Weldon v. South Carolina ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Victor McCoy Weldon, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2017-002000
ON WRIT OF CERTIORARI
Appeal From Clarendon County
Jocelyn Newman, Circuit Court Judge
Opinion No. 5867
Heard March 1, 2021 – Filed October 6, 2021
REVERSED AND REMANDED
Appellate Defender Taylor Davis Gilliam, of Columbia,
for Petitioner.
Attorney General Alan McCroy Wilson, Senior Assistant
Deputy Attorney General Megan Harrigan Jameson, and
Assistant Attorney General Brianna Lynn Schill, all of
Columbia, for Respondent.
MCDONALD, J.: Victor M. Weldon (Petitioner) argues the post-conviction relief
(PCR) court erred in finding he received effective assistance of counsel despite
trial counsel's failure to call Petitioner or either of his alibi witnesses to testify at
Petitioner's trial. As to the alibi witnesses, we agree; thus, we reverse and remand
to the court of general sessions for a new trial.
Facts and Procedural History
Following a May 2012 trial, a jury found Petitioner guilty of first-degree burglary,
armed robbery, grand larceny, kidnapping, and possession of a weapon during the
commission of a violent crime in connection with the robbery of Edward Gibbons
(Victim) on May 15, 2010. The trial court sentenced Petitioner to consecutive
thirty-year sentences for first-degree burglary and armed robbery, and concurrent
five, twenty, and five-year sentences for grand larceny, kidnapping, and the
weapons charge. Petitioner appealed his conviction, and this court affirmed,
finding the trial court did not err in denying Petitioner's directed verdict motion.
See State v. Weldon, Op. No. 2014-UP-463 (S.C. Ct. App. filed Dec. 17, 2014).
Thereafter, Petitioner filed an application for PCR, which the PCR court denied by
order dated July 28, 2017. Following our supreme court's transfer of the matter,
the court of appeals granted the petition for a writ of certiorari and ordered
briefing.
At trial, Victim testified he was preparing to leave his home between 6:00 and 6:30
a.m. on May 15, 2010, when three masked men emerged from a storage room in
his garage and jumped him. The men threw Victim to the ground, and one
assailant sat across Victim's chest and hit him in the face while another sat on his
legs. The three men restrained Victim by wrapping duct tape around his head; they
then took his personal property, including money, and left together in his vehicle.
An acquaintance of Victim found the stolen vehicle abandoned on the side of the
road at approximately 6:40 a.m.
Days after the robbery, Investigator Kenneth Clark of the Clarendon County
Sheriff's Department received reports of three individuals spending a lot of money.
In connection with these reports, Investigator Clark interviewed Michael Pearson.
Shortly thereafter, Investigator Clark learned Pearson's fingerprint positively
matched a fingerprint taken from Victim's stolen vehicle. A subsequent "positive
[DNA hit] came off the black duct tape that was wrapped around Victim's head,"
and the DNA matched Petitioner. Investigator Clark testified Petitioner was not a
person of interest in the case until law enforcement received the DNA hit. Four
pieces of duct tape were collected from the crime scene, but Petitioner's DNA was
found on only one piece recovered from Victim's head. Investigator Clark
admitted that none of the people he interviewed implicated Petitioner in the
robbery.
Although Petitioner denied knowing Pearson, Investigator Clark discovered
Petitioner and Pearson had both attended the South Carolina Vocational
Rehabilitation Center (Vocational Rehabilitation) for a four-day period in
December 2008; their time cards indicated both men worked in the wood shop on
three of those days. A Vocational Rehabilitation area supervisor, John Hornsby,
testified that approximately twenty-five people worked in the 250-square-foot
wood shop on a daily basis. He confirmed everyone working in the wood shop
worked six hours a day on the same shift, ate in the same area, and shared a
restroom.
Catherine Leisy, a forensic scientist at the South Carolina Law Enforcement
Division (SLED), testified she tested a swab from duct tape taken from Victim's
head, and this swab contained a mixture of DNA from at least two individuals.
