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Supreme Court of South Carolina

2018-03

Thompson v. State ( 2018 )

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                       THE STATE OF SOUTH CAROLINA
In The Supreme Court
Yancey Thompson, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2014-001611
ON WRIT OF CERTIORARI
Appeal from Lexington County
R. Lawton McIntosh, Circuit Court Judge
Opinion No. 27785
Submitted October 16, 2017 – Filed March 21, 2018
REVERSED
Appellate Defender Robert M. Pachak, of Columbia, for
Petitioner.
Attorney General Alan M. Wilson and Senior Assistant
Attorney General Melody Jane Brown, of Columbia, for
Respondent.
JUSTICE JAMES: We granted a writ of certiorari to review the circuit court's
denial of Petitioner's application for post-conviction relief (PCR).1 We reverse the
1
We decide this case without oral argument pursuant to Rule 215, SCACR.
PCR court's denial of relief and remand to the court of general sessions for a new
trial.
I.
In 2008, Petitioner Yancey Thompson was convicted of first degree criminal
sexual conduct (CSC) with a minor, second degree CSC with a minor, and
disseminating obscene material to a minor. He was sentenced to concurrent prison
terms of twenty-five years, twenty years, and ten years, respectively. Petitioner
appealed and this Court affirmed his convictions. State v. Thompson, Op. No. 2010-
MO-028 (S.C. Sup. Ct. filed Nov. 8, 2010). Petitioner then sought PCR. The PCR
court concluded Petitioner had established his trial counsel was deficient in certain
respects but denied relief on the basis that Petitioner had not proven he was
prejudiced by these deficiencies.
II.
When Victim was an infant, her mother Monica Gleaton (Mother) sent her to
live with her cousin Julia Thompson (Cousin) and Petitioner because Mother was
seventeen years old, had four other children, and was therefore unable to care for
Victim. When Victim was twelve years old, someone reported to authorities she
was being physically abused and neglected by Cousin. While being interviewed by
South Carolina Department of Social Services (DSS) caseworker Trina Elfering,
Victim denied she was being abused by Cousin but reported Petitioner had sexually
abused her from the time she was five years old. Ms. Elfering reported the
allegations to the Lexington County Sheriff, resulting in the charges against
Petitioner.
III.
Petitioner claims his trial counsel rendered ineffective assistance by failing to
object to inadmissible hearsay testimony and by failing to object to testimony that
improperly bolstered Victim's credibility.
To establish ineffective assistance of counsel, the PCR applicant must prove
(1) counsel's performance fell below an objective standard of reasonableness, and
(2) the applicant sustained prejudice as a result of counsel's deficient performance.
Strickland v. Washington,

466 U.S. 668

, 687–88 (1984); Cherry v. State,

300 S.C. 115

, 117–18,

386 S.E.2d 624

, 625 (1989). To establish prejudice, the applicant must
prove "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

 (quoting Strickland,

466 U.S. at 694

).
In a PCR case, this Court will uphold the PCR court's factual findings if there
is any evidence of probative value in the record to support them. Sellner v. State,

416 S.C. 606

, 610,

787 S.E.2d 525

, 527 (2016). However, this Court gives no
deference to the PCR court's conclusions of law, and we review those conclusions
de novo. Jamison v. State,

