Smalls v. State
Smalls v. State
Opinion
**178 In this post-conviction relief (PCR) case, we agree with the court of appeals' finding that trial counsel was deficient, but disagree that the State presented overwhelming evidence of guilt that precluded a finding of prejudice under the second prong of Strickland v. Washington . We find the evidence was not overwhelming, and reverse the court of appeals' finding that counsel's errors resulted in no prejudice.
**179 I. Facts and Procedural History
At almost midnight on May 21, 2000, Jim Lightner and Eugene Green were closing the Bojangles restaurant on Elmwood Avenue in Columbia when a man charged in the door wielding a shotgun. The man forced Lightner to the back of the restaurant to open the safe. When they went to the back, Green escaped out the front door and ran across Elmwood to a gas station to call the police. While Green was on the phone with police, he saw the man walk out the side service door of the Bojangles carrying the shotgun in one hand and a white bag in the other. The man walked out of a wooden gate near the back of the parking lot just as a police cruiser pulled up to the front of the Bojangles. Green told the police to "make a left at the Lizard's Thicket," which would take the officer to where the man exited the wooden gate. When Green saw the cruiser make the left, he said "you got him." Although the officers were unable to find the suspect at that time, they did find a twelve-gauge pump-action shotgun and a white bag containing $1,900 just outside the gate.
Two fingerprint experts later examined the shotgun and determined that one of several prints on the gun belonged to Smalls. After securing a warrant for Smalls' arrest, Investigator Joe Gray drove to Smalls' house. When he saw Smalls walking down a nearby street carrying a child in his arms, Gray stepped out of his vehicle and asked Smalls about the robbery of the Bojangles. Gray testified Smalls "dropped the child" and "began running." Another officer found Smalls *839 later that evening hiding in bushes a few blocks away.
Investigator Paul Mead prepared a photographic lineup that he presented to Lightner. Investigator Gray presented the same lineup to Green. Four days after the robbery, Green identified Smalls. Lightner, however, could not identify Smalls, but did narrow the suspects down to two people, one of whom was Smalls.
At trial in May of 2002, the State introduced Green's pretrial identification of Smalls. Green testified and identified Smalls in the courtroom. The State introduced the fact Lightner narrowed the suspects down to Smalls and one other person. Investigator Gray identified Smalls as the person who dropped the child and ran when he was asked about the **180 robbery. Both fingerprint experts testified one of the fingerprints on the shotgun belonged to Smalls. The jury convicted Smalls of armed robbery, and the trial court sentenced him to twenty-five years in prison. The court of appeals dismissed his appeal in an unpublished opinion. State v. Smalls , Op. No. 2004-UP-315 (S.C. Ct. App. filed May 13, 2004).
Smalls filed an application for PCR alleging he received ineffective assistance of counsel. The PCR court first held a hearing in 2007. The court held the record open to allow PCR counsel time to investigate the circumstances under which the State dismissed a carjacking charge against Green on the morning of Smalls' trial. The hearing was not reconvened until 2012. The PCR court described the issue regarding the carjacking charge as not only one of ineffective assistance of counsel, but also whether "the State was deceptive" in representations made to the trial court and trial counsel. 1 The PCR court denied relief.
We transferred Smalls' petition for a writ of certiorari to the court of appeals pursuant to Rule 243(l) of the South Carolina Appellate Court Rules, and the court of appeals granted the petition. The court of appeals then found trial counsel's performance was deficient regarding the carjacking charge and in two other instances.
Smalls v. State
,
II. Standard of Review
Our standard of review in PCR cases depends on the specific issue before us. We defer to a PCR court's findings of fact and will uphold them if there is evidence in the record to support them.
Sellner v. State
,
III. Deficient Performance
To prove trial counsel's performance was deficient, an applicant must show "counsel's representation fell below an objective standard of reasonableness."
Williams v. State
,
A. Dismissal of Green's Carjacking Charge
During a pretrial hearing on the morning of trial, the solicitor asked the trial court to make preliminary rulings on whether Green's prior convictions would be admissible to impeach him under Rule 609 of the South Carolina Rules of Evidence. The trial court ruled Green's convictions for distribution of crack cocaine, use of vehicle without owner's consent, and possession of a stolen motor vehicle were admissible. Trial counsel then asked about the pending carjacking charge, "He has a pending charge, Your Honor, but I don't know if I am allowed to go into that." The solicitor informed the trial court that Green's carjacking charge had been dismissed that morning. Apparently not recognizing that the dismissal of the charge was potentially stronger evidence of bias than the charge itself, trial counsel raised no further argument on the issue, and did not ask the trial court to make a ruling as to whether counsel would be permitted to use the carjacking charge or its dismissal to impeach Green. 3
Evidence of a witness's bias can be compelling impeachment evidence, and for that reason "considerable latitude is allowed" to defense counsel in criminal cases "in the cross-examination of an adverse witness for the purpose of testing bias."