Petitioner was the major DNA contributor on the swab taken from this part of the
duct tape. She explained, "The probability of randomly selecting an unrelated
individual having a profile matching the major contributor to this mixture is
approximately 1 in 670 billion." Petitioner's DNA did not match the DNA on any
of the other items she received for testing, including the swabs from other pieces of
duct tape recovered from Victim. When asked on cross-examination whether she
had "any information as to whether the pertinent sample came from the inside or
the outside of the duct tape," Leisy responded, "The description that I received was
a swab from outside and inside area [sic] of the black duct tape from the victim's
head." Trial counsel then asked, "So the swab was taken on both sides of the duct
tape?" Leisy answered, "Based on the information I received, yes sir." Leisy did
not receive the duct tape itself, only the swabs taken from the tape.
The trial court advised Petitioner of his Fifth Amendment right not to testify, and
Petitioner confirmed he had been afforded sufficient time to discuss his decision
with trial counsel. The trial court then stated,
And only you can talk to your lawyers, you can get
advice from your lawyers as to what they think you
should or should not do or whatever trial strategy they
plan to implement. But ultimately it is your decision and
not theirs as to whether you testify or not.
Petitioner indicated he understood and chose not to testify.
In its closing argument, the State argued,
You don't think the DNA is enough? What about that
story? Mr. Weldon? I don't know anything about this
case. His DNA is on the tape. Not the tape on the floor.
Not the tape that somebody found in the storage room.
His DNA is on the tape that [was] wrapped around
[Victim's] head . . . .
In his closing, trial counsel emphasized that the only evidentiary item implicating
Petitioner was one swab from the duct tape. He argued,
My first point is you will notice on that report that they
took a swab from the outside of the duct tape and the
inside of the duct tape, but they didn't test them
separately. They jumbled them up and tested them
together.
Certainly if they were able to show that Victor Weldon's
DNA was on the dead center middle sticky side of the
duct tape five feet into the roll, we'd have a much more
difficult case today. That evidence is not there. There is
evidence that there may be his DNA on the duct tape;
possibly from the outside and possibly from the inside.
Trial counsel also noted duct tape is not "some Samurai sword or a hunting knife"
or otherwise unusual item. He stated, "I've got duct tape in my truck, in my boat,
in my kitchen drawer, in my tool box; I don't know if that duct tape in my boat is
my duct tape or if it's my buddy's duct tape from the last time we went fishing."
Both Petitioner and Pearson were convicted.1
1
Petitioner and Pearson were tried together. After the State rested in the joint trial,
each moved for a directed verdict:
Pearson argued that even though his fingerprint was
found on the outside of Gibbons'[s] car, the fingerprint
was insufficient to place him at the crime scene. In reply,
the State argued the fingerprint was found on the rear of
the vehicle, where Gibbons testified one of the men who
robbed him had been seated as they fled his house.
At the PCR hearing, Petitioner claimed he wanted to testify at trial but did not
because "[trial counsel] said he wanted the closing argument." Petitioner testified
he told trial counsel he was at his house with his mother on the morning of the
armed robbery. At that time, Petitioner lived with his mother and his sister;
Petitioner's girlfriend and his little brother stayed with them occasionally.
Petitioner testified that between 6:00 and 6:30 a.m., when the crimes occurred, he
and his girlfriend were "just getting up with my sister, waiting for my mother to
come home." His mother normally came home from work between 7:00 and 7:15
a.m. Petitioner believed that on the night of May 14, he would have been home
and he had probably gone to bed around 11:00 p.m. He testified his sister was
home when he went to bed that night and he believed he woke up the morning of
the 15th around 6:40 or 6:45 a.m. Petitioner saw his sister when he woke up, and
he saw his mother when she arrived home between 7:00 and 7:15 a.m. Petitioner
claimed he told all of this to trial counsel, and he believed his mother and sister
could have testified they were with Petitioner at their home when the armed
robbery occurred. He explained his mother and sister were present at the trial and
he was concerned when they did not testify. Although he did not understand this,
he did not ask trial counsel about it at trial because he was nervous.
