Frierson v. State

• Decision Date: 29 June 2016
• Docket Number: Appellate Case No. 2012–211091,Opinion No. 5420
• Citation: 789 S.E.2d 762,417 S.C. 287
• Court: South Carolina Court of Appeals
• Parties: Darryl Frierson, Petitioner, v. State of South Carolina, Respondent.

417 S.C. 287

789 S.E.2d 762

Darryl Frierson, Petitioner,

v.State of South Carolina, Respondent.

Appellate Case No. 2012–211091

Opinion No. 5420

Court of Appeals of South Carolina.

Heard September 8, 2015

Filed June 29, 2016

Rehearing Denied August 18, 2016

Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Assistant Attorney General John Walter Whitmire, and Assistant Attorney General James Clayton Mitchell, III, all of Columbia, for Respondent.

MCDONALD, J.:

Darryl Frierson (Petitioner) pled guilty to kidnapping, armed robbery, assault and battery of a high and aggravated nature (ABHAN), and criminal conspiracy. He appeals from the denial of his application for post-conviction relief (PCR), arguing the PCR court erred in not finding his guilty plea was involuntary due to counsel's failure to advise him he could move to suppress evidence stemming from the placement of a mobile tracking device on his car. We affirm.

FACTS AND PROCEDURAL HISTORY

On May 10, 2007, Petitioner and his co-conspirators stole approximately 9.8 million dollars from an Express Tellers Services (ETS) armored truck. ETS employees David Jones (Jones) and Petitioner drove the truck from Charleston to Columbia, where two co-conspirators—Jeremy McPhail (McPhail) and Dominic Lyde (Lyde)—attacked Jones while he refueled, pushed him into the truck, and restrained him. The co-conspirators drove the truck away and stopped in a field, where two other co-conspirators—Domonique Blakney (Domonique) and Kelby Blakney (Kelby)—transferred money from the truck into a different car, left Jones and Petitioner in the truck, and fled.

Despite suffering substantial injuries, Jones was able to free himself and walk to a nightclub to call the police. Officers responding to the scene found Petitioner still inside the armored truck. Petitioner self-reported injuries and was transported to the hospital, where a team of investigators came to interview him.

Petitioner provided a fictitious account of the incident that immediately alerted investigators to the possibility of dishonesty. For example, although it was dark outside at the time of the heist and Petitioner alleged he was too injured to escape the abandoned armored car, he provided a very detailed account of the surrounding crime scene. During a follow-up interview at the police station, officers became more suspicious when they saw Petitioner through the two-way mirror freely moving his arm, despite his claims of injury to his arm and shoulder. Petitioner failed a polygraph test and had no duct tape residue or significant injuries such as those suffered by Jones. At this point, the investigative team at the police station determined Petitioner was a suspect, not a victim, and placed a Global Positioning System (GPS) tracking device on Petitioner's car—without a warrant or court order—before he left the police department.

Although the Richland County Sheriff's Department's led the detectives working on the case, dozens of additional law enforcement officers from across the state took part in the investigation. While Petitioner was being interviewed at the station, a separate team of officers was examining the armored truck. They collected a blue latex glove from inside the truck that was identical to a glove found in the trash abandoned on the street outside Petitioner's house. In addition, officers interviewing other ETS employees learned that Paul Whitaker (Whitaker), another co-conspirator,¹ and Petitioner were friends. When police questioned Whitaker, he became upset, started crying, and immediately confessed to his role in the scheme. According to Whitaker's statement, Petitioner had been planning to rob the armored truck for several months. Police searched Whitaker's house, where they discovered a large amount of cash and receipts from Petitioner's recent purchases. Based on Whitaker's confession and the evidence gathered at his home, police obtained a warrant for Petitioner's arrest.

Monitoring the tracking device on Petitioner's car, police located him driving with Domonique and found several thousand dollars in cash in the car. Police arrested Petitioner and interviewed Petitioner and Domonique in separate rooms at the police department. On Domonique's cell phone, officers found pictures of large bags of money. Domonique subsequently gave a statement admitting his role in the robbery and implicating Petitioner as the “mastermind.” After police told Petitioner about Domonique's statement, Petitioner waived his rights and confessed to his involvement in the heist.

In September 2007, a grand jury indicted Petitioner for kidnapping, armed robbery, ABHAN, and criminal conspiracy. Domonique, Kelby, McPhail, Lyde, and Whitaker were also indicted for their involvement in the conspiracy.

