Miller v. State , 379 S.C. 108 ( 2008 )

Justice PLEICONES

dissenting:

I respectfully dissent and would affirm the post-conviction relief (PCR) judge’s finding that petitioner’s trial counsel was not ineffective in failing to adequately present evidence of third-party guilt. E.g., Ard v. Catoe, 372 S.C. 318, 642 S.E.2d 590 (2007) (PCR findings must be upheld where supported by any evidence of probative value in the record).

Under South Carolina’s third-party guilt evidence rule:

Evidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect that than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.... [BJefore such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party. State v. Gregory, 198 S.C. 98 at 104-105, 16 S.E.2d 532 at 534-535 (1941) (quoting 16 C.J., Criminal Law § 1085, p. 560 (1918) and 20 Am.Jur., Evidence § 265, p. 254 (1939); footnotes omitted).

Cited in Holmes v. South Carolina, 547 U.S. 319, 328, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).³

At the outset, I must express reservations whether the third-party guilt evidence proffered by petitioner at trial met the threshold for admissibility. In my view, Stephanie Pauling’s testimony did little more than raise a conjectural inference that Derrick Miller, rather than petitioner, may have robbed James Holder. State v. Gregory, supra.

In any case, there is evidence in the record to support the PCR judge’s finding that trial counsel was not deficient in casting suspicion on Derrick through his cross-examination of Pauling. The majority points to two facts which trial counsel failed to elicit to find trial counsel ineffective: 1) that Pauling’s car was used in her and Derrick’s armed robberies and 2) that a similar gun was used in all four robberies. In my view, trial counsel’s failure to cross-examine Pauling about these two “similarities” was not deficient nor was petitioner prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (defendant alleging trial counsel was ineffective must establish both deficient performance and resulting prejudice).

It appears that Pauling testified for the State in petitioner’s trial as part of an understanding that, following her testimony, she was to be permitted to plead down her three armed robbery charges to three counts of accessory after the fact. In those three cases, Pauling was alleged to have been the getaway car driver while two codefendants (one Derrick) robbed or attempted to rob convenience stores and a fast food restaurant. While Pauling did not explicitly testify that she was driving her car during these three crimes, there was no suggestion that she was driving any other vehicle.'⁴ The testimony focused on only this automobile, as did the attorneys’ closing arguments. In my opinion, trial counsel’s failure to specifically question Pauling about the car used in the armed robberies in which she was the getaway driver was not deficient, nor was petitioner, prejudiced by this omission since it was clear to the jury that the same car was involved in all four incidents. Strickland v. Washington, supra.

The majority also holds trial counsel’s failure to exploit the similarities between the gun used to rob Holder and the gun used in the three other armed robberies was ineffective. During her in camera trial testimony, however, Pauling stated that the gun used in the robberies in which she participated “didn’t look like the other one.” In my opinion, counsel cannot be deemed ineffective for failing to present evidence at trial through Pauling of the guns’ similarities.

Having concluded that there is evidence of probative value in the record which supports the findings of the PCR judge, I would affirm the order denying petitioner a new trial. Ard v. Catoe, supra.

TOAL, C.J., concurs.

3 . In Holmes, the United State Supreme Court found unconstitutional a variant of South Carolina's third-party guilt rule which permitted strong evidence of guilt (especially forensic) to trump the defendant’s right to present third-party guilt evidence.

4 . This is especially so in light of Pauling's testimony that only she, her aunt, and petitioner were permitted to drive the car, and evidence that her participation in the three robberies was motivated, at least in part, by the fact she had just lost her job and was unable to make her car payments.