Council v. State, No. 26543.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBeatty
Citation380 S.C. 159,670 S.E.2d 356
Docket NumberNo. 26543.
Decision Date29 December 2008
PartiesDonney S. COUNCIL, a/k/a Donnie S. Council, Respondent, v. STATE of South Carolina, Petitioner.
670 S.E.2d 356
380 S.C. 159
Donney S. COUNCIL, a/k/a Donnie S. Council, Respondent,
v.
STATE of South Carolina, Petitioner.
No. 26543.
Supreme Court of South Carolina.
Heard June 26, 2008.
Re-filed December 29, 2008.
Rehearing Denied December 29, 2008.

[670 S.E.2d 357]

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka and Assistant Attorney General Melody J. Brown, all of Columbia, for Petitioner.

Teresa L. Norris, of Blume, Weyble & Norris, of Columbia, Theresa Lee Clement, of Clement Law Office, of Columbia, for Respondent.

Justice BEATTY:


In this death penalty post-conviction relief (PCR) case, the Court granted the State's petition for a writ of certiorari to review the PCR judge's decision to: vacate Donney S. Council's (Respondent's) sentence of death; grant a new hearing for the penalty phase of his capital murder trial; and continue indefinitely one of his PCR grounds until Respondent regained competence. After we issued our original opinion affirming in part, reversing in part, and remanding for a new sentencing hearing, the State petitioned for rehearing. We deny the petition for rehearing, withdraw our original opinion, and substitute it with this opinion which revises footnote number seven.

FACTUAL/PROCEDURAL HISTORY

On the evening of October 9, 1992, police discovered the body of seventy-two-year-old Elizabeth Gatti underneath a bedspread in her basement. She had been hogtied with a white cord and layers of duct tape were wrapped around her entire head. Her clothes had been ripped, and the crotch of

670 S.E.2d 358

her underwear had been cut out. Surrounding her body were various bottles of cleaning fluids which she had been forced to ingest. Mrs. Gatti had been sexually assaulted as evidenced by a gaping laceration extending from her vagina into the rectal area.

Respondent was arrested for the crimes on October 12, 1992. In two separate statements, Respondent admitted to being in Mrs. Gatti's house on the night she was killed and that he had sex with her. However, he denied committing the murder and implicated a man named "Frankie J," who Respondent alleged was present with him at the time of the crime. "Frankie J" was later identified as Frank Douglas. None of the physical evidence found in Mrs. Gatti's house or in her car matched Douglas.

Because Respondent admitted to being in Mrs. Gatti's home when the crime took place, trial counsel pursued the theory that Respondent did not murder Mrs. Gatti but was merely present at the time of the crime. The jury found Respondent guilty of murder, administering poison, first-degree burglary, grand larceny of a motor vehicle, petty larceny, kidnapping, and two counts of first-degree criminal sexual conduct (CSC).

Prior to the beginning of the penalty phase, trial counsel moved to allow into evidence the results of Frank Douglas' polygraph test which indicated deception. Trial counsel sought to present this evidence to the jury in an effort to establish that Douglas was the actual perpetrator and Respondent was merely present at the time of the crime.1 The trial judge declined to admit the polygraph test.

As part of its case, the State called several witnesses to testify regarding Respondent's juvenile and adult records as well as his numerous disciplinary problems while incarcerated for these offenses at the Department of Juvenile Justice (DJJ) and the Department of Corrections (DOC). The testimony established that Respondent entered the DJJ system at ten years old with his adult criminal activity escalating to more violent offenses which included resisting arrest, assault and battery with intent to kill, and armed robbery. After outlining Respondent's prior record, the State offered testimony to establish the aggravating circumstances surrounding Mrs. Gatti's murder.

In response, trial counsel offered Respondent's mother, Betty Council, as the sole defense witness. She told the jury that Respondent is the youngest of ten children. She testified she took Respondent to "mental health" between the ages of seven and fourteen and that he had been teased as a child while at school. She also showed the jury a childhood picture of Respondent. Respondent's mother further testified that Respondent suffered third-degree burns from a cooking accident, and that the treating physician told her that it would "take effect" on Respondent. In terms of Respondent's adulthood, Respondent's mother testified that he has two young sons. When asked by defense counsel what she would do as Respondent's mother when faced with the jury's decision as to life without parole or death, she pleaded for the jury to impose a life sentence.

The jury found beyond a reasonable doubt that the murder was committed in the commission of the following aggravating circumstances: criminal sexual conduct; kidnapping; burglary; larceny with the use of a deadly weapon; killing by poison; and physical torture. As a result, the jury recommended Respondent be sentenced to death. The trial judge denied all of Respondent's post-trial motions and ordered Respondent to be put to death on December 6, 1996.

On appeal, this Court affirmed Respondent's convictions and sentences. State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). After the United States Supreme Court denied Respondent's petition for a writ of certiorari,2 he petitioned this Court for a stay of execution to pursue state PCR remedies.

670 S.E.2d 359

Following this Court's grant of the stay, Respondent filed his initial PCR application. Shortly thereafter, Respondent indicated that he wished to withdraw his PCR application and be executed. Pursuant to this request, a hearing was held before the circuit court on December 8, 2000. As a result of this hearing, the circuit court judge ordered a competency evaluation of Respondent. Three months later, the Department of Mental Health found that Respondent was not competent to waive PCR or be executed because he suffered from schizophrenia, undifferentiated type. Respondent's PCR counsel then moved to stay the PCR proceedings.

After a hearing, a circuit court judge ordered the capital PCR proceedings to be stayed indefinitely due to Respondent's incompetence. The State petitioned for and was granted certiorari by this Court to review the circuit court's order. This Court set aside the stay and ordered the PCR proceedings to continue. Council v. Catoe, 359 S.C. 120, 597 S.E.2d 782 (2004).

