Nov 14, 2012 | Assault and Battery, Criminal Defense, Uncategorized
Rock Hill, South Carolina police arrested a 43-year-old woman Monday after she reportedly pulled a kitchen knife on her husband over a radio volume dispute. The husband allegedly asked his wife, who had been drinking, to turn the volume of her boom-box down. When she failed to listen, he turned the music down himself.
This was a big mistake. The man reported to police that as he left the bedroom, his wife grabbed his shirt and began slapping him causing him to retreat to the kitchen. Following her husband into the kitchen, the wife unsheathed a kitchen knife and threatened him; he responded by retreating to the bedroom and barricading himself inside.
The woman denied allegations of abuse. She claimed that they both were drinking, and he was “acting crazy” causing her reaction. She denied the origin of the dispute was as a result of the loud music.
If you or someone you know has been charged criminally for a domestic dispute or an assault, call the law offices of Reeves, Aiken & Hightower. We are prepared to defend your rights. You can contact our York County, SC (BaxterVillage) office at 803-548-4444, or contact us toll-free at 877-374-5999. We know that sometimes things can get out of hand. When this happens, we are here to make sure your rights are protected when initiated into criminal proceedings.
Nov 12, 2012 | Assault and Battery, Drug Crimes and Controlled Substances Defense, DUI & DWI, Uncategorized
A York County police report this weekend stated that a man kicked a York County Sheriff Deputy after he was a pulled over for driving under the influence of pills and alcohol. Thereafter, he attempted to flee from police.
The man was pulled over into the Food Lion parking lot near Lake Wylie. The police report states that the deputy attempted to stop the man, and a pursuit around the parking lot ensued. The man appeared intoxicated to police while he was racing the engine of his Ford Mustang.
When police attempted to tase the man, he ripped the taser leads from his body and began to run. The police then reportedly tackled him down an embankment. Then, according to police, the man struck a deputy by kicking him as the police attempted to tase the man a second time.
The man is being charged with DUI, possession of controlled substances, underage possession of alcohol and four counts of assaulting a police officer while resisting arrest, according to authorities.
The decision to consume alcohol can lead to implications that can last a lifetime. At the law offices of Reeves Aiken & Hightower, we understand the troubles associated with alcohol consumption, and we are here to ensure that you are represented by a firm that is willing to fight for you. If you or a loved one has been charged with a crime related to the intoxication of alcohol, or stemming from the intoxication from alcohol, we will do whatever is in our power to present mitigating circumstances to the court. If you are charged in York, Lancaster, Chester, Clover, Rock Hill, Fort Mill, or anywhere else in the region, call our Baxter Village office at 803-548-4444, or toll-free at 877-374-5999.
Nov 5, 2012 | Assault and Battery, Nursing Home Abuse, Personal Injury, Uncategorized, Wrongful Death
A Rock Hill elderly woman was killed in November 2011, when her assisted living care nurse smothered the victim to death. The employee’s actions were discovered when she attempted to steal and cash checks from the victim’s banking account.
The 30-year-old former assisted living employee was charged with murder, and sentenced to life in prison this past Thursday. The 82-year-old victim was found dead in her shower at the Oak Bridge Terrace Assisted Residences, on the campus of Park Pointe Village Assisted Living facility in Rock Hill, SC. It was reported by the woman’s family that the body of the deceased was “badly bruised.”
An investigation discovered that the Rock Hill Police had been at the Park Pointe Village the day before the victim’s death, when it was reported that the victim’s checkbook had been stolen.The victim told the Rock Hill police that four checks had been written to the defendant that did not match her signature, totaling to $1,280. The checks were written between October 12 and November 1 of 2011.
The defendant had access to all of the assisted living residents, but was not at work at the time of the complaint, and was since suspended from her job. Later, it was discovered that the defendant had gotten another employee to let her into the facility when she murdered the victim. The defendant reportedly put a shower cap of the victim’s head, put her into the shower while running, and suffocated her.
