Edwards v. State Carolina, 26977.

• Decision Date: 23 May 2011
• Docket Number: No. 26977.,26977.
• Citation: 710 S.E.2d 60,392 S.C. 449
• Parties: Terrence EDWARDS, Petitioner,v.STATE of South Carolina, Respondent.
• Court: South Carolina Supreme Court

392 S.C. 449

710 S.E.2d 60

Terrence EDWARDS, Petitioner,

v.STATE of South Carolina, Respondent.

No. 26977.

Supreme Court of South Carolina.

Submitted Sept. 23, 2010.Decided May 23, 2011.

Appellate Defender LaNelle C. DuRant, South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Ashley McMahan, all of Columbia, for Respondent.Justice HEARN.

We granted certiorari to review the circuit court's denial of post conviction relief (PCR) to Terrence Edwards (Petitioner). Petitioner asserts the circuit court erred in finding his trial counsel's decision to not interview and call as a witness Petitioner's co-defendant was not deficient performance or prejudicial. We disagree.

FACTUAL/PROCEDURAL BACKGROUND

An Abbeville County grand jury indicted Petitioner and Sergio Marshall on the following charges: (1) murder of Jonathan Blackston; (2) armed robbery of Blackston; (3) grand larceny of a motor vehicle; (4) possession of a firearm by a person under twenty-one years of age; and (5) possession of a firearm during the commission of a violent felony. Marshall pled guilty to all five charges. Petitioner proceeded to trial, during which he was represented by counsel. Prior to Petitioner's trial, defense counsel did not interview Marshall. Additionally, counsel did not call Marshall to testify during the trial itself.

The evidence introduced at Petitioner's trial showed Marshall shot Blackston twice, once in the head and once in the arm. At some point during the altercation, but before he died, Blackston also received strong blows to his face that were likely from a hand or a foot. Petitioner admitted to law enforcement he helped Marshall hide Blackston's body under a nearby pile of logs in the field where he was shot. Afterwards, Petitioner was found with cash from Blackston's wallet on his person, some of which he had already spent at the county fair, Blackston's wallet in the trunk of his car, and Blackston's breath spray hidden under his mattress. The Solicitor did not try Petitioner's case on the theory of principal liability, nor did he suggest that Petitioner was the shooter. Instead, he presented the case on the theory of accomplice liability based on the indisputable evidence of Petitioner's involvement in at least some aspects of the crimes. The jury returned a verdict of guilty on all five charges.¹ The court of appeals affirmed Petitioner's convictions on direct appeal. State v. Edwards, Op. No.2005–UP–256 (S.C. Ct.App. filed Apr. 7, 2005). This court denied certiorari to review the convictions.

In his PCR application, Petitioner alleged his attorney was ineffective for failing to interview Marshall and call him as a witness. To support his argument, Petitioner called three witnesses to testify at the PCR hearing: Marshall, Petitioner himself, and his attorney. Marshall testified that despite being the only surviving witness to the crimes other than Petitioner, he was not called as a witness during Petitioner's trial. Marshall also testified that had he been called as a witness during Petitioner's trial, he would have told the jury the shooting was an accident, he alone was the shooter, and Petitioner had no involvement in, and indeed was shocked by, the murder. During Petitioner's testimony, Petitioner accepted responsibility for some wrongdoing on the day of Blackston's murder but was steadfast in his denial of any participation in the murder itself. He further testified that he believed Marshall's testimony would have made a “big difference” at Petitioner's trial and he never told his attorney that he did not want Marshall to testify.

Petitioner's trial counsel admitted that he did not interview Marshall before Petitioner's trial. However, he was present at Marshall's guilty plea, giving him an opportunity to observe Marshall in court, and retained a copy of Marshall's plea transcript. During his plea, Marshall was consistent in his denial of Petitioner's involvement in the murder, but his version of the rest of the events changed no less than three times during his statement to the court. In fact, the plea court seemed poised to reject Marshall's plea as to the murder charge because he was unable to give a consistent recitation of the facts. It was only when he finally was able to do so—after being instructed to ignore any prior statements he made in court or to the police—that the court accepted his plea. According to Petitioner's attorney, this final version of the facts, highlighting the accidental nature of the crimes and Petitioner's lack of involvement, was wholly consistent with the version given to law enforcement by Petitioner and introduced at Petitioner's trial through the testimony of a SLED agent.

