of the conflicting times of the incident, and her failure to investigate or interview Reed, the combination of which prejudiced [Walker].
The judge explained that, standing alone, none of the first three instances of deficient performance established prejudice, but when they were added together with the failure to investigate Reed as an alibi witness, “[these] failures cumulatively prejudiced” Walker. The State appeals both grounds upon which the PCR judge granted the application.[1]
II. Applicable Law and Standard of Review
To obtain post-conviction relief based on the alleged denial of effective assistance of counsel under the Sixth Amendment, the applicant must satisfy the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the applicant must show that trial counsel’s performance was deficient based on a standard of “‘reasonableness under prevailing professional norms.'” Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011) (quoting Strickland, 466 U.S. at 688). Second, the applicant “must demonstrate that this deficiency prejudiced him to the point that he was deprived of a fair trial whose result is reliable.” Id. To satisfy this second prong, the applicant “must demonstrate that his attorney’s errors had an effect on the judgment against him.” 392 S.C. at 458-59, 710 S.E.2d at 65. An error will be found to affect the judgment if the applicant proves “‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.'” 392 S.C. at 459, 710 S.E.2d at 66 (quoting Strickland, 466 U.S. at 694). “In other words, [the applicant] must show that ‘the factfinder would have had a reasonable doubt respecting guilt.'” Id. (quoting Strickland, 466 U.S. at 695).
An appellate court must affirm the factual findings of the PCR court if they are supported by any probative evidence in the record. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). This court “will reverse the PCR court only where there is either no probative evidence to support the decision or the decision was controlled by an error of law.” Edwards, 392 S.C. at 455, 710 S.E.2d at 64.
III. Ineffective Assistance of Counsel—Alibi Witness
A. First Prong of Strickland
We agree with the PCR court’s finding that trial counsel’s failure to investigate Reed as an alibi witness was deficient performance. Counsel admitted she watched the DVD of Walker’s interview. Therefore, she was aware of Walker’s claim that he was with Reed on the night of the crime.[2] “[C]riminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case.” Edwards, 392 S.C. at 456, 710 S.E.2d at 64. The duty to investigate a potential witness is even more critical when the witness might provide an alibi. Accordingly, the Sixth Amendment requires that criminal defense attorneys thoroughly investigate potential alibi witnesses.
Trial counsel did nothing personally to investigate Reed as a witness. Her claim that her investigator was exploring Reed’s role in the case also does not satisfy her obligations under the Sixth Amendment. The duty to represent the client belongs to the lawyer. While it may be reasonable to allow investigators and paralegals to do some or all of the investigatory work, trial counsel has a duty to supervise the investigation, make sure it is completed, and familiarize herself with the results. Trial counsel’s failure to adequately investigate Reed as an alibi witness under the circumstances presented in this case was unreasonable under prevailing professional norms, and therefore deficient performance under the Sixth Amendment.
The State points out, however, that the defense presented a theory that Walker and the victim had consensual intercourse and there was no rape. The State argues this was “a far better theory” than an alibi defense because an alibi would not have explained the victim’s detailed and accurate description of Walker’s house and truck. The State thus argues that trial counsel’s failure to investigate Reed as an alibi witness is justified as a valid strategic decision. This argument mischaracterizes the role of strategy in the analysis of trial counsel’s performance. If counsel had properly investigated the alibi defense, and then made an informed strategic decision not to pursue it, the State’s argument would be persuasive. However, because trial counsel did not conduct an adequate investigation of the alibi defense, she could not have made an informed strategic choice.
In Strickland, the Supreme Court stated that
strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . [C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.
466 U.S. at 690-91; see Council v. State, 380 S.C. 159, 175, 670 S.E.2d 356, 364 (2008). Here, trial counsel articulated no reasonable basis for her decision not to investigate Reed as an alibi witness. Therefore, reasonable professional judgment does not support the limitation on the investigation. Moreover, such a decision could not have been reasonable professional judgment. Because an alibi is a complete defense to a criminal charge,[3] there is no conception of sound judgment that will permit trial counsel to choose not to investigate the testimony of a witness whom counsel has reason to believe could provide an alibi.
