Adams v. State ( 2016 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Tommy S. Adams, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2011-200566
Appeal From Edgefield County
William P. Keesley, Circuit Court Judge
Unpublished Opinion No. 2016-UP-515
Submitted September 1, 2016 – Filed December 14, 2016
AFFIRMED
Teresa L. Norris, of Blume Norris & Franklin-Best, LLC,
of Charleston, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Patrick Lowell Schmeckpeper, of
Columbia, for Respondent.
PER CURIAM: Tommy S. Adams was convicted of lewd act on a child under
sixteen and first-degree criminal sexual conduct with a minor. He appealed from
the denial and dismissal of his application for post-conviction relief (PCR), arguing
his trial counsel was ineffective in (1) not objecting to the admission of his
statement to police because it was irrelevant to the crimes charged; (2) not calling
Adams' two sons to testify as to the circumstances surrounding his statement; (3)
eliciting testimony from the investigator that she believed the victim was telling
the truth and not moving for a mistrial in response to the testimony; (4) advising
Adams not to testify after informing the jury he would testify and not properly
advising Adams as to whether he should testify; and (5) not objecting following
improper communication between jurors and the bailiffs. We reversed the denial
of PCR and remanded the case for a new trial, finding Adams' statement to the
police was inadmissible character evidence and trial counsel was ineffective for
failing to object to it.1 Our supreme court reversed and remanded the case to this
court, finding Adams' statement to the police was relevant as circumstantial
evidence of Adams' control over and sexual use of the victim.2 The supreme court
ordered this court to address the remaining issues. We affirm pursuant to Rule
220(b), SCACR, and the following authorities:
1. As to whether trial counsel was ineffective for not calling Adams' two sons
to testify as to the circumstances surrounding his statement: Brown v. State, 375
S.C. 464, 481, 652 S.E.2d 765, 774 (Ct. App. 2007) ("[W]here counsel articulates a
valid reason for employing a certain strategy, such conduct will not be deemed
ineffective assistance of counsel." (alteration in original) (quoting Watson v. State,
370 S.C. 68, 72, 634 S.E.2d 642, 644 (2006))).
2. As to whether trial counsel was ineffective for eliciting testimony from the
investigator that she believed the victim was telling the truth and not moving for a
mistrial in response to the testimony: Strickland v. Washington, 466 U.S. 668, 687
(1984) (providing that to establish a claim of ineffective assistance of counsel, a
PCR applicant must prove trial counsel's performance was deficient and the
deficient performance prejudiced the applicant's case); State v. Herring, 387 S.C.
201, 216, 692 S.E.2d 490, 498 (2009) ("Generally, a curative instruction to
disregard the testimony is deemed to have cured any alleged error."); Padgett v.
State, 324 S.C. 22, 27, 484 S.E.2d 101, 103 (1997) (finding an issue is not
preserved for appellate review when the PCR court does not rule on the issue).
1
See Adams v. State, Op. No. 2015-UP-174 (S.C. Ct. App. filed Apr. 1, 2015).
2
See Adams v. State, Op. No. 2016-MO-015 (S.C. Sup. Ct. filed Apr. 20, 2016).
3. As to whether trial counsel was ineffective for advising Adams not to testify
after informing the jury he would testify and not properly advising Adams as to
whether he should testify: Solomon v. State, 313 S.C. 526, 529, 443 S.E.2d 540,
542 (1994) ("We give great deference to a judge's findings when matters of
credibility are involved since we lack the opportunity to directly observe the
witnesses."), overruled on other grounds by State v. Cheeks, 401 S.C. 322, 737
S.E.2d 480 (2013); Johnson v. State, 325 S.C. 182, 188, 480 S.E.2d 733, 735-36
(1997) (finding the trial court's instruction to the jury that it could not consider a
defendant's failure to testify cured any potential error from the State's comment on
the defendant's failure to testify).
4. As to whether trial counsel was ineffective for not objecting following
improper communication between jurors and the bailiffs: State v. Cameron, 311
S.C. 204, 207-08, 428 S.E.2d 10, 12 (Ct. App. 1993) ("The mere fact, however,
that some conversation occurred between a juror and a court official would not
necessarily prejudice a defendant."); Brown, 375 S.C. at 481, 652 S.E.2d at 774
("[W]here counsel articulates a valid reason for employing a certain strategy, such
conduct will not be deemed ineffective assistance of counsel." (alteration in
original) (quoting Watson, 370 S.C. at 72, 634 S.E.2d at 644)).
AFFIRMED.3
SHORT, KONDUROS, and GEATHERS, JJ., concur.
3
We decide this case without oral argument pursuant to Rule 215, SCACR.