Smalls v. State ( 2018 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Stephen Smalls, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2016-001079
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Richland County
Henry F. Floyd, Trial Court Judge
J. Ernest Kinard Jr., Post-Conviction Relief Judge
Opinion No. 27764
Heard November 14, 2017 – Filed February 7, 2018
REVERSED
Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Jessica Elizabeth Kinard, both of
Columbia, for Respondent.
JUSTICE FEW: In this post-conviction relief (PCR) case, we agree with the court
of appeals' finding that trial counsel was deficient, but disagree that the State
presented overwhelming evidence of guilt that precluded a finding of prejudice
under the second prong of Strickland v. Washington. We find the evidence was not
overwhelming, and reverse the court of appeals' finding that counsel's errors resulted
in no prejudice.
I. Facts and Procedural History
At almost midnight on May 21, 2000, Jim Lightner and Eugene Green were closing
the Bojangles restaurant on Elmwood Avenue in Columbia when a man charged in
the door wielding a shotgun. The man forced Lightner to the back of the restaurant
to open the safe. When they went to the back, Green escaped out the front door and
ran across Elmwood to a gas station to call the police. While Green was on the
phone with police, he saw the man walk out the side service door of the Bojangles
carrying the shotgun in one hand and a white bag in the other. The man walked out
of a wooden gate near the back of the parking lot just as a police cruiser pulled up to
the front of the Bojangles. Green told the police to "make a left at the Lizard's
Thicket," which would take the officer to where the man exited the wooden gate.
When Green saw the cruiser make the left, he said "you got him." Although the
officers were unable to find the suspect at that time, they did find a twelve-gauge
pump-action shotgun and a white bag containing $1,900 just outside the gate.
Two fingerprint experts later examined the shotgun and determined that one of
several prints on the gun belonged to Smalls. After securing a warrant for Smalls'
arrest, Investigator Joe Gray drove to Smalls' house. When he saw Smalls walking
down a nearby street carrying a child in his arms, Gray stepped out of his vehicle
and asked Smalls about the robbery of the Bojangles. Gray testified Smalls "dropped
the child" and "began running." Another officer found Smalls later that evening
hiding in bushes a few blocks away.
Investigator Paul Mead prepared a photographic lineup that he presented to Lightner.
Investigator Gray presented the same lineup to Green. Four days after the robbery,
Green identified Smalls. Lightner, however, could not identify Smalls, but did
narrow the suspects down to two people, one of whom was Smalls.
At trial in May of 2002, the State introduced Green's pretrial identification of Smalls.
Green testified and identified Smalls in the courtroom. The State introduced the fact
Lightner narrowed the suspects down to Smalls and one other person. Investigator
Gray identified Smalls as the person who dropped the child and ran when he was
asked about the robbery. Both fingerprint experts testified one of the fingerprints on
the shotgun belonged to Smalls. The jury convicted Smalls of armed robbery, and
the trial court sentenced him to twenty-five years in prison. The court of appeals
dismissed his appeal in an unpublished opinion. State v. Smalls, Op. No. 2004-UP-
315 (S.C. Ct. App. filed May 13, 2004).
Smalls filed an application for PCR alleging he received ineffective assistance of
counsel. The PCR court first held a hearing in 2007. The court held the record open
to allow PCR counsel time to investigate the circumstances under which the State
dismissed a carjacking charge against Green on the morning of Smalls' trial. The
hearing was not reconvened until 2012. The PCR court described the issue regarding
the carjacking charge as not only one of ineffective assistance of counsel, but also
whether "the State was deceptive" in representations made to the trial court and trial
counsel.1 The PCR court denied relief.
We transferred Smalls' petition for a writ of certiorari to the court of appeals pursuant
to Rule 243(l) of the South Carolina Appellate Court Rules, and the court of appeals
granted the petition. The court of appeals then found trial counsel's performance
was deficient regarding the carjacking charge and in two other instances. Smalls v.
State, 415 S.C. 490, 498-501, 783 S.E.2d 817, 820-22 (Ct. App. 2016). However,
the court of appeals found "there was no prejudice resulting from trial counsel's
deficient performance because the State presented overwhelming evidence of
[Smalls'] guilt." 415 S.C. at 501, 783 S.E.2d at 822. Smalls filed a petition for a
writ of certiorari, which we granted.
II. Standard of Review
Our standard of review in PCR cases depends on the specific issue before us. We
defer to a PCR court's findings of fact and will uphold them if there is evidence in
the record to support them. Sellner v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 527
(2016) (citing Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013)). We
review questions of law de novo, with no deference to trial courts.2 Sellner, 416 S.C.
1
The PCR court did not make a ruling on the misrepresentation issue and neither
party briefed the issue to the court of appeals or this Court.
