Drayton v. Evatt

• Decision Date: 09 June 1993
• Docket Number: No. 23852,23852
• Citation: 312 S.C. 4,430 S.E.2d 517
• Court: South Carolina Supreme Court
• Parties: Leroy Joseph DRAYTON, Petitioner, v. Parker D. EVATT, Commissioner, Central Correctional Institution, Respondent.

Page 517

430 S.E.2d 517

312 S.C. 4

Leroy Joseph DRAYTON, Petitioner, v. Parker D. EVATT, Commissioner, Central Correctional

Institution, Respondent.

No. 23852.

Supreme Court of South Carolina.

Submitted Jan. 19, 1993.

Decided May 10, 1993.

Rehearing Denied June 9, 1993.

Coming B. Gibbs of Gibbs & Holmes, Charleston, John H. Blume and Franklin W. Draper, South Carolina Death Penalty Resource Center, Columbia, and South Carolina Office of Appellate Defense, Columbia, for petitioner.

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

HARWELL, Chief Justice:

We granted petitioner Leroy Joseph Drayton's petition for writ of certiorari to review portions of his application for post-conviction relief (PCR). Drayton alleges that the PCR judge erred in ruling that a number of issues raised by Drayton were barred from collateral review, and in finding that Drayton had received effective assistance of counsel. We disagree and affirm.

I. FACTS

Drayton has been convicted twice on charges stemming from the death of a nineteen-year-old cashier at a Kayo gasoline station in Charleston. The convictions and sentences resulting from his first trial were reversed on direct appeal, and the case remanded. State v. Drayton, 287 S.C. 226, 337 S.E.2d 216 (1985). At retrial, Drayton was convicted of murder, armed robbery, and kidnapping. He was sentenced to death for murder, and to twenty-five years imprisonment for armed robbery. His convictions and sentences resulting from the second trial were affirmed by this Court. State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1021 (1988), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

On PCR, Drayton raised a number of allegations upon which he based his claim that he received ineffective assistance of counsel at his second trial. Drayton also asserted a variety of trial errors. After a lengthy hearing, the PCR judge dismissed Drayton's application on the ground that trial counsel had not performed deficiently. The PCR judge also determined that the trial errors alleged by Drayton could have been raised on direct appeal, and thus were barred from collateral review.

We granted the parties leave to brief four issues:

(1) Whether the PCR judge erred in finding that alleged trial errors were barred from collateral review;

(2) Whether trial counsel was ineffective for failing to present evidence of Drayton's future adaptability to prison;

(3) Whether trial counsel was ineffective for failing to develop testimony that Drayton knew the victim; and

(4) Whether trial counsel was ineffective in his closing argument to the jury in the sentencing phase.

II. DISCUSSION

A.

Drayton first contends that the PCR judge erred in concluding that a number of the allegations contained in his PCR application were barred from collateral review. We disagree.

In his PCR application, Drayton claimed that his rights under the Eighth and Fourteenth Amendments were violated as the result of South Carolina law that prevented him from introducing evidence that he would adapt well in prison, and that precluded the jury from receiving accurate information regarding Drayton's eligibility for parole. Drayton also asserted that his rights under the Eighth and Fourteenth Amendments were violated because the death sentence was obtained as a result of irrelevant, improper, and prejudicial testimony in the guilt phase of the trial regarding the character of the victim, as well as improper closing remarks by the solicitor in the guilt and sentencing phases of the trial. Drayton additionally contended that the trial court's penalty phase instruction regarding mitigating circumstances, and its instruction regarding the aggravating circumstance of kidnapping, violated his rights under the Eighth and Fourteenth Amendments. These issues were not addressed in the opinion we issued after Drayton's direct appeal.

This Court conducted an in favorem vitae review of Drayton's direct appeal of his death sentence. In favorem vitae review requires us to painstakingly inspect capital cases to determine whether prejudicial error has been committed in a trial, irrespective of whether an assignment of error has been made by the defendant. Once we discern there has been no error, that determination becomes binding on the defendant. See Moorer v. MacDougall, 245 S.C. 633, 142 S.E.2d 46 (1965).