The body was found around 6:30 a.m., when CPR was attempted, but sadly failed.
The victim’s family is suing the assisted living home for the wrongful death of their loved one.
Elder abuse is a crime that is on the rise due to the victim’s vulnerability. If you suspect something is not quite right, call us and we will help you find out if you are worried about nothing or if something really is wrong. If your loved one has already been injured or worse, call us immediately. Mr. Reeves stands ready to bring his medical background and years of nursing home litigation experience to your family. First, we want answers. And then, we want justice. Call the law offices of Reeves, Aiken, and Hightower today at 704-499-9000 or 877-374-5999 toll-free.
Oct 31, 2012 | Assault and Battery, Uncategorized
A man and his wife were arrested Saturday after a dispute arose because he caught her engaging in sexual activity with her female lover. As a result the man launched an unopened beer can at the “lover,” whereupon the wife poked her husband in the eye.
The man was charged with third-degree assault and battery, and his wife was charged with criminal domestic violence according to York County Sheriff Deputies. The report states that everyone involved had been drinking all day. The wife’s “friend” also corroborated the story by stating that she received a cut on her top lip from the full beer can that was thrown by the husband after he caught them in the bedroom.
Unfortunately things can get out of hand when people have been consuming alcohol. If you, or someone you know has been charged with a criminal offense or DUI as a result of the consumption of alcohol, call the law offices of Reeves Aiken and Hightower and let us evaluate your case. If you have mitigating circumstances that may lessen your charge, the diligent attorneys at Reeves Aiken and Hightower will find them for you. Call us today at 803-548-4444 or 877-374-5999 toll-free for a one-on-one consultation.
Apr 20, 2012 | Assault and Battery, Criminal Defense, Uncategorized
This SC Supreme Court case involves very serious criminal charges and highlights how the smallest detail cannot be overlooked. Here, the defense lawyer was rightly concerned that his client’s escapee status from prison would horribly prejudice a jury against him. Nevertheless, the trial court allowed the testimony to prove his motivation in fleeing the police. As one can see from this appeal, every aspect of a criminal case has to be fiercely defended. Nothing can be ignored or taken for granted. Better make sure your attorneys understand these issues and are willing to fight for you and your family.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both South Carolina and North Carolina civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. We are not afraid to go to Court and often do. Compare our attorneys’ credentials and experience to any other law firm. Then call us at 877-374-5999 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, Respondent,
v.
Shawn Wiles, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Saluda County
William P. Keesley, Circuit Court Judge
Opinion No. 26674
Heard May 13, 2009 – Filed June 22, 2009
AFFIRMED AS MODIFIED
Appellate Defender M. Celia Robinson, 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, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Solicitor Donald V. Myers, of Lexington, for Respondent.
JUSTICE WALLER: Petitioner Shawn Wiles was indicted for assault and battery with intent to kill (ABIK), failure to stop for a blue light, and possession of a stolen vehicle. A jury convicted him of assault and battery of a high and aggravated nature (ABHAN) and failure to stop for a blue light.[1] Pursuant to Rule 220(b), SCACR, the Court of Appeals affirmed in an unpublished opinion. SeeState v. Wiles, Op. No. 2007-UP-318 (S.C. Ct. App. filed June 14, 2007). We granted petitioner’s request for a writ of certiorari to review the Court of Appeals’ decision. We affirm as modified.
FACTS
On December 26, 2003, a state trooper clocked two vehicles traveling 101 mph on Highway 25 in Edgefield County. The first vehicle was a pickup truck, and the second was a stolen 1997 Ford Crown Victoria driven by petitioner. Putting on his blue light and siren, the trooper gave chase. The truck lost control and veered off the road. The Ford then pulled over, but as the trooper approached it, the car turned around and headed back on the highway.
