Glover v. State, 24260

• Court: United States State Supreme Court of South Carolina
• Citation: 458 S.E.2d 538,318 S.C. 496
• Docket Number: No. 24260,24260
• Parties: Eric GLOVER, Respondent, v. STATE of South Carolina, Petitioner.
• Decision Date: 19 June 1995

Page 538

458 S.E.2d 538 318 S.C. 496 Eric GLOVER, Respondent,
v.
STATE of South Carolina, Petitioner. No. 24260. Supreme Court of South Carolina. Submitted Jan. 18, 1995.
Decided June 19, 1995.

Page 539

Atty. Gen. T. Travis Medlock, Deputy Atty. Gen. J. Emory Smith, Jr., and Asst. Attys. Gen. Teresa Nesbitt Cosby and Teresa A. Knox, Columbia, for petitioner.

Sr. Asst. Appellate Defender Wanda H. Haile of S.C. Office of Appellate Defense, Columbia, for respondent.

MOORE, Justice:

This case is before us on a writ of certiorari to review the grant of respondent's application for post-conviction relief (PCR). We reverse.

[318 S.C. 497] FACTS

Respondent was convicted of kidnapping, armed robbery, assault and battery of a high and aggravated nature, possession of a firearm during the commission of a violent crime, and temporary use of a vehicle without permission. In State v. Glover, Op. No. 92-MO-302 (S.C.Sup.Ct. filed December 18, 1992), we affirmed these convictions pursuant to Rule 220(b)(1), SCACR. Subsequently, respondent filed a PCR application alleging, inter alia, ineffective assistance of trial counsel. After a hearing, the PCR judge found trial counsel was ineffective and ordered a new trial.

ISSUE

Did the PCR judge err in finding trial counsel ineffective?

DISCUSSION

To establish a claim of ineffective assistance of trial counsel, a PCR applicant has the burden of proving counsel's representation fell below an objective standard of reasonableness and, but for counsel's errors, there is a reasonable probability the result at trial would have been different. Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992). A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

At the PCR hearing, respondent argued trial counsel was ineffective for failing to contact several witnesses who could have testified respondent was in Florida when the crimes were committed. In support of this argument, respondent presented the testimony of two witnesses. The first witness was respondent's grandfather, Sylvester Jordan. Mr. Jordan initially stated he "believe[d]" respondent was in Florida on the date the crimes were committed. However, Mr. Jordan subsequently stated he knew "nothing" and testified he did not recall any specific dates respondent was in Florida. The second witness was respondent's aunt, Sandra Jordan. Ms. Jordan testified respondent came to her house in Florida at approximately 8:00 a.m. on the date the crimes were committed. Ms. Jordan stated respondent stayed approximately fifteen minutes, then left in a car by himself.

[318 S.C. 498] In his order, the PCR judge found trial counsel ineffective for failing to contact respondent's alibi witnesses. The State argues this was error. We agree.

By finding trial counsel ineffective, the PCR judge necessarily found counsel's actions or inaction resulted in prejudice to respondent. Strickland v. Washington, supra; Underwood v. State, supra. However, there is no evidence to support the PCR judge's finding of prejudice.

Page 540

The failure to contact Sylvester or Sandra Jordan did not result in prejudice to respondent as neither witness's PCR testimony established an alibi defense. Ms. Jordan's testimony merely placed respondent in Florida between 8:00 and 8:30 a.m. on the date the crimes occurred. However, the crimes occurred in Williamsburg County over eleven hours later at approximately 8:30 p.m. ¹ In addition, Mr. Jordan's testimony was not sufficient to establish an alibi defense. See State v. Robbins, 275 S.C. 373, 271 S.E.2d 319 (1980) (since an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused's guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all).

Further, because the other witnesses respondent claimed could have provided an alibi defense did not testify at the PCR hearing, respondent could not establish any prejudice from counsel's failure to contact these witnesses. See Underwood v. State, supra (prejudice from trial counsel's failure to interview or call witnesses could not be shown where witnesses did not testify at PCR hearing); see also Clark v. State, 315 S.C. 385, 434 S.E.2d 266 (1993) (pure conjecture as to what a witness's testimony would have been is not sufficient to show a reasonable probability the result at trial would have been different). In order to support a claim that trial counsel was ineffective for failing to interview or call potential alibi witnesses, a PCR applicant must produce the witnesses at the PCR hearing or otherwise introduce the witnesses' testimony in a manner consistent[318 S.C....