S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
James A. Pauling, Petitioner
v.
State of South
Carolina, Respondent
ON WRIT OF CERTIORARI
Appeal From Richland County
Joseph A. Wilson, II, Trial Judge
William P. Keesley, Post-Conviction Judge
Opinion No. 24811
Submitted May 27, 1998 - Filed July 13, 1998
REVERSED
Robert M. Pachak, of South Carolina Office of
Appellate Defense, of Columbia, for petitioner.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, and Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, for respondent.
BURNETT, A.J.: Petitioner was convicted of first degree
burglary and first degree criminal sexual conduct (CSC). He received a
life sentence for burglary and a thirty-year sentence for CSC. This Court
granted a writ of certiorari to review the decision of the post-conviction
relief (PCR) judge denying petitioner's PCR application. We reverse.
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PAULING v. STATE
ISSUE
Did the PCR judge err in holding trial counsel was not
ineffective for failing to introduce the triage nurse's notes or to
interview and prepare the triage nurse as a defense witness?
FACTS
At trial, the fifty-five-year-old victim testified a man who
identified himself as Jimmy Copeland knocked on the back door of her
apartment. The victim did not know Jimmy Copeland and did not let the
man inside.
Later, the man returned, broke into her second floor bathroom
window, and entered her apartment. The victim testified she struck the
man with a glass vase which broke and cut her right hand; the man then
choked her, tied her up, and hit her in the mouth. Thereafter, the victim
stated the assailant took off her clothes and "put hisself (sic) into me."
The victim did not know whether the assailant ejaculated. The victim
described the perpetrator as seven feet tall and in his nineties.1
After receiving a call from neighbors, the police arrived at the
victim's apartment. The assailant ran upstairs and out the bathroom
window. The police apprehended petitioner within minutes after he fled
the victim's apartment.
Dr. Elizabeth Pernal testified she performed the rape protocol
examination. She testified she found no lesions, cuts, or tears while
performing a pelvic examination on the victim. Dr. Pernal further stated
she found no semen, but this was not unusual since the victim had stated
the assailant had not ejaculated. She testified the victim had a swollen
jaw, an abrasion on her forehead, and a bloody laceration on her right
palm.
On cross-examination, Dr. Pernal stated the victim told her
she had been assaulted by an elderly man. Referring to the notes of a
triage nurse, defense counsel asked Dr. Pernal if the victim had told one
of the nurses there had been no actual penetration. The doctor testified
1 Petitioner is 5'1 0" and was twenty-seven years old.
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PAULING v. STATE
she did not know what the victim had told the nurse, but the victim had
told her the assailant "did not enter all the way." At this point, the trial
judge sustained the prosecution's objection on the basis of hearsay.
At the PCR hearing, petitioner introduced the triage nurse's
notes which stated: "pt states pt did not penetrate the vagina. Was hit in
face and laceration rt hand." Petitioner argued trial counsel was
ineffective because he was not prepared to present the triage nurse as a
defense witness.
Defense counsel testified he did not attempt to identify the
triage nurse prior to trial. He agreed the nurse's testimony concerning the
victim's statement would have been substantive evidence that a sexual
battery did not occur and evidence to impeach the victim's credibility.
In the Order of Dismissal, the PCR judge determined petitioner
failed to establish he was prejudiced by trial counsel's failure to call the
triage nurse as a defense witness. The judge concluded petitioner did not
establish prejudice because the triage nurse had no independent
recollection of this case.2
DISCUSSION
In a post-conviction proceeding, the burden is on the applicant
to prove the allegations in his application. Butler v. State., 286 S.C. 441,
334 S.E.2d 813 (1985), cert. denied, 474 U.S. 1094Y 106 S.Ct. 869, 88
L.Ed.2d 908 (1986). As to allegations of ineffective assistance of counsel,
the applicant must show his counsel's performance fell below an objective
standard of reasonableness, and but for counsel's errors, there is a
reasonable probability the result at trial would have been different.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). A
reasonable probability is a probability sufficient to undermine confidence
2 The record indicates there was confusion in locating the triage
nurse for the PCR hearing. The PCR judge allowed petitioner ten days in
which to locate and depose the nurse. The Order of Dismissal states
""[c]ounsel for the Applicant has informed this Court that she has located
the nurse. However, the nurse has indicated that she has no independent
recollection of this case."
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PAULING v. STATE
in the outcome of the trial. Johnson v. State, supra. This Court must
affirm the findings of the PCR judge if they are supported by any evidence
in the record. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
At the PCR hearing, petitioner did not allege counsel was
ineffective for failing to introduce the triage nurse's notes at trial.
Accordingly, this issue is not preserved for review. Plyler v. State, 309
S.C. 408, 424 S.E.2d 477 (1992).
However, we conclude counsel's failure to call the triage nurse
as a defense witness was deficient and petitioner was prejudiced by this
deficiency. While there was overwhelming evidence petitioner had broken
into the victim's home,3 the only evidence of a sexual battery was the
victim's testimony. There was no corroborating physical evidence of
penetration or any forensic evidence of a sexual assault. The triage
nurse's testimony of the victim's statement shortly after the assault would
have been crucial, both as substantive evidence that a sexual battery did
not occur (and, therefore, there was no CSC)4 and as evidence to impeach
the victim's credibility.5 Even defense counsel admitted the nurse's
testimony was critical. Martinez v. State, 304 S.C. 39, 403 S.E.2d 113
(1991)(where trial counsel admits the testimony of a certain witness may
have made the difference in obtaining an acquittal, the Court may find
ineffective assistance).
Relying on Glover v. State, 318 S.C. 496, 458 S.E.2d 538
(1995), the State maintains petitioner failed to meet his burden of proof
because the triage nurse did not testify at the PCR hearing.
3 Not only did the police apprehend petitioner while he was fleeing
the victim's apartment, but a footprint found in the apartment matched
petitioner's shoes.
4 First degree CSC requires a "sexual battery." S.C. Code Ann. 16-
3-652 (1)(1985). A "sexual battery" is "any intrusion, however slight, of
any part of a person's body or of any object into the genital or anal
openings of another person's body. . . ". S.C. Code Ann. 16-3-651(h)
(1985).
5 During its deliberations, the jury requested to hear the testimony of
the victim and the doctor.
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PAULING v. STATE
The State misconstrues Glover. In Glover the Court held "[i]n
order to support a claim that trial counsel was ineffective for failing to
interview or call potential alibi witnesses, a PCR applicant must produce
the witnesses at the PCR hearing or otherwise introduce the witnesses'
testimony in a manner consistent with the rules of evidence." (emphasis
added). Id. S.C. at 498-99, S.E.2d at 540.
At the PCR hearing, petitioner presented evidence as to the
nature of the nurse's testimony by introducing her triage notes. This
evidence is sufficient under Glover.
Similarly, the PCR judge concluded petitioner failed to
establish prejudice because the triage nurse had no independent
recollection of the case. The nurse's notes, however, could have been used
to refresh her recollection at petitioner's trial.6
The findings of the PCR judge are not supported by any
evidence of record. Holland v. State, 322 S.C. 11 1, 470 S.E.2d 378
(1996)(where there is no probative evidence to support the PCR judge's
findings, the findings should not be upheld). Accordingly, the order of the
PCR judge is reversed and petitioner's CSC conviction is vacated.
REVERSED.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.
6 In any event, petitioner's trial was held in May 1992, one and one-
half years after the alleged assault. The nurse may have remembered this
case at that time. The PCR hearing was held more than five years after
the assault.
p.21