Gibbs v. State
| Decision Date | 12 July 2013 |
| Docket Number | Nos. 27253.,s. 27253. |
| Citation | 744 S.E.2d 170,403 S.C. 484 |
| Parties | Clarence GIBBS, Petitioner, v. STATE of South Carolina, Respondent. Appellate Case No.2009–137347. |
| Court | South Carolina Supreme Court |
OPINION TEXT STARTS HERE
Appellate Defender Katherine H. Hudgins, of Columbia, for Petitioner.
Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Christina J. Catoe, all of Columbia, for Respondent.
We granted a writ of certiorari to review the denial of Clarence Gibbs's (Petitioner) second application for post-conviction relief (PCR). We hear this matter pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), for PCR counsel failed to seek certiorari review following the denial of Petitioner's first PCR application. After being convicted by a jury of kidnapping, armed robbery, and possession of a deadly weapon during the commission of a violent crime, and unsuccessfully pursuing a direct appeal, Petitioner sought PCR on two grounds: (1) trial counsel was ineffective for failing to contemporaneously object to the introduction of a lineup, a show-up, and in-court identifications; and (2) trial counsel was ineffective in failing to request a jury instruction on the law of alibi as part of the defense strategy. We affirm.
On the evening of April 10, 2005, a robbery occurred at a grocery store in Georgetown, South Carolina. The police arrived to the scene shortly after the robber fled. Three different witnesses were interviewed about the incident. One witness, John Fowlkes, described the robber as a middle-aged or older black man with a “scruffy beard with distinct gray colorings in it.” He also noted the robber wore a black hat and blue jacket. Another witness, Greg Morton, indicated the robber was wearing a black hat and a blue or black jacket. Eric Sessions, the third witness, informed police the robber was wearing a blue hat and a blue jacket. Officers also reviewed a surveillance tape that captured the robbery, and a black jacket found at Petitioner's home was positively identified by all three witnesses as the jacket worn by the robber.
Approximately ten days after the robbery, police officers presented two photographic lineups, each containing six pictures of people generally matching the description given by the witnesses, to each witness individually.1 The first photographic lineup contained a picture of Petitioner. Upon viewing the lineups, Fowlkes and Morton identified Petitioner as the robber. Sessions, however, was unable to identify the perpetrator via the lineups.
Nearly one week later, Petitioner was transported to the police station for questioning. The three witnesses were brought to the station to view Petitioner. According to Fowlkes, he was taken to a one-way mirror to determine whether Petitioner had any involvement in the robbery. Fowlkes testified he saw a white male and Petitioner behind the glass and that he instantly recognized Petitioner as the robber. Likewise, Morton testified Petitioner was in the room with two police officers and was able to identify Petitioner as the robber. When Sessions viewed Petitioner, however, he informed police he was sure Petitioner was not the perpetrator.2
Petitioner was subsequently charged with kidnapping, armed robbery, and possession of a deadly weapon during the commission of a violent crime.
Petitioner moved to suppress the evidence related to the photographic lineup, show-up, and any potential in-court identifications. Following a pretrial in camera hearing pursuant to Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the trial court denied Petitioner's motion to suppress. The trial court found the photographic lineup and show-up identifications were not unduly suggestive and permitted the witnesses to make in-court identifications at trial.
At trial, both Fowlkes and Morton identified Petitioner as the robber. 3 Fowlkes's photographic lineup identification, show-up identification, and in-court identification were admitted into evidence without contemporaneousobjection by the defense.4 When the State sought to introduce Morton's photographic lineup identification into evidence, defense counsel raised a contemporaneous objection.5 However, defense counsel did not object to the introduction of Morton's show-up or in-court identifications.6
Following the State's case-in-chief, Petitioner presented an alibi defense. Specifically, Petitioner testified he was at home with his mother and girlfriend watching television at the time the robbery occurred. Petitioner's mother and girlfriend corroborated his story. Both testified they were home with Petitioner on the night of the robbery watching the television show JAG between 9:00 and 10:00 p.m. The State presented two rebuttal witnesses who testified that the only two stations available to Petitioner did not air JAG on the night of the robbery.7
During closing arguments, both defense counsel and the State presented arguments to the jury regarding Petitioner's alibi. The trial court held a charge conference outside the presence of the jury. Defense counsel did not request a jury instruction on the law of alibi testimony. In its charge, the trial court provided instructions to the jury on the burden of proof in criminal cases and reasonable doubt and informed the jury they should consider only competent evidence and determine the credibility of the witnesses. Additionally, the trial court instructed the jury on identification and that the State had the burden of proving identity beyond a reasonable doubt. 8
Petitioner was convicted by the jury on all three counts and sentenced to concurrent terms of twenty years' imprisonment for the armed robbery and the kidnapping, and five years' imprisonment to run consecutively for the possession of a firearm during commission of a violent crime. On direct appeal, the court of appeals affirmed Petitioner's conviction and sentence. State v. Gibbs, Mem. Op. No. 2007–UP–333 (S.C. Ct.App. filed June 27, 2007).