Following this Court's decision, Respondent filed two amended applications. In his final application, Respondent alleged he was entitled to relief based on the following grounds: ineffective assistance of counsel during voir dire and jury selection; ineffective assistance of counsel during the sentencing phase for: (i) failing to obtain a mitigation investigator or to otherwise adequately prepare and present powerful mitigating evidence; (ii) failing to develop a consistent, credible theme for a sentence of life imprisonment; (iii) failing to obtain the assistance of a pathologist and failing to challenge the testimony of the State's expert pathologist regarding the circumstances surrounding Mrs. Gatti's death; Respondent may not be executed because he is incompetent; ineffective assistance of counsel in investigating Respondent's competency to stand trial; and ineffective assistance of counsel in investigating Respondent's mental state at the time of the offenses.

At the hearing, PCR counsel called Respondent as a witness. However, due to his incompetence, Respondent was essentially unintelligible in his testimony. As a second witness, PCR counsel called Dr. Tora Brawley, a clinical neuropsychologist who reviewed Respondent's records and interviewed several of his family members. Based on the results of a battery of tests, Dr. Brawley believed there was evidence of brain dysfunction, particularly in the frontal lobe. Dr. Brawley testified Respondent began having problems when he was seven years old. Although Respondent had an I.Q. of 106 at that time, he was diagnosed with a learning disability and enrolled in special education classes. When Respondent was tested again at ten years old, his I.Q. had dropped approximately twenty-three points. In Dr. Brawley's opinion, this significant decrease represented an overall decline in general cognitive functioning.

Next, PCR counsel called Marjorie Hammock a forensic social worker who compiled a "social family history" for Respondent. Based on her investigation, Hammock found that several of Respondent's family members suffered from mental illness, were involved in criminal activity, and have "significant educational deficit problems." Hammock also discovered that Respondent's father was an alcoholic who was extremely violent. Divorce records indicated Respondent's mother was granted a divorce on the ground of physical cruelty. After the father left the home, Respondent's family moved at least seven times from one bad neighborhood to another and lived in several homes which did not have running water and indoor plumbing. The family members also depended on government assistance for their financial existence. Respondent's individual records revealed that he: failed the first, seventh, and ninth grades; suffered two head injuries prior to the age of ten years old; suffered a burn injury which occurred when he was cooking without adult supervision at age seven; was treated at seven or eight years old for nervousness, sleepwalking, and nightmares at the local mental health center; and had attempted suicide.

The next witness called by PCR counsel was Dr. Donna Schwartz-Watts, a forensic psychiatrist who began evaluating Respondent in the summer of 1999. At that time, she believed Respondent was acutely psychotic and unable to assist his appellate counsel

670 S.E.2d 360

due to his "paranoid ideation" and "delusions of grandeur." In 2001, Dr. Schwartz-Watts...

To continue reading

Request your trial
13 practice notes
  • Mahdi v. Stirling, C/A No. 8:16-3911-TMC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 24, 2018
    ...v. Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005); Council v. State, 380 S.C. 159, 670 S.E.2d 356 (2008).10(b) Applicant's death sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United St......
  • Bixby v. Stirling, Civil Action No. 4:17-cv-954-BHH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 1, 2021
    ...The gravamen of this objection is that the PCR court, and by extension the Magistrate Judge, erroneously concluded that State v. Council, 670 S.E.2d 356 (S.C. 2008) had no bearing on the standard of care required at the time of Petitioner's trial because Council was not decided until 2008. ......
  • Bixby v. Stirling, Civil Action No. 4:17-cv-954-BHH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 31, 2020
    ...The gravamen of this objection is that the PCR court, and by extension the Magistrate Judge, erroneously concluded that State v. Council, 670 S.E.2d 356 (S.C. 2008) had no bearing on the standard of care required at the time of Petitioner's trial because Council was not decided until 2008. ......
  • State v. Blakely, No. 5114.
    • United States
    • Court of Appeals of South Carolina
    • May 23, 2013
    ...that she now argues to this court on appeal. 3. On appeal, Blakely does not assert a double jeopardy claim. 4.See Council v. State, 380 S.C. 159, 172–73, 670 S.E.2d 356, 363 (2009) (noting that trial counsel's conduct fell below the standards set by the ABA for the appointment and performan......
  • Request a trial to view additional results
13 cases
  • Mahdi v. Stirling, C/A No. 8:16-3911-TMC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 24, 2018
    ...v. Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005); Council v. State, 380 S.C. 159, 670 S.E.2d 356 (2008).10(b) Applicant's death sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United St......
  • Bixby v. Stirling, Civil Action No. 4:17-cv-954-BHH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 1, 2021
    ...The gravamen of this objection is that the PCR court, and by extension the Magistrate Judge, erroneously concluded that State v. Council, 670 S.E.2d 356 (S.C. 2008) had no bearing on the standard of care required at the time of Petitioner's trial because Council was not decided until 2008. ......
  • Bixby v. Stirling, Civil Action No. 4:17-cv-954-BHH
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 31, 2020
    ...The gravamen of this objection is that the PCR court, and by extension the Magistrate Judge, erroneously concluded that State v. Council, 670 S.E.2d 356 (S.C. 2008) had no bearing on the standard of care required at the time of Petitioner's trial because Council was not decided until 2008. ......
  • State v. Blakely, No. 5114.
    • United States
    • Court of Appeals of South Carolina
    • May 23, 2013
    ...that she now argues to this court on appeal. 3. On appeal, Blakely does not assert a double jeopardy claim. 4.See Council v. State, 380 S.C. 159, 172–73, 670 S.E.2d 356, 363 (2009) (noting that trial counsel's conduct fell below the standards set by the ABA for the appointment and performan......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT