Green v. State, No. 25059.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: BURNETT, Justice
• Citation: 338 S.C. 428,527 S.E.2d 98
• Parties: Burney Don GREEN, Respondent, v. The STATE of South Carolina, Petitioner.
• Docket Number: No. 25059.
• Decision Date: 24 January 2000

338 S.C. 428
527 S.E.2d 98

Burney Don GREEN, Respondent,
v.
The STATE of South Carolina, Petitioner

No. 25059.

Supreme Court of South Carolina.

Submitted December 15, 1999.

Decided January 24, 2000.

338 S.C. 430

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Teresa A. Knox, Assistant Attorney General J. Benjamin Aplin, of Office of the Attorney General, of Columbia, for petitioner

Assistant Appellate Defender Melissa J. Reed Kimbrough, of South Carolina Office of Appellate Defense, of Columbia, for respondent.

BURNETT, Justice:

Respondent was convicted of distribution of crack cocaine and distribution of crack cocaine within proximity of a school. His application for post-conviction relief (PCR) was granted. We affirm.

FACTS

Respondent was arrested as a result of an undercover sting operation conducted by the South Carolina Law Enforcement

338 S.C. 431

Division (SLED) in conjunction with the Conway Police Department. SLED agents parked a van outside a bar in Conway, where respondent was standing in a group of men. An agent called respondent over and asked for a "twenty," meaning a twenty dollar rock of crack cocaine. Respondent returned to the group of men. The agents testified respondent returned with the drugs and accepted a marked twenty dollar bill. Respondent testified he never went back to the van, rather, another man in the group, identified as A.J., sold the agents the cocaine

One of the agents, who was wired with a microphone transmitting to a surveillance team nearby, described respondent to the surveillance team, and respondent was arrested. Respondent testified that when the surveillance officers arrived, the men standing with him ran. He did not run "because I figure I didn't do anything; I don't need to run anywhere." The marked twenty dollar bill was not recovered.

On cross-examination, the State impeached respondent with a 1990 conviction for possession of crack cocaine and a 1991 conviction for possession of cocaine.¹ The trial court gave the jury limiting instructions. The jury found respondent guilty as charged. Respondent was granted PCR for his trial counsel's failure to object that the prejudicial effect of his prior convictions outweighed their probative value.

ISSUE

Did the PCR court err in finding trial counsel ineffective for failing to object that the prejudicial effect of respondent's prior convictions outweighed their probative value?

DISCUSSION

In a PCR proceeding, the burden of proof is on the applicant to prove the allegations in his application. Bell v. State, 321 S.C. 238, 467 S.E.2d 926 (1996); Rule 71.1(e), SCRCP. For an applicant to be granted PCR as a result of ineffective assistance of counsel, he must show both: (1) his counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) he was prejudiced by

338 S.C. 432

his counsel's ineffective performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Judge v. State, 321 S.C. 554, 471 S.E.2d 146 (1996). In order to prove prejudice, an applicant must show that but for counsel's errors, there is a reasonable probability the result of the trial would have been different. 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 the trial. Id. If there is any probative evidence to support the findings of the PCR judge, those findings must be upheld. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). Likewise, a PCR judge's findings should not be upheld if there is no probative evidence to support them. Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996)

The PCR court ruled defense counsel...