Defense counsel testified that his decision to not call Marshall was a strategic one he made for two reasons. First, he testified that he actually disagreed with Marshall's version of the facts presented at the plea hearing, stating, “[I]t wasn't an accident if he's pleading guilty to murder.” Second, he expressed serious concerns about Marshall's ability to withstand cross examination by the Solicitor were he to testify. Although trial counsel did state that “in retrospect” and in “hindsight” he would want to reconsider calling Marshall, this belief had two important caveats: that Marshall's testimony at trial would be the same as it was at the PCR hearing and it would be tested with the same “limited cross-examination.” However, he then went on to state that in reality there would have been “a lot of room on cross-examination” had Marshall actually testified at Petitioner's trial.

The PCR judge determined that the attorney's decision to not call Marshall was “a planned and calculated” one and “[o]nly in hindsight[ ] can the failure to call Mr. Marshall seem as an error.” He also determined that Petitioner failed to establish any resulting prejudice from his attorney's actions. Accordingly, he denied and dismissed with prejudice Petitioner's application. We granted certiorari.

STANDARD OF REVIEW

In reviewing a PCR court's decision, an appellate court is concerned only with whether there is any evidence of probative value that supports the decision. Kolle v. State, 386 S.C. 578, 589, 690 S.E.2d 73, 79 (2010). The appellate court will reverse the PCR court only where there is either no probative evidence to support the decision or the decision was controlled by an error of law. Id. In performing this analysis, the appellate court is to give great deference to the PCR court's findings of fact and conclusions of law. Id.

LAW/ANALYSIS

In order to receive relief for ineffective assistance of counsel, a defendant must make two showings. First, he must show that his trial counsel's performance was deficient, meaning that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he must demonstrate that this deficiency prejudiced him to the point that he was deprived of a fair trial whose result is reliable. Id.

I. Deficient Performance

Counsel's performance under the first prong of the Strickland test is judged under the standard of “reasonableness under prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. This Court has stated previously that criminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case. Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007); see also McKnight v. State, 378 S.C. 33, 46, 661 S.E.2d 354, 360 (2008) (“A criminal defense attorney has the duty to conduct a reasonable investigation to discover all reasonably available mitigation evidence and all reasonably available evidence tending to rebut any aggravating evidence introduced by the State.”).

However, “[t]here is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case.” Ard, 372 S.C. at 331, 642 S.E.2d at 596 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “[W]hen counsel articulates a valid reason for employing a certain strategy, such conduct generally will not be deemed ineffective assistance of counsel. The validity of counsel's strategy is viewed under an ‘objective standard of reasonableness.’ ” Lounds v. State, 380 S.C. 454, 462, 670 S.E.2d 646, 650 (2008). The United States Supreme Court has cautioned that “every effort be made to eliminate the distorting effects of hindsight” and evaluate counsel's decisions at the time they were made. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Accordingly, we must be wary of second-guessing trial counsel's tactics. Whitehead v. State, 308 S.C. 119, 122, 417 S.E.2d 529, 531 (1992).

While our case law does provide that defense counsel must, at a minimum, interview potential witnesses, a strict adherence to that rule loses sight of the controlling standard for counsel's duty to investigate: reasonableness. Indeed, it would be an absurdity to require criminal defense lawyers to interview every potential witness when they can articulate reasonable grounds not to. When counsel makes such a reasonable decision, he will have fulfilled the duty he owes to his client. Petitioner would have this Court raise the duty to conduct a reasonable investigation to include creating “a simulated trial situation” for every witness, subjecting them all to mock cross-examination. Our case law has never required so much of defense counsel, and we decline to so extend it. So long as a defendant's attorney conducts a reasonable investigation, including...