Davis Adv. Sh. No. 4
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Todd Jackson, Respondent,
v.
State of South
Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Richland County
Joseph A. Wilson, II, Trial Judge
Gary E. Clary, Post-Conviction Judge
Opinion No. 24749
Submitted September 18, 1997 - Filed January 19, 1998
REVERSED
BURNETT, A.J.: The State appeals the grant of post
conviction relief (PCR) to respondent. We reverse.
p. 20
FACTS
Respondent was convicted of armed robbery and sentenced to
imprisonment for twenty-five years. His conviction and sentence were
affirmed on direct appeal. State v. Jackson, 315 S.C. 219, 433 S.E.2d 19
(Ct. App. 1993). Respondent filed a PCR application alleging
ineffectiveness of his trial counsel. After an evidentiary hearing, the PCR
judge found respondent's trial counsel was ineffective in several respects,
including failing to investigate the backgrounds of the eyewitnesses and
the victims; failing to call the co-defendants as witnesses; failing to
present a defense; failing to adequately prepare the case; and operating
under a conflict of interest. Respondent was granted a new trial.
ISSUE
DISCUSSION
There is a strong presumption that counsel rendered adequate
assistance and exercised reasonable professional judgment in making all
significant decisions in the case. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2025, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386
S.E.2d 624 (1989). In order to prove that counsel was ineffective, the
applicant must show counsel's performance was deficient and the deficient
performance prejudiced the defense. Strickland v. Washington, supra;
Thrift v. State, 302 S.C. 535, 397 S.E.2d 523 (1990). To show prejudice,
the applicant must show, but for counsel's errors, there is a reasonable
probability the result of the trial would have been different. Johnson v.
State, __S.C.__, 480 S.E.2d 733 (1997). A reasonable probability is a
probability sufficient to undermine confidence in the outcome of trial.
Strickland v. Washington, supra. This Court will sustain the PCR judge's
factual findings and conclusions regarding ineffective assistance of counsel
if there is any probative evidence to support those findings. Skeen v.
State, __ S.C.__ , 481 S.E.2d 129 (1997). However, if there is no
probative evidence to support the PCR judge's findings, the findings will
not be upheld. Satterwhite v. State, __ S.C. __, 481 S.E.2d 709 (1997);
Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).
p. 21
Failing to Investigate Backgrounds of Victims and Witnesses
The State contends the PCR judge erred in finding counsel's
failure to investigate the backgrounds of the victims and witnesses to
determine if they had criminal records or were involved in illegal activities
prejudiced respondent's defense. We agree.
Counsel admitted at the PCR hearing he did not check the
criminal records of the victims or eyewitnesses to the robbery prior to the
trial. Counsel further admitted it was an error not to investigate the
victims and eyewitnesses.
The robbery occurred after 11:00 p.m. in a high crime district.
Given the time and location of the robbery, a reasonable attorney would
have concluded a background investigation of the victims and witnesses
was necessary. An investigation to determine the credibility of the victims
and witnesses was especially important in light of respondent's claim that
he was merely retrieving property which had been stolen from him by the
victims. Therefore, there is probative evidence to support the PCR judge's
finding that counsel's performance was deficient in this matter. Skeen v.
State, supra.
However, there is no probative evidence to support the finding
of prejudice. While the PCR judge was correct in finding the credibility of
the eyewitnesses and victims "would have been critical," no probative
evidence was presented at the PCR hearing to show the eyewitnesses and
victims were not credible. The only "evidence" that either the victims or
eyewitnesses had criminal records were statements and questions by
respondent's PCR counsel that one of the victims was incarcerated in
another state at the time of respondent's trial and respondent's testimony
that he knew this victim was in jail.1 Respondent failed to substantiate
this allegation with any probative evidence. See Glover v. State, 318 S.C.
496, 458 S.E.2d 538 (1995) (applicant's allegations, alone, will not support
a finding of prejudice when applicant claims counsel was ineffective for
failing to investigate witnesses; instead, applicant must show the results of
an investigation would have resulted in a different outcome at trial).
Mere speculation and conjecture on the part of respondent is insufficient.
Id.
incarcerated unless there was evidence to support the allegation. The
PCR judge denied that motion.
p. 22
Even assuming one of the eyewitnesses or victims had a
criminal record, no evidence was presented to show the crime was one of
moral turpitude which could be used for impeachment purposes. State v.
Major, 301 S.C. 181, 391 S.E.2d 235 (1990). Moreover, because at the trial
the victims did not testify2 and the State never attempted to establish the
credibility of the victims, they could not be impeached with any prior
records.