2
In numerous cases, this Court has incorrectly stated an appellate court "gives great
deference to the PCR court's . . . conclusions of law." See, e.g., Porter v. State, 368
S.C. 378, 383, 629 S.E.2d 353, 356 (2006). The court of appeals repeated our
misstatement, quoting Porter. Smalls, 415 S.C. at 496, 783 S.E.2d at 820. We
clarify that appellate courts review questions of law de novo, with no deference to
trial courts. While we uphold the analysis and result of the following decisions, we
now direct that none of these decisions should be read to suggest an appellate court
gives any deference to a PCR court's conclusions of law: Gonzales v. State, 419 S.C.
2, 10, 795 S.E.2d 835, 839 (2017); Gibbs v. State, 416 S.C. 209, 218, 785 S.E.2d
455, 459 (2016); McHam v. State, 404 S.C. 465, 473, 746 S.E.2d 41, 45 (2013);
at 610, 787 S.E.2d at 527 (citing Jamison v. State, 410 S.C. 456, 465, 765 S.E.2d
123, 127 (2014)).
III. Deficient Performance
To prove trial counsel's performance was deficient, an applicant must show
"counsel's representation fell below an objective standard of reasonableness."
Williams v. State, 363 S.C. 341, 343, 611 S.E.2d 232, 233 (2005) (citing Strickland
v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. E. 2d 674, 693
(1984)). The court of appeals held trial counsel's performance fell below this
standard as to three separate instances. First, trial counsel did not effectively argue
that the existence and dismissal of Green's carjacking charge was admissible as
evidence of Green's bias. Second, trial counsel did not object to the State's question
to Investigator Mead suggesting Smalls burglarized someone's home to obtain the
shotgun. Third, trial counsel did not challenge the State's statement during opening
that the police saw Smalls leaving the Bojangles.
Hyman v. State, 397 S.C. 35, 42, 723 S.E.2d 375, 378 (2012); Holden v. State, 393
S.C. 565, 573, 713 S.E.2d 611, 615 (2011); Edwards v. State, 392 S.C. 449, 455,
710 S.E.2d 60, 64 (2011); Robinson v. State, 387 S.C. 568, 574, 693 S.E.2d 402, 405
(2010); Kolle v. State, 386 S.C. 578, 589, 690 S.E.2d 73, 79 (2010); Terry v. State,
383 S.C. 361, 371, 680 S.E.2d 277, 282 (2009); Jones v. State, 382 S.C. 589, 595,
677 S.E.2d 20, 23 (2009); Davie v. State, 381 S.C. 601, 608, 675 S.E.2d 416, 420
(2009); Miller v. State, 379 S.C. 108, 115, 665 S.E.2d 596, 599 (2008); Lomax v.
State, 379 S.C. 93, 100, 665 S.E.2d 164, 167 (2008); Harris v. State, 377 S.C. 66,
73, 659 S.E.2d 140, 144 (2008); Lorenzen v. State, 376 S.C. 521, 529, 657 S.E.2d
771, 776 (2008); Smith v. State, 375 S.C. 507, 515, 654 S.E.2d 523, 528 (2007);
Watson v. State, 370 S.C. 68, 71, 634 S.E.2d 642, 643 (2006); Porter, 368 S.C. at
383, 629 S.E.2d at 356; Simpson v. Moore, 367 S.C. 587, 595, 627 S.E.2d 701, 705
(2006); Bright v. State, 365 S.C. 355, 358, 618 S.E.2d 296, 298 (2005); Winns v.
State, 363 S.C. 414, 417, 611 S.E.2d 901, 903 (2005); Dempsey v. State, 363 S.C.
365, 368, 610 S.E.2d 812, 814 (2005); Sellers v. State, 362 S.C. 182, 187, 607 S.E.2d
82, 84 (2005); Magazine v. State, 361 S.C. 610, 615, 606 S.E.2d 761, 763 (2004);
Huggler v. State, 360 S.C. 627, 632, 602 S.E.2d 753, 756 (2004); Green v. State,
351 S.C. 184, 192, 569 S.E.2d 318, 322 (2002); Caprood v. State, 338 S.C. 103, 109,
525 S.E.2d 514, 517 (2000).
A. Dismissal of Green's Carjacking Charge
During a pretrial hearing on the morning of trial, the solicitor asked the trial court to
make preliminary rulings on whether Green's prior convictions would be admissible
to impeach him under Rule 609 of the South Carolina Rules of Evidence. The trial
court ruled Green's convictions for distribution of crack cocaine, use of vehicle
without owner's consent, and possession of a stolen motor vehicle were admissible.
