Theodore Wills, Jr. v. State ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Theodore Wills, Jr., Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2018-000054
ON WRIT OF CERTIORARI
Appeal From Horry County
William H. Seals, Jr., Circuit Court Judge
Opinion No. 5926
Heard March 9, 2022 – Filed July 20, 2022
AFFIRMED
William G. Yarborough, III and Lauren C. Hobbis, both
of William G. Yarborough, III, Attorney at Law, LLC, of
Greenville, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Chelsey Faith Marto, both of
Columbia, for Respondent.
KONDUROS, J.: In this action for post-conviction relief (PCR), Theodore Wills,
Jr. (Petitioner) argues the PCR court erred in concluding he did not receive
ineffective assistance of counsel. Petitioner asserts trial counsel's performance was
deficient because his advice to enter into a proffer agreement was based on an
erroneous and unreasonable interpretation of the agreement. We affirm.
FACTS
On October 13, 2001, the Horry County Police Department arrived in a remote part
of the county and found a deceased young male lying face down in a vacant lot.
Law enforcement identified the victim as Julian Lee and determined he had been
shot in the back twice. On November 1, 2001, officers arrested Petitioner on
charges of accessory to murder after the fact and obstruction of justice in
connection with Lee's death.
On August 25, 2005, the State offered a proffer agreement 1 to trial counsel. Under
the agreement, Petitioner would provide a statement regarding his knowledge of
Lee's murder and help the State prosecute the other individuals involved. In return,
the State would consider his cooperation in the disposition of his pending charges2
and would not seek any additional charges against him in connection with Lee's
murder. Additionally, the State would not use Petitioner's proffer session
statement against him if he fully complied with the terms of the proffer agreement.
As part of the proffer agreement, Petitioner had to submit to a polygraph
examination. If the results of the polygraph examination indicated that Petitioner
had been deceptive or that he shot Lee, the terms of the proffer agreement would
be "null and void" and the State could use Petitioner's proffer session statement
"for any legal purpose, including, but not limited to, considerations for charging,
bond, disposition of charges through plea or trial[,] . . . and impeachment." The
1
"A 'proffer agreement' is generally understood to be an agreement between a
defendant and the government in a criminal case that sets forth the terms under
which the defendant will provide information to the government during an
interview, commonly referred to as a 'proffer session.'" State v. Wills, 409 S.C. 183,
186 n.4, 762 S.E.2d 3, 4 n.4 (2014) (Beatty, J., dissenting) (quoting United States
v. Lopez, 219 F.3d 343, 345 n.1 (4th Circ. 2000)). The direct appeal of Petitioner's
conviction, quoted here, was a 3-2 decision by our supreme court affirming the use
of Petitioner's proffer session statement in the State's case-in-chief. Id. at 185, 762
S.E.2d at 4. Now Chief Justice Beatty authored a dissenting opinion in which he
stated he "would find that a breach of a proffer agreement on the part of the
defendant permits the State to use a defendant's plea statements only for purposes
of impeachment." Id. at 205, 762 S.E.2d at 15 (Beatty, J., dissenting).
2
Petitioner remained incarcerated while his charges were pending.
proffer agreement designated the State as the only party that would determine if
Petitioner's proffer session statement contained any inconsistency or deception.
Petitioner and trial counsel signed the proffer agreement on August 26, 2005, and
Petitioner provided a statement later that day in the presence of trial counsel. In
the video-recorded statement, Petitioner claimed he drove Donnell Green, Mark
Willard, and Lee to the murder scene during the early morning hours of October
13, 2001. Petitioner alleged he and Lee believed the plan was to rob some drug
dealers and "score some quick cash." Petitioner claimed he saw Willard shoot Lee
and heard a second shot while running away.
When the solicitor asked Petitioner if he knew why Willard shot Lee, trial counsel
asked to confer with Petitioner in private. After the proffer session resumed,
Petitioner continued to deny shooting Lee but revealed he knew some drug dealers
had placed a bounty on Lee for stealing money from them. Petitioner admitted that
he had talked with the drug dealers about the bounty and that he had told Willard
about the bounty before October 13, 2001. Petitioner also admitted he knew
Willard planned to kill Lee but claimed he did not know when Willard would do it.
Petitioner divulged that he and Willard each collected a bounty of $5,000 for Lee's
death, and Green had thrown the gun used to kill Lee into the intercoastal
waterway.
