Brown v. State

• Decision Date: 27 July 2009
• Docket Number: No. 26691.,26691.
• Court: South Carolina Supreme Court
• Parties: Brandon Leandre BROWN, Respondent, v. STATE of South Carolina, Petitioner.

680 S.E.2d 909

Brandon Leandre BROWN, Respondent, v. STATE of South Carolina, Petitioner.

No. 26691.

Supreme Court of South Carolina.

Submitted June 24, 2009.

Decided July 27, 2009.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Julie M. Thames, all of Columbia, for Petitioner.

Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Respondent.

Justice BEATTY.

In this post-conviction relief (PCR) case, this Court granted the State's petition for a writ of certiorari to review the PCR judge's order granting Brandon Leandre Brown a new trial for his convictions of first-degree, criminal sexual conduct with a minor (CSC) and transmitting a sexual disease. The State contends the PCR judge erred in finding Brown's trial counsel was ineffective for failing to object to certain comments made by the solicitor during his closing argument. We reverse.

FACTUAL/PROCEDURAL HISTORY

At trial, four witnesses, all of whom either lived across the street or were visiting across the street from Brown's residence on August 4, 2001, testified they observed Brown in his three-year-old stepdaughter's bedroom on top of the child moving his body in a manner that indicated sexual activity. One of the witnesses testified that "[Brown was] humping up and down on her." The witnesses testified they were able to see the incident through the child's bedroom window because the blinds were wide open, the light was on in the bedroom, and it was dark outside at 11:30 p.m. One witness, upon his initial observation, retrieved a pair of binoculars to confirm what he thought he had seen. Based on their observations, the witnesses became upset, called the police, and then went to Brown's residence to assist the child and to confront Brown. All four witnesses testified that when Brown answered the door, he had an erection.

Shortly after the incident, officers with the Timmonsville Police Department responded to Brown's residence. After interviewing the witnesses for approximately two hours, the officers took Brown to the police station where he gave two audio-taped statements. These statements were admitted at trial. In these statements, Brown denied that he intended to sexually assault his stepdaughter; however, he admitted that he became aroused while wrestling with her and that he may have accidentally penetrated her. In his first statement, Brown explained that he just got too close to the child and that his penis "might have hit her a couple of times." In his second statement, Brown stated that it was possible that penetration occurred but that he did not intend to penetrate her. Toward the end of the interview, Brown stated "I came ... into her a couple of times but not intentionally." When questioned at trial about the incident, Brown testified that he was tickling and wrestling with the child but denied that he penetrated her.

Rhonda Turner, Brown's ex-wife and the mother of the child, testified that during the time leading up to the incident and the day of the incident, Brown was unemployed and had access to her daughter during the daytime. In describing her relationship with Brown, she stated that they were married for approximately a year and had a son, who was born on July 4, 2001. Rhonda admitted that she contracted gonorrhea from Brown. She testified that she learned of the STD when her physician's office called her and instructed her to report to the office on the Monday following the August 4, 2001 incident between Brown and her daughter. During that phone call, Rhonda was informed that she had tested positive for gonorrhea and needed to be seen by her doctor. Rhonda delayed this visit for one day because she took her daughter to be medically evaluated on the Monday following the incident. As a result of this evaluation, the child was given a shot for gonorrhea.

When questioned about the incident between Brown and her daughter, Rhonda testified that she spoke with Brown about it at the Timmonsville Police Department. During this conversation, Brown said, "Well, I mean, I may have, you know, been playing with her; and my penis may have fallen out of my boxers; and I may have gotten erected; and her panties may have gone to the side." Rhonda, however, testified that when she spoke with Brown again during a telephone conversation he said "he didn't do it."