Thus, no evidence supports the PCR judge's finding that
respondent was prejudiced by counsel's failure to check the records of
these individuals. Satterwhite v. State, supra; High v. State, 300 S.C. 88,
386 S.E.2d 463 (1989) (PCR judge's findings will not be upheld if there is
no probative evidence to support them).
Failure to Interview and Call Co-Defendants as Witnesses
The State claims the PCR judge erred in finding trial counsel
ineffective for failing to interview respondent's co-defendants and for
failing to call them as witnesses at respondent's trial because respondent
failed to prove prejudice. We agree.
Respondent testified he asked counsel to call one of his co-
defendants, Lorenzo Stanford (Stanford), as a witness at trial, but counsel
did not do so. At the PCR hearing, Stanford's statement he made to the
police following the robbery was introduced to support respondent's claim
of ineffectiveness.
Counsel testified Stanford and respondent's other co-defendant,
Sam Bennerman (Bennerman), were not called as witnesses because
Stanford's statement, which supported respondent's version of the incident,
was presented through the testimony of a police officer. According to
counsel, he contacted counsel for the co-defendants and was told any
testimony given by them would be the same as their statements given to
the police. Counsel also reviewed the co-defendant's statements. Counsel
made the decision not to call Stanford and Bennerman to testify because
he "didn't want to run the risk of calling them and having something go
wrong." Further, counsel thought the testimony of the police officer
admitting Stanford's statement supported respondent's version of the
who witnessed the robbery and two cousins of one of the victims who
witnessed the crime testified at trial.
p. 23
incident and lent more credibility to respondent's defense than calling
Stanford to testify.
Although respondent did introduce evidence at the PCR
hearing of what Stanford's testimony would have been had he testified at
trial, this same information was presented through the testimony of the
police officer who took the statement. Thus, the jury was aware
respondent's defense was corroborated. Respondent failed to show
Stanford's testimony could have provided additional information to what
was admitted through the police officer's testimony to assist in
respondent's defense. Compare with Thomas v. State, 308 S.C. 123, 417
S.E.2d 531 (1992) (petitioner showed uncalled witness' testimony would
have made a difference in the trial because it would have cast doubt on
the sole witness' identification of the petitioner). Therefore, respondent
failed to present any evidence of prejudice in failing to call Stanford as a
witness.
Respondent also produced no evidence of how counsel's failure
to interview Stanford or Bennerman prejudiced his defense. See Glover v.
State, 318 S.C. 496, 458 S.E.2d 538 (1995) (prejudice from trial counsel's
failure to interview or call witnesses could not be shown where the PCR
applicant failed to introduce evidence of what the uncalled witnesses'
testimony would have been and an applicant's mere speculation what a
witness' testimony would have been cannot satisfy the applicant's burden
of showing prejudice).3 It is pure speculation to conclude the outcome of
respondent's trial would have been different if counsel had interviewed
and/or called Stanford and Bennerman as witnesses.
Further, the decision not to call Stanford as a witness was
trial strategy. Counsel claimed he thought the testimony concerning the
corroboration of respondent's statement would be more credible if
presented through the testimony of the police officer instead of Stanford.
This is a valid reason for deciding not to call Stanford since Stanford's
credibility would have been at issue if he testified. Thus, counsel was not
ineffective for employing this strategy. Stokes v. State, 308 S.C. 546, 419
S.E.2d 778 (1992) (where counsel articulates a valid reason for employing
witness in order to show prejudice. The State is misreading the law.
Under our case law, the applicant must produce the witness at the PCR
hearing or otherwise introduce the witness' testimony in a manner
consistent with the rules of evidence. Glover v. State, supra.
p. 24
a certain strategy, such conduct will not be deemed ineffective assistance
of counsel).
Failure to Present a Defense
The State argues the PCR judge erred in finding trial counsel
ineffective in "failing to present any defense." We agree.
At trial, respondent's statement which set forth his defense
that he was merely reclaiming the property that had been taken from him
was admitted. Counsel cross-examined the police officer as to respondent's
statement and Stanford's corroborating statement. The solicitor mentioned
the defense and discredited it in his closing argument. Counsel requested
and received a jury charge that a person cannot steal his own property.
However, counsel did not offer any witnesses and respondent did not
testify.
At the PCR hearing, counsel testified he argued respondent's
defense to the jury4 and requested and received a jury charge on the
defense. Counsel admitted he did not attempt to find other witnesses to
support respondent's allegation that the stolen property belonged to him.
Respondent acknowledged counsel argued the defense in closing.
