Douglas v. State
| Decision Date | 22 June 2016 |
| Docket Number | Appellate Case No. 2011-202766,Unpublished Opinion No. 2016-UP-316 |
| Parties | Helen Marie Douglas, Respondent, v. State of South Carolina, Petitioner. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Colleton County
Attorney General Alan McCrory Wilson and Assistant Attorney General James Rutledge Johnson, both of Columbia, for Petitioner.
Tricia A. Blanchette, Law Office of Tricia A. Blanchette, LLC, of Columbia, for Respondent.
Helen Marie Douglas was convicted of murder and armed robbery and received concurrent sentences of life imprisonment and thirty years imprisonment, respectively. Douglas appealed, and this court affirmed in part, reversed in part, and remanded for a new trial on both charges. State v. Douglas, 359 S.C. 187, 597 S.E.2d 1 (Ct. App. 2004) (hereinafter Douglas I). The State appealed, and our supreme court affirmed in part and reversed in part. State v. Douglas, 369 S.C. 424, 426, 632 S.E.2d 845, 846 (2006) (hereinafter Douglas II). It affirmed this court's finding that the trial court abused its discretion in the admission of certain insurance testimony, but reversed our determination of reversible error—finding the admission of that testimony harmless—and upheld Douglas's convictions. Id. at 433, 632 S.E.2d at 849. Thereafter, Douglas sought post-conviction relief (PCR), which was granted. On appeal, the State contends the PCR court erred in granting relief based upon its findings regarding trial counsel's ineffectiveness in relation to counsel's failure to (1) investigate and call alibi witnesses; (2) properly apply law, call witnesses, and cross-examine witnesses concerning third party guilt; (3) properly investigate and challenge a secretly recorded statement by Douglas; (4) investigate and challenge two statements made by Douglas while she was on medication; (5) adequately review and use two witness statements for impeachment purposes and to support suppression of evidence; and (6) object to the trial court's statement at sentencing concerning its sentencing options. Mindful of our standard of review, requiring great deference be given to the findings of fact and conclusions of law of the PCR court and affirmance if the PCR court's findings are supported by any probative evidence in the record, Hyman v. State, 397 S.C. 35, 42, 723 S.E.2d 375, 378 (2012), we reverse the PCR court's grant of relief based upon its findings of ineffectiveness during the guilt phase of the trial and its ordering of a new trial.1 However, we affirm the PCR court's determination of trial counsel's ineffectiveness in failing to object at Douglas's sentencing, and we remand for a new sentencing hearing on the murder charge alone.2
In making its finding of ineffectiveness in this regard, the PCR court stated trial counsel failed to call any of the seven witnesses he listed as an alibi defense for Douglas to testify as to Douglas's whereabouts on the night of the murder. However, Douglas only presented the testimony of three of those witnesses at herPCR hearing, none of whom could provide an alibi for Douglas for the time of the murder. Because Douglas failed to present any evidence at the PCR hearing supporting an alibi defense, the PCR court erred in finding trial counsel ineffective in this regard. See Glover v. State, 318 S.C. 496, 498, 458 S.E.2d 538, 540 (1995) ; id. at 498-99, 458 S.E.2d at 540 ().
We also find the PCR court erred in finding trial counsel was ineffective in failing to present a defense of third party guilt or properly examine witnesses or challenge evidence.
a. As to the PCR court's determination that trial counsel failed to identify the trial court's incorrect application of State v. Gay, 343 S.C. 543, 541 S.E.2d 541 (2001), abrogated by Holmes v. South Carolina, 547 U.S. 319 (2006), to a circumstantial evidence case in regard to third party guilt, we note the trial court did not improperly apply Gay in analyzing the matter. At the time of Douglas's trial in April 2001, Gay was the most recent pronouncement and the controlling law on third party guilt. Because Gay was the controlling authority at the time of Douglas's trial, trial counsel did not provide ineffective assistance in this matter, as trial counsel cannot be found deficient for failing to predict a change in the law. See Harden v. State, 360 S.C. 405, 408, 602 S.E.2d 48, 49 (2004) (); Gilmore v. State, 314 S.C. 453, 457, 445 S.E.2d 454, 456 (1994) , overruled on other grounds by Brightman v. State, 336 S.C. 348, 351 n.4, 520 S.E.2d 614, 615 n.4 (1999). b. We likewise find error in the PCR court's finding that trial counsel was ineffective in presenting a defense of third party guilt by failing to proffer or call certain witnesses and failing to utilize the latitude given by the trial court to address third party guilt on cross-examination or otherwise challenge evidence.
Based upon a thorough review of the entire record, we find the PCR court made numerous incorrect and inaccurate findings, much of the testimony cited by the PCR court was actually presented at Douglas's trial, and the decision of the PCR court is unsupported by the evidence and/or constitutes an error of law. Specifically, in regard to the PCR court's findings regarding trial counsel's failure to present Douglas as a trial witness, we note as follows: Evidence of Ronald's past drug use and problems with drugs was brought out by both the State—in direct examination of Ronald at trial—and by trial counsel—in cross-examination of trial witnesses Ronald, Tony, and Shelly. Likewise, trial counsel elicited testimony on cross-examination of Ronald that he had taken money from Douglas in the past. While no evidence was presented at the trial that Ronald had, specifically, been violent toward Douglas, there was evidence presented at trial on cross-examination that Ronald had cut the brake lines of a former girlfriend's car, he had a temper, he had struck Shelly before, and he could get violent when provoked. The testimony presented at the PCR hearing does not indicate when Ronald was allegedly violent with Douglas or how such related to possible third party guilt of Ronald, as it was not directed toward the victim. Additionally, in the deposition testimony of Ronald, submitted by Douglas at the PCR hearing, Ronald testified to a time where he had gotten into a physical altercation with Douglas, explaining it occurred when he was drunk and Douglas had attempted to hit him after she became irate that Ronald had refused to burn down someone else's property. In conjunction with this testimony, Ronald recounted numerous other incidents in which Douglas had engaged, or attempted to engage, Ronald in various criminal acts against the property of others, including putting syrup in the oil of a car, burning crosses in yards, cutting tires, and burning down another property. Thus, it would have been reasonable for trial counsel not to explore this line of questioning at trial, potentially opening the door to this harmful evidence against Douglas. Further, in our review of Douglas's PCR testimony, we found nothing to support the PCR court's findings regarding the following: Douglas's observation of Ronald driving by on the night of the murder—though notably trial counsel did elicit testimony at trial that Ronald would have driven within a block of the town house on his way home from work late that night; Douglas's concerns that Ronald thought Shelly was spending time with the victim; or that Ronald was familiar with the area where evidence was found in the creek. Further, trial counsel successfully elicited testimony from Tony at the trial that Ronald was generally familiar with the area around the river house. As to Douglas's PCR testimony that Ronald found the evidence at the river house, this was clearly presented at trial. We further note the trial court agreed if Douglas testified at her trial, the State could potentially call as a reply rebuttal witness the individual the trial court had excluded regarding Douglas's alleged attempt to hire him to kill the victim. Accordingly, we find no basis for concluding trial counsel was ineffective in failing to present Douglas's testimony at trial.
We likewise find a review of witness Kuhn's PCR testimony does not support the court's finding that Kuhn was "shocked" no witnesses were called at trial, and we fail to see how Kuhn's opinion regarding who was guilty of the crimes based on his familiarity in representing Douglas in a civil trial is sufficient to show ineffectiveness of trial counsel.
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