On September 19, 2005, Petitioner submitted to a polygraph examination. An
intern at the State Law Enforcement Division (SLED) administered the
examination, and a SLED agent reviewed the results. The SLED agent determined
that Petitioner had been deceptive when he (1) denied he lied when he stated
Willard shot Lee and (2) denied he shot Lee. Based on the SLED agent's
assessment, the State claimed the proffer agreement was null and void, and a grand
jury indicted Petitioner for Lee's murder.
At trial, the State disclosed it intended to use Petitioner's proffer session statement
as part of its case-in-chief. Trial counsel objected to the admission of the statement
and noted Petitioner gave it as part of a plea agreement. Trial counsel also asserted
the proffer agreement was inherently flawed because Petitioner's truthfulness was
determined by an unreliable polygraph examination.
In response to the objection, the trial court held a hearing pursuant to Jackson v.
Denno.3 Afterwards, the trial court ruled the State could show the recording of
3
378 U.S. 368 (1964).
Petitioner's proffer session to the jury but prohibited both sides from making any
reference to the polygraph examination. Over Petitioner's objection, the trial court
allowed the jury to view the entire proffer session during the State's case-in-chief.
The State did not present any other evidence that tied Petitioner to Lee or
corroborated Petitioner's proffer session statement.
The jury found Petitioner guilty as charged, and the trial court denied Petitioner's
motion for a new trial. Petitioner appealed and argued the trial court erred in
allowing the State to use his proffer session statement in its case-in-chief because it
undermined the purpose and policy of Rule 410, SCRE.4 Our supreme court
affirmed Petitioner's conviction, ruling "a criminal defendant may waive the
protections afforded by Rule 410[, SCRE]," and "[P]etitioner's [p]roffer
[a]greement, entered with the advice and consent of counsel, waived the
protections of Rule 410, SCRE." Wills, 409 S.C. at 185, 762 S.E.2d at 4.
Petitioner filed a PCR application and asserted he had received ineffective
assistance of counsel. At Petitioner's PCR hearing, trial counsel testified he
believed the proffer agreement "would get [Petitioner] out and, basically, the case
would end" as long as Petitioner was truthful during his proffer session. Trial
counsel stated he frequently advised clients to enter into proffer agreements and
there was nothing unusual in the terms of Petitioner's proffer agreement that
"jumped out" to him.
Regarding the polygraph examination, trial counsel admitted that "looking back on
it in hindsight, that would be one area [where he] could've done things differently."
Trial counsel recalled questioning the polygraph results but explained he did not
arrange for Petitioner to take another one because Petitioner remained incarcerated
and trial counsel wanted to keep the test "private so that the State wouldn't know
about it." Trial counsel felt Petitioner had always been truthful with him and
testified he still did not think Petitioner "was the trigger man."
On cross-examination by the State, trial counsel conceded that in "hindsight,
maybe it would've been better to give [Petitioner] some other advice."
Nevertheless, trial counsel stated he felt the proffer agreement was the best course
of action for Petitioner to take based on his firm belief that Petitioner had been
truthful with him. Trial counsel stated he would advise a similarly situated client
4
Rule 410(4), SCRE, prohibits the admission of "any statement made in the course
of plea discussions with an attorney for the prosecuting authority which do not
result in a plea of guilty . . . ."
to enter into a proffer agreement but conceded he "would be a lot stronger on the
science and the procedure behind the polygraph . . . [i.e.,] how to go about
challenging it better and making a stronger argument to the judge."
Hixson, the solicitor originally assigned to the case,5 testified he offered Petitioner
the proffer agreement because the State had little evidence in the case.6 Hixson
acknowledged "[t]he case itself was thin enough that absent [Petitioner] being a
trigger man, there wasn't a lot of potential liability he was facing." Hixson testified
he usually told defendants during a proffer session to "tell the truth" and
specifically recalled telling Petitioner, "[D]on't straddle the fence here. You
understand if you're telling the truth and you're not the trigger man involved in it,
then you're only . . . dealing with . . . accessory type charges."
Hixson stated he was "really stunned" when Petitioner admitted he participated in a
"murder for hire." Hixson recalled thinking he "made a big mistake" by offering
the proffer agreement because it limited the purposes for which Petitioner's proffer
session statement could be used. Hixson believed Petitioner had been truthful
during the proffer session "because he was so forthright" and was surprised when
he learned the polygraph results indicated Petitioner had been deceptive. Hixson
testified the proffer agreement's polygraph examination requirement would have
been normal.
