S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Joseph Paul Hudgins, Petitioner,
v.
Michael W. Moore,
Director, South
Carolina Department of
Corrections, Respondent.
Appeal From Anderson County
Gary E. Clary, Circuit Court Judge
ON WRIT OF CERTIORARI
Opinion No. 25033
Heard October 19, 1999 - Filed December 6, 1999
REVERSED
David I. Bruck; David P. Voisin; and S.C. Office of
Appellate Defense, all of Columbia, for petitioner.
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, and
Senior Assistant Attorney General William E. Salter,
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III, all of Columbia, for respondent.
Lesly A. Bowers, of Columbia; David W. Debruin and
Elizabeth E. Appel Blue, both of Jenner & Block, of
Washington, D.C.; and James McHugh and Nathalie
Gilfoyle, both of Washington, D.C., for amici curiae
American Psychological Association and Protection and
Advocacy for People with Disabilities, Inc.
MOORE, A.J.: We granted a writ of certiorari to review the
denial of post-conviction relief (PCR) in this capital case. We reverse.
FACTS
Petitioner and his co-defendant, Terry Cheek, stole a truck from
the locked lot of an Orkin Pest Control Company. They were driving around
in the truck the next evening when they were stopped by Officer Chris
Taylor because a hose was dragging from the truck. Cheek, who was driving,
did not have his driver's license with him. Officer Taylor asked petitioner
and Cheek to get in the back of his patrol car. As they walked toward the
patrol car, Officer Taylor was shot once in the head. Petitioner and Cheek
fled on foot. Officer Taylor died on the side of the road.
When they were arrested several days later, petitioner and
Cheek each gave a statement indicating petitioner was the triggerman.
During the guilt phase of trial, Cheek testified consistently with his
statement. Petitioner testified to the contrary that Cheek shot the officer.
Petitioner claimed he cared for Cheek "like a brother" and had confessed to
the murder only because he was younger than Cheek and thought he would
be treated more leniently.1 He admitted it was his idea to lie to police but
testified he changed his mind after learning that Cheek had given a
statement against him.
1Petitioner was seventeen years old at the .time of the murder and
Cheek was eighteen.
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On cross-examination, the solicitor questioned petitioner
regarding his responses to a psychological test given during his pre-trial
competency examination.2 The test was the Minnesota Multiphasic
Personality Inventory for Adolescents, a true-false test commonly referred to
as the MMPI-A. In response to the solicitor's questioning, petitioner
admitted he had answered "true" to the following statements on the test:
- I feel it is certainly best to keep my mouth shut when I'm
in trouble.
- I do not always tell the truth.
- I have not lived the right kind of life
- I think most people would lie to get ahead.
- I think nearly everyone would tell a lie to keep out of<
trouble./LI>
He answered "false" to the following:
- I have often had to take orders from someone
who did not know as much as I did.
- I am easily downed in an argument.
- I am certainly lacking in confidence
- I wish I were not so shy.
Counsel did not object to the solicitor's cross-examination. Instead, they
called in rebuttal Dr. Thrasher, a psychiatrist, who testified that MMPI-A
answers are analyzed for patterns and the answer to any single question
standing alone has little significance.
After Dr. Thrasher testified on direct regarding the MMPI-A,
2 The competency examination was ordered with counsel's consent.
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the State elicited on cross-examination the following testimony:
Q: Have you looked at the diagnosis the defendant
received after being diagnosed in Columbia?
A: Conduct disorder, group type.
Q: Do you know what the criteria are for conduct
disorder? How do you diagnose conduct disorder?
What has to be ---
A: You look for a number of criteria.
Q: And does anything in there talk about any kind of
psychosis or schizophrenia or anything other things
like that?
A: No.
Q: Basically just not obeying rules?
A: Could be truancy, thefts, lying, could be assaults
on people, it could be other criminal acts.
Dr. Thrasher then went on to testify that petitioner could also be diagnosed
as having "antisocial personality traits" but that conduct disorder most
closely fit. He added:
There is more pathology underneath all that than
just the conduct disorder. He has a personality
structure that is quite worrisome ....
The solicitor used petitioner's MMPI-A answers to argue in
closing that petitioner lacked credibility. The jury found petitioner guilty of
murder and grand larceny. At the sentencing phase, the jury found two
aggravating circumstances: murder of a law enforcement officer and murder
committed while in the commission of larceny with a deadly weapon.
Petitioner was sentenced to death and this Court affirmed. State v.
Hudgins, 319 S.C. 233, 460 S.E.2d 388 (1995), cert. denied 116 S.Ct. 821
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(1996).
Petitioner then brought this PCR action alleging he was
prejudiced by counsel's ineffectiveness in failing to object to the admission of
the MMPI-A answers which further resulted in Dr. Thrasher's harmful cross-
examination testimony regarding petitioner's character. The PCR judge
found there was no basis for objecting to the admission of the MMPI-A
answers for impeachment and denied relief.
ISSUE
Is petitioner entitled to relief because counsel failed
to object to the State's use of his MMPI-A answers for
impeachment?
DISCUSSION
Failure to object
Petitioner contends the MMPI-A answers are inadmissible under
state and federal law and that counsel were ineffective in failing to object.
While we find no constitutional violation,3 we agree this evidence is
3 It is well-settled that a voluntary statement obtained in violation of
Miranda is admissible for impeachment. Havens v. United States, 446 U.S.