The high-speed chase again ensued with the trooper and another highway patrol vehicle pursuing petitioner. The trooper testified that petitioner turned onto Route 378 toward Saluda and drove at speeds over 120 mph while passing other cars on the road in an unsafe manner. A few miles outside the city of Saluda, the trooper’s supervisor directed him to terminate the chase because of safety concerns.
However, Saluda County Sheriff’s deputy Frank Daniel was at that same time responding to the call about the chase. Deputy Daniel was in an intersection waiting to make a left turn onto Route 378 when petitioner ran a red light and crashed into Deputy Daniel’s car.[2]
The force of the collision with the deputy’s car propelled the Ford into a nearby building. Petitioner and his female passenger exited the car, and went into the building. A SWAT team responded to the scene, and eventually petitioner was located in the building hiding above the ceiling tiles. Petitioner was unarmed, and the SWAT team apprehended him without further incident.
At trial, evidence was admitted that approximately one week before the chase petitioner had escaped from a South Carolina prison.[3] A Department of Corrections (DOC) investigator interviewed petitioner when he was re-incarcerated. According to the investigator, petitioner’s thoughts while driving 140 mph were that “he was about to be killed or would end up killing someone in the process of trying to get away from the police.” On cross-examination, the DOC investigator acknowledged petitioner had told him that he panicked when he saw the trooper and he did not intentionally try to ram into the deputy’s car.
The jury convicted petitioner of the lesser included offense of ABHAN and failure to stop for a blue light. The trial court sentenced petitioner to consecutive sentences of 10 years for ABHAN, and three years for the failure to stop.
On appeal, petitioner argued the trial court erred in allowing evidence of petitioner’s escape. Finding the issue unpreserved, the Court of Appeals affirmed.
ISSUES
1. Did the Court of Appeals err in finding petitioner’s issue on appeal unpreserved?
2. Did the trial court err in admitting evidence of petitioner’s escape?
DISCUSSION
1. Issue Preservation
Prior to jury selection, petitioner made a motion in limine to exclude evidence of his escape. The trial court ruled the evidence admissible to show res gestae, motive and intent. Petitioner appealed the trial court’s ruling, but the Court of Appeals found the issue unpreserved for appellate review. See State v. Wiles, supra (citing State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001)). Petitioner argues the Court of Appeals erred because the trial judge’s ruling was final. Furthermore, petitioner contends that counsel renewed his objection when the escape evidence was admitted. We agree with petitioner that this issue is preserved.
Generally, a motion in limine is not a final determination; a contemporaneous objection must be made when the evidence is introduced. State v. Forrester, 343 S.C. at 642, 541 S.E.2d at 840. There is an exception to this general rule when a ruling on the motion in limine is made “immediately prior to the introduction of the evidence in question.” Id. This exception is based on the fact that when the trial court’s ruling is not preliminary, but instead is clearly a final ruling, there is no need to renew the objection. Id.(citing State v. Mueller, 319 S.C. 266, 268-69, 460 S.E.2d 409, 410 (Ct.App.1995)).[4]
In the instant case, the evidence was not immediately introduced after the motion in limine. Nonetheless, by his actions, the trial judge clearly indicated that his ruling was a final, rather than preliminary, one because he commented to the jury about petitioner’s escape before any evidence was admitted. Specifically, the trial judge told the jury the following:
The State is gonna attempt to introduce evidence related to the fact, in their view, that [petitioner] was an escapee from another institution …. The evidence … related to an escape is only allowed to be used for you to evaluate what his motives were, what his intents were, whether there was a mistake or accident, something like that.
Moreover, the escape was then referenced by both the State and petitioner’s counsel in their opening statements.
In our opinion, the trial court’s ruling on the admission of evidence regarding petitioner’s escape was a final ruling, and therefore, petitioner’s argument that the evidence was improperly admitted is preserved for appellate review.[5] See Forrester, supra.
Thus, we find the Court of Appeals erred in ruling that the issue raised on appeal was procedurally barred.