Trial counsel then asked about the pending carjacking charge, "He has a pending
charge, Your Honor, but I don't know if I am allowed to go into that." The solicitor
informed the trial court that Green's carjacking charge had been dismissed that
morning. Apparently not recognizing that the dismissal of the charge was potentially
stronger evidence of bias than the charge itself, trial counsel raised no further
argument on the issue, and did not ask the trial court to make a ruling as to whether
counsel would be permitted to use the carjacking charge or its dismissal to impeach
Green.3
Evidence of a witness's bias can be compelling impeachment evidence, and for that
reason "considerable latitude is allowed" to defense counsel in criminal cases "in the
cross-examination of an adverse witness for the purpose of testing bias." State v.
Brown, 303 S.C. 169, 171, 399 S.E.2d 593, 594 (1991). Our courts have followed
the "general rule" that "'anything having a legitimate tendency to throw light on the
accuracy, truthfulness, and sincerity of a witness may be shown and considered in
determining the credit to be accorded his testimony,'" so that "'on cross-examination,
any fact may be elicited which tends to show interest, bias, or partiality' of the
witness." State v. Brewington, 267 S.C. 97, 101, 226 S.E.2d 249, 250 (1976)
(quoting 98 C.J.S. Witnesses §§ 460, 560a). "Rule 608(c) [of the South Carolina
Rules of Evidence] 'preserves [this longstanding] South Carolina precedent.'" State
v. Sims, 348 S.C. 16, 25, 558 S.E.2d 518, 523 (2002) (quoting State v. Jones, 343
S.C. 562, 570, 541 S.E.2d 813, 817 (2001) and citing Brewington, 267 S.C. at 101,
3
At the PCR trial, trial counsel testified she argued to the trial court in chambers that
she should be allowed to impeach Green with the fact the charge was dismissed, and
the trial court ruled she could not. Such a conference is meaningless in this appeal.
When a conference takes place off the record, it is trial counsel's duty to put the
substance of the discussion and the trial court's ruling on the record. See Foye v.
State, 335 S.C. 586, 590, 518 S.E.2d 265, 267 (1999) (finding trial counsel was
deficient for failing to place his argument about the jury seeing his client in chains
on the record, and thus failing to adequately preserve the issue for appeal).
226 S.E.2d at 250). See Rule 608(c), SCRE ("Bias, prejudice or any motive to
misrepresent may be shown to impeach the witness either by examination of the
witness or by evidence otherwise adduced.").
In Sims, decided three months before Smalls' trial, we discussed the use of pending
charges as evidence of bias to impeach a State's witness. 348 S.C. at 23-26, 558
S.E.2d at 522-23. We stated, "There was the substantial possibility [the witness with
pending charges] would give biased testimony in an effort to have the solicitor
highlight to his future trial judge how he had cooperated . . . ." 348 S.C. at 25, 558
S.E.2d at 523. In this case, the fact Green faced charges for carjacking is evidence
of his bias for the reasons we explained in Sims. In most circumstances, a trial court
would admit evidence of the charge. See State v. Dial, 405 S.C. 247, 256, 746 S.E.2d
495, 499-500 (Ct. App. 2013) (recognizing trial courts have wide discretion in
admitting evidence of bias). Smalls' counsel not only failed to attempt to cross-
examine Green with evidence of these charges, but erroneously believed the State's
dismissal of the charges eliminated the tendency of the evidence to show Green's
bias. If the mere existence of the charge made it likely Green would give biased
testimony, as we explained in Sims, the dismissal of the charge made the likelihood
of bias manifest—because Green actually received the benefit he hoped the solicitor
would provide in exchange for his cooperation.
The fact Green faced a carjacking charge that was dismissed on the morning of trial
was strong evidence of Green's bias, and counsel's failure to cross-examine him on
this point fell well below the "objective standard of reasonableness" by which we
judge the performance of counsel. Williams, 363 S.C. at 343, 611 S.E.2d at 233.
The magnitude of counsel's deficiency did not become clear, however, until the PCR
trial was reconvened in 2012. Green testified he had been in jail awaiting trial on
the carjacking charge in the weeks before Smalls' trial. Green explained that on two
occasions the solicitor brought him to the courthouse and "asked [him] to be a
cooperating witness and testify against Mr. Smalls." According to Green, he told
the solicitor he did not want to cooperate because "I didn't want anything to do with
it." Recalling his conversation with the solicitor, Green testified, "He was like if I
didn't come . . . to participate in the trial that my charge wasn't going to go anywhere.
. . . Like I still was going to be charged with the [carjacking]." Then, "a couple of
days before" Smalls' trial, according to Green, he was released on a personal
recognizance bond. The charge was dismissed the morning of trial, and Green
testified against Smalls. PCR counsel asked Green at the 2012 hearing, "Would you
have testified in the case against Stephen Smalls if you had not been told that your
carjacking charge would not be dismissed if you didn't," and he responded, "No.
Because I didn't want anything to do with it."