410 S.C. 456

, 465,

765 S.E.2d 123

, 127 (2014).
A. Deficient Performance
The PCR court's deficiency findings were based upon an analysis of the South
Carolina Rules of Evidence governing hearsay and upon the common law barring
inadmissible bolstering testimony; because these findings—in this case—are
conclusions of law, we review them de novo.
Failure to Object to Inadmissible Hearsay Testimony
In his application and during the PCR hearing, Petitioner claimed trial counsel
rendered ineffective assistance by failing to object to inadmissible hearsay testimony
given by DSS caseworker Elfering. The PCR court did not address this allegation
in its order. Petitioner raised the issue again in his motion for reconsideration made
pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. The PCR
court again did not address the issue. Petitioner raises the issue again before this
Court; therefore, the issue is properly before us.
Ms. Elfering testified at trial that she spoke with Victim about each allegation
against Petitioner and that Victim "revealed to me that she was being sexually abused
by [Petitioner]." Trial counsel did not object to this testimony. Petitioner contends
this testimony was inadmissible hearsay which served to improperly corroborate
Victim's testimony.
Petitioner also claims trial counsel was ineffective in failing to object to
inadmissible hearsay testimony provided by Dr. Alicia Benedetto, a clinical
psychologist who conducted the forensic interview of Victim at the request of law
enforcement.2 Dr. Benedetto was qualified by the trial court as an expert in clinical
2
The audio and visual recording of Victim's forensic interview was not offered into
evidence by the State, presumably because Victim was twelve years old at the time
of the interview. See

S.C. Code Ann. § 17-23-175

 (2014) (permitting the
admissibility of certain out-of-court statements of a child under the age of twelve).
psychology and child sexual abuse assessment. The solicitor asked Dr. Benedetto if
Victim made any disclosures to her during the forensic interview, and Dr. Benedetto
testified Victim disclosed chronic sexual abuse by Petitioner in the form of vaginal
penetration, anal penetration, and oral sex. Trial counsel did not object to this
testimony. Petitioner claims this testimony was inadmissible hearsay which served
to improperly corroborate Victim's testimony. The PCR court ruled trial counsel
was deficient in not objecting but ruled Petitioner did not prove he was prejudiced
by the deficiency. In its brief, the State does not directly contest the PCR court's
finding of deficiency and instead concentrates its argument on the prejudice prong.
To ensure our analysis is complete, we will address the deficiency prong with respect
to both Dr. Benedetto's and Ms. Elfering's hearsay testimony.
"'Hearsay' is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Rule 801(c), SCRE. Hearsay is not admissible except as provided by the South
Carolina Rules of Evidence, by other rules prescribed by this Court, or by statute.
Rule 802, SCRE. Rule 801(d)(1)(D), SCRE, provides:
A statement is not hearsay if . . . [t]he declarant testifies at
the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is . . .
consistent with the declarant's testimony in a criminal
sexual conduct case . . . where the declarant is the alleged
victim and the statement is limited to the time and place of
the incident.
(emphasis added). This rule obviously limits corroborating testimony in this case to
the time and place of the assault(s); any other details or particulars, including the
perpetrator's identity, must be excluded. See Watson v. State,

370 S.C. 68

, 71–72,

634 S.E.2d 642

, 644 (2006).
The foregoing testimony from Ms. Elfering and Dr. Benedetto was clearly
inadmissible hearsay. These accounts of their conversations with Victim meet the
definition of hearsay under Rule 801(c), and these accounts provided information
outside the time and place restriction set forth in Rule 801(d)(1)(D). The State does
not contend trial counsel's failure to object was part of a valid trial strategy. See
Watson,

