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.)
Mar 18, 2012 | Drug Crimes and Controlled Substances 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
Donald D. Berry, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Cherokee County
Doyet A. Early, III, Post-Conviction Relief Judge
Opinion No. 26618
Submitted November 19, 2008 – Filed March 23, 2009
REVERSED AND REMANDED
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 S. Prentiss Counts, all of Columbia, for Respondent.
JUSTICE KITTREDGE: We granted a writ of certiorari to review the denial of Donald D. Berry’s application for post-conviction relief (PCR). Berry pled guilty to a drug charge, second offense, and was sentenced to prison. The prior offense for enhancement purposes was a drug paraphernalia conviction. Because a drug paraphernalia conviction does not qualify as a prior offense for enhancement purposes under South Carolina’s statutory scheme and plea counsel neither informed Berry of this fact nor made an objection in the plea court, we reverse the denial of PCR, vacate the guilty plea, and remand to the general sessions court.
I.
Berry pled guilty to manufacturing methamphetamine, second offense, and was sentenced to seven years’ imprisonment. The plea was enhanced to a second offense by Berry’s prior conviction for possession of drug paraphernalia. As part of the plea agreement, an accompanying possession with intent to distribute methamphetamine charge was dismissed. The PCR court found Berry did not establish his entitlement to relief and denied his application. Berry sought a writ of certiorari, which we granted.
Section 44-53-470 of the South Carolina Code (Supp. 2007) states, “[a]n offense is considered a second or subsequent offense if . . . the offender has been convicted within the previous ten years of a violation of a provision of this article or of another state or federal statute relating to narcotic drugs, marijuana, depressants, stimulants, or hallucinogenic drugs . . . .” Additionally, section 44-53-375(B)(2) of the South Carolina Code (Supp. 2007) provides the following requirements for an enhanced offense:
[F]or a second offense or if, in the case of a first conviction of a violation of this section, the offender has been convicted of any of the laws of the United States or of any state, territory, or district relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs, the offender must be imprisoned for not less than five years nor more than thirty years, or fined not more than fifty thousand dollars, or both.
II.
Whether a drug paraphernalia conviction qualifies as a prior offense for enhancement purposes has not been decided by this Court. The question is one of statutory construction. See State v. Dingle, 376 S.C. 643, 649, 659 S.E.2d 101, 105 (2008) (“In interpreting statutes, the Court looks to the plain meaning of the statute and the intent of the Legislature.”). Moreover, in construing a criminal statute, we are guided by the rule of lenity—the principle that any ambiguity must be resolved in favor of the accused. State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991) (“[W]hen a statute is penal in nature, it must be construed strictly against the State and in favor of the defendant.”). We hold that the Legislature intended a prior offense to qualify for enhancement purposes only if the prior offense “relates to” one of the statutorily enumerated drugs.
To construe a paraphernalia conviction as “relating to” drugs would be contrary to unambiguously expressed legislative intent and additionally violate the rule of lenity long established in our jurisprudence. Moreover, were we to construe the phrase “relate to” so loosely as to include a paraphernalia conviction, there would essentially be no limitation for qualifying enhancement offenses. We therefore hold that a conviction for possession of drug paraphernalia may not be used for enhancement purposes as it does not “relate to” drugs as statutorily mandated.
III.
Ineffective Assistance of Counsel
We now turn to Berry’s PCR claim of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel under the Sixth Amendment, a PCR applicant must prove deficient representation and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Where a defendant pleads guilty upon the advice of counsel, post-conviction relief is available only when the applicant proves the advice he received from counsel “fell below an objective standard of reasonableness” and that “but for” counsel’s deficient representation, he would not have pled guilty. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985). Plea counsel for Berry acknowledges he neither challenged the State’s reliance on the paraphernalia conviction for enhancement purposes, nor informed Berry of the potential challenge.
A. Deficient Representation
We find plea counsel’s failure to inform Berry of the potential challenge of the use of the paraphernalia conviction for enhancement purposes amounts to deficient representation. Strickland v. Washington, 466 U.S. at 687. In so ruling, we recognize that a defendant, for a host of legitimate reasons, may plead guilty to an offense for which a valid legal challenge may exist. See Rollison v. State, 346 S.C. 506, 510, 552 S.E.2d 290, 292 (2001) (“A defendant may, as part of a plea bargain, agree to plead guilty to a crime for which he has been indicted (or to which he has waived grand jury presentment), but of which he is not guilty.”); Anderson v. State, 342 S.C. 54, 58, 535 S.E.2d 649, 651 (2000) (“We find the decision to accept a plea to voluntary manslaughter notwithstanding the lack of any provocation was simply a tactical maneuver to avoid the very real possibility that the jury might come back with a verdict of murder. Accordingly, we find the plea was knowingly and voluntarily entered.”). The difference in such circumstances between a valid guilty plea and an invalid guilty plea lies in the knowing and voluntary nature of the plea. Here, counsel never informed Berry of the potential challenge to the use of the drug paraphernalia conviction for enhancement. In fact, Berry’s plea counsel never gave any thought to the issue.
