Green v. State
| Decision Date | 12 August 2002 |
| Docket Number | No. 25515.,25515. |
| Citation | 351 S.C. 184,569 S.E.2d 318 |
| Court | South Carolina Supreme Court |
| Parties | Roderick L. GREEN, Petitioner, v. STATE of South Carolina, Respondent. |
Capers G. Barr, III, of Charleston, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Deputy Attorney General B. Allen Bullard, Jr., and Assistant Attorney General Douglas E. Leadbitter, all of Columbia, for respondent.
A jury convicted Roderick L. Green ("Green") of armed robbery of a restaurant. The court sentenced him to fifteen years' imprisonment. He did not appeal.
Green filed an application for post-conviction relief ("PCR") alleging ineffective assistance of counsel and asking for a belated appeal. Although the PCR court denied the ineffective assistance of counsel claim after a hearing, it granted a belated review of his direct appeal issues.
This Court granted review pursuant to White v. State1 and affirmed Green's conviction. We also granted certiorari to review the ineffective assistance of counsel issues. We affirm.
An armed robbery was committed at a restaurant in Georgetown, South Carolina. The perpetrators were a woman and a man armed with a revolver. A restaurant employee identified the female robber, Sakina McKenith ("McKenith"), in a photographic lineup.
McKenith pled guilty to the armed robbery and an unrelated crack cocaine offense and received a State-recommended sentence.2 In exchange, McKenith agreed to testify against Green, her accomplice. At trial, a restaurant employee testified the female robber appeared to be the same person who ordered a sandwich at the walk-up window an hour before the robbery. Another employee confirmed McKenith, the mother of his son, ordered a sandwich at the walk-up window. At the time, McKenith told him she was with "Donny." The employee testified he knew Donny, but Donny was not the male robber.3
McKenith testified she told the male employee she was driving Donny's car, but stated at trial Green was her accomplice in the robbery. After giving an account of the robbery, McKenith further testified she and Green went to his aunt's mobile home after the robbery to count the money.
Latoya Williams ("Williams"),4 a visitor of Green's aunt, corroborated McKenith's testimony of McKenith's and Green's return to the aunt's mobile home. Williams stated the two were in a room, with the door closed, and were heard saying "Yeah, yeah, we did it." She stated seeing Green and McKenith exit the room with a garbage bag.
Donny Green ("Donny"), petitioner Green's cousin, admitted Green borrowed his white car and drove with McKenith to the restaurant. Donny testified, however, Green returned alone around 10:00 to 10:15 P.M., before the time of the robbery. His testimony contradicted his previous statement to police which contained a time-frame of 10:30 to 11:00 P.M., the approximate time of the robbery.
Green did not testify, but called Katrina Yates ("Yates") as a witness. Yates testified to being incarcerated with McKenith at the county jail. Yates stated McKenith, before she agreed to a plea bargain, had told her Green was not the person who helped her commit the robbery.
At the conclusion of the presentation of evidence, but before closing arguments, Green's counsel moved to remove a juror because he was Mayor of the City of Georgetown. Counsel asserted the Mayor would be unable to serve as an impartial juror in a case because he was responsible for hiring and firing members of the police department. The trial judge removed the Mayor from the jury.
Although instructed not to consider Green's exercise of his right not to testify, the jury, twenty minutes after deliberations began, sent the following note to the trial judge:
Trial Court: Alright, we have received a question from the jury and it's as follows: and I think the word is "renewed or revived?"
After discussion, the State and Green's counsel agreed to a curative instruction. The trial court then re-instructed the jury the State had the burden to prove Green's guilt and the jury was not to consider, in any way, his exercise of the right not to testify.
Approximately three hours after receiving the court's latest instruction, the jury sent a message stating "Hung." The judge, without objection from the Green's counsel, issued the following Allen5 instruction to the jury:
The jury returned a verdict nearly two hours following the Allen instruction. When asked by the court whether it had reached a verdict the foreman replied, "We have reluctantly, yes." The jury found Green guilty. Trial counsel did not ask the court to poll the jury.
There is a strong presumption trial counsel provided adequate assistance. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). To prove ineffective assistance of counsel, the applicant must show trial counsel's performance 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. See Strickland v. Washington, supra; Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). A reasonable probability is one sufficient to undermine confidence in the trial's outcome. See Strickland v. Washington, supra. This Court sustains the PCR court's factual findings and conclusions of law drawn from them as long as there is any probative evidence to support those findings. See Cherry v. State, supra.
At his PCR hearing, Green asserted his trial counsel provided ineffective assistance because he failed to move for a mistrial after the jury sent its note referring to Green's failure to testify. The PCR court denied Green's contention finding, first, Green made the decision to select a curative instruction, and, second, counsel's advice was permissible trial strategy. We agree.
At the PCR hearing, Green's mother, Anita Brown ("Brown") testified counsel informed her and her husband Green had grounds for a mistrial. However, trial counsel believed a mistrial was not necessary because Green had a "good" jury more likely to acquit. Brown's husband confirmed her testimony. Green testified trial counsel advised him to not request a mistrial because he had a good jury. Instead, counsel suggested a curative instruction because Green had a good chance at acquittal.
Trial counsel's testimony at the PCR hearing corroborated much of the Browns' and Green's statements. He stated he conferred with Green several times, questioning him about the decision to obtain a curative instruction, and talked with the Browns about their son's options.
Further, counsel informed Green and his family the...
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