2. Evidence of Escape
Turning to the merits, petitioner argues the trial court judge erred in allowing the evidence of his escape to be admitted at trial on the ABIK and failure to stop charges. Petitioner contends the evidence should have been excluded as improper evidence of prior bad acts and because it was more prejudicial than probative. We disagree.
Evidence is relevant and admissible if it tends to establish or make more or less probable the matter in controversy. See Rules 401 & 402, SCRE. Evidence of other crimes, wrongs, or acts is generally not admissible to prove the character of a person in order to show action in conformity therewith; however, such evidence may be admissible “to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.” Rule 404(b), SCRE. The evidence admitted must logically relate to the crime with which the defendant has been charged. E.g., State v. Stokes, 381 S.C. 390, 673 S.E.2d 434 (2009); State v. Beck, 342 S.C. 129, 135, 536 S.E.2d 679, 682-83 (2000).
Stated differently, evidence which is “logically relevant to establish a material element of the offense charged is not to be excluded merely because it incidentally reveals the accused’s guilt of another crime.” State v. Green, 261 S.C. 366, 371, 200 S.E.2d 74, 77 (1973); see also State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996) (evidence of other crimes which supplies the context of the crime, or is intimately connected with and explanatory of the crime charged, is admissible as res gestaeevidence).
Nonetheless, even where the evidence is shown to be relevant, if its probative value is substantially outweighed by the danger of unfair prejudice, the evidence must be excluded. See Rule 403, SCRE. Unfair prejudice means an undue tendency to suggest decision on an improper basis. State v. Stokes, supra; State v. Beck, supra.
Here, the evidence of petitioner’s escape was logically relevant for several reasons. First, the evidence of escape shows his motive for fleeing from police; thus, it was relevant on the failure to stop for a blue light charge. See Rule 404(b), SCRE. Second, the evidence that petitioner was an escapee was relevant to his alleged intent on the ABIK charge. Id.; cf. State v. Green, supra(where the Court held that evidence of appellants’ escape from prison, and their status as fugitives, was admissible on the issues of intent and common design in an attempted armed robbery case). Finally, this evidence was also admissible under the res gestaetheory. See State v. Adams, supra.[6]
Further, we find this evidence was not unduly prejudicial. See Rule 403, SCRE; State v. Stokes, supra; State v. Beck, supra.
Accordingly, the trial court did not err in admitting the evidence of petitioner’s escape, and the Court of Appeals’ opinion isAFFIRMED AS MODIFIED.
TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Petitioner moved for a directed verdict on the possession of a stolen vehicle charge because evidence admitted at trial indicated that petitioner himself had stolen the car in Georgia. The trial court granted the motion. See State v. McNeil, 314 S.C. 473, 445 S.E.2d 461 (Ct. App. 1994) (the possession of a stolen vehicle statute requires that the defendant receive the goods from someone who actually stole them; he cannot receive the vehicle from himself).
[2] The deputy was taken to the hospital and missed 5 days of work, but he was not seriously injured.
[3] The record reflects that in a separate proceeding prior to the instant trial, petitioner pled guilty to, and was sentenced for, the escape.
[4] See also Staubes v. City of Folly Beach, 339 S.C. 406, 415, 529 S.E.2d 543, 547 (2000) (“This Court does not require parties to engage in futile actions in order to preserve issues for appellate review.”).
[5] In any event, we note counsel did specifically renew his objection on the record when this evidence was first admitted.
[6] We agree with the State that the evidence of petitioner’s escape was “the first link in a chain of circumstances” which led to the criminal charges in the instant case. State v. Green, 261 S.C. at 372, 200 S.E.2d at 77.
Mar 19, 2012 | Assault and Battery, Criminal Defense, Uncategorized
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 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Jack R. Bennett, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal from Greenville County
Larry R. Patterson, Circuit Court Judge
Opinion No. 26658
Submitted March 18, 2009 – Re-filed July 13, 2009
REVERSED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Karen Ratigan, all of Columbia, for Petitioner.