370 S.C. at 73

634 S.E.2d at 644

 (finding trial counsel was not deficient
when his failure to object to inadmissible hearsay testimony was part of a valid trial
strategy). Trial counsel was deficient in not objecting.
Failure to Object to Inadmissible Bolstering Testimony
The PCR court ruled trial counsel was deficient in failing to object to
testimony of Detective Traci Barr and Dr. Benedetto that impermissibly bolstered
the credibility of Victim. We agree.
Detective Barr of the Lexington County Sheriff's Department testified at trial
that she investigates child exploitation cases and that she conducted an investigation
in this case. Detective Barr testified about her "specialized training" in child
exploitation cases and testified she was trained in forensic interviewing of children
who claim to be victims of sexual abuse. She did not conduct the forensic interview
in this case, but she testified she watched the audio-visual recording of the forensic
interview conducted by Dr. Benedetto and reviewed the medical findings of Dr.
Susan Luberoff, who conducted a physical examination of Victim after Victim
reported she was sexually abused. In the forensic interview, as testified to by Dr.
Benedetto, Victim identified Petitioner as the perpetrator of the sexual abuse and
provided other details. Detective Barr testified Victim's disclosures in the forensic
interview were consistent with her own training and experience, and she testified the
physical findings of sexual abuse recorded by Dr. Luberoff corroborated the account
given by Victim during the forensic interview. The PCR court correctly ruled trial
counsel was deficient in not objecting because this testimony impermissibly
bolstered Victim's testimony. The State did not contest the PCR court's finding in
its brief to this Court.
As previously noted, Dr. Benedetto conducted the forensic interview of
Victim and was qualified by the trial court as an expert in clinical psychology and
child sexual abuse assessment. She testified she has conducted perhaps a thousand
forensic interviews of children who are possible victims of physical, sexual, or
psychological abuse. She explained the process she follows in conducting a forensic
interview and explained what certain terms mean and how she applies them in
reaching her conclusions. She testified Victim suffered from post-traumatic stress
disorder (PTSD) based upon the significant emotional distress and "genuine, just
palpable grief" exhibited by Victim during the interview. When asked by the
solicitor to explain her overall findings to the jury, Dr. Benedetto testified that while
most interviews conducted of alleged child abuse victims are determined to be
"problematic,"3 less than one-third of these interviews are found to be "compelling"
for some form of abuse. She went on to testify that Victim's "interview was ruled
3
Dr. Benedetto did not explain what the term "problematic" means in her profession.
compelling for physical abuse, sexual abuse, and psychological abuse." Even more
glaringly, she testified:
But I would feel comfortable in this case saying that it's
among the most compelling interviews that I've conducted,
not only because of the amount of detail that she was able
to provide, but also the emotional intensity that she was
clearly experiencing in the room, in -- in having to provide
her disclosure.
(emphasis added).
The State argues the foregoing testimony from Dr. Benedetto was admissible
because it was part and parcel of her diagnosis that Victim suffered from PTSD and
that while Dr. Benedetto's testimony may have indirectly supported the conclusion
that the crimes occurred, the testimony did not directly vouch for Victim's
credibility. We disagree. The testimony most certainly served to directly enhance
the credibility of Victim. Indeed, while urging the jury to conclude Victim was
credible, the State on three occasions during its closing argument cited Dr.
Benedetto's finding that Victim's account of sexual abuse was among the most
compelling she had encountered in her one thousand child interviews. Further, the
previously reviewed inadmissible hearsay testimony from Dr. Benedetto was
amplified when, as quoted above, Dr. Benedetto emphasized the "amount of detail
that [Victim] was able to provide" in conjunction with the emotional intensity
displayed by Victim during the interview.
The State alternatively argues that when this case was tried in 2008, trial
counsel was without the "pointed guidance" provided by appellate decisions that
testimony similar to that provided by Dr. Benedetto was improper bolstering. See,
e.g., State v. Kromah,

401 S.C. 340

737 S.E.2d 490

 (2013); State v. Jennings,

394 S.C. 473

716 S.E.2d 91

 (2011); Smith v. State,

386 S.C. 562

689 S.E.2d 629

 (2010).
We disagree. In State v. Dawkins,

297 S.C. 386

377 S.E.2d 298

 (1989), the
defendant was charged with sexually assaulting a minor. The victim sought
psychiatric treatment; at trial, the solicitor asked the treating psychiatrist, "[A]re you
of the impression that [the victim's] symptoms are genuine?" The psychiatrist
responded in the affirmative.

Id. at 393

377 S.E.2d at 302

. Defense counsel
objected, the objection was sustained, and the defendant moved for a mistrial.

Id.

Instead of ruling on that motion, the trial judge gave the jury a curative instruction.

Id.

 As part of our analysis as to whether the trial court erred in denying the motion
for a mistrial, we concluded the solicitor's question improperly invited the
psychiatrist to give an opinion as to the victim's credibility.

