Butler v. State, 22364

Citation334 S.E.2d 813,286 S.C. 441
Decision Date06 June 1985
Docket NumberNo. 22364,22364
PartiesHorace BUTLER, Petitioner, v. STATE of South Carolina, Respondent. . Heard
CourtUnited States State Supreme Court of South Carolina

Dale T. Cobb, Jr., of Belk, Howard, Cobb & Chandler, Charleston Heights, and S.C. Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, for respondent.

CHANDLER, Justice.

Petitioner Butler (Applicant) was convicted of murder and sentenced to death. We affirmed the conviction and penalty in State v. Butler, 277 S.C. 452, 290 S.E.2d 1 (1982), cert. den. 459 U.S. 932, 103 S.Ct. 242, 74 L.Ed.2d 191.

He thereafter filed an application for Post Conviction Relief (PCR), which was denied following an evidentiary hearing. We granted certiorari solely on the question of whether Applicant received effective assistance of counsel during the sentencing phase of his bifurcated trial. We hold that he did, and affirm.

The burden of proof is on the Applicant in post-conviction proceedings to prove the allegations in his application. Griffin v. Martin, 278 S.C. 620, 300 S.E.2d 482 (1983). Where allegations of ineffective assistance of counsel are made, the question becomes, "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692 (1984).

The resolution of this question involves the application of the two prong test in Strickland.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

"[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. The proper measure of counsel's performance remains whether he has provided representation within the range of competence required of attorneys in criminal cases. Strickland, supra; Turner v. Bass, 753 F.2d 342 (4th Cir.1985); Marzullo v. Maryland, 561 F.2d 540 (4th Cir.1977).

Applicant here alleges failure of his attorney to research, develop and present evidence in mitigation during the sentencing phase of his trial.

Specifically, counsel is charged with having failed (1) to investigate and contact witnesses who would testify as to Applicant's good character, (2) to present evidence showing Applicant's low mentality, and (3) to fully discuss the sentencing phase with Applicant so as to render meaningful.


Applicant contends that counsel failed to discover and present witnesses to testify to his character. At PCR several family members and a former employer testified, all of whom said Applicant was a good person. His trial counsel testified these witnesses were not called at trial for various reasons such as ill health, Applicant's request that they not be called and counsel's determination that some would not be good witnesses. Most of the testimony at Based on the record before us, when applied to Strickland, supra, we are unable to say the admission of this testimony would have affected the outcome of the sentencing phase, and we find no error.

PCR was directed to Applicant's alibi, not his good character.


Prior to PCR Applicant underwent a series of intelligence tests administered by an intern under supervision of Dr. Roitzsch of the Medical University of South Carolina. Based upon the test results Dr. Roitzsch found Applicant mildly retarded.

Counsel testified that he had known and represented Applicant for some years prior to his trial for murder. He stated that he never considered Applicant of below average intelligence and that he thought Butler understood what was happening at all times. He also stated that he felt pertinent information on this issue was presented by Applicant's former school principal, who testified during the sentencing phase that Applicant completed the fourth grade at age 16.

It is reasonably inferable from such testimony that Applicant was of low mentality. This, coupled with the law charge on mitigating factors, adequately presented a jury issue.

Further, there was no showing that this corroborative testimony would have had an impact on the jury sufficient to alter the outcome of his trial. No error.


Applicant claims counsel failed to discuss the theory of his defense and did not inquire into Applicant's preferences regarding mitigation evidence. He stated at PCR that he wished to testify himself during the sentencing phase, and that he wanted the aforementioned witnesses to testify, as well.

Counsel denied these claims. He...

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