Gilchrist v. State
Decision Date | 17 June 2002 |
Docket Number | No. 25481.,25481. |
Citation | 565 S.E.2d 281,350 S.C. 221 |
Court | South Carolina Supreme Court |
Parties | Ray GILCHRIST, Petitioner, v. STATE of South Carolina, Respondent. |
Assistant Appellate Defender Robert M. Pachak, of South Carolina Office of Appellate Defense, of Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Attorney General Edgar R. Donnald, all of Columbia, for respondent.
We granted a writ of certiorari to review the denial of post-conviction relief (PCR) to petitioner Ray Gilchrist. We reverse.
Gilchrist was convicted of attempted common law robbery and sentenced to 12 years. On direct appeal, the Court of Appeals affirmed. State v. Gilchrist, 329 S.C. 621, 496 S.E.2d 424 (Ct.App.1998). As related in the Court of Appeals' opinion on direct appeal, the facts of the crime are as follows:
State v. Gilchrist, 329 S.C. at 624-25,496 S.E.2d 424-25.
During opening argument, the State told the jury it intended to call Ethridge to testify on the State's behalf:
The State will call Mr. Ethridge, who has tendered a plea of guilty to attempted strong-arm robbery. And I'll say this from the bottom of my heart, that there is one soul, who was at one time unclean and is now clean. It's that man there with his lawyer. He's clean today, and he will be cleaner still, because he is pleading—he is going to testify in the State of South Carolina's case with no guarantees of sentence for his plea of guilty of attempted strong-arm robbery in this case. He is at the point in his life where he wants to lay all the cards on the table and let the chips fall where they may. That's good for the soul, and he is looking forward to this. As much as someone tragically is, he's at a point where he wants to be clean. That's really what it's all about. And there will be evidence in this case that Mr. Ethridge is wanting to let it all out. This is his day to let all these things fly. He's beyond that now. Hallelujah. He's going to tell you that he's a drug addict. He's going to embarrass himself a little bit by laying out a resume of his conduct that pertains to his drug abuse and other misconduct and part of his life, but he will not run from it. He will salute, but he knows he's got a life. He's got a life and he's got a soul...
(Emphasis added). Gilchrist's counsel did not object.
When Ethridge testified, he stated he had smoked crack provided by Gilchrist and, while high on the crack, had committed the attempted robbery at the suggestion of Gilchrist. He acknowledged he had prior convictions for distribution of imitation controlled substances, shoplifting, obtaining money under false pretenses, and forgery. On cross-examination, counsel highlighted how Ethridge had pled guilty to the attempted robbery, but had not yet been sentenced. When asked if he was hoping for leniency, Ethridge responded: "I'm not hoping, I'm praying." At the PCR hearing, Gilchrist argued that trial counsel was ineffective for failing to object to the State's opening because it constituted impermissible vouching for Ethridge's credibility. Trial counsel testified that he Counsel did not elaborate on what the particular "strategy of the case" was.
As to this issue, the PCR court noted that although the State's opening was "passionate," it was not improper. The PCR court found that: (1) counsel had no reason to object; (2) counsel made a reasonable strategic decision not to object; and (3) there was no prejudice because of the trial court's standard instructions to the jury.1
Was counsel ineffective for failing to object to the State's opening?
Gilchrist argues his counsel was ineffective for failing to object to the State's opening comments about Ethridge because they improperly bolstered Ethridge's credibility. We agree.
To establish a claim of ineffective assistance of trial counsel, a PCR applicant must show that: (1) counsel's representation fell below an objective standard of reasonableness and, (2) but for counsel's errors, there is a reasonable probability the result at trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial. Id. Where counsel articulates a valid reason for employing a certain strategy, such conduct will not be deemed ineffective assistance of counsel. E.g., Stokes v. State, 308 S.C. 546...
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