Brown v. State

• Decision Date: 05 October 2007
• Docket Number: No. 4297.,4297.
• Citation: 652 S.E.2d 765
• Parties: Rafeal BROWN, Petitioner v. The STATE of South Carolina, Respondent.
• Court: South Carolina Court of Appeals

652 S.E.2d 765

Rafeal BROWN, Petitioner v.The STATE of South Carolina, Respondent.

No. 4297.

Court of Appeals of South Carolina.

Heard September 11, 2007.

Decided October 5, 2007.

Wanda H. Carter, of Columbia, for Petitioner.

Attorney GeneralHenry D. McMaster, Chief Deputy Attorney GeneralJohn W. McIntosh, Assistant Deputy Attorney GeneralSalley W. Elliott, Assistant Attorney GeneralKaren Ratigan, all of Columbia, for Respondent.

ANDERSON, J.:

The post-conviction relief (PCR) judge denied Rafeal Brown's application for relief holding that, even if counsel was ineffective, Brown failed to establish prejudice.This court granted certiorari to consider whether trial counsel erred in failing to object to a Doyle error at trial.We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On the night of August 5, 1994, Brown was dancing with a girl inside the Castleblanca Club, a nightclub in Clio.After a male patron passing the pair made what Brown considered to be a threatening gesture, the two began to fight.The fight caused great commotion in the club and more patrons joined in.The crowd moved outside into the parking lot.The testimony of several eyewitnesses at trial revealed that Brown grabbed a gun from a friend's hand and shot multiple times into the crowd.Two bystanders were struck by the bullets, and Brown ran on foot from the scene.One victim, Louis Bostic, died the day of the shooting and the other, Ron Bostic, died five days later.

At trial, Brown took the stand in his own defense.He alleged, for the first time, that one of his friends was the shooter and that the eyewitnesses coordinated stories to frame him.On cross examination, the solicitor asked Brown why he had not given a statement to police relating the version of events he now gave at trial.Additionally, during his closing argument, the solicitor argued the lack of a statement indicated Brown's guilt.Brown's counsel made no objections.

Following his conviction, Brown appealed under Anders v. California,386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967).The appeal was dismissed by the South Carolina Supreme Court.State v. Brown, Op.No. 96-MO-256(S.C. Sup.Ct. filed Dec. 12, 1996).Brown then filed for post-conviction relief in December 1996 and amended the application in June 2003.An evidentiary hearing was held in September 2003 in Darlington County.

At the PCR hearing, Brown argued his counsel was ineffective for failing to object to the solicitor's questions about and references to his failure to provide a statement to police.Specifically, Brown averred the solicitor made numerous comments that constituted Doyle violations.During cross-examination, the solicitor stated:

"Everybody else gave the police a statement the next morning at nine o'clock."

"And during all that time, some ten months, you haven't given [the police] a statement, have you?"

"And when you came in at 3:00 in the morning you didn't call the police and tell them Eric David had shot somebody, did you?"

"You didn't call the police and tell them Eric David had a gun, did you?"

Brown contended the solicitor committed a Doyle violation with the following comment made during closing argument:

"He hasn't given a statement.He hasn't given a statement because he is guilty."

In response to Brown alleging ineffective assistance, trial counsel testified that it is fairly typical for solicitors to ask on cross-examination why the defendant didn't take particular actions if innocent.Counsel opined Brown's failure to make a statement did not affect the outcome of the trial.In light of the numerous eyewitnesses who gave statements to police and testified at trial, counsel explained his strategy was to draw the jurors' attention to the discrepancies amongst the witnesses' stories.Counsel stated that he typically does not object during closing argument for fear of creating a negative impression with the jury.

In denying post-conviction relief, the PCR judge found there was "overwhelming evidence in the case for conviction of [Brown]."Further, the judge held "that even if there were a failure to object to certain testimony, that [Brown] has failed to establish prejudice in this matter."The PCR judge found that trial counsel"articulated valid strategic reasons for deciding not to object to portions of the solicitor[']s examination and of his closing argument.[Brown] has not shown that counsel was deficient in that choice of tactics."

ISSUE

Did the PCR judge err in not finding trial counsel ineffective for failing to object to a Doyle violation at trial?

