Hughes v. State
Hughes v. State
Opinion of the Court
We granted a writ of certiorari to review the denial of Post-Conviction Relief (PCR) to Petitioner, James P. Hughes (Hughes). We affirm.
FACTS
Hughes was indicted for assault and battery with intent to kill (ABIK), possession of a weapon during a violent crime, and pointing a firearm in connection with events which occurred in Kingstree on September 1, 1994.
Shaw and Hughes were jointly tried on April 4-5,1995.
Hughes sought PCR, alleging counsel was ineffective in failing to investigate the evidence against him (on the charges of ABIK and possession of a weapon during a violent crime), and failing to move to sever his trial from Shaw’s. The PCR court denied relief. We affirm.
ISSUE
Did the trial court err in ruling counsel was not ineffective in failing to move for a severance?
DISCUSSION
“To establish a claim of ineffective assistance of trial counsel, a PCR applicant has the burden of proving counsel’s representation fell below an objective standard of reasonableness and, but for counsel’s errors, there is a reasonable probability that the result at trial would have been different____ A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.” Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Thus, a PCR applicant must show both error and prejudice to win relief. Scott v. State, 334 S.C. 248, 513 S.E.2d 100 (1999). The burden is on the PCR applicant to prove the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). An appellate court must affirm the PCR court’s decision when its findings are supported by any evidence of probative value. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
Criminal defendants who are jointly tried are not entitled to separate trials as a matter of right. State v. Dennis, 337 S.C. 275, 281, 523 S.E.2d 173, 176 (1999). A defendant who alleges he was improperly tried jointly must
Here, the thrust of Hughes’ argument is that he should not have been tried with his co-defendant Shaw because evidence concerning the ABIK and possession of a weapon during a violent crime was irrelevant to the sole crime with which he was charged, i.e. pointing a firearm. Hughes asserts he would have been found not guilty of pointing a firearm if the trials had been severed. We disagree. There is simply not a reasonable probability that, had the charges been severed, the jury would have found Hughes not guilty of pointing a firearm.
As noted previously, the charges of ABIK and possession of a weapon during a violent crime were nol prossed by the solicitor at the close of the state’s case. At this point, the court instructed the jury that those counts no longer existed with regard to Hughes.
We ascertain no evidence presented at the joint trial which would not have been presented at an independent trial of Hughes. Given that the only two eyewitnesses testified Hughes walked up, pointed a gun at Shaw’s throat, and threatened to kill him, it is patent this evidence would have come out at an independent trial. Therefore, the only evidence of which Hughes really complains is evidence that Shaw shot at Hughes, missing him and accidentally hitting Nesmith (i.e., the ABIK). However, as both Shaw and Nesmith testified Hughes was in no way involved in the ABIK, we fail to see how this evidence was in any way prejudicial to Hughes. Moreover, since Hughes’ sole defense to the charge of pointing a firearm was that it was a fabrication by Shaw to exculpate himself of liability for the ABIK, it is likewise patent evidence of the ABIK would have been presented at a separate trial.
We have consistently held that an applicant seeking relief on PCR must demonstrate not only error, but also prejudice. See Humbert v. State, 345 S.C. 332, 548 S.E.2d 862 (2001) (Court -will not presume prejudice where defendant was tried wearing prison garb and shackles); Brown v. State, 340 S.C. 590, 533 S.E.2d 308 (2000) (defendant who was not advised of right not to testify must demonstrate prejudice on PCR); Davis v. State, 326 S.C. 283, 486 S.E.2d 747 (1997) (declining to presume prejudice where trial counsel did not conduct an investigation of the charges against his client and admitted he was unprepared for trial). We adhere to this precedent and decline to presume prejudice under the limited facts of this case.
We do not, by our opinion, imply that a defendant jointly tried with a co-defendant/victim would never be entitled to PCR. On the contrary, if a defendant is able to demonstrate prejudice from such a joint trial,
The ruling of the PCR judge is
AFFIRMED.
. Although Hughes was initially indicted only for pointing a firearm, the indictment was amended before the grand jury when "evidence came forward, both [he and his co-defendant] were shooting.”
. Shaw was indicted for ABIK and possession of a weapon during a violent crime.
. Shaw was convicted of ABIK and possession of a weapon during commission of a violent crime and sentenced to 15 years, and five years, respectively.
. We assume, arguendo, counsel’s representation fell below an objective standard of reasonableness in failing to move for a severance since, had he learned that neither Shaw nor Nesmith would inculpate Hughes of the ABIK charges, a severance could likely have been obtained prior to trial. The issue remains, however, whether Hughes was in any way prejudiced by the lack of a severance.
. In its final charge, the court reiterated that Shaw was charged with ABIK and possession of a weapon during a violent crime, and Hughes
. Hughes makes no claim that an alternate defense would have been presented at an independent trial.
. If, for example, Shaw had given a statement inculpating Hughes and then refused to testify, there could have been Confrontation Clause problems with a joint trial. Since, however, Shaw testified and was subject to cross-examination, no such right was compromised in this case.
Dissenting Opinion
(dissenting):
I respectfully dissent from the majority’s opinion. Under the particular facts of this case, the act of trying Hughes with Shaw, who was the victim of Hughes’s crime of pointing a firearm, as his co-defendant was inherently prejudicial.
While it is true criminal defendants who are jointly tried are not entitled to separate trials as a matter of right,
. State v. Dennis, 337 S.C. 275, 523 S.E.2d 173 (1999).
Concurring Opinion
(concurring separately):
I agree with the result reached by the majority. I write separately to express my concern about the potential for abuse in the joint prosecution of defendants similarly situated to these.
Notwithstanding the above, Hughes has failed to meet his burden of showing a reasonable probability that the outcome of the proceeding would have been different had separate trials been conducted, and therefore, is not entitled to post-conviction relief.
. Whether this was apparent to the prosecution prior to trial or whether it only became apparent at the close of the state’s case is unclear. Given the total lack of evidence of ABIK against Hughes, the circumstances are strongly suspect.
. I am less convinced that trial counsel was not ineffective in failing to request that the charges against Hughes be severed and separate trials had on the ABIK and pointing and presenting a firearm charges. Since that issue is not before the Court, it need not be addressed.
Reference
- Full Case Name
- James P. HUGHES, Petitioner, v. STATE of South Carolina, Respondent
- Cited By
- 10 cases
- Status
- Published