Gibson v. State

• Decision Date: 08 March 1999
• Docket Number: No. 24914.,24914.
• Citation: 334 S.C. 515,514 S.E.2d 320
• Parties: Harold GIBSON, Respondent/Petitioner, v. STATE of South Carolina, Petitioner/Respondent.
• Court: South Carolina Supreme Court

334 S.C. 515

514 S.E.2d 320

Harold GIBSON, Respondent/Petitioner, v. STATE of South Carolina, Petitioner/Respondent.

No. 24914.

Supreme Court of South Carolina.

Submitted January 21, 1999.

Decided March 8, 1999.

Tara Dawn Shurling, of Columbia, for respondent/petitioner.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Teresa A. Knox, and Assistant Attorney General Matthew M. McGuire, all of Columbia, for petitioner/respondent.

WALLER, Justice:

Respondent-Petitioner Harold Gibson (Gibson) pleaded guilty to voluntary manslaughter and was sentenced to twenty-one years in prison. He did not appeal the conviction or sentence.

Gibson filed a post-conviction relief (PCR) application dated March 2, 1995. A circuit judge granted Gibson a new trial based on a Brady¹ violation, but rejected Gibson's argument the prosecutor had committed misconduct. Petitioner-Respondent (the State) and Gibson contend the judge erred. We affirm in part and reverse in part.

FACTS

The State accused Gibson of murdering a long-time friend, Bobby M. Griffin (victim), in a late-night shooting at Gibson's bar in 1989. From the beginning, Gibson claimed the shooting was an accident. He and other witnesses told police he fired a nine-mm automatic handgun into the wall of his bar to subdue the victim, who had been drinking, and convince everyone to leave. Gibson told police everyone left, then the victim went back inside the bar to confront Gibson again. Gibson suspected the victim was armed. Gibson, holding the handgun only by the butt and not the trigger, slapped the victim on the forehead with the gun. The gun fired; a bullet struck the victim in the forehead and killed him.

The key evidence consisted of the testimony of two alleged eyewitnesses, Robert Peterson and Anna Lanier Ross. Peterson told police he followed the victim and Gibson back into the bar after Gibson had ordered everyone to leave. Peterson corroborated Gibson's version of events, particularly the statements that the gun went off after Gibson struck Griffin with it. Ross, who was the victim's girlfriend, told police she went to a window and looked inside after the victim went back into the bar. She claimed she "saw [Gibson] point the pistol at [the victim] and shoot him."

Four other witnesses told police that Ross either was sitting in her car or standing next to it when the fatal shot was fired. She ran inside only after the shot was fired to find the victim dying on the floor, according to the witnesses.

Gibson filed a discovery motion pursuant to Brady and Rule 5, SCRCrimP. Gibson pleaded guilty after a jury had been selected, which resulted in the prosecutor describing the statements of Peterson and Ross to the judge. The prosecutor said Peterson told police the gun discharged after Gibson struck the victim with it. The prosecutor said that "another witness, [Ross], was outside and indicates that she saw a different version with the defendant having pointed the gun at the victim's head." The prosecutor did not reveal any changes Ross had made in her story or any misgivings about the veracity of her potential testimony. Petitioner pleaded guilty to voluntary manslaughter after answering the usual questions regarding his constitutional rights.

In February 1992, the victim's family sued an insurance company in an effort to collect under an accidental death provision of the victim's life insurance policy. Gibson learned for the first time through the testimony of investigating officers that they and the prosecutor had visited the crime scene with Ross. Gibson also learned the officers did not believe Ross's statement that she saw the shooting through the window because her view would have been blocked by curtains and a Donkey Kong video game.

Ross testified in the civil trial that she opened the door of the bar to see Gibson point the gun at the victim and shoot him. Three witnesses told the jury the same thing they had told police during the investigation, i.e., that Ross was either in or beside her car when the shooting occurred and could not have seen what happened inside the bar. In addition, it was raining and sleeting that night, and the door of the bar was equipped with a device that automatically closed it.