If trial counsel had attempted to cross-examine Green on the carjacking charge, she
would have demonstrated that the State dismissed a charge that carried up to twenty
years in prison4 on the morning of trial in an apparent effort to secure Green's
favorable testimony. If the trial court ruled against her, she was required to make a
proffer. See State v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 402-03 (1986)
(stating "this Court will not review alleged error of the exclusion of testimony unless
a proffer of testimony is properly made on the record"). In either circumstance, it is
reasonably possible Green would have admitted—as he did at the PCR trial—the
State made him a deal that handsomely rewarded him for his cooperation. Even if
Green did not admit that, trial counsel should have forced the solicitor to disclose
the terms of any deal he made with Green. See State v. Hinson, 293 S.C. 406, 408,
361 S.E.2d 120, 120 (1987) ("'When the reliability of a given witness may well be
determinative of guilt or innocence,' nondisclosure of a promise of immunity made
to that witness is a violation of due process." (quoting Giglio v. United States, 405
U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972))). The court of
appeals was correct to find trial counsel was deficient in handling the carjacking
charge.
B. Prior Burglary
In an effort to show an innocent explanation for Smalls' fingerprint on the shotgun,
trial counsel cross-examined Investigator Mead as follows,
Q: Was the gun stolen? Had it been stolen?
A: It was.
....
Q: How long before had that gun been stolen?
A: It was taken in a burglary of the individual's
residence. The gun was reported stolen on August
28, 1999.
....
4
S.C. Code Ann. § 16-3-1075(B)(1) (2015).
Q: So a little less than a year before this occurred?
A: Yes, ma'am.
Q: Do you know if that case was ever solved?
A: To my knowledge, no.
The State responded on redirect,
Q: Investigator Mead, first with regards to the shotgun,
you were asked where it originally came from?
A: Yes, sir.
Q: To make it perfectly clear, [the shotgun] wasn't
stolen from the defendant's house in 1999?
A: No, it was not.
Q: He burglarized somebody else's house?
A: That's correct.
Q: So is there any reason why his fingerprint would be
on this weapon –
A: Not that I know of, sir.
Q: – other than he robbed the Bojangles?
A: That's correct.
The State's overall line of questioning on redirect appears to have been offered for
the legitimate purpose of refuting defense counsel's suggestion of an innocent
explanation for the fingerprint. However, the question, "He burglarized somebody
else's house," and the answer "That's correct," did not serve any legitimate purpose.
Rather, it was an improper effort to introduce evidence that Smalls committed
another crime. See Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in
conformity therewith."). In addition, the State did not present clear and convincing
evidence Smalls committed the prior burglary; in fact, Mead admitted the case was
unsolved. See State v. Smith, 300 S.C. 216, 218, 387 S.E.2d 245, 247 (1989)
(holding "proof of prior bad acts must be clear and convincing"). The court of
appeals correctly ruled trial counsel was deficient in failing to object.
C. Opening Statement
In his opening statement, the assistant solicitor told the jury,
Mr. Green ran out of the store when he was left alone up
front, across the street, and called 911. The Columbia
Police Department responded. Mr. Smalls ultimately took
off out of the store with over $1,900 in a plastic bag with
the shotgun. The police saw him as he was leaving the
store. He ended up getting away that night, but he ended
up leaving behind some very important pieces of evidence.
He left behind that shotgun, he also left behind the money,
in his quest to get away.
The court of appeals found trial counsel was deficient for failing to challenge the
State's comment, "The police saw him as he was leaving the store." The court of
appeals stated, "We hold trial counsel was deficient for failing to challenge the
State's comments either by objecting or by pointing out during the closing arguments
that the State failed to prove this assertion." 415 S.C. at 499, 783 S.E.2d at 821.
We certainly agree with the court of appeals that these are two of the options counsel
has to deal with a misstatement by the State in opening. However, the simple fact
trial counsel does not respond to an incorrect statement made during opening does
not render trial counsel's performance deficient. Under certain circumstances, it may
be reasonable for trial counsel to simply ignore the misstatement. Such a decision
could be based on counsel's assessment the point is minor and inconsequential;
perhaps it is debatable whether there is evidence to support the statement; or perhaps
the circumstances of the trial—as perceived by trial counsel—unfold in such a way
that pointing out the misstatement would no longer be beneficial.
Initially, we are not convinced there is no evidence in the record that supports the
assistant solicitor's statement. When crime scene investigator Jim Potash was asked
where he found the shotgun, he testified, "I was directed there by the officers, saying
that they were running behind or chasing – trying to chase a suspect from the
business itself. They had indicated to me that they saw the person throw or dispose
of on the right-hand side going through a fenced area a plastic bag." Green's
testimony that he told the officers to intercept the suspect at Lizard's Thicket also
appears to support the assistant solicitor's statement. In addition, the PCR court did
not make any specific findings as to whether ignoring the misstatement was
deficient. Rather, the PCR court appears to have denied relief on this point only on
the basis of no prejudice. The court stated, "There is no merit to this claim, opening
statements are not evidence, and the jury was told several times by the judge and the
attorneys to base their verdict on the evidence only."
