THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
James L. Williams, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Charleston County
William T. Howell, Circuit Court Judge
Jackson V. Gregory, Post-Conviction
Relief Judge
Memorandum Opinion No. 2004-MO-007
Submitted January 22, 2004 - Filed March
8, 2004
REVERSED AND REMANDED
Chief Attorney Daniel T. Stacey, of Columbia, for Petitioner.
Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Chief Capital & Collateral Litigation Donald J. Zelenka, Assistant Deputy Attorney General Allen Bullard, Assistant Attorney General Douglas E. Leadbitter, all of Columbia, for Respondent.
PER CURIAM: Petitioner was convicted of first degree burglary and grand larceny.� He was sentenced to thirty years for burglary and ten years for grand larceny, to run consecutively.� On direct appeal, this Court affirmed Petitioner�s convictions and sentences.� State v. Williams, Op. No. 93-MO-236 (S.C. Sup. Ct. filed August 5, 1993).
Petitioner�s first application for Post-Conviction Relief (PCR) was denied after a hearing.�� No petition for writ of certiorari was filed.� After consideration of Petitioner�s second PCR application, Petitioner was granted a belated review of the first PCR order.� However, the first PCR transcript was not available, so this Court granted Petitioner a new PCR hearing.� A de novo PCR hearing was held, and Petitioner�s application was again denied.� This petition for writ of certiorari followed.� We reverse and remand to the trial court for a new trial.
ISSUE
Was Petitioner�s trial counsel ineffective for failing to object to the trial judge�s reasonable doubt and circumstantial evidence instructions?
ANALYSIS
Petitioner contends his trial counsel was ineffective for failing to object to the trial judge�s instructions on reasonable doubt and circumstantial evidence.� We agree.
During Petitioner�s trial, the judge instructed the jury on reasonable doubt:
Now by reasonable doubt, I don�t mean a weak or whimsical or imaginary doubt.� A reasonable doubt is a doubt arising out of the testimony for which a person �or lack of testimony�it�s either arising out of the testimony or lack of testimony, for which a person honestly seeking the truth can give a reason.�
The judge also instructed the jury on circumstantial evidence:���������
Now to the extent that the State relies on circumstantial evidence it must prove all of the circumstantial evidence beyond a reasonable doubt.� They must be wholly and in every particular perfectly consistent with one another.� They must point conclusively, that is to a moral certainty, to the guilt of the accused, to the exclusion of every other reasonable hypothesis.� That is, they must be absolutely inconsistent with any other reasonable hypothesis than the guilt of the accused.� (emphasis supplied)
Trial counsel did not object to either of the charges.� The State conceded at the PCR hearing that today, the charges would constitute reversible error.� However, the State argued that State v. Manning, 305 S.C. 413, 409 S.E.2d 372 (1991), which held charges such as these were reversible error, was decided after Petitioner�s trial.� The State contends, and the PCR court held, that trial counsel could not be required to anticipate a change in the law, and since Manning was not decided until after Petitioner�s trial, that trial counsel was not ineffective in failing to object to the instructions.� E.g. Hill v. State, 350 S.C. 465, 576 S.E.2d 847 (2002).� We disagree.�
Petitioner must prove that trial counsel�s representation fell below reasonable professional norms, and that Petitioner was prejudiced by counsel�s failure to object to the charge.� Strickland v. Washington, 466 U.S. 668 (1984), Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).�
Petitioner�s trial took place on August 26, 1991.� Manning was decided on September 9, 1991.� However, Cage v. Louisiana, 498 U.S. 39 (1990), upon which Manning was based, was decided November 13, 1990.� In Cage, the United States Supreme Court �disapproved a standard of moral rather than evidentiary certainty in determining an accused�s guilt or innocence.�� Manning, 409 S.E.2d at 416, citing Cage, 498 U.S. at 41.� The State argues that although the United States Supreme Court rejected a similar charge in Cage, that there was no way for trial counsel to know that �the South Carolina courts would agree [and] would still require a clairvoyance aspect to analyzing attorney representation.� This argument is without merit.� Cage was based on the Due Process clause, and applied to all of the states. Trial counsel should have objected to the charge, based on the decision in Cage, which was decided before petitioner�s trial.� Trial counsel�s representation fell below professional norms.�
Petitioner must also prove that he was prejudiced by trial counsel�s representation by showing �there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution.�� Todd v. State, 355 S.C. 396, 309, 585 S.E.2d 305, 308 (2003) quoting State v. Aleksey, 343 S.C. 20, 538 S.E.2d 248 (2000).� In this case, the only evidence against Petitioner was circumstantial evidence--fingerprints on the outside of a window of the victim�s house.� The jury must have relied on the circumstantial evidence charge, as that is the only evidence that was available to them.� Petitioner has proven prejudice.�
CONCLUSION
We REVERSE the PCR court�s decision, and REMAND for a new trial.�
TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.