As part of its case, the State presented Kathy Saunders as an expert witness in "child sexual assault" and "child sexual abuse." Saunders testified that she examined the child two days after the incident because she was out-of-town and unable to evaluate the child when she was taken to the emergency room immediately after the incident with Brown. As a result of her examination, Saunders discovered "copious" amounts of green discharge coming from the child's vaginal opening. Saunders characterized this finding as a "classic" symptom of gonorrhea. Although there was no evidence of an acute injury causing vaginal tearing or bleeding, Saunders noted in her examination that there was redness around the child's labia and surrounding tissue. Specifically, Saunders testified "[t]here was some mild redness, with what appeared to be resolution of labial lesions or just some type of contact dermatitis." She further stated the tissue in the surrounding area "appeared kind of red, very thickened or swollen." Saunders indicated that these physical findings could be consistent with "someone penetrating the [child's] labia." In addition to her physical examination, Saunders testified the child's mother told her that the child had recently been wetting the bed, complained of stomach aches and nightmares, and had vaginal discharge. Saunders believed these symptoms could be indicative of sexual abuse.

In addition to Brown's testimony and the testimony of several character witnesses, the defense presented evidence attempting to refute that Brown could have transmitted gonorrhea to the child during the August 4, 2001 incident. Specifically, the defense presented medical records which indicated that Brown had been treated for gonorrhea on May 23, 2001, and July 26, 2001.

In support of its theory, the defense also offered the testimony of Dr. Elizabeth Lynn Harvey Baker-Gibbs, an expert witness on the "diagnosis and treatment of sexual abuse." Dr. Baker-Gibbs testified regarding the type and effectiveness of the medication prescribed for the treatment of gonorrhea. When presented with the facts of the instant case, she opined that if Brown had properly taken his prescribed medication on July 26, 2001, he would not have been contagious after July 29, 2001. Based on these facts, she ultimately concluded that Brown would not have been contagious on August 4, 2001, the date of the incident.

Following motions from counsel, the trial concluded with closing arguments. At end of his closing argument, the solicitor stated:

I embrace my burden because I represent the State of South Carolina. And I think someone said at the beginning of this trial this is trying to protect the rights of people. Well, I tell you what. I'm here to protect the innocent. I'm here to protect [child victim] a four-year-old child now. Three-year-old little child at that time. And I am the last person that you're going to hear speak up for her.

So, I ask you, when you go back in that jury room, you speak up for [child victim]. We can never put her back to where she was before this abuse occurred. But we can make sure that the perpetrator is punished. So when you go back in that jury room to deliberate, ladies and gentlemen, speak up for [child victim].

Brown's trial counsel did not object to these remarks. The jury convicted Brown of first-degree criminal sexual conduct with a minor and transmitting a sexual disease. Subsequently, the trial judge sentenced Brown to twenty-five years imprisonment for the CSC charge and a concurrent term of thirty days imprisonment for the transmission of a sexual disease charge.

Brown appealed his convictions and sentences to the Court of Appeals. In an unpublished opinion, the Court of Appeals affirmed Brown's convictions and sentences. State v. Brown, Op. No.2004-UP358 (S.C. Ct.App. filed June 4, 2004).

Following the decision of the Court of Appeals, Brown filed a timely PCR application. Once represented by counsel, Brown filed an amended PCR application. In these applications, Brown alleged his trial counsel was ineffective in several respects, including counsel's failure to object to the remarks made by the solicitor in his closing argument.

At the PCR hearing, Brown's counsel asserted the solicitor's comments "to speak up for the victim" amounted to a "Golden Rule" type argument that has been deemed improper by our state appellate courts. Additionally, PCR counsel contended the improper argument was prejudicial because it appealed to the passion and prejudice of the jury by asking the jury to be an advocate for the child victim.

Brown's trial counsel, the only witness called to testify, admitted that an objection should have been made to the solicitor's comments. However, he stated the reason "those statements were not objected to was because I didn't want to exacerbate a bad set of facts to point out to the jury something that would already aggravate what appeared to be a pretty bad case." Trial counsel also pointed out the "gravity of the evidence" the State presented against Brown. He further noted he did not want to give the jury a reason to dislike or hate his client.

In an oral ruling, the PCR judge informed counsel that he was granting Brown relief in the form of a new trial solely on the ground that trial counsel was ineffective in failing to object to the remarks made by the solicitor during closing argument.

In a detailed written order, the PCR judge explained that trial counsel's failure to...