Harris v. State

• Citation: 659 S.E.2d 140,377 S.C. 66
• Decision Date: 10 March 2008
• Docket Number: No. 26458.,26458.
• Parties: Patrick Delvon HARRIS, Respondent v. STATE of South Carolina, Petitioner.
• Court: United States State Supreme Court of South Carolina

659 S.E.2d 140

377 S.C. 66

Patrick Delvon HARRIS, Respondent v. STATE of South Carolina, Petitioner.

No. 26458.

Supreme Court of South Carolina.

Submitted January 23, 2008.

Decided March 10, 2008.

Attorney General Henry Dargan McMaster, Chief Deputy, Attorney General John W. McIntosh, Assistant Deputy, Attorney General Salley W. Elliott, Assistant Attorney, General Robert L. Brown, all of Columbia, for Petitioner.

Melisa White Gay, of Mt. Pleasant, for Respondent.

Justice BEATTY:

In this post-conviction relief (PCR) case, the Court granted the State's petition for a writ of certiorari to review the PCR judge's decision granting relief with respect to Patrick Delvon Harris's conviction for armed robbery and sentence of imprisonment for life without parole (LWOP). We reverse.

FACTS

At approximately 12:00 a.m. on March 26, 1998, Jessie Brown and Kevin Outen, employees with Park Place Video in Columbia, observed an African-American male walk through the video poker establishment and leave after staying only a few minutes. Both employees believed the man was "scoping out" the place.

According to Brown, the same man returned at 2:00 a.m. At that time, Outen was on the phone with the store manager. Outen "buzzed in" the man unaware that he was accompanied by two masked men. As the men "rushed" in, one of the masked men pointed a gun at Outen and ordered him to hang up the phone and get on the floor. Outen complied but left the phone on the counter so that the manager could hear what was transpiring in the store. The other masked man ordered Brown at gunpoint to show him where the store kept the money. The man then took the money and handed it to one of his accomplices. Outen was then led by one of the masked men to a back room where two customers had been playing video poker. After hearing the commotion, the customers hid in the room and locked the door. The masked man kicked open the door and ordered Outen and the two customers at gunpoint to get on the ground and remain in the room. While they were in the room, the three captives heard several gunshots before the robbers exited the store. Shortly after the gunshots ended, one of the customers heard a car drive off.

According to Brown, the men "tore the place up" and then fired several gunshots before leaving. Brown identified the man that accosted him as the last man to leave the premises. He described this man as wearing a mask, a dark brown leather coat, and black leather pants.

When Brown emerged from one of the back rooms, deputies with the Richland County Sheriff's Department were already on the scene having been summoned by a 911 call placed by the store manager who heard the commotion while speaking with Outen on the telephone.

Deputies Ray Livingston and Jason Christophel, who were separately patrolling the Parklane Road area, responded to the call within less than a minute. When they arrived, they observed a masked man wearing black pants and a dark leather jacket exit the store and then flee the scene. Deputy Christophel pursued the suspect on foot while Deputy Livingston attempted to apprehend the suspect by driving around the adjacent area. Ultimately, Deputy Christophel apprehended and arrested the suspect within a few minutes. According to Deputies Christophel and Livingston, the suspect, who was identified as Harris, said "You got me. I did it. You got me" as they were arresting him. The deputies then transported Harris back to the scene where they retrieved the mask that he had discarded as he exited the store. At the store, Harris told the officers that the other men had absconded in a burgundy-colored Thunderbird and gave the license plate number.

The deputies then transported Harris to the Richland County Sheriff's Department where he was interviewed by Investigators Eric Barnes and Stephen Curtis. According to Barnes and Curtis, Harris gave an oral statement in which he admitted his involvement in the armed robbery but declined to provide additional details. Eventually, Harris identified his accomplices as Stuart Young and Walter Lewis. The investigators also questioned Brown, Outen, the store manager, and the two customers regarding their account of the robbery.