620 (1980); Harris v. New York, 401 U.S. 222 (1971); State v. Brown, 296
S.C. 191, 371 S.E.2d 523 (1988). Further, although the United States
Supreme Court has not specifically addressed whether a voluntary
statement obtained in violation of the Sixth Amendment right to counsel
is admissible for impeachment, the vast majority of state and federal courts
to address the issue have held it is. See United States v. Lott, 854 F.2d 244
(7th Cir. 1988); United State v. McManaman, 606 F.2d 919 (10th Cir. 1979);
People v. Brown, 42 Cal. App. 4th 461, 49 Cal. Rptr. 2d 652 (1996); People v.
Ridley, 872 P.2d 1377 (Colo. Ct. App. 1994); Martinez v. United States, 566
A.2d 1049 (D.C. App. 1989); People v. Bacino, 41 Ill. App. 3d 738, 354 N.E.2d
641 (1976); State v. Thomas, 698 S.W.2d 942 (Mo. Ct. App. 1985); People v.
Ricco, 56 N.Y.2d 320, 452 N.Y.S.2d 340, 437 N.E.2d 1097 (1982); Com. v.
(continued... )
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inadmissible under state law as set forth in State v. Myers, 220 S.C. 309, 67
S.E.2d 506 (1951).
In Myers, we considered whether a court-ordered examination to
determine the defendant's sanity violated his right against self
incrimination. We found no violation reasoning that the defendant "will not
be required to vouch for anything. Nothing will depend upon his testimonial
responsibility." 67 S.E.2d at 508. We then stated:
the authorities of [the State Hospital for the Insane]
will not be permitted, over the protest of the accused,
to reveal any confession made by him in the course of
such examination, or any declarations implicating
him in the crime charged.
Id. The PCR judge found this language in Myers did not prohibit admission
of the MMPI-A answers as impeachment evidence.4 We disagree.
In Myers, we recognized the need to protect the integrity of a
(continued . . .)
Batson, 396 Pa. Super. 513, 578 A.2d 1330 (1990); State v. Mattatall, 603
A.2d 1098 (R.I. 1992); State v. Swallow, 405 N.W.2d 29 (S.D. 1987); State v.
Wilder, 177 W.Va. 435, 352 S.E.2d 723 (1986). Moreover, there is no
evidence petitioner's answers to the MMPI-A were coerced or involuntary.
Cf. State v. Victor, 300 S.C. 220, 387 S.E.2d 248 (1989) (defendant testified
on cross-examination that the statement being used to impeach him was
coerced by threats from police); State v. Patton, 322 S.C. 408, 472 S.E.2d 245
(1996) (to establish entitlement to a suppression hearing, defendant must
show there are contested issues of fact regarding admissibility of the
evidence in question).
4 This evidence was not impeaching in the sense of contradicting the
substance of petitioner's testimony but was an attempt to impeach his
character for truthfulness. See State v. Robertson, 26 S.C. 117, 1 S.E. 443
(1887) (by choosing to testify, a defendant puts his character for truthfulness
in issue and may be impeached thereon).
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court-ordered mental health examination by forbidding the use of the
information obtained for purposes other that ordered by the court. Allowing
the use of this information for impeachment of a defendant's credibility at
trial would defeat the protection established under Myers. Cf. State v.
Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998) (attorney-client privilege
prohibits use of defendant's communications to a mental health expert for
impeachment). Accordingly, absent a waiver in this case, we hold counsel
were ineffective in failing to object.
Prejudice
In order to prevail on a claim of ineffective assistance of counsel,
petitioner must demonstrate that but for counsel's ineffectiveness, there is a
reasonable probability the result of the trial would have been different.
Palacio v. State, 333 S.C. 506, 511 S.E.2d 62 (1999). We find petitioner has
met this burden.
First, credibility was a crucial issue at trial since it was
essentially petitioner's word against Cheek's. While petitioner's guilt could
have been supported on a theory of accomplice liability based on the facts
given in his own testimony,5 this theory of guilt was never submitted to the
jury. The State specifically declined to request this charge since it insisted
petitioner was the triggerman.
Further, not only did the MMPI-A answers include the
information that petitioner would lie, which could be harmless in light of the
fact that petitioner admitted he lied in his first statement to police, they
specifically indicated petitioner would lie to get out of trouble, implying his
retraction at trial was the lie rather than his original confession.
Finally, and perhaps most damaging, counsel's failure to object
to petitioner's impeachment led to Dr. Thrasher's harmful testimony
5 Accomplice liability applies to murder that is the natural and
probable consequence of the crime to which the defendant was an
accomplice. State v. Bell, 305 S.C. 11, 405 S.E.2d 165 (1991). Here,
petitioner admitted he stole the Orkin truck with Cheek and he knew Cheek
had a gun with them in the truck.
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regarding petitioner's pathological nature and propensity to commit criminal
acts, evidence that otherwise would have been inadmissible in the guilt
phase of trial. See State v. Peake, 302 S.C. 378, 396 S.E.2d 362 363 (1990)
(character evidence is not admissible to prove the accused possesses a
criminal character or propensity to commit the crime with which he is
charged).
We hold petitioner is entitled to PCR on the ground counsel
failed to object to the use of the MMPI-A answers for impeachment. We need
not address petitioner's remaining arguments. The PCR judge's denial of
relief is
REVERSED.
Toal, A.C.J., Waller, Burnett, JJ., and Acting Associate Justice
George T. Gregory, Jr., concur.
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