Id. at 394

377 S.E.2d at 302

. We recently concluded in Briggs v. State,

421 S.C. 316

, 325,

806 S.E.2d 713

, 718 (2017), that after State v. Dawkins was decided in 1989, the law was "clear
that no witness may give an opinion as to whether the victim is telling the truth."
More specifically, we held that after State v. Dawkins was decided:
[R]easonably competent trial counsel should know to
object—absent a valid trial strategy—when a forensic
interviewer gives testimony that indicates the witness
believes the victim, but does not serve some other valid
purpose. When the testimony directly conveys the
witness's opinion that the victim is telling the truth, it is
obviously improper bolstering.
Briggs, 421 S.C. at 325, 806 S.E.2d at 718.
Also, State v. Dempsey,

340 S.C. 565

532 S.E.2d 306

 (Ct. App. 2000), was
decided by the court of appeals eight years before Petitioner's jury trial. Dempsey
was charged with first degree CSC with a minor. A child sexual abuse counselor
testified he conducted thirteen counseling sessions with the minor victim and that no
statements from the victim would lead him to believe the victim was not telling the
truth about being sexually abused. Id. at 568, 532 S.E.2d at 308. The counselor also
testified that when a child says he has been sexually abused, the child is telling the
truth approximately 95% of the time. Id. at 569, 532 S.E.2d at 308. Dempsey was
convicted and appealed. The Dempsey court cited State v. Dawkins and concluded
the counselor's testimony improperly vouched for the minor victim's credibility. Id.
at 571, 532 S.E.2d at 309. The Dempsey court also quoted with approval this pointed
directive from the Supreme Court of Oregon:
We have said before, and we will say it again, this time
with emphasis-no psychotherapist may render an opinion
on whether a witness is credible in any trial in this state.
The assessment of credibility is for the trier of fact and not
for psychotherapists.4
4
The quotation of the pointed directive from the Supreme Court of Oregon used by
the Dempsey court was originally quoted in State v. Morgan,

326 S.C. 503

, 515,

485 S.E.2d 112

, 119 (Ct. App. 1997). However, the Morgan court made small errors in
transcribing the quoted language. These errors carried forward in Dempsey. The

Id.

 (quoting State v. Milbradt,

756 P.2d 620

, 624 (Or. 1988)).
The PCR court ruled trial counsel was deficient in failing to object. We agree.
Well before Petitioner's criminal trial, trial counsel was on notice that it was
improper for a witness to vouch for the credibility of another witness. The foregoing
testimony of Dr. Benedetto unmistakably conveyed to the jury her belief that Victim
was telling the truth about the abuse. Detective Barr's testimony also conveyed to
the jury her impression that Victim was telling the truth. This testimony was patently
inadmissible, and there was no strategic reason for trial counsel not to object.
B. Prejudice
To satisfy the prejudice prong of Strickland, Petitioner must demonstrate a
"reasonable probability" that the outcome of the trial would have been different had
trial counsel not committed the deficiencies outlined above. See Rutland v. State,

415 S.C. 570

, 577,

785 S.E.2d 350

, 353 (2016). "A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial."

Id.

In this case, the State contends—and the PCR court seemingly concluded—
that Petitioner was not prejudiced by trial counsel's deficient performance because
properly admitted evidence overwhelmingly established Petitioner's guilt. In Smalls
v. State, Op. No. 27764 (S.C. Sup. Ct. filed Feb. 7, 2018) (Shearouse Adv. Sh. No.
6 at 43), we addressed the question of "overwhelming evidence" in the PCR setting
by balancing the individual impact of trial counsel's error(s) against the strength of
properly admitted evidence of a PCR applicant's guilt. As we explain below, the
overall strength of the properly admitted evidence of Petitioner's guilt does not
overcome the individual impact of each instance of trial counsel's deficient
performance. Therefore, we conclude Petitioner has established there is a reasonable
probability that, absent trial counsel's deficiencies, the outcome of his trial would
have been different.
Inadmissible Hearsay Testimony
The timing of Petitioner's criminal trial and his PCR hearing straddled a shift
in South Carolina case law governing the prejudice analysis to be employed in sexual
Supreme Court of Oregon stated in full: "We have said before, and we will say it
again, but this time with emphasis-we really mean it-no psychotherapist may render
an opinion on whether a witness is credible in any trial conducted in this state. The
assessment of credibility is for the trier of fact and not for psychotherapists."
Milbradt, 756 P.2d at 624.
assault cases in which a witness provides inadmissible hearsay testimony. In 2008,
when Petitioner's criminal case was tried, there was a bright-line rule of finding
prejudice when trial counsel failed to object to inadmissible hearsay testimony
identifying the defendant as the perpetrator. See Jolly v. State,