State v. Brown
,
The fact Green faced a carjacking charge that was dismissed on the morning of trial was strong evidence of Green's bias, and counsel's failure to cross-examine him on this point fell well below the "objective standard of reasonableness" by which we judge the performance of counsel.
**184
Williams
,
If trial counsel had attempted to cross-examine Green on the carjacking charge, she would have demonstrated that the State dismissed a charge that carried up to twenty years in prison
4
on the morning of trial in an apparent effort to secure Green's favorable testimony. If the trial court ruled against her, she was required to make a proffer.
See
State v. Schmidt
,
B. Prior Burglary
In an effort to show an innocent explanation for Smalls' fingerprint on the shotgun, *842 trial counsel cross-examined Investigator Mead as follows,
Q: Was the gun stolen? Had it been stolen?
A: It was.
....
Q: How long before had that gun been stolen?
A: It was taken in a burglary of the individual's residence. The gun was reported stolen on August 28, 1999.
....
Q: So a little less than a year before this occurred?
A: Yes, ma'am.
Q: Do you know if that case was ever solved?
A: To my knowledge, no.
The State responded on redirect,
Q: Investigator Mead, first with regards to the shotgun, you were asked where it originally came from?
A: Yes, sir.
Q: To make it perfectly clear, [the shotgun] wasn't stolen from the defendant's house in 1999?
A: No, it was not.
Q: He burglarized somebody else's house?
A: That's correct.
Q: So is there any reason why his fingerprint would be on this weapon-
A: Not that I know of, sir.
Q: -other than he robbed the Bojangles?
A: That's correct.
The State's overall line of questioning on redirect appears to have been offered for the legitimate purpose of refuting
**186
defense counsel's suggestion of an innocent explanation for the fingerprint. However, the question, "He burglarized somebody else's house," and the answer "That's correct," did not serve any legitimate purpose. Rather, it was an improper effort to introduce evidence that Smalls committed another crime.
See
Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."). In addition, the State did not present clear and convincing evidence Smalls committed the prior burglary; in fact, Mead admitted the case was unsolved.
See
State v. Smith
,
C. Opening Statement
In his opening statement, the assistant solicitor told the jury,
Mr. Green ran out of the store when he was left alone up front, across the street, and called 911. The Columbia Police Department responded. Mr. Smalls ultimately took off out of the store with over $1,900 in a plastic bag with the shotgun. The police saw him as he was leaving the store. He ended up getting away that night, but he ended up leaving behind some very important pieces of evidence. He left behind that shotgun, he also left behind the money, in his quest to get away.
The court of appeals found trial counsel was deficient for failing to challenge the State's comment, "The police saw him as he was leaving the store." The court of appeals stated, "We hold trial counsel was deficient for failing to challenge the State's comments either by objecting or by pointing out during the closing arguments that the State failed to prove this assertion."
We certainly agree with the court of appeals that these are two of the options counsel has to deal with a misstatement by the State in opening. However, the simple fact trial counsel does not respond to an incorrect statement made during opening does not render trial counsel's performance deficient. Under certain circumstances, it may be reasonable for trial counsel to simply ignore the misstatement. Such a decision could be based on counsel's assessment the point is minor and **187 inconsequential; perhaps it is debatable whether there is evidence to support the statement; or perhaps the circumstances of the trial-as perceived by trial counsel-unfold in such a way that pointing out the misstatement would no longer be beneficial. *843 Initially, we are not convinced there is no evidence in the record that supports the assistant solicitor's statement. When crime scene investigator Jim Potash was asked where he found the shotgun, he testified, "I was directed there by the officers, saying that they were running behind or chasing-trying to chase a suspect from the business itself. They had indicated to me that they saw the person throw or dispose of on the right-hand side going through a fenced area a plastic bag." Green's testimony that he told the officers to intercept the suspect at Lizard's Thicket also appears to support the assistant solicitor's statement. In addition, the PCR court did not make any specific findings as to whether ignoring the misstatement was deficient. Rather, the PCR court appears to have denied relief on this point only on the basis of no prejudice. The court stated, "There is no merit to this claim, opening statements are not evidence, and the jury was told several times by the judge and the attorneys to base their verdict on the evidence only."
