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


Johnny L. Cantrell, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Anderson County
J.C. Nicholson, Trial Judge
†J. Cordell Maddox, Jr., Post-Conviction Judge


Memorandum Opinion No. 2008-MO-048
Submitted September 18, 2008 Ė Filed November 24, 2008††


REVERSED


Appellate Defender Robert M. Pachak, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Daniel E. Grigg, all of Columbia, for Respondent.


PLEICONES: †After a jury trial, Petitioner Johnny L. Cantrell (Petitioner) was convicted of criminal sexual conduct with a minor in the second degree and assault with intent to commit the same.† Petitioner filed a post-conviction relief (PCR) application alleging ineffective assistance of counsel, which the PCR court denied.† We reverse.

FACTS

Defense presented Petitionerís daughter (Daughter) who is also the victimís sister.† Daughter testified that she lived in the home during eight of the nine months in which the alleged abuse occurred and contradicted much of the victimís testimony of abuse.

The following day, the State sought to introduce the testimony of a reply witness (Witness) who, during an in-camera hearing, testified that on the day prior to Daughterís testimony, she told Witness that she ďknewĒ of her fatherís guilt.† Despite repeated inquiries by the trial judge, defense counsel (Counsel) interposed no objection to Witnessís testimony.† Witness then testified in court.† Counsel sought to recall Daughter to deny having made the statement to Witness, but the request was denied.

At the PCR hearing, Petitioner alleged that Counsel was ineffective in failing to object to Witnessís testimony regarding Daughterís alleged prior inconsistent statement when no proper foundation had been laid.† Daughter testified at the hearing and denied having made the statement.† The PCR judge denied the ineffective assistance claim, finding that Counselís performance was not deficient and that Petitioner had not been prejudiced by Witnessís testimony.

ISSUE

Did the PCR judge err in finding that Petitionerís counsel was not ineffective in failing to object to the Stateís use of a reply witness to impeach a defense witness with a prior inconsistent statement without laying a proper foundation?

ANALYSIS

In considering a claim of ineffective assistance of counsel, courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985).† To receive relief, the Petitioner must overcome this presumption by satisfying a two-prong test. Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989).† We must affirm the PCR courtís ruling if there is any probative evidence to support the judgeís factual findings and conclusions. McCray v. State, 317 S.C. 557, 559, 455 S.E.2d 686, 687 (1995).† Finding no probative evidence to support the PCR courtís finding, we reverse.

A. Deficient Performance

To show ineffective assistance of counsel, Petitioner must first prove that trial counselís (Counsel) performance was deficient. Dawkins v. State, 346 S.C. 151, 155-56, 551 S.E.2d 260, 262 (2001).† Under this prong, attorney performance is measured by its reasonableness ďunder prevailing professional norms.Ē Id.

The PCR court found that Counselís performance was not deficient in failing to object to the reply testimony of Witness. †The PCR court cited two reasons why Counsel acted reasonably in not objecting.† First, the PCR court noted that Witnessís testimony in reply was proper.† Second, Counsel reasonably anticipated being able to call Daughter back to the stand in surrebuttal.†

(1) Smithís reply testimony was not proper.

Rule 613(b) of the South Carolina Rules of Evidence (SCRE) provides that extrinsic evidence of a prior inconsistent statement is not admissible unless ďthe witness is advised of the substance of the statement, the time and place it was allegedly made, and the person to whom it was made, and is given the opportunity to explain or deny the statement.Ē† It is mandatory that a witness be permitted to admit, deny, or explain a prior inconsistent statement. State v. McLeod, 362 S.C. 73, 80, 606 S.E.2d 215, 219 (Ct. App. 2004).† Since the record shows that Daughter was never informed of the date, time, and place of the statement, the reply testimony was not proper.†

(2) Counsel did not articulate valid reasons for employing a trial strategy.

At the PCR hearing, Counsel noted that he planned to call Petitionerís daughter (Daughter) in surrebuttal to the reply testimony.† The question of surrebuttal, however, is irrelevant to Counselís choice not to object to Smithís reply testimony unless Counselís trial strategy was to decline to assert Rule 613(b) and instead rely on surrebuttal testimony from Daughter.†

The record demonstrates that Counselís decision not to object to the reply testimony was not based on a trial strategy but instead Counselís misunderstanding of Rule 613(b).† When confronted with Smithís testimony during the in-camera hearing, Counsel stated that the testimony would be proper reply.† Counsel reiterated his view at the Hearing:

Q.  Okay.  Do you have any basis why you wouldnít have objected [to Smithís reply testimony]?
 
A. I think it was probably pretty proper reply.  Damaging, but proper reply.  The young lady had just Ė recently had testified on her fatherís behalf.  And then apparently she had indicated otherwise previously.  I think it was proper reply.

