Ard v. Catoe, 26282.

Decision Date05 March 2007
Docket NumberNo. 26282.,26282.
Citation642 S.E.2d 590
CourtSouth Carolina Supreme Court
PartiesJoseph Lee ARD, Respondent, v. William D. CATOE, Commissioner, South Carolina Department of Corrections, Petitioner.

William N. Nettles, of Sanders & Nettles, of Columbia, and Christopher Seeds, of New York, for Respondent.

Justice WALLER:

We granted the State's petition for a writ of certiorari to review the grant of post-conviction relief (PCR) to respondent, Joseph Lee Ard, who was sentenced to death for killing his pregnant girlfriend, Madalyn Coffey, and their unborn son. We affirm the PCR court's grant of a new trial based on ineffective assistance of trial counsel.


On April 23, 1993, at approximately 5:30 a.m., Coffey died from a single gunshot wound to her forehead. She was 17 years old and 35 weeks pregnant at the time; the viable fetus died from a lack of oxygen. There were no eyewitnesses to the shooting. Respondent was tried for two counts of murder.

During the guilt phase of trial, the State presented over 20 witnesses. Witnesses for the State testified they heard respondent threaten to kill Coffey and that he told Coffey he wished she and the baby were dead. Respondent's friend, Jay Johns, testified that he was with respondent and Coffey in the trailer just before the shooting, but had gone outside "to get a beer" when he heard "a pop." Johns went back inside the trailer; when Johns asked respondent what happened, he said "I think I killed her." Johns called 911, and respondent fled the scene.1

SLED agent Joseph Powell testified for the State as an expert in gunshot residue analysis. Two types of samples, alcohol swabs and scanning electron microscope (SEMS) tabs, had been taken from Coffey's hands, Powell stated that he first "ran the swabs ... to see if we could find any amount, any elevated elements of materials. The elements we are looking for are materials call[ed] barium, antimony and lead." Powell explained that these are the three elements which are found in gun primer residue. Powell testified that after the initial test on the swabs was complete, "[t]he values were not sufficient for a positive cause that there was gunshot residue, but there was an indication." (Emphasis added).

Therefore, Powell ran the SEMS test to see if there were "any actual physical particles that would have been found from gunshot residue." Powell stated that there were "several particles which were very interesting, but there was not any or enough material for us to be able to call gunshot residue; thus, [Coffey] ha[d] no gunshot residue on her hands." (Emphasis added). The following colloquy then occurred:

Q. When you say no gunshot residue on her hands, can you rule out her having pulled the trigger on that gun?

A. There is no gunshot residue on her hands. If she had fired the weapon, the material that would have come from this gun would have had to have been removed before the test would have been administered.

Trial counsel did not cross-examine Powell.2

Former SLED Agent Michael Avery also testified regarding gunshot residue. Avery stated that he was Powell's supervisor when the samples in this case were tested.3 Avery stated he reviewed Powell's examination and confirmed Powell's conclusions. In addition, the State elicited the following testimony:

Q. As a matter of fact, the defense has since hired you to review that?

A. Yes, sir.

Q. Again. And you still confirm Joe Powell's conclusions?

A. Yes, sir, the conclusion of the test results, which was no gunshot residue.

The defense at the guilt phase put up over 10 witnesses. Several defense witnesses testified that respondent was excited about becoming a father and respondent and Coffey acted like they loved each other.4 There was also testimony respondent did not threaten or abuse Coffey and that he was planning on getting a ring for, and marrying, Coffey.

Respondent took the stand in his own defense and testified Coffey's killing was an accident. He explained that he and Coffey were in a motel bathroom while Johns and his girlfriend were fighting in the motel room. Coffey was upset and crying because respondent had been spending time in Atlanta with another woman. When Johns and respondent went to leave the motel room, Coffey asked if she could go with respondent; he agreed. Johns, respondent, and Coffey then left the motel room and drove to Johns' trailer. Respondent testified that Coffey sat on the couch while he kneeled on the floor. When respondent told Coffey he was going to Atlanta the next day and she could not go with him, respondent stated that Coffey "got real upset." Respondent testified that Coffey had his gun in her hand and told him she did not love him. When respondent denied he was going to Atlanta to be with the other woman named Maurer, Coffey said "You're lying. You just want to go down there and screw Maurer some more. You don't love me or the baby. We might as well be dead." Respondent testified that she then pulled the hammer back on the pistol, cocking the gun.5 According to respondent, he tried to lean forward to grab the gun, Coffey "turned real quick" and when he grabbed the cylinder gap of the gun, "it went off."