We believe the Sixth Amendment guarantee of effective assistance of counsel requires that counsel accurately inform a defendant, to the extent possible, of the qualifying nature of a prior offense for enhancement purposes. It may well be that in situations unlike the one before us, the answer is unclear. Yet, an accused is entitled to counsel’s considered and reasonable judgment.[1] In fact, uncertainty concerning a potential legal challenge may well provide a defendant a catalyst in plea negotiations with the State. In this regard, a defendant may choose to forgo a legal challenge and opt for what he considers a favorable plea arrangement, especially where other charges will be dismissed or sentences are run concurrently.
This “give and take” lies at the heart of virtually every guilty plea, as plea agreements allow our overly burdened criminal courts to function. The point, for purposes of the issue before us, is that such decisions must be made knowingly and voluntarily with the advice of constitutionally competent counsel. Simply saying “I never gave it a thought” falls short of the Sixth Amendment guarantee of effective assistance of counsel. As a result, we find counsel’s failure to even consider whether a paraphernalia conviction qualifies for enhancement, and so inform Berry, fell below the standard of objective reasonableness. We therefore find plea counsel provided constitutionally deficient representation.
B. Prejudice
We next turn to the second step in the analysis—whether Berry was prejudiced by the deficient representation. Strickland v. Washington, 466 U.S. at 687. As this was a guilty plea, Berry “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. During the PCR hearing, Berry repeatedly said that he would have gone to trial had he known that his paraphernalia conviction did not qualify as a prior offense for enhancement purposes. Cf. Robinson v. State, Op. No. 26564 (S.C.Sup.Ct. filed Nov. 24, 2008) (Shearouse Adv.Sh. No. 43 at 25) (granting post-conviction relief and remanding for resentencing where prior uncounseled conviction was improperly used for enhancement and applicant insisted that he wanted to plead guilty free of the “unconstitutional prior conviction[]”). We find Berry has established the prejudice prong of Strickland v. Washington, and we grant him the relief he requests.
IV.
We grant Berry post-conviction relief and return him to his pre-guilty plea position. Berry’s conviction and sentence for manufacturing methamphetamine are vacated. Because the accompanying indictment for possession with intent to distribute methamphetamine was dismissed as part of the plea bargain, it is restored as an active charge. We remand these charges to the general sessions court for disposition.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, and BEATTY, JJ., concur. PLEICONES, J., not participating.
[1] While the case at hand concerns use of prior convictions for enhancement purposes, this reference to an accused’s entitlement to counsel’s considered and reasonable judgment clearly has broad application in Sixth Amendment jurisprudence.
Mar 15, 2012 | Drug Crimes and Controlled Substances Defense, Uncategorized
This SC Supreme Court case discusses when and under what circumstances police may search the interior of a car incident to a lawful stop. As the decision points out, suppressing evidence found during such a search can prove critical to an acquittal or prison term. Here, the search was deemed illegal, but the lawyer’s failure to file a timely appeal rendered the violation of his Fourth Amendment rights moot. The client received a sentence of 25 years. In criminal defense cases, it is necessary to challenge every aspect of a stop, search, and arrest at trial. Search issues can be very complicated and case specific. Better make sure your criminal defense attorney understands the rules and is willing to fight for your rights in court. There is too much at stake to risk an inexperienced or timid 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
Osiel Gomez Narciso, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Beaufort County
J. Cordell Maddox, Jr., Circuit Court Judge
Opinion No. 27104
Heard January 25, 2012 – Filed March 14, 2012
AFFIRMED IN PART, REMANDED IN PART
Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Matthew J. Friedman, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Oseil Gomez Narciso (Petitioner) appeals his conviction for trafficking cocaine, and asserts that the circuit court erred in denying his motion to suppress drug evidence seized by police during a routine traffic stop. Following his conviction, Petitioner signed a Consent Order Granting Belated Direct Appeal (Consent Order) and waived his right to raise any other post-conviction relief (PCR) allegations. Petitioner requests this Court remand his case to determine whether that waiver was entered into knowingly and voluntarily. We affirm the circuit court’s order denying Petitioner’s motion to suppress, and remand the case for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
FACTUAL/PROCEDURAL BACKGROUND
On August 3, 2005, the Beaufort County Sherriff’s Office (BCSO) conducted a drug investigation focusing on Petitioner. Police believed that Petitioner may have been involved in the sale and distribution of cocaine in the Hilton Head/Bluffton area of Beaufort County. A sheriff’s deputy received information that Petitioner might be operating a vehicle in the area with expired license plates and possibly no driver’s license. The deputy conducted a traffic stop of Petitioner after confirming that his license plates were indeed expired and suspended. A “back-up officer,” arrived on scene shortly thereafter. Police placed Petitioner under arrest for operating the vehicle without a driver’s license and removed him from the vehicle. Police then conducted a “K-9” search of the vehicle. The narcotics-detection dog used in the search alerted on drug residue on the vehicle, and police conducted a search of the cargo compartment. Police seized powdered cocaine from the vehicle, and charged Petitioner with knowingly and intentionally possessing a quantity of powder cocaine with a weight in excess of one hundred grams.