With this information, the investigators compiled a photographic lineup and presented it to Outen. Outen was able to identify Stuart Young as the robber who did not wear a mask. The next day, the investigators arrested Young after they apprehended him while he was driving Harris's Thunderbird. Young gave a written statement to the investigators in which he admitted his involvement in the robbery and implicated Harris and Lewis. Lewis, who left the state after the robbery, was ultimately taken into custody after he was arrested in Virginia on unrelated federal charges.

On March 15, 1999, Harris was tried for armed robbery before Circuit Court Judge John Breeden. Because the jury could not reach a verdict, this trial ended in a mistrial. Harris was retried on March 30, 1999.¹ At the conclusion of the second trial before Circuit Court Judge James C. Williams, Jr., Harris was convicted of armed robbery and sentenced to life imprisonment without parole pursuant to section 17-25-45 of the South Carolina Code due to his nine prior convictions for armed robbery.² On direct appeal, this Court affirmed Harris's conviction and sentence in State v. Harris, Op. No.2001-MO-021 (S.C. Sup.Ct. filed Mar. 28, 2001).

Subsequently, Harris filed an application for post-conviction relief, alleging he was being held unlawfully due to: ineffective assistance of trial counsel; lack of subject matter jurisdiction; a sentence which violated ex post facto laws; and a sentence which violated Article XII, § 2 of the South Carolina Constitution.

Circuit Court Judge G. Thomas Cooper, Jr., held a hearing on Harris's petition. At the hearing, Harris's PCR counsel contended trial counsel was ineffective in that he failed to: (1) procure a copy of the trial transcript from Harris's first trial or move for a continuance until such transcript could be obtained; (2) have Harris served with sufficient legal notice of the State's intention to seek LWOP; and (3) adequately consult with Harris prior to the two trials. Additionally, PCR counsel alleged that appellate counsel was ineffective for failing to brief Harris's motion to relieve trial counsel. In support of these allegations, PCR counsel called Harris and his trial counsel, James Mann, as witnesses.

After the hearing, Judge Cooper issued an order granting Harris's application for post-conviction relief. In reaching this decision, Judge Cooper found trial counsel was ineffective and Harris was prejudiced by counsel's failure to procure a copy of the first trial transcript. Because there were "obvious inconsistencies in crucial testimony," Judge Cooper believed trial counsel should have obtained the transcript to prove these "substantial differences." Secondly, Judge Cooper found that counsel's pre-trial consultation with Harris was inadequate given the State was seeking a sentence of LWOP. Finally, Judge Cooper concluded Harris's LWOP sentence was void because there was no evidence that Harris had been served with written notice of the State's intent to seek a sentence of LWOP as mandated by the terms of section 17-25-45(H).

This Court granted the State's petition for a writ of certiorari to review the PCR judge's decision.

DISCUSSION

A defendant has the right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case." Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 370, 169 L.Ed.2d 247 (2007).

In a PCR proceeding, the applicant bears the burden of establishing that he is entitled to relief. Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000). In order to prove that counsel was ineffective, the PCR applicant must show that: (1) counsel's performance was deficient; and (2) there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. Id. (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial." Ard, 372 S.C. at 331, 642 S.E.2d at 596. "Furthermore, when a defendant's conviction is challenged, `the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

"This Court gives great deference to the post-conviction relief (PCR) court's findings of fact and conclusions of law." Dempsey v. State, 363 S.C. 365, 368, 610 S.E.2d 812, 814 (2005). A PCR court's findings will be upheld on appeal if there is "any evidence of probative value sufficient to support them." Id. This Court will reverse the PCR court's decision when it is controlled by an error of law. Sheppard v. State, 357 S.C. 646, 651, 594 S.E.2d 462, 465 (2004).

I.

The State contends the PCR judge erred in finding trial counsel was ineffective in failing to consult with Harris prior to both trials. We agree with the State's contention.

In granting Harris relief on this ground, the PCR judge found Harris's allegations that his meetings with counsel were "limited in number and duration" and that he never received a copy of the discovery materials were "mainly unrefuted by trial counsel." Specifically, the judge noted that trial counsel did not know exactly how many times he had met with Harris to prepare for trial or whether he had provided Harris with the discovery...