Gibson testified in the civil trial that he repeatedly tried to calm the victim, who had been his friend and a fellow logging truck driver for twenty years, and make him leave the bar peacefully. When the victim came back inside the bar, Gibson believed he was armed because the victim kept his hand down by his side. Gibson grabbed his handgun by the butt and hit the victim on the left side of his head, hoping to "knock some sense into him." He was shocked when the gun discharged because he had not pulled the trigger. Gibson held the victim in his arms until he died a few minutes later.

At the PCR hearing, petitioner's trial attorney testified he visited the crime scene with Gibson. The attorney was fully prepared to impeach Ross in an effort to discredit her claim that she had witnessed the shooting through the window. He recognized, however, that determining how the shooting occurred was a factual issue for the jury. The attorney testified he knew police and prosecutors did not believe Ross's statements were credible, but did not recall receiving any information that the prosecutor had taken Ross to the scene to discuss her statements. In his estimation, the investigating officers and the prosecutor simply confirmed his belief that Ross was not credible.

The trial attorney's co-counsel testified he visited the scene with the attorney and Gibson to collect evidence to discredit Ross's claims. At the time of Gibson's guilty plea, the co-counsel did not know police and the prosecutor did not believe Ross's claims; nor did he know they had taken Ross to the scene to confront her.

The prosecutor testified that, after confronting Ross at the scene, there

came a time when I was convinced that she could not see what she said she saw from where she said she saw it. She said she was standing at a window looking in the bar. And we looked at some pictures and there was a Donkey [Kong] machine in front of that window when the pictures were taken of the scene that night and we determined that she could not have seen through that window. And I confronted her with that and she never denied seeing what she said she saw in the bar. She then began to hedge on where she was standing. She said, well, maybe I wasn't there, maybe I was at the door or something to that effect. She still said she saw what she saw and she never wavered on that.

The prosecutor testified he told Gibson's attorney that Ross could not have seen what she claimed. The prosecutor did not recall whether he also told Gibson's attorney that he had reached his conclusion after confronting Ross at the scene and hearing her change her story. When pressed further, the prosecutor testified he could not recall exactly when Ross changed her story. He did not document the changes to Ross's previous statement in writing. If the case went to trial, the prosecutor intended to offer Ross's testimony, then place an investigator from his office on the stand to testify that a person could not see inside the bar through that window.

Two investigating officers testified, as they had at the civil insurance trial, that they did not believe Ross could have seen the shooting through the window. They corroborated the prosecutor's testimony about confronting Ross at the scene and her continued insistence that she saw the shooting. However, the officers did not recall Ross ever changing her statement to say she must have seen the shooting through the door. Neither officer told Gibson's attorney verbally or in any written report given to the attorney that they had taken Ross to the scene.

Gibson testified he struck the victim with the gun and it fired accidentally. He believed the prosecutor planned to use Ross's testimony at trial. He knew Ross was lying, but had no way of proving it. His attorney said he thought he could prove Ross was lying, but no one ever told him that Ross had changed her statement to say she must have seen the shooting through the door after the prosecutor and police confronted her at the scene. Nor did anyone ever tell Gibson that the prosecutor and police were convinced she was lying, Gibson testified. If he had known those facts, he would have stood trial instead of pleading guilty, Gibson testified.² The PCR judge, after considering oral arguments as well as memoranda from both parties, ruled the State had violated Brady by failing to fully disclose all material exculpatory or impeachment evidence regarding Ross's statements. The prosecutor should have disclosed the visit to the scene with Ross and the material change in her testimony. The judge ruled that

[t]his information was material regardless of defense counsel's independent knowledge of the physical parameters of the crime scene. Defense counsel could have challenged [Ross's] veracity merely on the basis of the measurements he had taken himself. However, the withheld information provided an infinitely stronger basis for challenging the prosecution's key witness and for exculpating the defendant.... Only in its full form did the information constitute evidence with exculpatory or impeachment value. By contrast, the information actually provided, that the prosecution believed [Ross] could not have seen through the window, was inadmissible into evidence and thus, inherently lacking in exculpatory or impeachment value.... [T]here is a grave difference between thinking you can impeach a witness and knowing that the State has established that the witness's sworn statements are untrue.

The PCR judge set aside Gibson's guilty plea and granted him a new trial based on the Brady violation. The judge also ruled the prosecutor had not committed misconduct.

ISSUES

1. Does

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