With no findings by the PCR court, and in light of the testimony of Potash and Green,
we simply cannot say trial counsel was deficient for not addressing this remark in
the State's opening that was never mentioned again. See Stone v. State, 419 S.C.
370, 380, 798 S.E.2d 561, 566 (2017) (stating "the law requires we presume counsel
rendered adequate assistance and exercised reasonable professional judgment" and
"the Strickland test . . . requires that [the applicant] prove" otherwise (citing
Strickland, 466 U.S. at 690, 687, 104 S. Ct. at 2066, 2064, 80 L. Ed. 2d at 695, 693)).
We agree with the court of appeals' finding that Smalls proved trial counsel was
deficient in two respects.
IV. Prejudice—Overwhelming Evidence of Guilt
We turn now to the second prong of Strickland—prejudice. The State argues Smalls
failed to prove prejudice in this case because the State presented overwhelming
evidence of Smalls' guilt. We disagree.
To satisfy the prejudice prong, an applicant must demonstrate "there is a reasonable
probability that, but for counsel's errors, the result of the trial would have been
different." Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007) (citing
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). As the Supreme
Court of the United States explained in Strickland, "the question is whether there is
a reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt." 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed.
2d at 698. "A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial." Rutland v. State, 415 S.C. 570, 577, 785
S.E.2d 350, 353 (2016) (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.
Ed. 2d at 698).
In determining whether the applicant has proven prejudice, the PCR court should
consider the specific impact counsel's error had on the outcome of the trial. See
Strickland, 466 U.S. at 695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698-99 (explaining
that the court must analyze how individual errors of counsel affect the important
factual findings in a particular case). In addition, the PCR court should consider the
strength of the State's case in light of all the evidence presented to the jury. See
generally Jones v. State, 332 S.C. 329, 333, 504 S.E.2d 822, 824 (1998) ("In
deciding whether Jones was prejudiced, we must bear in mind the strength of the
government's case . . . ," and "we must consider the totality of the evidence before
the jury."). In general, the stronger the evidence presented by the State, the less
likely the PCR court will find the applicant met his burden of proving prejudice. See
Strickland, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699 (stating "a verdict
. . . only weakly supported by the record is more likely to have been affected by
errors than one with overwhelming record support").
In this context, this Court has used the phrase "overwhelming evidence of guilt." In
Geter v. State, 305 S.C. 365, 409 S.E.2d 344 (1991), for example, we held counsel
was deficient for not objecting to repeated references to Geter's time previously spent
in jail. 305 S.C. at 367, 409 S.E.2d at 345-46. We then examined the strength of
the State's case as part of our consideration of prejudice. We found, "In light of the
overwhelming evidence of petitioner's guilt . . . we find no reasonable probability
the result of the trial would have been different had counsel's performance not been
deficient in this regard." 305 S.C. at 367, 409 S.E.2d at 346. Similarly, in Ford v.
State, 314 S.C. 245, 442 S.E.2d 604 (1994), we found counsel deficient for declining
the trial court's offer to give the jury an alibi charge after Ford testified he was at a
nightclub, not the place where the sexual assault occurred. 314 S.C. at 247-48, 442
S.E.2d at 605-06. However, we found "overwhelming evidence of Ford's guilt"—
including DNA evidence showing Ford's semen on the victim's clothing—and thus
"no reasonable probability that the result of the trial would have been different had
counsel accepted the alibi charge." 314 S.C. at 248, 442 S.E.2d at 606. See also
Huggler v. State, 360 S.C. 627, 634-35, 602 S.E.2d 753, 757 (2004) (finding
counsel's deficient performance in not objecting to inadmissible prior consistent
statements did not prejudice applicant "given that the witnesses' testimon[y] on
direct provided overwhelming evidence that sexual abuse did in fact occur").
Ordinarily, the existence of "overwhelming evidence" does not automatically
preclude a finding of prejudice. In Simmons v. State, 331 S.C. 333, 503 S.E.2d 164
(1998), for example, we found counsel was deficient for not objecting when the State
in closing "improperly inject[ed] parole considerations into the jury's sentencing
decision" and otherwise misstated the law regarding sentencing. 331 S.C. at 338-
39, 503 S.E.2d at 167. Despite finding the evidence of Simmons' guilt was
"overwhelming," we balanced the impact of counsel's error against the strength of
the State's case on the point in question, and found Simmons had proved prejudice.
