Fishburne v. State

Decision Date31 July 2019
Docket NumberAppellate Case No. 2016-002385,Opinion No. 27911
Citation427 S.C. 505,832 S.E.2d 584
CourtSouth Carolina Supreme Court
Parties Derrick FISHBURNE, Petitioner, v. STATE of South Carolina, Respondent.

Tristan Michael Shaffer, of Tristan M. Shaffer Attorney at Law, of Chapin, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Benjamin Hunter Limbaugh, both of Columbia, for Respondent.

JUSTICE JAMES :

This case stems from the post-conviction relief (PCR) court's denial of relief to Derrick Fishburne. Because the PCR court's order contains no findings of fact as to one of Fishburne's primary PCR claims, we remand this matter to the PCR court for the PCR court to issue an order setting forth adequate findings of fact and conclusions of law regarding Fishburne's unaddressed PCR claim. In doing so, we again stress that PCR orders must be prepared in compliance with section 17-27-80 of the South Carolina Code (2014) and Rule 52(a) of the South Carolina Rules of Civil Procedure.

FACTUAL AND PROCEDURAL BACKGROUND

During the early morning hours of April 10, 2009, law enforcement responded to a 911 call reporting a shooting at Spirits Lounge in Walterboro. A patrol officer arrived on scene and observed a man (Victim) lying in a pool of blood on the pavement outside the front of the club. Victim was transported to the hospital, but he did not survive. An autopsy determined Victim's cause of death was six gunshot wounds

.

During law enforcement's investigation, two eyewitnesses identified Fishburne as the shooter. These eyewitnesses first identified Fishburne by name and subsequently identified him in a lineup. Law enforcement arrested Fishburne when he appeared at the local courthouse for roll call in an unrelated matter. Fishburne gave law enforcement a statement in which he denied being at the club on the night of the murder, claiming to have stayed the night at his girlfriend's house. This was not the truth. Fishburne's girlfriend told law enforcement he left her house around 12:45 a.m. (before the shooting occurred) and did not return until approximately 3:00 a.m. (after the shooting occurred). Another witness, Jarrod Frazier, testified he saw Fishburne at the club and thought Fishburne might have left before the shooting, but was not sure. In his written statement to law enforcement, Frazier stated he saw Fishburne leaving the club's parking lot in an SUV about 10-15 minutes before the shooting occurred. Frazier admitted on cross-examination he gave the exculpatory written statement to law enforcement so Fishburne "could get a bond."

Fishburne was indicted for murder and possession of a weapon during the commission of a violent crime. At trial, Fishburne's trial counsel said the following during his opening statement to the jury—all relevant to one of Fishburne's underlying PCR claims:

I think the evidence will show that [law enforcement] made a decision that before the morning was out, once they had the name Derrick Fishburne, once they had that name, they had their guy. I think the evidence will show they picked him up from roll call on Friday, the next day. He was already in court. He might qualify as a usual suspect. He was an easy guy for them to get, because he was in court anyway. They picked him up from roll call on April the 10th, and they took him back to the Sheriff's Office Annex and they interviewed him. Now, because he had involvement with them before, I think the evidence will show he said, "I wasn't there." I think the evidence will show that there's a long video tape and you will have a chance to look at that.
He said, "I'm not saying anything," pretty much. "I wasn't there. I don't know what you're talking about." And at the end of the interview, they arrested him. One of the things he told me was, "I was at my girlfriend's house all night. I was at Lorinda Williams' -- Penny Williams' house," and I think the evidence will show that they went and checked with Penny, that he was not there. That he had, in fact, left the house at some time during a time when he could have been at the club, and I think the evidence will show from different witnesses, I think the State will be able to prove that he was, in fact, at the club. But they arrested him before they checked that out. I think the evidence will show that he was arrested at the end of that interview and they didn't check out Penny's story until later. It didn't check out. He told a lie.