The Beaufort County Grand Jury indicted Petitioner for trafficking cocaine in excess of one hundred grams, and Petitioner proceeded to trial. The jury found Petitioner guilty as indicted. The circuit court sentenced Petitioner to twenty-five years imprisonment. Petitioner did not appeal his conviction or sentence, but subsequently filed a PCR application.
Petitioner claimed in his PCR application that his trial attorney failed to file a timely notice of appeal even after assuring Petitioner that he “had multiple grounds for appeal,” and that he “would almost certainly be successful in overturning the convictions at the appellate level.” According to the Consent Order, Petitioner’s trial counsel admitted that he failed to file an appeal even though Petitioner requested one be filed. Thus, the State consented to granting Petitioner a belated direct appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974)[1]. In the same Consent Order, Petitioner “waived his right to raise any other PCR allegations.”
In a petition for writ of certiorari to this Court, Petitioner asserted that the PCR judge properly found that he did not waive his right to a direct appeal, and requested this Court remand his case to determine whether his waiver of any other PCR allegations was entered into knowingly or voluntarily. This Court granted the petition for writ of certiorari as to whether Petitioner knowingly and voluntarily waived his right to direct appeal, dispensed with further briefing on that question, and elected to proceed with further review of the direct appeal issue—the validity of the stop and search. Additionally, this Court granted review of whether Petitioner’s waiver of any other PCR allegations was entered into knowingly and voluntarily.
ISSUES PRESENTED
| Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop. |
| Whether Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily. |
STANDARD OF REVIEW
On appeal from a motion to suppress on Fourth Amendment grounds, this Court applies a deferential standard of review and will reverse only if there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010) (citation omitted). However, this Court is not barred from conducting its own review of the record to determine whether the trial judge’s decision is supported by the evidence. Id.
On certiorari in a PCR action, the Court applies the “any evidence” standard. Accordingly, this Court will affirm if any evidence of probative value in the record exists to support the findings of the PCR court. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011) (citation omitted).
LAW/ANALYSIS
I. Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop.
Petitioner argues that the facts presented by police to the circuit court did not rise to the level of “reasonable suspicion,” and that he was “unreasonably seized.” Thus, according to Petitioner, his Fourth Amendment rights were violated, and this Court should reverse his conviction. We agree with Petitioner that the search incident to arrest in this case violated his Fourth Amendment rights. However, for reasons explained below, the exclusion remedy is unavailable to Petitioner, and thus his conviction will stand.
In New York v. Belton, 453 U.S. 454 (1981), the United States Supreme Court initially explained the constitutionally permissible scope of a search incident to arrest. In that case, police ordered the driver of a speeding vehicle to pull over to the side of the road and stop. Id. at 455. The policeman asked to see the driver’s license and automobile registration and simultaneously smelled burnt marijuana. Id. at 455–56. The officer directed the occupants out of the car and conducted a pat down of the four men. Id. at 456. The officer then conducted a search of the passenger compartment of the car, including a black leather jacket belonging to Belton. Id. He unzipped one of the pockets of the jacket and discovered cocaine. Id.
Belton argued that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. Belton, 453 U.S. at 456–57. The Court stressed the need to provide a “workable rule,” and held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, “he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 459–60. The Court reasoned that the police should also be allowed to examine the contents of any containers found within the passenger compartment, “for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id. at 460–61 (citations omitted).
In the instant case, the police stopped Petitioner as part of an ongoing drug investigation, but primarily because the license tags on his automobile were expired. The police officer asked Petitioner for his driver’s license, and verified that Petitioner did not possess a valid driver’s license. Thus, he arrested Petitioner, and police searched Petitioner’s vehicle incident to that arrest.
