Briggs v. State, Appellate Case No. 2014-000693

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JUSTICE FEW
• Citation: 421 S.C. 316,806 S.E.2d 713
• Parties: Anthony Neil BRIGGS, Respondent, v. STATE of South Carolina, Petitioner.
• Decision Date: 25 October 2017
• Docket Number: Appellate Case No. 2014-000693,Opinion No. 27745

421 S.C. 316
806 S.E.2d 713

Anthony Neil BRIGGS, Respondent,
v.
STATE of South Carolina, Petitioner.

Appellate Case No. 2014-000693
Opinion No. 27745

Supreme Court of South Carolina.

Submitted June 15, 2017
Filed October 25, 2017

Attorney General Alan McCrory Wilson and Assistant

Attorney General Alicia A. Olive, both of Columbia.

Jeremy Adam Thompson, Law Office of Jeremy A. Thompson, LLC, of Columbia.

JUSTICE FEW :

This is a post-conviction relief (PCR) action. The PCR court granted relief and ordered a new trial. We affirm.

421 S.C. 320

I. Procedural History

The State indicted Briggs for criminal sexual conduct with a minor in the first degree and lewd act upon a child,¹ and called the case to trial on August 23, 2010. The victim testified Briggs touched her "private" with his "private" and with his

421 S.C. 321

mouth, and the jury watched video of two forensic interviews in which the victim explained what happened. Using a special interrogatory verdict form, the jury found Briggs performed "anal intercourse," "cunnilingus," and "other intrusion" on the victim. The trial court sentenced Briggs to life in prison. The court of appeals affirmed.

806 S.E.2d 716

State v. Briggs, Op. No. 2012-UP-323, 2012 WL 10842051 (S.C. Ct. App. filed May 30, 2012).

Briggs then filed this action for PCR. He claimed, among other things, his trial counsel was ineffective in permitting the forensic interviewer to give opinion testimony that she believed the victim's accusations to be true. The PCR court granted relief, vacated the convictions, and remanded to the court of general sessions for a new trial. We granted the State's petition for a writ of certiorari to review the PCR court's ruling.²

II. Deficient Performance

Briggs' primary claim of ineffective assistance of counsel relates to the testimony of Michele Arroyo-Staggs, who conducted the two forensic interviews of the victim. At trial, the State called Arroyo-Staggs to testify about those interviews, and moved to qualify her as an expert witness in child abuse assessment.

The PCR court found trial counsel—Max B. Singleton of Spartanburg—was deficient in three respects as to the testimony of Arroyo-Staggs. First, Singleton failed to object to the qualification of Arroyo-Staggs as an expert witness. Second, Singleton did not object to her direct examination testimony that improperly bolstered the credibility of the victim. Third, Singleton intentionally elicited additional improper bolstering testimony from Arroyo-Staggs on cross-examination in which she explained the reasons she believed the victim's accusations against Briggs. The PCR court found Singleton's performance did not meet the objective standard of reasonableness by which we judge the performance of counsel under the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). See Williams v. State, 363 S.C. 341, 343, 611 S.E.2d 232, 233 (2005) (stating the first prong of

421 S.C. 322

the Strickland test requires the applicant to prove "counsel's representation fell below an objective standard of reasonableness" (citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693 )).

A. Improper Bolstering Testimony

We begin with the PCR court's second finding, that Singleton was deficient for not objecting when Arroyo-Staggs gave improper bolstering testimony on direct examination. The PCR court focused on four points in Arroyo-Staggs' testimony. First, Arroyo-Staggs explained to the jury that before the interviews, she stressed to the victim the importance of telling the truth. Second, Arroyo-Staggs testified to her opinion the victim had not been coached. Third, Arroyo-Staggs told the jury "my role is to always find out ... whether or not the child is able to know the difference between a truth and a lie." On this point, the solicitor asked, "Do you make an assessment to determine whether or not the child understands truth and lie before you do [the interview]," and she replied, "That's correct." Fourth, when the solicitor asked Arroyo-Staggs to "describe for the jury what a forensic interview is," Arroyo-Staggs answered, "A forensic interview is an assessment that is conducted ... for the purpose of finding out if something happened or didn't happen." Similarly, when asked how she "assess[es] a child's competency to do a forensic interview," Arroyo-Staggs testified, "I base a lot of it on my experience and my knowledge and my training in reference to the developmental stages to figure out what has occurred."