With no findings by the PCR court, and in light of the testimony of Potash and Green, we simply cannot say trial counsel was deficient for not addressing this remark in the State's opening that was never mentioned again.
See
Stone v. State
,
We agree with the court of appeals' finding that Smalls proved trial counsel was deficient in two respects.
IV. Prejudice-Overwhelming Evidence of Guilt
We turn now to the second prong of Strickland -prejudice. The State argues Smalls failed to prove prejudice in this case because the State presented overwhelming evidence of Smalls' guilt. We disagree.
**188
To satisfy the prejudice prong, an applicant must demonstrate "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different."
Ard v. Catoe
,
In determining whether the applicant has proven prejudice, the PCR court should consider the specific impact counsel's error had on the outcome of the trial.
See
Strickland
,
In this context, this Court has used the phrase "overwhelming evidence of guilt." In
Geter v. State
,
Ordinarily, the existence of "overwhelming evidence" does not automatically preclude a finding of prejudice. In
Simmons v. State
,
[B]ecause the issue is whether the solicitor's improper argument prevented the jury from fairly considering [its sentencing options], the overwhelming evidence of petitioner's guilt does not eliminate the reasonable probability that the result of the trial would have been different had trial counsel objected to portions of the solicitor's closing argument.
In
Smith v. State
,
Simmons and Smith illustrate the proper consideration of the strength of the State's case in the PCR court's analysis of prejudice: it is one significant factor the court must consider-along with the specific impact of counsel's error and other relevant considerations-in determining whether the applicant has met his burden of proving prejudice. In this case, however, neither the PCR court nor the court of appeals appears to have considered the specific impact of counsel's error. Rather, both courts used what they considered "overwhelming evidence of guilt" as a categorical bar that precluded a finding of prejudice, without the necessity of separately considering the impact of counsel's error.
In rare cases, using "overwhelming evidence" as a categorical bar to preclude a finding of prejudice is not error. We did it, for example, in
Rosemond v. Catoe
,
However, for the evidence to be "overwhelming" such that it categorically precludes a finding of prejudice-as we found it did in
Rosemond
and
Harris
-the evidence must include something conclusive, such as a confession, DNA evidence demonstrating guilt, or a combination of physical and corroborating evidence so strong that the
Strickland
standard of "a reasonable probability ... the factfinder would have had a reasonable doubt" cannot possibly be met. In
Franklin v. Catoe
,
**192
In this case, the court of appeals relied on the following evidence in reaching its conclusion the evidence was overwhelming: (1) Green identified Smalls during a photographic lineup; (2) Lightner was able to narrow the suspects down to two-one of whom was Smalls-during a photographic lineup; (3) Smalls' fingerprint was on the shotgun; and (4) Smalls dropped a child and ran from Investigator Gray, who approached Smalls and told him he was the subject of an armed robbery investigation. 415 S.C. at 501-02,
We begin our review of the evidence with Lightner, who testified he "spent a good bit of time with this person" and he "saw him pretty well." The fact Lightner could only narrow it down to two people in the photographic lineup undermines-not supports-the notion of overwhelming evidence. In addition, Investigator Mead testified that when he showed Lightner the lineup, Lightner "stated that if he had to pick a particular one, he would say [the other person]," not Smalls.
Next, Smalls dropped the child and fled from Investigator Gray. Evidence of flight is evidence of guilt, but we have been hesitant to assign it high probative value. In fact, in
State v. Grant
,
*846
(on review of the denial of a directed verdict motion,
**193
reversing the court of appeals' finding the State's evidence (including evidence of flight) merely raised a suspicion of guilt,
7
and stating flight is "at least
some
evidence") (emphasis added);
Ballenger
,
Smalls' fingerprint on the shotgun is the strongest evidence of Smalls' guilt. If the fingerprint experts correctly identified the fingerprint, it conclusively proves Smalls handled the shotgun at some point.
Finally, we turn to Green. In his closing argument, the solicitor stated, "The first piece of evidence I want to talk about is Eugene Green." The solicitor then argued two points to support Green's credibility. First, as to his trial testimony, the solicitor stated, "Eugene Green put his hand on this Bible, faced that man who shoved a shotgun in his chest, and told you under oath, no doubt about it, that's the man who robbed the Bojangles; no doubt about it whatsoever. That's proof beyond a reasonable doubt by itself."