Petitioner's mother, Deborah Weldon (Mother), testified she was present at
Petitioner's trial, and although trial counsel had asked her to testify, he never called
her as an alibi witness. Petitioner lived with her at her Sumter home on May 15,
State v. Pearson, 410 S.C. 392, 397, 764 S.E.2d 706, 709 (Ct. App. 2014), rev'd,
415 S.C. 463, 783 S.E.2d 802 (2016). This court reversed Pearson's conviction,
finding the single recovered fingerprint
merely raised a suspicion of Pearson's guilt because there
was no additional evidence showing when the fingerprint
was placed on the vehicle. Moreover, none of the other
evidence presented by the State placed Pearson at the
crime scene or established a relationship between
Pearson and Weldon. For this reason, the jury could only
have guessed Pearson was involved in the crimes.
Id. at 402, 764 S.E.2d at 712. Our supreme court reversed this court and affirmed
Pearson's convictions, finding sufficient substantial circumstantial evidence of
Pearson's guilt existed to withstand the directed verdict motion. State v. Pearson,
415 S.C. 463, 474, 783 S.E.2d 802, 808 (2016).
2010, and Mother saw Petitioner on the night of May 15 when he woke her up
around midnight to tell her to move from the couch to her bed. Mother testified
Petitioner was home when she woke up at 8:00 a.m. on May 15. To Mother's
knowledge, Petitioner did not leave the house during the evening of May 14 or the
morning of May 15. Mother did not work overnight on May 15, 2010, because at
that time, she was working on an "as needed" schedule at Tuomey Hospital.
Petitioner's sister, Jessica Weldon (Sister), testified she was present at Petitioner's
trial and trial counsel told her she would testify, but he never called her to the
stand. Sister recalled when she went to bed around midnight on May 14, Petitioner
was at home in his room with his girlfriend. Petitioner's room was "very close" to
hers and "[she could] see everything coming out his room, [and] going in." Sister
testified she woke up around 5:00 a.m. the next morning when a friend called, and
she saw Petitioner asleep in his bed when she went into Petitioner's room "to sneak
a cigarette from his girlfriend at the time." While Sister was outside smoking, she
saw Petitioner "peek out the window." Sister testified she was at home between
6:00 and 7:00 a.m., and Petitioner was in his room with his girlfriend. The next
time she saw Petitioner leave his room was around 9:00 a.m. that morning, when
Petitioner let his two cats outside to play.
Trial counsel explained his trial strategy was to attack the DNA evidence, and he
believed the weakness of the DNA evidence was that it could not be determined
whether the DNA sample had been taken from the outside or the inside sticky side
of the duct tape. If the DNA was found on the sticky side, trial counsel believed it
was much more likely that Petitioner was present during the crime. Trial counsel
confirmed he spoke with Mother and Sister about Petitioner's whereabouts on May
15, and the substance of those conversations would have been very similar to their
testimonies at the PCR hearing. Trial counsel had filed a notice of an alibi defense
but confirmed he did not call any witnesses at trial on Petitioner's behalf. He did
not know why he failed to call the witnesses, but he admitted there was a notation
in his trial notebook indicating he had prepared to question Mother regarding
Petitioner's alibi. Trial counsel conceded that in hindsight, he should have called
Mother and Sister as witnesses, and he thought presenting their testimony could
have changed the outcome of Petitioner's trial. Trial counsel testified he may have
considered having the last argument versus presenting witnesses, but he was not
sure whether that was the reason he failed to call them. Trial counsel explained,
With, with hindsight, you know, reading the PCR
application, I'm scratching my head wondering why we
would not have called our alibi witnesses, and that's the
only thing I can come up with, but I don't see that in my
notes that were taken at the time of trial.
Trial counsel agreed with PCR counsel's statement that even if he had made an
actual decision on this point in order to retain the final closing argument, "calling
alibi witnesses would have been a much more favorable strategic decision versus
not calling alibi witnesses and trying to get the last argument."
On cross-examination, the State asked trial counsel whether he was concerned with
whether the witnesses' stories at the PCR hearing "didn't quite match up."