In recent years, we have decided many cases on the question of the permissible limits of a forensic interviewer's testimony in the context of the prohibition against improper bolstering. See, e.g., State v. Anderson, 413 S.C. 212, 776 S.E.2d 76 (2015) ; State v. Chavis, 412 S.C. 101, 771 S.E.2d 336 (2015) ; State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013) ; State v. Whitner, 399 S.C. 547, 732 S.E.2d 861 (2012) ; State v. Jennings, 394 S.C. 473, 716 S.E.2d 91 (2011). Under the holdings of those cases, the PCR court was correct to conclude Singleton should have objected to at least three of the categories of testimony listed. The State argues, however, the standards made clear in those cases were not so clear when Briggs was tried in 2010. Thus, the State argues, Singleton's failure to object was reasonable under the circumstances

806 S.E.2d 717

that existed at the time. This is a forceful argument, as we may not judge the reasonableness of counsel's performance by standards that developed later. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.").

As to the PCR court's first point, the State is correct. In 2015 in Anderson, we held, "There is to be no testimony" before the jury from a forensic interviewer about instructing the victim on "the importance of telling the truth" because this testimony "necessarily conveys to the jury that the interviewer and law enforcement believe the victim and that their beliefs led to the defendant's arrest, these charges, and this trial, thus impermissibly bolstering the minor's credibility." 413 S.C. at 221, 776 S.E.2d at 80. In State v. Douglas, 380 S.C. 499, 671 S.E.2d 606 (2009), however, we held that a forensic interviewer's explanation to the jury about the importance of telling the truth was not improper bolstering. 380 S.C. at 504, 671 S.E.2d at 609. The witness in Douglas told the jury "we talk a lot about telling the truth and telling a lie and we make an agreement with each other that I will tell her the truth and that she will tell me the truth, if we get past that, if the child agrees to do that, we go on." 380 S.C. at 501, 504, 671 S.E.2d at 607, 609. We disagreed this was "vouching for Victim's veracity" and held, "There is no evidence whatsoever [the forensic interviewer] believed the Victim to be telling the truth." 380 S.C. at 504, 671 S.E.2d at 609. On this point, therefore, Singleton's decision not to

421 S.C. 323

object was reasonable under the circumstances that existed at the time.

Our decision in Douglas makes clear, however, that a forensic interviewer may not be permitted to give testimony that improperly bolsters the credibility of the victim. We decided Douglas on appeal from a ruling by the court of appeals that recognized improper bolstering testimony is inadmissible. See State v. Douglas, 367 S.C. 498, 520, 626 S.E.2d 59, 71 (Ct. App. 2006) ("The only reasonable inference the jury could have drawn from Herod's testimony is that she believed the victim told the truth."), aff'd in part, rev'd in part, 380 S.C. 499, 671 S.E.2d 606.

421 S.C. 324

Our decision was not to disagree with the principle that improper bolstering testimony is inadmissible, but simply to disagree that the specific testimony at issue in that case was improper bolstering.

We also made the inadmissibility of improper bolstering clear in Smith v. State, 386 S.C. 562, 689 S.E.2d 629 (2010) —six months before Briggs' trial. In Smith, we found trial counsel was ineffective for not objecting to testimony by a forensic interviewer that improperly bolstered the victim's credibility. 386 S.C. at 569-70, 689 S.E.2d at 633. We explained, "The forensic interviewer ... testified without objection that she found the Victim's statement ‘believable’ and stated the Victim had no reason ‘not to be truthful.’ " 386 S.C. at 564, 689 S.E.2d at 631. We held "the forensic interviewer's ... opinion testimony improperly bolstered the Victim's credibility," 386 S.C. at 569, 689 S.E.2d at 633,³ and granted a new trial, 386 S.C. at 570, 689 S.E.2d at 633. We stated "we can discern no defensible basis for trial...