The record demonstrates that Counsel made a mistake rather than a choice, and thus did not fail to object based on trial strategy.

Assuming arguendo that Counsel acted pursuant to a strategy, Counsel has no valid reason for his decision.† Where counsel articulates valid reasons for employing a certain strategy, counselís choice of tactics will not be deemed deficient performance. Whitehead v. State, 308 S.C. 119, 417 S.E.2d 530 (1992).† ďCounsel must articulate a valid reason for employing a certain strategy to avoid a finding of ineffectiveness.Ē Ingle v. State, 348 S.C. 467, 470, 560 S.E.2d 401, 403 (2002) (emphasis in original).† Where counsel articulates a strategy, it is measured against an objective standard of reasonableness. Id.

In choosing not to object to the testimony, Counsel effectively declined to assert a right to call Daughter to deny having made the statement, in favor of a discretionary right to surrebuttal. See State v. Watson, 353 S.C. 620, 632, 579 S.E.2d 148, 150 (2003) (ďAdmission of evidence in surrebuttal is very much in the discretion of the trial judge.Ē).† Counsel never articulated a valid reason for the decision not to object.

There is no evidence to support the PCR judgeís finding that Counselís performance was not deficient.†

C. Prejudice

In order to find ineffective assistance of counsel, Petitioner must show not only deficient performance but also that Counselís deficient performance prejudiced Petitioner. Dawkins, supra. †To demonstrate prejudice, the applicant must show that but for Counselís errors, there is a reasonable probability that the result of the trial would have been different. Id. at 156, 551 S.E.2d at 262.† A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial. Id.

The State presented no physical evidence and, other than Smith and the victim, called only five witnesses.† The testimony of all five witnesses focused almost solely on the fact that victim had communicated to them that he had been sexually abused.†

The remainder of the evidence favorable to the State was minimal. †One investigator testified that he observed a bottle of hand lotion on a coffee table in the house.† The victim testified that Petitioner used lotion when attempting to anally penetrate the victim.† However, Petitioner and both his daughters explained the presence of the lotion as a treatment for Petitionerís dry hands, which he claimed resulted from contact with Agent Orange during the Vietnam War.†

We find that there is no probative evidence to support the PCR courtís finding that absent counselís error, there is no reasonable probability that the result of the trial would have been different.† Had counsel objected to Witnessís testimony, Daughter would have been called prior to Witnessís testimony to deny or explain the statement.† If Daughter had not been called, Witnessís testimony would be barred by Rule 613(b).† Instead, Witness was allowed to testify and was the next to last witness the jury heard.† Moreover, Daughter was never called to rebut Witnessís testimony.† It is reasonably probable that the jury inferred from Daughterís failure to testify regarding Witnessís assertion, an admission that Witnessís statement was true.†

CONCLUSION

This Court must affirm if there is any probative evidence to support the judgeís factual findings and conclusions. McCray, supra.† We find there is no probative evidence to support the finding that Petitionerís counsel was not ineffective in failing to object to Witnessís testimony.† Accordingly, we reverse the finding and remand for a new trial.

WALLER, BEATTY and KITTREDGE, JJ., concur.† TOAL, C.J., dissenting in a separate opinion.

Chief Justice Toal:† I respectfully dissent.† In my view, evidence in the record supports the PCR courtís ruling and I would therefore affirm the decision.†

Although I agree with the majority that the Witnessís testimony was improper, in my view, Petitioner failed to show prejudice.† The Witnessís testimony, in which she told the jury that the Victimís sister stated to her that she ďbelievedĒ her father had sexually abused the Victim, was extremely brief and the solicitor did not mention this testimony in closing arguments.† In my opinion, the Witnessís testimony regarding the sisterís statements had little or no impact on the juryís decision because the jury clearly believed the testimony of the eyewitness to the crime, the Victim.† For these reasons, I believe that Petitioner failed to show a reasonable probability that the result of the trial would have been different, and I would therefore affirm the PCR courtís decision denying relief.†