We explained,
[B]ecause the issue is whether the solicitor's improper
argument prevented the jury from fairly considering [its
sentencing options], the overwhelming evidence of
petitioner's guilt does not eliminate the reasonable
probability that the result of the trial would have been
different had trial counsel objected to portions of the
solicitor's closing argument.
331 S.C. at 340, 503 S.E.2d at 167.
In Smith v. State, 375 S.C. 507, 523-24, 654 S.E.2d 523, 532 (2007), we first
examined counsel's error—failure to object to improper closing argument—to assess
its impact on the jury's determination of guilt, stating "the solicitor's comments were
confined to facts established during trial" and "were limited and did not recur
throughout his argument." 375 S.C. at 523, 654 S.E.2d at 532. We then considered
the strength of the State's case and found "there was also overwhelming evidence of
Petitioner's guilt." Id. We held, after balancing these and other considerations, "we
do not believe there was a reasonable probability that the result of the trial would
have been different." 375 S.C. at 524, 654 S.E.2d at 532.
Simmons and Smith illustrate the proper consideration of the strength of the State's
case in the PCR court's analysis of prejudice: it is one significant factor the court
must consider—along with the specific impact of counsel's error and other relevant
considerations—in determining whether the applicant has met his burden of proving
prejudice. In this case, however, neither the PCR court nor the court of appeals
appears to have considered the specific impact of counsel's error. Rather, both courts
used what they considered "overwhelming evidence of guilt" as a categorical bar
that precluded a finding of prejudice, without the necessity of separately considering
the impact of counsel's error.
In rare cases, using "overwhelming evidence" as a categorical bar to preclude a
finding of prejudice is not error. We did it, for example, in Rosemond v. Catoe, 383
S.C. 320, 680 S.E.2d 5 (2009). In Rosemond, we found trial counsel deficient for
making inappropriate comments to the jury in the guilt phase of a capital trial. 383
S.C. at 325, 680 S.E.2d at 8. Without analyzing the specific impact of that error, we
held, "No prejudice occurred in the guilt phase as the State presented overwhelming
evidence of guilt: Rosemond's confession and the murder weapon, which Rosemond
helped the police locate. Further, in his confession, Rosemond admitted to planning
the murder of his girlfriend." Id. We also did it in Harris v. State, 377 S.C. 66, 659
S.E.2d 140 (2008), in which we agreed "with the State's assertion" that "Harris was
unable to show prejudice . . . due to the overwhelming evidence supporting Harris's
guilt." 377 S.C. at 79, 659 S.E.2d at 147. We did not separately consider the specific
impact of counsel's error. See also Christenson v. Ault, 598 F.3d 990, 997 (8th Cir.
2010) (stating, "When there is overwhelming evidence of guilt presented, it may be
impossible to demonstrate prejudice," and, "Based on the trial record, demonstrating
prejudice resulting from the alleged ineffective assistance would be impossible in
this case.").
However, for the evidence to be "overwhelming" such that it categorically precludes
a finding of prejudice—as we found it did in Rosemond and Harris—the evidence
must include something conclusive, such as a confession, DNA evidence
demonstrating guilt, or a combination of physical and corroborating evidence so
strong that the Strickland standard of "a reasonable probability . . . the factfinder
would have had a reasonable doubt" cannot possibly be met. In Franklin v. Catoe,
346 S.C. 563, 552 S.E.2d 718 (2001), although we discussed the specific impact of
counsel's error, we also discussed what is "overwhelming evidence." 346 S.C. at
574-75, 552 S.E.2d at 724-25. The error was that trial counsel did not advise
Franklin of his right to make a personal closing argument during the guilt phase of
his capital trial, and did not object to the trial court's failure to obtain a waiver of that
right.5 346 S.C. at 571, 552 S.E.2d at 723. As to the prejudice prong, we described
the "overwhelming" evidence in detail and stated, "Based on a review of the
evidence presented, we can find no evidence whatsoever the jury would have
rendered a different verdict had the error not been made." 346 S.C. at 574, 552
S.E.2d at 724. That evidence included Franklin's DNA on the victim's body, the
victim's blood on Franklin's pants, Franklin's bloody palm print on the murder
weapon, and the fact it was "impossible to believe a reasonable juror could find the
violent brutality of this murder to be the result of consensual sex, as Franklin
claimed." Id. The "overwhelming" nature of the evidence led us to conclude "there
is no reasonable possibility Franklin's failure to make a personal closing argument
5
See S.C. Code Ann. § 16-3-28 (2015) (requiring that "in any criminal trial where
the maximum penalty is death . . . , the defendant and his counsel shall have the right
to make the last argument").
to the jury during the guilt phase of his trial contributed in any way to his
convictions." 346 S.C. at 574-75, 552 S.E.2d at 725.