Although trial counsel did not recall the alibi witnesses' stories "not matching up,"
he responded that Petitioner's case would have been better if he had called only one
alibi witness. However, trial counsel reiterated, "With hindsight, I have no idea
why I did not call the alibi witnesses." In response to various scenarios presented
by the State, trial counsel agreed it was possible the State could have called
witnesses to rebut the alibi testimony. Trial counsel recalled speaking with
Petitioner's girlfriend prior to trial, and although he did not remember the details of
their conversation, he did "recall in general the people in the household being part
of an alibi." Trial counsel acknowledged that if he had presented the alibi
witnesses, he would not have had the final argument. When asked whether he had
ever participated in a joint trial such as this one, trial counsel responded, "I'm a real
estate attorney, so I don’t do criminal trials. I, I—well, in twenty-something years,
I may have done one or two but generally I don't . . . try criminal cases." There
was no redirect.
In its order of dismissal, the PCR court held trial counsel was not ineffective for
failing to call the alibi witnesses. Specifically, the court found,
Trial counsel testified that having conflicting alibi
witnesses would have hurt his case rather than help, and
it is reasonable to think that he considered this as part of
his strategy in not calling these witnesses.
The decision not to use contradictory alibi witnesses at
trial was very likely part of Trial Counsel's strategy. . . .
....
. . . . Even though Trial Counsel did not recall his
specific reasoning for choosing not to call alibi witnesses,
his trial strategy can be inferred from the basis of his
overall strategy, which he testified was to attack the
State's DNA evidence against [Petitioner].
The PCR court further found the testimony at the PCR hearing reflected trial
counsel's intention to have the final closing argument, stating:
Trial Counsel's decisions at the trial were clearly made
with a tactical strategy in mind and his actions were
carefully chosen, even if he disagreed with them looking
back in hindsight. Trial Counsel was at least reasonably
competent in his decisions at the time of trial, and thus
his representation was not ineffective.
Because Trial Counsel articulated, both at the PCR
hearing and at the time of trial, a strategic reasoning for
choosing not to call alibi witnesses, his performance
cannot be found ineffective, and this allegation is denied
and dismissed with prejudice.
The PCR court deemed meritless Petitioner's argument that trial counsel was
ineffective in failing to call Petitioner to testify. The PCR court found Petitioner
did not present any evidence that proved trial counsel would not allow him to
testify, and trial counsel could not recall why Petitioner chose not to take the stand.
The court further found that if trial counsel had advised Petitioner not to testify, it
would have fit into trial counsel's trial strategy to have the final closing argument
by not putting up a defense; the PCR court held this was "a reasonable strategy that
should not be questioned in hindsight."
Additionally, the PCR court found Petitioner failed to meet his burden of showing
he was prejudiced by any alleged deficiencies because there was "overwhelming
evidence of his guilt." The court specifically noted Petitioner's DNA was found on
the duct tape recovered from the victim, and although this was "essentially" the
only direct evidence linking Petitioner to the crime, an exact DNA match could not
be easily rebutted. Thus, the court determined it was "unlikely that any other
actions by Trial Counsel could have prevented a jury from convicting [Petitioner]
based on this DNA evidence."
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." Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836,
839 (2018). "We review questions of law de novo, with no deference to trial
courts." Id. at 180–81, 810 S.E.2d at 839.
Law and Analysis
"In post-conviction proceedings, the burden of proof is on the applicant to prove
the allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d
512, 514 (2008). "We defer to a PCR court's findings of fact and will uphold them
if there is any evidence in the record to support them." Mangal v. State, 421 S.C.
85, 91, 805 S.E.2d 568, 571 (2017). "This court gives great deference to the PCR
court's findings on matters of credibility." Putnam v. State, 417 S.C. 252, 260, 789
S.E.2d 594, 598 (Ct. App. 2016).
"A criminal defendant is guaranteed the right to effective assistance of counsel
under the Sixth Amendment to the United States Constitution." Taylor v. State,
404 S.C. 350, 359, 745 S.E.2d 97, 101 (2013). "In order to establish a claim for
ineffective assistance of counsel, the applicant must show that: (1) counsel failed to
render reasonably effective assistance under prevailing professional norms, and (2)
counsel's deficient performance prejudiced the applicant's case." Speaks, 377 S.C.
at 399, 660 S.E.2d at 514. Deficiency "is measured by an objective standard of
reasonableness." Taylor, 404 S.C. at 359, 745 S.E.2d at 102. To establish
prejudice, an applicant must show that "but for counsel's error, there is a
reasonable probability the result of the proceedings would have been different."