We find, therefore, that there is evidence to support the PCR court’s ruling that Walker met the first prong of the Strickland test. We agree with the court’s conclusion that trial counsel’s performance was deficient because we find “‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Edwards, 392 S.C. at 456, 710 S.E.2d at 64 (quoting Strickland, 466 U.S. at 687).
B. Second Prong of Strickland
As to the second prong of Strickland, however, we find the PCR court’s ruling that trial counsel’s deficient performance prejudiced Walker was controlled by an error of law. To qualify as an alibi, a witness’s testimony must account for the defendant’s whereabouts during the time of the crime such that it would have been physically impossible for the defendant to commit the crime. Glover v. State, 318 S.C. 496, 498, 458 S.E.2d 538, 540 (1995). Reed’s testimony at the PCR hearing did not meet the definition of alibi. Therefore, trial counsel’s failure to present the testimony cannot form the basis of a finding of prejudice under Strickland. Glover, 318 S.C. at 498, 458 S.E.2d at 539-40.
This case is similar to Glover. There, the PCR applicant “argued trial counsel was ineffective for failing to contact several witnesses who could have testified [the applicant] was in Florida when the crimes were committed.” 318 S.C. at 497, 458 S.E.2d at 539. One witness initially said he “believed” the applicant was in Florida, but then said he could not remember and “knew ‘nothing.'” Id. The second witness testified the applicant was in Florida eleven hours before the crime was committed at a location only approximately six-and-a-half hours away. 318 S.C. at 497-98, 498 n.1, 458 S.E.2d at 539-40, 540 n.1. The testimony of either witness would have made it less likely the applicant committed the crime. Nevertheless, the supreme court found “no evidence to support the PCR judge’s finding of prejudice” because “neither witness’s PCR testimony established an alibi defense.” 318 S.C. at 498, 458 S.E.2d at 539-40. In support of its finding, the supreme court cited State v. Robbins, 275 S.C. 373, 271 S.E.2d 319 (1980) for the following proposition: “[S]ince an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused’s guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all.” Glover, 318 S.C. at 498, 458 S.E.2d at 540.
We interpret Glover to establish a framework for analyzing an alleged failure to investigate an alibi witness. When a PCR applicant alleges trial counsel failed to investigate or present an alibi witness, the PCR court must make two findings to determine if counsel’s deficient performance constitutes prejudice under Strickland. First, the court must find as a matter of law whether the witness’s testimony meets the legal definition of an alibi. Second, the court must assess the witness’s credibility. In making the first finding, the court must consider the entire record to determine what the testimony would have been if it had been presented at trial. The PCR court must consider the testimony as a whole, take it as true and credible, and view it in the light most favorable to the PCR applicant.
Analyzing Reed’s testimony under the Glover framework, we conclude her testimony does not qualify as an alibi. Reed’s testimony makes it less likely Walker is guilty. Taken as a whole, however, her testimony does not account for Walker’s whereabouts on March 2, 2002, such that it was physically impossible that he committed the crimes. Although Reed began by saying Walker spent the weekend with her, she eventually said she could not specifically remember whether Walker spent the night with her on March 2. Even her specific testimony that Walker “was staying with [her] that . . . weekend” does not foreclose the possibility that he arrived at her house on Saturday morning after committing the crimes on Friday night. Therefore, like the testimony of the two witnesses in Glover, Reed’s testimony does not establish an alibi because it leaves open the possibility that Walker is guilty.[4]
Because Reed’s testimony does not meet the legal definition of an alibi, Walker failed to show a reasonable probability the result of the trial would have been different if trial counsel investigated and presented Reed’s testimony. Therefore, the PCR court committed an error of law in finding that Walker satisfied the second prong of the Strickland test.
IV. Ineffective Assistance of Counsel—Cumulative Prejudice
The PCR court found that trial counsel’s performance was deficient in three additional instances. The PCR court determined that Walker had not independently met the prejudice prong of the Strickland test as to any one of these deficiencies. However, the court found that the cumulative effect of the three, combined with the failure to investigate the alibi, did satisfy the prejudice prong. We disagree. We find no evidence to support the PCR court’s ruling that two of the instances were deficient performance. The other instance, which was deficient performance, and the failure to investigate Reed as an alibi witness have no cumulative prejudicial effect.[5] Therefore, the PCR court erred in granting relief.