In this case, the court of appeals relied on the following evidence in reaching its
conclusion the evidence was overwhelming: (1) Green identified Smalls during a
photographic lineup; (2) Lightner was able to narrow the suspects down to two—
one of whom was Smalls—during a photographic lineup; (3) Smalls' fingerprint was
on the shotgun; and (4) Smalls dropped a child and ran from Investigator Gray, who
approached Smalls and told him he was the subject of an armed robbery
investigation. 415 S.C. at 501-02, 783 S.E.2d at 822.
We begin our review of the evidence with Lightner, who testified he "spent a good
bit of time with this person" and he "saw him pretty well." The fact Lightner could
only narrow it down to two people in the photographic lineup undermines—not
supports—the notion of overwhelming evidence. In addition, Investigator Mead
testified that when he showed Lightner the lineup, Lightner "stated that if he had to
pick a particular one, he would say [the other person]," not Smalls.
Next, Smalls dropped the child and fled from Investigator Gray. Evidence of flight
is evidence of guilt, but we have been hesitant to assign it high probative value. In
fact, in State v. Grant, 275 S.C. 404, 408, 272 S.E.2d 169, 171 (1980), we stated
"evidence of flight tends to be only marginally probative." 275 S.C. at 408, 272
S.E.2d at 171 (quoting State v. Jefferson, 524 P.2d 248, 251 (Wash. App. 1974));6
6
In Jefferson, the State of Washington court of appeals quoted United States v.
Robinson, 475 F.2d 376, 384 (D.C. Cir. 1973), which cited United States v. Telfaire,
469 F.2d 552, 557-58 (D.C. Cir. 1972), which, in turn, this Court has cited on
numerous occasions for the danger of mistaken eyewitness identification. See, e.g.,
Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008) (stating the Telfaire
jury charge "was designed to focus the attention of the jury on the identification issue
and minimize the risk of conviction through false or mistaken identification"
(quoting State v. Jones, 344 S.C. 48, 60, 543 S.E.2d 541, 547 (2001))); State v.
Simmons, 308 S.C. 80, 84, 417 S.E.2d 92, 94 (1992) (citing Telfaire and
"admonish[ing] the trial bench that in single witness identification cases the court
should instruct the jury that the burden of proving the identity of the defendant rests
with the state"); State v. Motes, 264 S.C. 317, 326, 215 S.E.2d 190, 194 (1975)
(citing Telfaire and discussing the need to "focus[] the attention of the jury on the
necessity for a finding that the testimony identified defendant as the offender beyond
a reasonable doubt").
see also State v. Ballenger, 322 S.C. 196, 200, 470 S.E.2d 851, 854 (1996) (on
review of the denial of a directed verdict motion, reversing the court of appeals'
finding the State's evidence (including evidence of flight) merely raised a suspicion
of guilt,7 and stating flight is "at least some evidence") (emphasis added); Ballenger,
322 S.C. at 201, 470 S.E.2d at 855 (Finney, C.J., dissenting) (criticizing the majority
because the fact "he ran when he saw the unmarked police car approaching" merely
"raise[s] a suspicion of guilt" (emphasis in original)). Smalls' flight has little
significance in the analysis of whether the State presented overwhelming evidence.
Smalls' fingerprint on the shotgun is the strongest evidence of Smalls' guilt. If the
fingerprint experts correctly identified the fingerprint, it conclusively proves Smalls
handled the shotgun at some point.
Finally, we turn to Green. In his closing argument, the solicitor stated, "The first
piece of evidence I want to talk about is Eugene Green." The solicitor then argued
two points to support Green's credibility. First, as to his trial testimony, the solicitor
stated, "Eugene Green put his hand on this Bible, faced that man who shoved a
shotgun in his chest, and told you under oath, no doubt about it, that's the man who
robbed the Bojangles; no doubt about it whatsoever. That's proof beyond a
reasonable doubt by itself."
Second, the solicitor belittled the significance of Green's prior convictions in
assessing Green's credibility. "You don't think it took guts for Eugene Green to get
up on this witness stand, and take an oath, and testify?" Then, referring specifically
to Green's prior convictions for drug distribution and possession of a stolen motor
vehicle, the solicitor argued,
You think he was proud . . . ? But you heard about that
because [Green] had the guts to take that witness stand and
face the man that put a shotgun in his face. . . . And
because he had a drug problem seven years ago and a
possession of stolen vehicle, are we going to make it
alright to shove a shotgun in his chest? . . . And how does
that affect his credibility . . . ? Not at all, not at all. That's
7
See State v. Ballenger, 317 S.C. 364, 368, 454 S.E.2d 355, 357 (Ct. App. 1995),
rev'd, 322 S.C. 196, 470 S.E.2d 851 (1996) (finding the State "presented evidence
. . . which may raise a suspicion of . . . guilt, but . . . not . . . any direct or
circumstantial evidence").
proof beyond a reasonable doubt, Eugene Green's
testimony.