STANDARD OF REVIEW

In a PCR proceeding, the applicant bears the burden of establishing that he is entitled to relief.Edwards v. State,372 S.C. 493, 494, 642 S.E.2d 738, 739(2007);Caprood v. State,338 S.C. 103, 525 S.E.2d 514(2000)."[P]etitioner must meet the standard established in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984)."Edmond v. State,341 S.C. 340, 346, 534 S.E.2d 682, 685(2000).To establish a claim of ineffective assistance of counsel, a PCR applicant must prove: (1) that counsel failed to render reasonably effective assistance under prevailing professional norms; and (2) that the deficient performance prejudiced the applicant's case.Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).

"Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."Strickland,466 U.S. at 690, 104 S.Ct. 2052;Morris v. State,371 S.C. 278, 639 S.E.2d 53(2006);Cherry v. State,300 S.C. 115, 386 S.E.2d 624(1989).The burden is on the applicant in a post-conviction proceeding to prove the allegations in his application.Rule 71.1(e), SCRCP;Von Dohlen v. State,360 S.C. 598, 603, 602 S.E.2d 738, 741(2004);Butler v. State,286 S.C. 441, 334 S.E.2d 813(1985)."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...."Johnson v. State,325 S.C. 182, 186, 480 S.E.2d 733 735(1997);Underwood v. State,309 S.C. 560, 425 S.E.2d 20(1992);Simmons v. State,308 S.C. 481, 419 S.E.2d 225(1992)."A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial."Strickland,466 U.S. at 694, 104 S.Ct. 2052;Johnson v. State,325 S.C. 182, 480 S.E.2d 733(1997)."Furthermore, when a defendant's conviction is challenged, `the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.'"Ard v. Catoe,372 S.C. 318, 331, 642 S.E.2d 590, 596(2007)(citingStrickland,466 U.S. at 695, 104 S.Ct. 2052).

"This court gives great deference to the post-conviction relief (PCR)court's findings of fact and conclusions of law."Marlar v. State,373 S.C. 275, 279, 644 S.E.2d 769, 771(Ct.App.2007)(citingDempsey v. State,363 S.C. 365, 368, 610 S.E.2d 812, 814(2005));McCray v. State,317 S.C. 557, 455 S.E.2d 686(1995).An appellate court must affirm the PCR court's decision when its findings are supported by any evidence of probative value.Custodio v. State,373 S.C. 4, 9, 644 S.E.2d 36, 38(2007);Cherry v. State,300 S.C. 115, 386 S.E.2d 624(1989).However, an appellate court will not affirm the decision when it is not supported by any probative evidence.Edmond v. State,341 S.C. 340, 347, 534 S.E.2d 682, 686(2000);Holland v. State,322 S.C. 111, 470 S.E.2d 378(1996).

LAW/ANALYSIS

Brown argues the PCR judge erred in not finding trial counsel ineffective for failing to object to comments made by the solicitor that Brown never gave the police a statement.Specifically, Brown contends the solicitor's line of questioning and comments on his silence violated his constitutional rights under Doyle v. Ohio,426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91(1976).

I.DOYLEv. OHIO

In Doyle,the Supreme Court held "the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment."Doyle,426 U.S. at 619, 96 S.Ct. 2240.In that case, the defendants received Miranda warnings when they were arrested for selling marijuana.They made no statements to the police.At their separate trials, the defendants testified, for the first time, about their innocence explaining they had been framed by a government informant.The State then attempted to impeach the defendants' credibility on cross-examination by questioning them about their post-arrest silence.The State did not suggest that the evidence was admissible as evidence of guilt, but asserted the jury needed all relevant evidence surrounding the truthfulness of the defendants' exculpatory statements.Doyle,426 U.S. at 617, 96 S.Ct. 2240.

The Court held "the Miranda decision compels rejection of the State's position."Id. at 617, 96 S.Ct. 2240.The Court elucidated:

`[W]hen a person is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, ... it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.'

Id. at 619, 96 S.Ct. 2240(quotingUnited States v. Hale,422 U.S. 171, 182-183, 95 S.Ct. 2133, 45 L.Ed.2d 99(1975)).The Court explained that Miranda warnings convey an implicit assurance to an arrested person that he will not be penalized for remaining silent, thus, "it would be fundamentally unfair and a deprivation of due process...