Id. "A reasonable probability is a probability sufficient to undermine confidence in
the outcome." Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
"In other words, he must show that 'the factfinder would have had a reasonable
doubt respecting guilt.'" Edwards v. State, 392 S.C. 449, 459, 710 S.E.2d 60, 66
(2011) (quoting Strickland, 466 U.S. at 695). "Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim." Strickland, 466 U.S. at 700.
"Counsel's performance is accorded a favorable presumption, and a reviewing
court proceeds from the rebuttable presumption that counsel 'rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.'" Smith v. State, 386 S.C. 562, 567, 689 S.E.2d 629, 632
(2010) (quoting Strickland, 466 U.S. at 690). "Accordingly, when counsel
articulates a valid reason for employing a certain strategy, such conduct will not be
deemed ineffective assistance of counsel." Id. "A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S.
at 689. "[W]here trial counsel admits the testimony of a certain witness may have
made the difference in obtaining an acquittal, the Court may find ineffective
assistance." Pauling v. State, 331 S.C. 606, 610, 503 S.E.2d 468, 471 (1998).
"In rare cases, using 'overwhelming evidence' as a categorical bar to preclude a
finding of prejudice is not error." Smalls, 422 S.C. at 190, 810 S.E.2d at 844.
[F]or the evidence to be "overwhelming" such that it
categorically precludes a finding of prejudice . . . 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.
Id. at 191, 810 S.E.2d at 845 (quoting Strickland, 466 U.S. at 695). "Additionally,
the strength of the State's evidence should be viewed in light of trial counsel's
errors such that there 'is no reasonable possibility [counsel's errors] contributed in
any way to [the applicant's] convictions.'" Martin v. State, 427 S.C. 450, 456, 832
S.E.2d 277, 280 (2019) (alterations in original) (quoting Smalls, 422 S.C. at 191,
810 S.E.2d at 845).
Initially, we find Petitioner has failed to show trial counsel was ineffective in
failing to call Petitioner to testify at trial. See Speaks, 377 S.C. at 399, 660 S.E.2d
at 514 ("In post-conviction proceedings, the burden of proof is on the applicant to
prove the allegations in his application."). At the PCR hearing, Petitioner claimed
he wanted to testify but did not because trial counsel told him he wanted the final
closing argument. Petitioner did not testify that trial counsel prevented him from
testifying at trial, and he did not elicit testimony from trial counsel at the PCR
hearing addressing this issue. The trial court advised Petitioner of his Fifth
Amendment right and emphasized it was his decision, not trial counsel's, whether
or not to testify. Accordingly, we find evidence supports the PCR court's denial of
post-conviction relief on this ground.
However, we find no evidence supports the PCR court's findings that trial counsel
provided effective assistance or implemented—much less articulated—any valid
trial strategy with respect to the alibi witnesses. See Martin, 427 S.C. at 456, 832
S.E.2d at 280) (finding "as a matter of law that Petitioner's trial attorneys were
deficient for not eliciting the specific alibi timeline testimony from Petitioner's
mother" where "[l]ead counsel candidly admitted his file contained the mother's
statement" as to the time she took Petitioner to the bus stop in Atlanta and the
drop-off time coincided with that of the armed robbery). Mother's and Sister's
timeline testimonies are comparable to that in Martin, and the PCR court's finding
that trial counsel's "decision not to use contradictory alibi witnesses at trial was
very likely part of [his] trial strategy" is unsupported by the record.
Trial counsel admitted at the PCR hearing that he did not know why he failed to
elicit Petitioner's alibi from at least one of the available alibi witnesses. Although
trial counsel hypothesized he did not call the witnesses so that Petitioner could
have final argument, he agreed "that calling alibi witnesses would have been a
much more favorable strategic decision versus not calling alibi witnesses and
trying to get the last argument." On cross-examination, trial counsel reiterated he
did not know why he did not call the witnesses. But he thought that if it had been
an issue, he "would have had a discussion with [himself] and made a conscious
choice" not to present their testimony.