Division of Appellate Defense, of Columbia, and Susannah Conyers Ross, of Ross & Enderlin, of Greenville, for Respondent.
CHIEF JUSTICE TOAL: In this case, we granted a writ of certiorari to review the post-conviction relief (PCR) court’s grant of Respondent Jack Randall Bennett’s request for relief. The State argues that the PCR court erred in ruling that Respondent received ineffective assistance of trial counsel and appellate counsel. We find that Respondent’s trial counsel and appellate counsel were not ineffective and reverse the PCR court’s grant of relief.
FACTS/PROCEDURAL HISTORY
On the evening of October 13, 1998, Respondent was at the home of Robert Garland (the Victim) in Marietta, South Carolina. Also present were Lisa Ward (Ms. Ward) and Respondent’s wife, Elizabeth Bennett (Ms. Bennett). Respondent and the Victim drank large quantities of beer and moonshine throughout the evening. Additionally, Respondent admits to ingesting multiple Valium pills. During the course of the evening, Respondent became violent with Ms. Bennett. The Victim and Ms. Ward ejected Respondent from the home. Breaking through the front door, Respondent re-entered the Victim’s home and beat him severely.
In January 2001, Respondent was tried for assault and battery with intent to kill (ABWIK), possession of a weapon during the commission of a violent crime, and first-degree burglary. Ms. Bennett was not present for the trial but the trial court admitted her out-of-court statements.
Ms. Ward testified that while Respondent was assaulting the Victim, Ms. Bennett hysterically screamed, “He’s going to kill me.” Trial counsel objected to the admission of the statement on hearsay grounds. The trial judge ruled that Ms. Bennett’s statement was an excited utterance, and thus admissible as an exception to the rule excluding hearsay testimony. Ms. Ward continued her testimony stating that as the two women were exiting the home, Ms. Bennett screamed, “[p]lease hurry, please hurry, because if he gets hold of me, he’s going to kill me.” Trial counsel did not renew his objection.
Next, the State presented Officer Keith Morecraft to read into evidence a statement he took from Ms. Bennett at the crime scene ninety (90) minutes to two hours after the crime had occurred. Trial counsel objected on both hearsay and Confrontation Clause grounds. The trial court overruled the objection and allowed Officer Morecraft to read the statement into evidence.
The jury found Respondent guilty and sentenced him to concurrent terms of eighteen (18) years for ABWIK, five (5) years for possession of a weapon during the commission of a violent crime, and eighteen (18) years for first-degree burglary. Appellate counsel filed an appeal pursuant to Anders,[1] which the court of appeals dismissed. State v. Bennett, Op. No. 2002-UP-452 (S.C. Ct. App. filed June 20, 2002). Respondent filed an application for PCR. After a hearing, the PCR court granted Respondent’s request for relief. The PCR court found that trial counsel provided Respondent with ineffective assistance in failing to adequately object to the admission of Ms. Bennett’s out-of-court statements. The PCR court also found that appellate counsel provided Respondent with ineffective assistance in failing to brief issues concerning the admission of Ms. Bennett’s out-of-court statements.[2]
STANDARD OF REVIEW
In post-conviction relief proceedings, the burden of proof is on the applicant to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). If the PCR court’s finding is supported by any evidence of probative value in the record, it should be upheld. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989).
LAW/ANALYSIS
The State argues the PCR court erred in granting relief on the grounds that trial counsel and appellate counsel provided ineffective assistance to Respondent. We agree.
For an applicant to be granted post-conviction relief as a result of ineffective assistance of counsel, the applicant must show that 1) counsel’s performance was deficient,[3] and 2) he was prejudiced by counsel’s deficient performance.[4] See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006).
I. Trial Counsel
The State argues that the PCR court erred in finding trial counsel ineffective. We agree.