We find the probative evidence fails to support the PCR judge's
finding on this issue. Satterwhite v. State, supra. Instead, counsel
presented respondent's defense that respondent was merely reclaiming his
property. While it is true counsel did not present any witnesses at trial, a
criminal defendant is not required to present evidence. Further,
respondent has not shown what additional evidence counsel could have
presented to support this defense. Glover, supra. Accordingly,
respondent did not establish counsel was deficient or that any deficient
performance prejudiced his defense.
Further, it was a strategic decision not to have respondent
testify. See Stokes v. State, supra. Respondent has a conviction for
possession of crack cocaine, a crime of moral turpitude, which could have
been used to impeach him. See State v. Major, 301 S.C. 181, 391 S.E.2d
235 (1990). Counsel testified at the PCR hearing he was aware of
respondent's conviction. While confusion arose over whether respondent
had a previous conviction for strong arm robbery, this matter was resolved
p. 25
before sentencing. Further, regardless whether respondent had a prior
robbery conviction, counsel would have still advised respondent not to
testify because of his prior drug conviction. Thus, respondent has failed to
show prejudice.
Failing to Adequately Prepare the Case
The State claims the PCR judge erred in finding trial counsel
ineffective for failing to adequately prepare respondent's case. We agree.
According to its order, the lower court specifically found
counsel ineffective:
Respondent testified counsel met with him briefly when he
advised him to waive his preliminary hearing, when he was first offered a
plea bargain, and a week before trial when counsel again discussed a
guilty plea. According to respondent, he never discussed the facts of the
case until the day before his trial when counsel again attempted to
convince respondent to plead guilty. Respondent agreed to plead guilty;
however, respondent changed his mind during the plea and proceeded with
a jury trial. Respondent testified counsel advised him not to testify, told
him the defense would be the victims owed him drug money, and refused
respondent's request to subpoena Stanford.
Counsel testified at the PCR hearing he did not recall the
number of times he met with respondent, but it was probably three or four
times and that he did talk with him "several times about the case."
Counsel stated he discussed with respondent calling Bennerman, but
decided to leave that decision until trial. According to counsel, respondent
never asked him to call Stanford as a witness. Counsel testified he had
filed a discovery request and had reviewed the materials in the solicitor's
file, including Stanford's statement.
In our opinion, the PCR judge erred in finding counsel
ineffective in preparing respondent's case. Respondent failed to present
any evidence of what counsel could have discovered or what other defenses
respondent would have requested counsel pursue had counsel more fully
prepared for the trial. Thus, respondent has failed to show his counsel's
p. 26
lack of preparation prejudiced him, and no probative evidence supports the
PCR judge's findings on this issue. Satterwhite v. State, supra. Instead,
the PCR judge's order is based on respondent's speculation that counsel
could have done a better job representing respondent if he spent more
time with him. Glover, supra (speculation and conjecture will not support
a finding of ineffective assistance of counsel).
Conflict of Interest
The State contends the PCR judge erred in finding trial
counsel ineffective due to a conflict of interest. We agree.
Counsel for respondent was employed by the Richland County
Public Defender's Office, as were the attorneys for respondent's co-
defendants. Therefore, respondent argued counsel was operating under a
conflict of interest.
The PCR judge found counsel was ineffective due to a conflict
of interest. Specifically, the PCR judge found:
(emphasis added).
To establish a violation of the Sixth Amendment right to
effective counsel due to a conflict of interest arising from multiple
representation, a defendant who did not object at trial must show an
actual conflict of interest adversely affected his attorney's performance.
Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980);
Duncan v. State, 281 S.C. 435, 315 S.E.2d 809 (1984). An actual conflict
of interest occurs where an attorney owes a duty to a party whose
interests are adverse to the defendant's. Duncan v. State, supra. The
mere possibility of a conflict of interest is insufficient to impugn a criminal
conviction. Cuyler v. Sullivan, supra.
p. 27
In our opinion, respondent did not show any actual conflict of
interest resulted from counsel's representation of him while others in
counsel's office represented respondent's co-defendants. All respondent
showed and the PCR judge found was a potential conflict of interest
because counsel worked in the same office with the attorneys who
represented the co-defendants. Counsel testified no conflict existed, and
respondent could not point to an actual conflict. Thus, this potential
conflict never ripened into an actual conflict. Nothing in the record
suggests the potential conflict caused counsel to treat respondent's case in
such a manner as to obtain more favorable consideration for respondent's
co-defendants. Further, the fact that counsel never advised respondent of
the potential conflict of interest does not affect the constitutionality of the
conviction. See Langford v. State, 310 S.C. 357, 360, 426 S.E.2d 793, 794
(1993) ("Rules of Professional Conduct have no bearing on the
constitutionality of a criminal conviction"). Therefore, the PCR judge erred
in finding a conflict of interest existed.
REVERSED.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.
p. 28