As we have explained, the strength of the evidence must be considered along with
the specific impact of counsel's errors. When potentially strong evidence such as
the fingerprint and Green's identification is tainted by a significant error of counsel,
it should not be considered as part of "overwhelming evidence" that precludes a
finding of prejudice. Here, the importance we are willing to attribute to the
fingerprint on the shotgun is affected by counsel's failure to object to the State's
improper question and Investigator Mead's inadmissible answer. Although the
existence of the fingerprint would have been admitted into evidence even without
counsel's error, the State chose to respond to counsel's suggestion of an innocent
explanation for the fingerprint by improperly introducing evidence Smalls
committed an uncharged and unproven burglary, impugning his character in
violation of Rule 404(b). Trial counsel's failure to object enabled the State to make
this improper explanation.
As to Green, the State's emphasis on his identification of Smalls as its "first piece of
evidence" must be balanced against counsel's failure to impeach Green with
compelling evidence of bias. If trial counsel had cross-examined him on the
carjacking charge, and Green testified as he did in the second PCR hearing, his
credibility before the jury would have been severely damaged. We do not believe
the jury could have heard about the dismissal of the charge without seriously
questioning the credibility of everything Green said, including his pre-trial
identification of Smalls as the man who committed the robbery.8
Eliminating Green's tainted testimony and identification from consideration, and
considering the fingerprint in light of the solicitor's improper accusation that Smalls
stole the shotgun, we are left with only Lightner's inability to identify Green, which
undermines the notion of overwhelming evidence, and Smalls' flight, which is
marginally probative and thus has little significance in our analysis. We find the
8
Also, eyewitness identification evidence is not conclusive. See Perry v. New
Hampshire, 565 U.S. 228, 245, 132 S. Ct. 716, 728, 181 L. Ed. 2d 694, 711 (2012)
(stating "we [have] observed that 'the annals of criminal law are rife with instances
of mistaken identification'" (quoting United States v. Wade, 388 U.S. 218, 228, 87
S. Ct. 1926, 1933, 18 L. Ed. 2d 1149, 1158 (1967))); State v. Liverman, 398 S.C.
130, 140, 727 S.E.2d 422, 427 (2012) (citing Perry for the proposition that
"eyewitness evidence is inherently imperfect"); see also supra note 4.
evidence that is not tainted by counsel's errors does not meet the standard for
overwhelming evidence we described in Franklin—"no reasonable possibility
[counsel's errors] contributed in any way to his convictions." 346 S.C. at 574-75,
552 S.E.2d at 725.
Because we find the evidence is not overwhelming, Smalls' individual claims of
deficient performance must be analyzed separately to determine whether either of
them gives rise to a reasonable probability the result of the trial would have been
different without counsel's error. Although the PCR court found overwhelming
evidence precluded a finding of prejudice, it did not make specific findings whether
counsel's error as to the carjacking charge or prior burglary prejudiced Smalls. See
Rule 52(a), SCRCP ("In all actions tried upon the facts without a jury . . . , the court
shall find the facts specially and state separately its conclusions of law thereon
. . . ."); Hall v. Catoe, 360 S.C. 353, 364-65, 601 S.E.2d 335, 341 (2004) (repeating
our previous directive that PCR courts comply with Rule 52(a) (quoting Pruitt v.
State, 310 S.C. 254, 256, 423 S.E.2d 127, 128 (1992))).
Ordinarily, the PCR court should make findings of fact on this issue, not us. See
Simmons v. State, 416 S.C. 584, 593, 788 S.E.2d 220, 225 (2016) (remanding to the
PCR court for findings, and stating, "We sit today in an appellate capacity and
making findings of fact de novo would be contrary to this appellate setting"). In this
case, however, we find it is not necessary to remand to the PCR court, and we have
conducted the prejudice analysis ourselves. After balancing trial counsel's errors—
failing to cross-examine Green on the dismissal of his carjacking charge and failing
to object to evidence Green committed a burglary to obtain the shotgun—against our
perception of the strength of the State's case, we find the errors significantly
"undermine confidence in the outcome of the trial," Rutland, 415 S.C. at 577, 785
S.E.2d at 353, and leave "a reasonable probability that, but for counsel's errors, the
result of the trial would have been different," Ard, 372 S.C. at 331, 642 S.E.2d at
596.
V. Conclusion
We agree with the court of appeals' finding that trial counsel was deficient in two
instances. However, we REVERSE the court of appeals' finding that the evidence
of guilt is overwhelming, and find counsel's errors prejudiced Smalls. We remand
to the court of general sessions for a new trial.
KITTREDGE, Acting Chief Justice, HEARN, JAMES, JJ., and Acting Justice
Arthur Eugene Morehead, III, concur.