314 S.C. 17

, 21,

443 S.E.2d 566

, 569 (1994); Dawkins v. State,

346 S.C. 151

, 156–57,

551 S.E.2d 260

,
263 (2001). However, by the time Petitioner's PCR hearing was held in 2013, a
majority of this Court agreed the bright-line rule should no longer control and
concluded that in a direct appeal, a harmless error analysis should be employed when
reviewing the admission of hearsay testimony that improperly corroborates the
victim's testimony in a sexual assault case. See State v. Jennings,

394 S.C. 473

, 482,

716 S.E.2d 91

, 95–96 (2011) (Kittredge, J., concurring), and

394 S.C. at 483

716 S.E.2d at 96

 (Toal, C.J., dissenting) (collectively overruling Jolly and its progeny to
the extent those cases impose a categorical or per se rule precluding a finding of
harmless error). Similarly, in a PCR case, trial counsel's deficient failure to object
to such testimony does not remove an applicant's burden to prove prejudice. As part
of the prejudice analysis, the PCR court and the reviewing court must therefore
consider the strength of the State's case apart from the inadmissible evidence to
which trial counsel deficiently failed to object.
Citing "the combination of the physical evidence, [Victim's] credible
testimony that provided precise details of the offenses, [Mother's] credible
testimony, and the lack of contradictory testimony," the PCR court ruled trial
counsel's deficient performance could not reasonably have affected the outcome of
the trial. In so finding, the PCR court seems to have concluded these four points
constitute overwhelming evidence of Petitioner's guilt. We now address these four
factual findings in turn and conclude that none of them, either standing alone or
when considered together, constitute overwhelming evidence of Petitioner's guilt.
First, Dr. Luberoff testified there was physical evidence Victim had been
sexually abused or had sustained "penetrating vaginal trauma." While Dr. Luberoff's
testimony supports a finding that Victim was sexually abused, the physical evidence
cited by Dr. Luberoff did not constitute overwhelming evidence—or any evidence
at all, for that matter—that Petitioner was the perpetrator.
Second, the PCR court found Victim's trial testimony was credible. While we
defer to the PCR court's credibility findings as to witnesses who testified before the
PCR court, we do not defer to the PCR court's credibility findings as to witnesses
who did not testify before the PCR court. The PCR court reviewing the trial
transcript is in no better position than we are to determine the credibility of trial
witnesses or otherwise assess the strength of the State's case; consequently, we give
no deference to the PCR court's credibility findings when we review the testimony
of such witnesses. See Foye v. State,