A. Continuance to Await the Written Results of a DNA Test
The PCR court found trial counsel’s performance was deficient because she did not ask for a continuance to wait for the written report from the South Carolina Law Enforcement Division showing that no DNA evidence linked Walker to the crime. We do not find evidence in the record to support this finding.
SLED tested a “bite mark” with the victim’s blood and found “no DNA profile unlike the victim.” SLED did not release the written results of this analysis until a month after Walker’s trial. However, both the assistant solicitor and trial counsel were aware of the test results before trial. The assistant solicitor testified at the PCR hearing that the verbal SLED report generally becomes available “much earlier” than the written report. The PCR court found counsel should have sought a continuance to wait for the written SLED report because she “could have shown [the report] to the jury in order to stress that the only evidence linking the Applicant to the incident was [the victim’s] identification.”
First, the victim’s identification of Walker is not the only evidence linking him to the crime. The victim’s descriptions of Walker’s truck and house were detailed and accurate. Based on these descriptions, the State was able to argue persuasively that the victim was in Walker’s house.
Moreover, the trial transcript shows that counsel did stress to the jury the results of the DNA test—that no DNA evidence was found linking Walker to the crime. On direct examination of the police officer assigned to the case, the officer admitted that no DNA evidence was found in Walker’s house or truck. On cross-examination, the officer admitted that the rape kit was never sent to SLED for DNA testing, he was unable to collect any samples for DNA testing from Walker’s house, and hairs collected from Walker’s car were not sent to SLED. Accordingly, the SLED report would have been only marginally helpful to Walker because the contents of the report were made known to the jury through the testimony of the officer. Moreover, the report would have been offered to prove the truth of what is asserted in the report. Thus, the report would likely have been inadmissible hearsay. See State v. Jennings, 394 S.C. 473, 479, 716 S.E.2d 91, 94 (2011) (finding portions of a written report constituted inadmissible hearsay). Trial counsel’s decision not to seek a continuance so that a marginally helpful and probably inadmissible report containing the same information counsel could present to the jury in other forms is not deficient performance.
B. Cross-Examination of the Victim on Alcohol Use
The nurse who performed the victim’s rape kit noted that the victim told her she planned to attend “ETOH treatment”[6] that week. The PCR court found trial counsel’s performance deficient because she did not investigate the reference to “ETOH treatment” in the nurse’s notes or the smell of alcohol noted by the police. The court found trial counsel’s lack of an investigation was deficient because the “only evidence linking [Walker] to [the victim] was [her] identification of [Walker]” and counsel’s failure “prevented the jury from considering [the victim]’s credibility in her identification of [Walker].” We do not find any evidence in the record to support this finding.
As explained above, there is more evidence linking Walker to the crime than the victim’s identification. Additionally, the jury was not prevented from considering the victim’s alcohol use on the day of the crime in assessing her credibility. The record contains several instances of trial counsel bringing the victim’s alcohol use to the jury’s attention. Counsel asked the victim about beer she drank while at the assailant’s house. Counsel cross-examined the victim about the rum and coke she drank when she got home on the morning of March 3, 2002. Counsel cross-examined the victim’s cousin about the victim bringing an alcoholic drink with her to the cousin’s house on March 3. Finally, counsel mentioned the victim’s alcohol use in her closing argument. Thus, the trial transcript reflects that trial counsel investigated and brought to the jury’s attention, through cross-examination and in closing argument, the victim’s use of alcohol during and after the incident, allowing the jury to consider how the alcohol could have affected her credibility in identifying Walker.
We recognize that the nurse’s note shows more than merely that the victim drank alcohol during and after the crime. Rather, the reference to alcohol treatment paints the victim as an alcoholic. However, evidence that the victim is an alcoholic is not admissible to prove she was intoxicated at a particular time. See Rule 404(a), SCRE (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.”). While “[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused” is admissible under Rule 404(a)(2) in some circumstances, the victim’s alcoholism is not a pertinent trait of character in this case. See State v. Mizell, 332 S.C. 273, 278, 504 S.E.2d 338, 341 (Ct. App. 1998) (“[T]he ‘prevailing view is that only pertinent traits—those involved in the offense charged—are provable.'” (quoting John W. Strong, McCormick on Evidence § 191 (4th ed. 1992))).