Petitioner challenged the search at trial. The circuit court judge initially expressed concern at the vehicle search following a mere traffic stop, but denied Petitioner’s motion to suppress:
It concerns me that the law enforcement in this case would risk this investigation by making a search under these circumstances without obtaining a search warrant. It would have been a very easy thing to do. There was just no reason that it needed to be done the way that they did it . . . . But after looking especially at the case of New York v. Belton, 433 U.S. 454, is [sic] the only thing that tips the scales in the State’s favor in this case; and that is that a search may be made incident to an arrest of the passenger compartment of the vehicle, including containers located in the passenger compartment where the search incident to arrest even if the detainee has been arrested and removed from the vehicle.
Petitioner’s trial took place in 2007, two years prior to the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the United States Supreme Court limited the expansive searches allowed by Belton. The Court noted that Beltonhad been widely understood to “allow a vehicle search incident to arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Id. at 1718. The Court found this reading incompatible with its previous decisions regarding the basic scope of searches incident to lawful custodial arrests. Id. at 1719 (citation omitted). Therefore the Court held that police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. Id. (citing Thornton v. United States, 541 U.S. 615, 624–25 (2004)).
Newly announced rules of constitutional criminal procedure must apply retroactively to all cases, “pending on direct review or not yet final, with no exception for cases in which a new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Petitioner’s conviction has not yet become final on direct review. Thus, Gant applies retroactively to this case, and Petitioner may invoke its rule of substantive Fourth Amendment law as a basis for seeking relief. However, our analysis of the instant case is further controlled by the United States Supreme Court’s decision in Davis v. United States, 131 S.Ct. 2419 (2011).
In Davis, the defendant was charged and convicted of unlawful possession of a firearm based on discovery of a revolver in a stopped automobile in which he was the only passenger. Id. at 2425–26. During the pendency of Davis’s appeal, the United States Supreme Court decided Gant. The Eleventh Circuit applied Gant‘s new rule and held that the vehicle search incident to arrest violated Davis’s Fourth Amendment rights. Id. at 2426 (citation omitted). However, the court concluded that penalizing the arresting officer for following binding appellate court precedent would do nothing to deter Fourth Amendment violations. Id. (citingUnited States v. Davis, 598 F.3d 1259, 1265–66 (2010)).
The United States Supreme Court agreed, and reasoned that the acknowledged absence of police culpability doomed Davis’s claim. Id. at 2428. “Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningful deterrence’ and culpable enough to be ‘worth the price paid by the justice system.'” Id. (citing Herring v. United States, 555 U.S. 135, 144 (2009)). Excluding evidence in cases where the “constable” has scrupulously adhered to governing law deters no police conduct and imposes substantial social costs. Davis, 131 S.Ct. at 2434. Thus, the Court held that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. Id.
In the instant case, the search incident to arrest violated Petitioner’s Fourth Amendment rights pursuant to Gant. However, excluding the evidence against Petitioner would not deter police misconduct because the police in this instance conducted a search incident to arrest pursuant to binding appellate precedent. See id. at 2426–28. Moreover, exclusion of the evidence in this case would result in severe social costs, including the articulation of an inexplicable and undecipherable message to law enforcement regarding how to conduct a legal search. The protection of the Fourth Amendment can only be realized if the police are acting under a set of rules which make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement. Wayne R. LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142 (1974).
This Court will only reverse the circuit court’s decision on a motion to suppress when there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010). The circuit court in this case applied the established law to a search executed pursuant to binding precedent. Thus, Davis v. United States, and our own standard of review, commands that the circuit court’s decision be affirmed.[2]
II. Whether the Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily.
Petitioner signed a consent order granting belated direct appeal and waived his right to raise any other PCR allegations. He now asks this court to remand his case for a determination as to whether he knowingly and voluntarily waived his right to raise additional PCR claims.
In order to determine whether a waiver is effective, the court examines the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Spoone v. State, 379 S.C. 138, 143, 665 S.E.2d 605, 607 (2008) (citing United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)). Numerous jurisdictions have upheld waivers of post-conviction relief, provided they were knowing and voluntary. Id. at 143, 665 S.E.2d at 607. A defendant’s knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and may be accomplished by a colloquy between the court and defendant, between the court and defendant’s counsel, or both. Brannon v. State, 345 S.C. 437, 439, 548 S.E.2d 866, 867 (2001).