Under the doctrine enunciated in Simmons v. State, 264 S.C. 417, 215 S.E.2d 883 (1975), errors which can be reviewed on direct appeal may not be asserted for the first time, or reasserted, in post-conviction proceedings. Under in favorem vitae review, all direct appeal errors are assumed to have been reviewed by this Court, and thus are barred from collateral attack. Drayton urges, however, that the rule articulated in Simmons should be inapplicable when the defendant seeking post-conviction relief has been sentenced to death. In essence, Drayton would have this Court apply in favorem vitae review to collateral proceedings brought prior to our decision abolishing in favorem vitae review. ¹ Drayton cites Yates v. Aiken, 290 S.C. 231, 349 S.E.2d 84 (1986), rev'd, 484 U.S. 211, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988), and Thompson v. Aiken, 281 S.C. 239, 315 S.E.2d 110 (1984), as examples of this Court's implicit acceptance of in favorem vitae review in post-conviction relief proceedings.

S.C.Code Ann. § 17-27-20(b) (1985) of the Uniform Post-Conviction Procedure Act provides that post-conviction relief "is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction." The Simmons rule gives effect to the Legislature's clear intent that the post-conviction relief procedure is not a substitute for appeal or a place for asserting errors for the first time which could have been reviewed on direct appeal. Peeler v. State, 277 S.C. 70, 283 S.E.2d 826 (1981); see also Cummings v. State, 274 S.C. [312 S.C. 9] 26, 260 S.E.2d 187 (1979); Ashley v. State, 260 S.C. 436, 196 S.E.2d 501 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973). Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction relief absent a claim of ineffective assistance of counsel. Hyman v. State, 278 S.C. 501, 299 S.E.2d 330 (1983).

We conclude that, contrary to Drayton's contention, Yates and Thompson do not stand for the proposition that we implicitly have adopted in favorem vitae review of post-conviction relief proceedings in death penalty cases. Although we addressed direct appeal issues in Yates and Thompson, we did so without discussion or consideration of section 17-27-20(b) or the Simmons rule. In our view, Yates and Thompson are contrary to the legislative intent evidenced by section 17-27-20(b). We adhere to the rule articulated in Simmons, and, in so doing, affirm the PCR judge's determination that the trial errors alleged by Drayton are barred from collateral review. ²

B.

Drayton next contends that he was denied the right to effective assistance of counsel as guaranteed by the Sixth Amendment. We disagree.

To prove ineffective assistance of counsel, a criminal defendant must show that his attorney's performance was not reasonable under prevailing norms. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further, a criminal defendant must demonstrate that counsel's deficient performance prejudiced the defense by showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. We have held that where trial counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel. Stokes v. State, --- S.C. ----, 419 S.E.2d 778 (1992).

Drayton first asserts that trial counsel was deficient for failing to present evidence of Drayton's future adaptability to prison during the sentencing phase. At the time of Drayton's trial, favorable evidence regarding an accused's future adaptability to prison was excluded from a jury's consideration during the sentencing phase of trial. State v. Koon, 278 S.C. 528, 298 S.E.2d 769 (1982), appeal after remand, 285 S.C. 1, 328 S.E.2d 625 (1984), cert. denied, Patterson v. South Carolina, 471 U.S. 1036, 105 S.Ct. 2056, 85 L.Ed.2d 329 (1985). However, an opinion from the United States Supreme Court potentially affecting the viability of this doctrine was pending during Drayton's trial, and within weeks after Drayton was sentenced to death the United States Supreme Court determined that the exclusion of testimony regarding the good behavior of a previously-incarcerated defendant deprives the defendant of his right to place relevant evidence in mitigation of punishment before the jury. Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). At the PCR hearing, trial counsel acknowledged that he was aware during Drayton's trial that Skipper was pending, and that he was cognizant of how to preserve the issue of future adaptability to prison life for appellate review. However, trial counsel decided not to present evidence of future adaptability to prison because his information included unfavorable psychiatric evaluations and poor disciplinary reports compiled during Drayton's confinement as a juvenile in a detention facility, as well as some accounts of misconduct during his prior incarceration as an adult. The information had been collected for use in Drayton's first trial.

Drayton argues that trial counsel was not justified in utilizing the unfavorable psychiatric information because the psychiatrists who evaluated Drayton had not been provided with Drayton's good prison record during his imprisonment on death row after the first trial. To support his contention,...