Moreover, evidence of the victim’s alcoholism is not admissible under Rule 608(a), SCRE, because it is not evidence of her character for truthfulness or untruthfulness. See Rule 608(a), SCRE (“The credibility of a witness may be attacked . . . subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness.”); see also State v. Aleksey, 343 S.C. 20, 34, 538 S.E.2d 248, 255 (2000) (“Narcotics offenses are generally not considered probative of truthfulness.”). While evidence of a person’s intoxication at a specific point in time may be admissible to show credibility, evidence that a person is an alcoholic is not.
C. Cross-Examination on Conflicting Evidence as to the Time of the Incident
The PCR court found trial counsel’s performance was deficient because she did not “adequately prepare for trial through her failure to call witnesses” whose testimony would have shown the victim initially stated she was at the BP station at night and then later stated she was there in the afternoon. The nurse’s report states that the victim said “on 3/2/02 at approx 7PM, she was at a gas station and her car wouldn’t start back up.” The PCR transcript refers to a police incident report that says the victim recounted she stopped at the BP station “at approximately 8 P.M.” The videotape from the BP station shows the victim was there at approximately 3:30 in the afternoon. At trial, she testified she was at the BP station in the afternoon while it was still light outside. Counsel had both reports in her case file, but did not ask the victim about the conflicting times. The PCR court found counsel should have explored the discrepancy to place doubt in the minds of the jury as to whether the victim accurately identified Walker. We uphold the PCR court’s finding of deficient performance in this respect because there is evidence in the record to support the finding.
D. The Cumulative Effect of Counsel’s Deficient Performance
We find two instances of trial counsel’s deficient performance—her failure to investigate Reed as a potential alibi witness and her failure to cross-examine the victim or call witnesses to testify about conflicting evidence as to the time of the incident. To the extent the failure to investigate Reed as a potential alibi witness caused some prejudice, we have determined the prejudice did not rise to a level warranting relief under Strickland. As to the failure to bring out the victim’s conflicting statements on the time of the incident, the PCR court found any prejudice resulting from that deficiency did not independently warrant relief under Strickland. Even if South Carolina did allow PCR based on the cumulative prejudicial effect of two or more instances of deficient performance,[7] Walker would still have to demonstrate “a reasonable probability that, but for [the cumulation of] counsel’s unprofessional errors, the result of the proceeding would have been different.” Edwards, 392 S.C. at 459, 710 S.E.2d at 66 (quoting Strickland, 466 U.S. at 694). We find he has not. These instances of deficient performance are unrelated to each other and neither one makes the other more prejudicial. Therefore, even if we could evaluate them together, there is no cumulative prejudicial effect that would warrant relief under Strickland.
V. Conclusion
The judgment of the PCR court granting a new trial is
REVERSED.
THOMAS and KONDUROS, JJ., concur.
[1] The State also contends the PCR court applied an incorrect standard by requiring counsel to articulate a trial strategy for each alleged instance of deficient performance. However, we do not read the PCR court’s order to include such a requirement. We read the order as merely noting that trial counsel did not articulate a strategy in defense of her performance.
[2] Walker never personally told trial counsel about Reed. However, trial counsel could not have watched the interview without knowing Reed was a potential alibi witness.
[3] See State v. Robbins, 275 S.C. 373, 375, 271 S.E.2d 319, 320 (1980).
[4] Because Reed’s testimony does not meet the legal definition of an alibi, it is not necessary to make the second finding.
[5] “[W]hether the cumulation of several errors, ‘which by themselves are not prejudicial, would warrant relief is an unsettled question in South Carolina.'” Lorenzen v. State, 376 S.C. 521, 535 n.3, 657 S.E.2d 771, 779 n.3 (2008) (quoting Green v. State, 351 S.C. 184, 197, 569 S.E.2d 318, 325 (2002)). As discussed below, we find it unnecessary to answer this question because Walker has failed to prove prejudice under any interpretation of the law.
[6] ETOH is an abbreviation for ethanol and refers to alcohol and alcohol abuse. Trial counsel knew this.
[7] See footnote 5.