Subsequently, Petitioner filed two applications for PCR, which were consolidated into one action. In seeking relief, Petitioner alleged defense counsel was ineffective for failing to contemporaneously object to the introduction of the photographic lineup, show-up, and in-court identifications and for failing to request an alibi charge.
At the PCR hearing, defense counsel testified he believed Petitioner's best defense was to challenge the witnesses' inconsistentidentifications but admitted he should have objected to the introduction of the identification evidence and preserved the issue for appellate review. However, he assumed the identifications would be admitted, and he was solely concerned with rebutting the identifications. Counsel also testified that he did not request the jury instruction on the law of alibi because he believed the identification issues was the stronger defense strategy. He nonetheless acknowledged that he should have requested an alibi charge.
The PCR court found defense counsel was deficient for failing to contemporaneously object to the introduction of the photographic lineup, show-up, and in-court identifications because counsel's mistake foreclosed review of the issues on appeal. However, the PCR court found Petitioner was not prejudiced by counsel's deficiency because the trial court admitted the identifications after conducting a thorough Neil v. Biggers hearing.
Regarding the alibi charge, the PCR court found defense counsel's performance was deficient because he failed to ensure that an alibi instruction was given to the jury. However, the PCR court found that Petitioner had not proven prejudice because the jury charge given “was sufficient to inform the jury that the State had to prove beyond a reasonable doubt that [Petitioner] was not at home at the time of the of the crime, and that he was, in fact, at the scene of the crime.” 9 Thus, the PCR court denied Petitioner relief. No appeal was taken.
Following his initial PCR application and hearing, Petitioner filed a subsequent PCR application. Petitioner alleged his PCR counsel failed to file a notice of intent to appeal the denial of relief in his first PCR. The State filed an amended return requesting a hearing pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991). After an evidentiary hearing, the PCR court found Petitioner was entitled to belated review of the denial of his first PCR application. Thereafter, Petitioner filed an Austin petition for writ of certiorari from the first PCR court's order denying him relief. This Court granted the petition for writ of certiorari as to the order granting a belated appeal and from the order denying Petitioner PCR pursuant to Rule 243, SCACR.
To establish a claim for ineffective assistance of counsel, “the applicant must show that: (1) counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) counsel's deficient performance prejudiced the applicant's case.” Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). An applicant may demonstrate prejudice by establishing, by a reasonable probability that, “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Edwards v. State, 392 S.C. 449, 459, 710 S.E.2d 60, 66 (2011) (citation omitted).
In reviewing the findings of the PCR court, this Court applies an “any evidence” standard of review. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). The “PCR court's ruling should be upheld if it is supported by any evidence of probative value in the record.” Speaks, 377 S.C. at 399, 660 S.E.2d at 514 (citing Cherry, 300 S.C. at 119, 386 S.E.2d at 626).
With respect to both issues on appeal, the PCR court found...
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King v. State, A15A1878.
...[voice] show-up may be characterized as merely confirmatory and therefore reliable, despite the suggestive procedure." Gibbs v. State, 403 S.C. 484, 744 S.E.2d 170 (2012). See also Israel, supra, 521 F.2d at 1374 (I)(A) ("[w]here as here, the victim heard the voice of a suspect after she ha......
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Hope v. Cartledge, 15-7367
...the failure to request the alibi charge was not prejudicial. See Ford v. State, 314 S.C. 245, 442 S.E.2d 604 (1994) ; Gibbs v. State, 403 S.C. 484, 744 S.E.2d 170 (2013).4 Notably, Hope's alibi witnesses, who were his roommates, friends, and future wife, also have credibility issues. They f......
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Milledge v. State
...have found Milledge failed to prove prejudice, and thus the PCR court would necessarily have denied PCR. See Gibbs v. State , 403 S.C. 484, 495, 744 S.E.2d 170, 175–76 (2013) (affirming the denial of PCR on the allegation trial counsel failed to contemporaneously object to evidence discusse......
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Hope v. Cartledge
...PCR court reached this conclusion by relying on two decisions from the South Carolina Supreme Court: Ford, supra, and Gibbs v. State, 403 S.C. 484, 744 S.E.2d 170 (2013). Id. at 109-10. The Court finds it necessary to distinguish the facts and holdings of Ford and Gibbs from those of Petiti......