While the PCR court acknowledged the proffer agreement ultimately did not inure
to Petitioner's benefit, it noted "proper analysis of an allegation of ineffective
assistance of counsel requires this [c]ourt to make every effort to set aside the
distorting effect of hindsight and consider the decisions of counsel based on the
information and circumstances available to him at the time they are made." The
PCR court observed that Petitioner, trial counsel, and Hixson all testified the
proffer agreement was advantageous to Petitioner and noted trial counsel had no
indication the proffer agreement would fail because of Petitioner's dishonesty or
disability. The PCR court also noted trial counsel "effectively and zealously"
argued against the admissibility of Petitioner's proffer session statement in the
State's case-in-chief at trial and preserved the objection for direct appeal. The PCR
5
Hixson recused himself from the case because he was concerned he could be
called to testify about statements he made during Petitioner's proffer session.
6
Hixson recalled the State's main evidence was a report that someone saw a car
similar to Petitioner's car enter and leave the area where officers discovered Lee's
body.
court reasoned Petitioner's arguments "were not adequate to turn the opinion in the
[s]upreme [c]ourt and, as such, this [c]ourt cannot now conclude that they would
have done so at the trial level." Accordingly, the PCR court denied Petitioner's
application for PCR relief. This court granted Petitioner's petition for a writ of
certiorari.
STANDARD OF REVIEW
"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). "The applicant has the burden of establishing his entitlement to
relief by a preponderance of the evidence." Rule 71.1(e), SCRCP. "[An appellate
court] gives great deference to the factual findings of the PCR court and will
uphold them if there is any evidence of probative value to support them." Sellner
v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016). "Questions of law are
reviewed de novo, and [an appellate court] will reverse the PCR court's decision
when it is controlled by an error of law." Id.LAW/ANALYSIS
Petitioner argues the PCR court erred in concluding he did not receive ineffective
assistance of counsel. Specifically, Petitioner asserts counsel was deficient in (1)
his interpretation of the proffer agreement's benefits to Petitioner and (2) not
understanding a trial court could find the proffer agreement waived the protections
of Rule 410, SCRE, and allowed the State to use Petitioner's proffer session
statement in its case-in-chief. 7 We disagree.
"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. "Failure to make the required showing of either
7
While the efficacy of polygraphs was discussed at the PCR hearing, Petitioner
does not assert trial counsel was ineffective for advising him to enter into a proffer
agreement with a polygraph examination requirement or for failing to schedule
another polygraph examination.
deficient performance or sufficient prejudice defeats the ineffectiveness claim."
Strickland v. Washington, 466 U.S. 668, 700 (1984).
Trial counsel's performance "is measured by an objective standard of
reasonableness." Taylor, 404 S.C. at 359, 745 S.E.2d at 102. "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. "The court must . . . determine whether, in light of all
the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance." Id. at 690. Further, "[trial c]ounsel'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.Here, the PCR court properly determined Petitioner did not receive ineffective
assistance of counsel. Trial counsel testified he advised Petitioner to enter the
proffer agreement because it would have mitigated the consequences of his
pending charges and prevented the State from bringing additional charges against
Petitioner for Lee's murder. Trial counsel understood Petitioner had to be truthful
during his proffer session and had no reason to believe Petitioner's polygraph
examination results would indicate he had been deceptive. Trial counsel believed
Petitioner had been truthful to him because he had known Petitioner and his family
for "a long time," and Petitioner's proffer session statement was consistent with
what Petitioner privately told trial counsel. Therefore, trial counsel articulated a
valid reason for advising Petitioner to enter the proffer agreement.
While trial counsel admitted in hindsight he might have advised Petitioner
differently and would have been more rigorous in understanding and arguing
polygraph science, trial counsel maintained he thought the proffer agreement was
the best option for Petitioner because he was convinced Petitioner had been
truthful. Additionally, when trial counsel advised Petitioner to enter the proffer
agreement, it was not settled law in South Carolina that defendants could waive the
protections of Rule 410, SCRE, for more than impeachment purposes. Trial
counsel argued effectively enough to preserve that issue for direct appeal and could
not have known our supreme court would ultimately rule defendants could waive
those protections. Indeed, "[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.
Thus, the PCR court properly determined trial counsel's performance was not
deficient because trial counsel articulated a valid reason for advising Petitioner to
enter the proffer agreement. Accordingly, the PCR court properly denied
Petitioner's application for PCR relief, and Petitioner's conviction for murder is
AFFIRMED.
WILLIAMS, C.J. and VINSON, J., concur.