Further, during closing arguments, Fishburne's trial counsel argued:

[Fishburne] was rounded up and the testimony of Detective Williams was that they picked him up from roll call. He is one of the usual suspects. He had been at roll call, so he already had some trouble. They knew him. They took him from here and took him down to the station and Detective Williams told you, he was already under arrest at that time. He was under arrest for murder and it really didn't matter what he said.
One of the things also, what Detective Johnson said in the tape that you got to see is that [Fishburne's] brother is in prison. This is not a pretty fact, but it's the truth of the matter. The Fishburnes had trouble; it's a fact. So what does that mean to [Fishburne]? What does that mean to anybody being rounded up and taken down to the Sheriff's Office to get a statement? Do you think you're going to get a fair trial? He was already under arrest and it -- yeah, they checked out his story and it didn't check out, but if he was already under arrest, it didn't matter.

The jury convicted Fishburne as indicted. The trial court sentenced Fishburne to concurrent prison terms of forty years for murder and five years for possession of a weapon during the commission of a violent crime. The court of appeals dismissed Fishburne's direct appeal following Anders1 briefing. State v. Fishburne , Op. No. 2012-UP-363 (S.C. Ct. App. filed June 20, 2012).

Fishburne filed an application for PCR, and his hearing was held on October 27, 2014. Prior to the commencement of the hearing, Fishburne specified his alleged grounds for relief: (1) ineffective assistance of counsel for trial counsel's failure to properly investigate potential alibi witnesses and (2) ineffective assistance of counsel for trial counsel introducing other bad act evidence into the trial and characterizing him as one of the "usual suspects." The State objected to the amendment because Fishburne did not "enumerate these allegations with specificity in his application." After Fishburne explained he had alerted the State to these specific allegations over a year ago via email, the PCR court permitted the amendment.

Trial counsel testified Fishburne's statement to law enforcement that he was not at the club was problematic because the State had several witnesses who would testify Fishburne was indeed at the club. Trial counsel testified Fishburne explained law enforcement had harassed him in the past and that he did not think law enforcement would believe his side of the story anyway. Trial counsel explained his decision to refer to Fishburne as a "usual suspect" as follows:

Trial Counsel: Well, I had to -- I tried to find a way to explain why he lied to the police. You know, you've got somebody that has you leaving the scene before this happens, so why would you deny that you're there? And you know, you don't need to do that; and it's a lie, and it's an unnecessary lie. And so, how do you explain that? You've got to give the jury -- in my -- my strategy, you've got to give the -- you can't -- juries don't like lies, whether the police tell them or the defendants tell them or whether witnesses tell them, and you've got to explain it, somehow. And that was my way to explain why he would lie about being in the club.
PCR Counsel: Okay. It's safe to say that that's sort of a double-edged sword. Is that --
Trial Counsel: Yes, it's a risk.
PCR Counsel: Okay.
Trial Counsel: There's no doubt. I mean, you -- you want to present some evidence that, you know, somebody doesn't trust the police, then you have to show prior involvement with the police, which, normally, you work to try not to do. But, yeah, it's a risk. But I don't know how -- but you've got to explain a lie.

Trial counsel admitted he did not pursue additional alibi witnesses that could have testified to Fishburne leaving the club before the shooting. Trial counsel testified he strategically decided to not present additional alibi witnesses to say Fishburne left the club over an hour before the shooting because he already had a witness he believed would testify that Fishburne left shortly before the shooting.

Other than trial counsel, Fishburne was the only witness at the PCR hearing. He testified he was at the club that evening but left prior to the shooting. He testified he gave trial counsel the names of multiple alibi witnesses and that trial counsel failed to contact them. None of these purported alibi witnesses were present at the PCR hearing.

The PCR court denied Fishburne relief in a written order. After setting forth the procedural history of Fishburne's case and reciting the Strickland2 standard, the PCR court set forth findings of fact and conclusions of law on Fishburne's claim trial counsel failed to call alibi witnesses. However, there is no discussion at all of Fishburne's claim arising from trial counsel's mention of Fishburne being at roll call for another criminal charge and trial counsel's characterization of Fishburne as a "usual suspect." Fishburne did not file a Rule 59(e), SCRCP motion asking the PCR court to rule on this issue. We granted Fishburne's petition for a writ of certiorari to address whether his case should be remanded to the PCR court to make sufficient findings of fact as mandated by statute.

DISCUSSION

In ruling on a PCR application, "[t]he [PCR] court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented." S.C. Code Ann....

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