We find that trial counsel’s performance was not deficient and, therefore, his assistance was not ineffective. Trial counsel clearly objected on hearsay grounds to the admission of Ms. Ward’s testimony concerning Ms. Bennett’s out-of-court statement. The trial court correctly ruled that the statements were admissible as excited utterances and overruled trial counsel’s objection.[5] Trial counsel’s decision not to renew his objection to Ms. Ward’s continuing testimony as to Ms. Bennett’s out-of-court statements did not constitute deficient assistance. The second statement offered by Ms. Ward was essentially identical to the first; therefore, because the trial court had already ruled on the issue, it was not necessary for trial counsel to renew his objection. See State v. McDaniel, 320 S.C. 33, 37, 462 S.E.2d 882, 884 (Ct. App. 1995) (“so long as the judge had an opportunity to rule on an issue, and did so, it was not incumbent upon defense counsel to harass the judge by parading the issue before him again.”).
Additionally, trial counsel clearly objected to the admission of Ms. Bennett’s out-of-court statement given to Officer Morecraft. Trial counsel made this objection on multiple relevant grounds and argued it forcefully. Because trial counsel unmistakably represented the interests of his client on this issue, his performance was not deficient.
We find that there is no evidence of probative value in the record to support the PCR court’s finding that trial counsel’s performance was deficient. Therefore, with respect to the PCR court’s grant of Respondent’s requested relief on the grounds of ineffective assistance of trial counsel, we reverse.
II. Appellate Counsel
The State argues that the PCR court erred in finding appellate counsel ineffective. We agree.
A criminal defendant is constitutionally entitled to the effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 398 (1985). However, counsel is not required to raise every non-frivolous claim, but may select among them in order to maximize the likelihood of a favorable outcome. Smith v. Robbins, 528 U.S. 259, 288 (2000).
Generally, in analyzing a claim of ineffective assistance of appellate counsel, this Court applies the Strickland test just as it would when analyzing a claim of ineffective assistance of trial counsel.[6] See Southerland v. State, 337 S.C. 610, 616, 524 S.E.2d 833, 836 (1999). Thus, in this case, we ask 1) whether appellate counsel’s performance was deficient, and 2) whether Respondent was prejudiced by appellate counsel’s deficient performance.
Even if appellate counsel’s performance was deficient, we find that such performance did not prejudice Respondent. In order to show that he was prejudiced by appellate counsel’s performance, a PCR applicant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625. Ms. Bennett’s out-of-court statements admitted at trial were cumulative evidence and not necessary to prove Respondent’s guilt. Appellate counsel’s performance did not prejudice Respondent and was, therefore, not ineffective.
Accordingly, we find that the PCR court erred in finding that Respondent received ineffective assistance of appellate counsel.
CONCLUSION
For the foregoing reasons, we hold that the PCR court erred in ruling that trial counsel and appellate counsel were ineffective, and we reverse the PCR court’s order granting relief.
WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Pursuant to Anders v. California, “if [appellate] counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” 386 U.S. 738, 744 (1967).
[2] The issue appellate counsel briefed in the Anders appeal was unrelated to the admission of Ms. Bennett’s out-of-court statements.
[3] In order to prove that counsel’s performance was deficient, an applicant must show that his counsel failed to render reasonably effective assistance under prevailing professional norms. Cherry v. State, 300 S.C. at 117-18, 386 S.E.2d at 625.
[4] In order to prove that he was prejudiced by his counsel’s deficiency, an applicant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Cherry v. State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial.” Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997).
[5] Additionally, Respondent’s own defense that he was entering the home to protect Ms. Bennett opened the door to these statements.
[6] Appellate counsel filed an Anders brief, as opposed to a brief on the merits. Even in this context, when analyzing a claim of ineffective assistance of appellate counsel, we apply the Strickland test. See Smith v. Robbins, 528 U.S. 259, 284 (2000) (finding that even where appellate counsel believes his client’s appeal is without merit and thus files an Anders brief, the appellant may have been entitled to a merits brief and the challenge of appellate counsel’s performance should be reviewed under Stickland.)