335 S.C. 586

, 589,

518 S.E.2d 265

, 267 (1999)
(stating the reason appellate courts give "great deference to a [PCR court's] findings"
is because the PCR court has "the opportunity to directly observe the [PCR]
witnesses").
Here, the PCR court's assessment of Victim's credibility was based upon
factors the PCR court did not directly observe, namely (1) the trial judge's comment
during sentencing that he found Victim's trial testimony credible, (2) Victim's trial
testimony which, according to the PCR court, provided "precise detail" of years of
sexual abuse at the hands of Petitioner, and (3) Victim's trial testimony describing
Petitioner's psychological grooming of Victim. We are compelled to note Victim's
credibility was legitimately called into question at trial, as she admitted during cross-
examination that after she accused Petitioner of sexually abusing her, she fabricated
allegations of three male schoolmates "raping" her. We note this point not to
besmirch Victim, but simply to illustrate why an appellate court may legitimately
reach a different conclusion as to the credibility of a witness who neither the PCR
court nor the appellate court directly observed. The PCR court erred in concluding
Victim's testimony constituted overwhelming evidence of Petitioner's guilt.
Third, the PCR court found Mother's trial testimony was credible. Again,
while we defer to a PCR court's credibility findings as to witnesses who testified at
the PCR hearing, our standard of review does not dictate that we defer to credibility
findings as to witnesses the PCR court did not directly observe. However, we need
not reach any conclusions as to Mother's credibility, because even if Mother were a
credible trial witness, her testimony merely corroborated Victim's testimony that
Victim had nightmares and sleep disturbances and that Victim would "fret" around
men. While Mother's testimony may support the conclusion that Victim was
sexually abused, Mother's testimony does not support the conclusion that Petitioner
was the perpetrator. There is no probative evidence in the record to support the PCR
court's finding that Mother's testimony constituted overwhelming evidence of
Petitioner's guilt.
Fourth, the PCR court cited the "absence of contradictory testimony" as part
of its basis for concluding there was overwhelming evidence of guilt. The PCR court
erred as a matter of law in considering the lack of contradictory testimony, as this
finding suggests Petitioner—who neither testified nor introduced any other
evidence—had the burden of producing evidence at his criminal trial that would
contradict the evidence introduced by the State. At all times during a criminal trial,
the State has the burden of proving a defendant's guilt beyond a reasonable doubt.
At no time does a defendant assume the burden of either contradicting the State's
evidence or proving himself not guilty. See Lowry v. State,

376 S.C. 499

, 505,

657 S.E.2d 760

, 763 (2008) (noting the Due Process Clauses of the Fifth and Fourteenth
Amendments "protect an accused against conviction unless the State supplies proof
beyond a reasonable doubt of each element necessary to constitute the crime with
which the accused is charged") (emphasis added). Since a criminal defendant does
not have the burden of presenting contradictory evidence during his criminal trial,
the absence of contradictory testimony should not have been considered by the PCR
court in its prejudice analysis.
We conclude Petitioner's jury trial was infected by the type of improper
corroborating evidence warned of in State v. Barrett,

299 S.C. 485

, 487,

386 S.E.2d 242

, 243 (1989). In Barrett, as here, there was physical evidence suggesting a child
victim was sexually abused.

Id.

 A DSS social worker was improperly allowed to
testify to the details of the sexual abuse reported to her by the victim. Id. at 486, 386
S.E.2d at 243. Other than this testimony, the State relied solely upon the victim's
testimony to establish the details of the crime and the identity of Barrett as the
perpetrator. Id. at 487, 386 S.E.2d at 243. The State asserted that any error was
harmless because the inadmissible testimony was "merely cumulative" to the
victim's testimony. Id. We held, "[I]t is precisely this cumulative effect which
enhances the devastating impact of improper corroboration. Accordingly, admission
of the evidence mandates reversal of the conviction." Id. Although a direct appeal,
Barrett is strikingly similar to the instant case. Here, other than the hearsay
testimony referenced above (and the inadmissible bolstering testimony discussed
herein), the only evidence pointing to Petitioner as the perpetrator was Victim's
testimony. As was the case in Barrett, the cumulative effect of the hearsay testimony
undeniably enhanced its devastating impact. As a whole, the properly admitted
evidence of Petitioner's guilt was not strong enough to overcome trial counsel's
failure to object to the inadmissible hearsay testimony of Ms. Elfering and Dr.
Benedetto. We therefore hold there is no evidentiary support for the PCR court's
conclusion that Petitioner was not prejudiced by trial counsel's errors.
Inadmissible Bolstering Testimony
The devastating prejudicial effect of Dr. Benedetto's improper bolstering
testimony is likewise clear. We addressed similar circumstances in Smith v. State,