In Spoone v. State, 379 S.C. 138, 665 S.E.2d 605 (2008), this Court addressed whether a PCR court erred in enforcing a written plea agreement wherein the petitioner waived his right to direct appeal, PCR, and habeas corpus relief. The petitioner argued that his waiver was not knowing and intelligent because there was no discussion at the plea proceeding about the extent of his understanding of the waiver. Id. at 141, 665 S.E.2d at 607.
The Court took into account that although petitioner had only a ninth grade education, the text of the written plea agreement was straightforward. Id. at 143–44, 665 S.E.2d at 608. In addition, the plea colloquy showed that the PCR court specifically asked petitioner about the waiver both in the language of the plea agreement, and in “plain language.” Id. Two attorneys accompanied petitioner to the plea hearing and both signed the written plea agreement along with petitioner. Id. Thus, this Court held that the PCR court correctly enforced the waiver and dismissed petitioner’s PCR application. Id.
In this case, according to the Consent Order, Petitioner appeared before the PCR court on August 26, 2008. The Consent Order states that Petitioner waived his right to raise any other PCR allegations, but was “granted a belated direct appeal pursuant to White v. State.” The record before this Court of the colloquy between the parties consists of the following:
The court: What’s the—what we got this morning?
Mr. Friedman: Your Honor, the first one is Osiel Gomez Narcisco [sic].
The court: All right.
Mr. Friedman: May we approach on this one?
The court: Yeah
(Bench conference)
Mr. Friedman: Thank you, Your Honor.
The court: Okay. Appreciate it. Thank you.
The Consent Order signed by Petitioner is straightforward. However, Petitioner used an English-speaking interpreter throughout his original trial, and apparently has, at best, a limited command of the English language. The colloquy provided to this Court does not show that the PCR court specifically asked Petitioner about the waiver, either in the language of the Consent Order, or in “plain language.”
The State argues that Petitioner’s case is distinguishable from Spoone because in that case the issue was “whether the right to appellate review and post-conviction review may be waived by a written plea agreement . . . ,” and that “[Petitioner] proceeded to trial and was convicted.” This is a distinction without a difference. The key issue in Spoone and in Petitioner’s case is the circumstances surrounding the waiver of the right to appeal PCR allegations. Aside from the consent agreement, the record in this case does not support the conclusion that Petitioner entered into the agreement knowingly and voluntarily. Additionally, the colloquy between the court and the defendant in this case does not clearly establish that Petitioner knowingly and voluntarily waived his right to raise any other PCR allegations. This Court will affirm the PCR court’s findings if any evidence of probative value exists in the record. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011). However, finding that no such evidence exists in the instant case, we must remand for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
CONCLUSION
We affirm the circuit court’s denial of Petitioner’s motion to suppress. However, the record does not adequately demonstrate whether Petitioner’s waiver was in accordance with this Court’s waiver jurisprudence. Thus, we remand the case for a determination on that issue.
AFFIRMED IN PART, REMANDED IN PART.
PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] In White v. State, 263 S.C. 110, 113, 208 S.E.2d 35, 36 (1974), the defendant was convicted of burglary and sentenced to twenty years imprisonment. The defendant did not appeal his conviction or sentence, but subsequently filed a petition for PCR and a circuit court denied that relief in a full evidentiary hearing. Id. The defendant argued on appeal that the PCR judge should have ordered a new trial because the defendant did not knowingly and intelligently waive the right to appeal from his conviction and sentence. Id. at 117, 208 S.E.2d at 39. The defendant’s trial counsel testified at the PCR hearing that he did not advise the defendant of his right to appeal because he was certain the defendant knew of his rights due to his prior criminal record. Id. The PCR judge found that the defendant did not knowingly and intelligently waive his right to appeal, and directed defendant’s new counsel to secure a belated appeal to this Court from his conviction and sentence. Id. at 118, 208 S.E.2d at 39. This Court found that with regard to this belated appeal, no notice of appeal had been filed, and thus the Court had no jurisdiction over such an appeal. Id. at 119, 208 S.E.2d at 39. However, the Court reviewed the record in connection with the properly presented PCR appeal and ruled that “there was no reversible error in the trial and that there was not an arguably meritorious ground of appeal, even if notice of intention to appeal had been timely served . . . .” White, 263 S.C. at 119, 208 S.E.2d at 40.
[2] Respondent argues that due to Gant, the “search-incident-to-arrest logic is no longer appropriate grounds for denying the suppression motion,” and urged this Court to find the search was justified under the automobile exception. However, the decision in Davis being dispositive, this Court need not reach the automobile exception, or any other grounds, for upholding the search. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1998) (holding that appellate courts need not discuss remaining issues when determination of a prior issue is dispositive).
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.