We recognize trial counsel agreed with the State's suggestion that he may have
declined to call the witnesses because the State might have then called rebuttal
witnesses to challenge the alibi testimony and because he wanted to have the last
closing argument. Still, trial counsel repeatedly testified he did not know why he
chose not to call the witnesses. Thus, we can find no support in the record for the
PCR court's finding that because trial counsel "articulated, both at the PCR hearing
and at the time of trial, a strategic reason for choosing not to call alibi witnesses,
his performance cannot be found ineffective."
And while there are minor discrepancies among the witnesses' testimonies
regarding exactly what time Petitioner woke up on May 15 and whether Mother
worked the night of May 14, these discrepancies did not involve credibility issues
nor were they necessarily contradictory. Cf. Edwards, 392 S.C. at 458, 710 S.E.2d
at 65 ("A witness's credibility and demeanor is crucial to an attorney's trial
strategy, and an attorney cannot be said to be deficient if there is evidence to
support his decision to not call a witness with serious credibility questions, even if
that witness is a co-defendant." (emphasis added)). Sister's testimony could have
provided Petitioner with an alibi because she testified she saw him at their Sumter
home around 5:00 a.m., he was at the house between 6:00 a.m. and 7:00 a.m., and
she did not see him leave his room until 9:00 a.m. when he let his cats outside. See
Walker v. State, 407 S.C. 400, 406–07, 756 S.E.2d 144, 147 (2014) (finding a
witness's testimony that she spent every weekend with the petitioner provided
sufficient testimony to support the PCR court's conclusion that the witness would
have offered alibi testimony "that reasonably could have resulted in a different
outcome at trial" because, if true, the testimony showed it was impossible for
petitioner to have committed the crime that occurred on a Saturday). Thus, we can
conceive of no valid trial strategy supporting trial counsel's failure to call at least
one of the alibi witnesses.2
Further, we find the presence of Petitioner's DNA on a single piece of duct tape
recovered from Victim does not constitute "overwhelming evidence" such that it
precludes a finding of prejudice. See Smalls, 422 S.C. at 190, 810 S.E.2d at 844
("In rare cases, using 'overwhelming evidence' as a categorical bar to preclude a
finding of prejudice is not error."). Other than his possible acquaintance with
Pearson, the DNA match from the duct tape was the only evidence presented at
trial linking Petitioner to the crime, and there could be other reasonable
explanations for its presence. Petitioner was not a person of interest in the
investigation until the DNA hit. Petitioner challenged the strength of the DNA
evidence, and the testimony he elicited from Leisy may have been sufficient to
raise a reasonable doubt regarding his guilt had he also presented evidence of an
alibi. See id. at 191, 810 S.E.2d at 845 ("[F]or the evidence to be 'overwhelming'
such that it categorically precludes a finding of prejudice . . . 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
2
Of additional concern is the PCR court's finding that "[t]rial counsel's decisions
were clearly made with a tactical strategy in mind and his actions were carefully
chosen, even if he disagreed with them looking back in hindsight." (Emphasis
added). In discussing prejudice and overwhelming evidence, the PCR court further
noted trial counsel "testified that his trial strategy was to attack the State's DNA
evidence against Applicant, which he did fully," yet the court also found
"Applicant did not dispute the evidence against him. This is clearly overwhelming
evidence of Applicant's guilt." Finally, it appears the court conflated the
fingerprint evidence against Pearson with Petitioner's DNA match from the duct
tape, as the order denying relief states "Applicant's fingerprints were found on the
duct tape that was placed on the victim by his attackers during the robbery."
Strickland standard of 'a reasonable probability . . . the factfinder would have had a
reasonable doubt' cannot possibly be met." (quoting Strickland, 466 U.S. at 695)).
Had even one of Petitioner's alibi witnesses testified, there is a reasonable
probability the result at trial would have been different. See Taylor, 404 S.C. at
359, 745 S.E.2d at 102 (recognizing that to obtain relief, a PCR applicant must
"demonstrate he was prejudiced by counsel's performance in such a manner that,
but for counsel's error, there is a reasonable probability the result of the
proceedings would have been different").
Conclusion
Based on the foregoing, we find the evidence does not support the PCR court's
dismissal of Petitioner's application for post-conviction relief. We reverse and
remand for a new trial.
REVERSED AND REMANDED.
KONDUROS and GEATHERS, JJ., concur.