Coffey fell over. Respondent tried to pick her up, got "stuff and blood" on his hands, "freaked out" and fled to Atlanta. After three days of taking pills, sleeping, and crying,6 respondent returned to Columbia with the gun, and his parents took him to an attorney. As they were making arrangements in the attorney's office to turn respondent in to the Lexington County Sheriff's Department, he "blacked out" and woke up in the hospital.

In the State's closing argument, the State argued that respondent killed his victims with malice. Specifically, the State argued to the jury that the gunshot residue tests were important, and because there was no residue on Coffey's hands, respondent's accident defense did not hold up:

... Why are these so important? Because if there is no gunshot residue on her hands, as Joe Powell told you, then her hand wasn't on that gun when it went off. Her hand wasn't near that gun when it went off. Her hands were somewhere aside from on this gun.

That's why they are so important. They can't attack Joe Powell. They can't attack him because their own expert, Mike Avery, was hired by the defense to review Mr. Powell's work.

[Objections by defense, which were overruled.]

... He found no fault with Joe Powell's findings, that those findings were correct.

Now, if the findings are correct, if the findings from these are correct, then the only thing they can do is attack the way it's collected. If they can't attack the results, they have got to attack the way it's collected.7


Why is it so important that these tests be discounted? Because if they can't discount Joe Powell, if they can't discount those tests, then they can't get past the fact that there is no residue and then everything else they have raised is absolutely irrelevant, everything.... They have got to—got to—discount the value of those tests.

... No gunshot residue. None. What does that tell y'all? What does that tell y'all?

In addition to murder, the trial court charged the jury on involuntary manslaughter and accident. After one hour of jury deliberations, the jury requested a "definition of" involuntary manslaughter and murder; the trial court recharged the jury on those two offenses. After another 45 minutes of deliberation, the jury found respondent guilty of the murder of Coffey and the unborn child. After a lengthy sentencing phase with numerous witnesses for both sides, the jury returned a recommendation of death.

Respondent appealed, raising four issues related only to the sentencing phase. This Court affirmed the death sentence.8 State v. Ard, 332 S.C. 370, 505 S.E.2d 328 (1998) (Moore, J., concurring in separate opinion in result only; Gregory, A.J., concurring in majority opinion in result only).

Respondent filed for PCR. The PCR court found that trial counsel had failed to adequately investigate and challenge the State's gunshot residue evidence and therefore granted respondent a new trial based on ineffective assistance of counsel.9


Did the PCR court err in finding ineffective assistance of counsel based on trial counsel's failure to adequately investigate and challenge the State's gunshot residue evidence?


The State argues the PCR court erred in finding ineffective assistance of trial counsel. Specifically, the State argues trial counsel were not deficient because they reasonably investigated the gunshot residue evidence by hiring former SLED agent Avery as a gunshot residue expert and reasonably relying on Avery's advice. The State further argues that even assuming deficiency, there is no prejudice. We disagree.

We find the PCR court's factual findings regarding deficiency and prejudice are well supported by the evidence presented at the PCR hearing. A review of the relevant evidence is in order.

After filing for PCR, respondent deposed Powell, the SLED gunshot residue expert, in October 2001; Powell testified for the State at the PCR hearing in April 2004. At both the deposition and the hearing, Powell stated that his testimony at trial was based on the SLED protocol in use at that time. Based on this protocol, he accurately reported a finding of negative for gunshot residue. Powell explained that SLED's standard at the time was to report a positive conclusion of gunshot residue only if perfectly round gunshot residue particles were detected, which specifically meant spherical particles containing barium, antimony and lead. However, he further explained that as time went on, there were concerns that when non-round...

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