Second, the solicitor belittled the significance of Green's prior convictions in assessing Green's credibility. "You don't think it took guts for Eugene Green to get up on this witness stand, and take an oath, and testify?" Then, referring specifically to Green's prior convictions for drug distribution and possession of a stolen motor vehicle, the solicitor argued,
You think he was proud ...? But you heard about that because [Green] had the guts to take that witness stand and face the man that put a shotgun in his face.... And because he had a drug problem seven years ago and a possession of stolen vehicle, are we going to make it alright to shove a shotgun in his chest? ... And how does that affect his credibility ...? Not at all, not at all. That's proof beyond a reasonable doubt, Eugene Green's testimony.
**194 As we have explained, the strength of the evidence must be considered along with the specific impact of counsel's errors. When potentially strong evidence such as the fingerprint and Green's identification is tainted by a significant error of counsel, it should not be considered as part of "overwhelming evidence" that precludes a finding of prejudice. Here, the importance we are willing to attribute to the fingerprint on the shotgun is affected by counsel's failure to object to the State's improper question and Investigator Mead's inadmissible answer. Although the existence of the fingerprint would have been admitted into evidence even without counsel's error, the State chose to respond to counsel's suggestion of an innocent explanation for the fingerprint by improperly introducing evidence Smalls committed an uncharged and unproven burglary, impugning his character in violation of Rule 404(b). Trial counsel's failure to object enabled the State to make this improper explanation.
As to Green, the State's emphasis on his identification of Smalls as its "first piece *847 of evidence" must be balanced against counsel's failure to impeach Green with compelling evidence of bias. If trial counsel had cross-examined him on the carjacking charge, and Green testified as he did in the second PCR hearing, his credibility before the jury would have been severely damaged. We do not believe the jury could have heard about the dismissal of the charge without seriously questioning the credibility of everything Green said, including his pre-trial identification of Smalls as the man who committed the robbery. 8
Eliminating Green's tainted testimony and identification from consideration, and considering the fingerprint in light of the solicitor's improper accusation that Smalls stole the shotgun, we are left with only Lightner's inability to identify Green, which undermines the notion of overwhelming evidence,
**195
and Smalls' flight, which is marginally probative and thus has little significance in our analysis. We find the evidence that is not tainted by counsel's errors does not meet the standard for overwhelming evidence we described in
Franklin
-"no reasonable possibility [counsel's errors] contributed in any way to his convictions."
Because we find the evidence is not overwhelming, Smalls' individual claims of deficient performance must be analyzed separately to determine whether either of them gives rise to a reasonable probability the result of the trial would have been different without counsel's error. Although the PCR court found overwhelming evidence precluded a finding of prejudice, it did not make specific findings whether counsel's error as to the carjacking charge or prior burglary prejudiced Smalls.
See
Rule 52(a), SCRCP ("In all actions tried upon the facts without a jury ..., the court shall find the facts specially and state separately its conclusions of law thereon....");
Hall v. Catoe
,
Ordinarily, the PCR court should make findings of fact on this issue, not us.
See
Simmons v. State
,
**196 V. Conclusion
We agree with the court of appeals' finding that trial counsel was deficient in two instances. However, we REVERSE the court of appeals' finding that the evidence of guilt is overwhelming, and find counsel's errors prejudiced Smalls. We remand to the court of general sessions for a new trial.
KITTREDGE, Acting Chief Justice, HEARN, JAMES, JJ., and Acting Justice Arthur Eugene Morehead, III, concur.
The PCR court did not make a ruling on the misrepresentation issue and neither party briefed the issue to the court of appeals or this Court.
In numerous cases, this Court has incorrectly stated an appellate court "gives great deference to the PCR court's ... conclusions of law."
See, e.g.
,
Porter v. State
,
At the PCR trial, trial counsel testified she argued to the trial court in chambers that she should be allowed to impeach Green with the fact the charge was dismissed, and the trial court ruled she could not. Such a conference is meaningless in this appeal. When a conference takes place off the record, it is trial counsel's duty to put the substance of the discussion and the trial court's ruling on the record.
See
Foye v. State
,
See
In
Jefferson
, the State of Washington court of appeals quoted
United States v. Robinson
,
See
State v. Ballenger
,
Also, eyewitness identification evidence is not conclusive.
See
Perry v. New Hampshire
,
Reference
- Full Case Name
- Stephen SMALLS, Petitioner, v. STATE of South Carolina, Respondent.
- Cited By
- 86 cases
- Status
- Published