On December 3, 2008, Petitioner pled guilty to all charges. At the plea hearing, Petitioner acknowledged he understood that by pleading guilty he was waiving his constitutional rights, including his right to challenge the State's evidence at trial. Petitioner also stated he was satisfied with plea counsel's representation. He testified plea counsel reviewed with him and explained his charges, his potential sentences, and his constitutional rights, allowing him to make an informed and intelligent decision about whether to plead guilty or proceed to trial. The plea court accepted Petitioner's guilty plea but deferred sentencing until a later proceeding.

On August 24, 2009, the plea court sentenced Petitioner to concurrent sentences of thirty years' imprisonment for kidnapping, thirty years' imprisonment for armed robbery, and ten years' imprisonment for ABHAN, as well as a consecutive sentence of five years' imprisonment for criminal conspiracy.

Petitioner filed a PCR application, alleging ineffective assistance of counsel. At the PCR hearing, Petitioner testified that plea counsel's lack of confidence about the outcome of a trial prompted Petitioner to plead guilty despite his desire to go to trial. Petitioner also stated plea counsel influenced him to plead guilty by telling him his co-defendants would testify against him at trial.

Petitioner further testified he asked plea counsel to research the legality of the placement of the GPS tracking device because damaging evidence stemmed from the use of the device. According to Petitioner, plea counsel did not discover section 17–30–140 of the South Carolina Code (2014), which requires a warrant or court order for the placement of tracking devices. Plea counsel told Petitioner the placement of the tracking device on the outside of the vehicle was legal based on his research. However, Petitioner testified he would not have pled guilty and would have proceeded to trial if plea counsel had advised him of section 17–30–140 and his ability to challenge the search and use of the resulting evidence.

Plea counsel testified he advised Petitioner to plead guilty because he believed Petitioner's chances of succeeding at trial were “very slim” based on his statement confessing to his involvement in the plan and the likelihood his co-conspirators would have testified against him. Plea counsel explained he researched the constitutionality of the tracking device after learning it was installed without a warrant or court order, however, he was unable to find any South Carolina case law addressing the issue. Plea counsel explained that in light of United States v. Knotts² and the placement of the tracking device on the outside of Petitioner's vehicle, he believed Petitioner's Fourth Amendment rights were not implicated.

Plea counsel admitted he was unaware of section 17–30–140 at the time of Petitioner's plea, did not find it in his research, and did not discuss it with Petitioner. He further testified, however, that he believed the statute was applicable to Petitioner's case and could have been used in an attempt to suppress some of the incriminating evidence. Plea counsel asserted that if he had been aware of section 17–30–140, he would have filed a motion to suppress Petitioner's confession and his co-defendants' confessions, arguing they were the fruit of the poisonous tree stemming from the warrantless use of the tracking device. Plea counsel contended Petitioner's confession was the most damaging evidence against him, and he believed Petitioner would have had a “fighting chance” at trial if a motion to suppress the confession had succeeded.

The PCR court denied Petitioner's PCR application, finding he failed to prove deficient performance or resulting prejudice. It found plea counsel's testimony was credible while Petitioner's testimony was “wholly incredible.” Analyzing the deficiency prong set forth in Strickland v. Washington,³ the PCR court found plea counsel “performed extensive investigation into the GPS monitoring issue” and reasonably relied on Supreme Court case law in determining there was no Fourth Amendment violation “based on the status of the law at the time.” It found plea counsel fully advised Petitioner about the ability to challenge the evidence based on his research.

Analyzing the prejudice prong, the PCR court found Petitioner failed to demonstrate he would have proceeded to trial but for counsel's failure to discover the statute and challenge the placement of the tracking device. Moreover, the PCR court found that even if plea counsel had successfully achieved the suppression of the evidence stemming from the tracking device, the outcome of Petitioner's case would not have been different because there was overwhelming evidence of his guilt.

Petitioner sought a writ of certiorari, which this court granted on February 22, 2014.

STANDARD OF REVIEW

In a PCR proceeding, the applicant has the burden of establishing he is entitled to relief. Terry v. State , 383 S.C. 361, 370, 680 S.E.2d 277, 282 (2009). An appellate court gives great deference to a PCR court's findings of fact and conclusions of law. Id. at 371, 680 S.E.2d at 282 . “...