Henry v. State, Opinion No. 25861 (SC 8/30/2004)
| Decision Date | 30 August 2004 |
| Docket Number | Opinion No. 25861. |
| Court | South Carolina Supreme Court |
| Parties | Herman Henry "Bud" Von Dohlen, Petitioner, v. State of South Carolina, Respondent. |
Appeal From Berkeley County, Richard E. Fields, Trial Judge, L. Henry McKellar, Post-Conviction Relief Judge.
REVERSED.
Teresa L. Norris, of the Center for Capital Litigation, of Columbia; Jeffrey P. Bloom, of Columbia; and Acting Chief Attorney Joseph L. Savitz, III, of the South Carolina Office of Appellate Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, for Respondent.
We granted the petition for a writ of certiorari from Herman Henry "Bud" Von Dohlen (Petitioner) to consider whether the post-conviction relief (PCR) judge erred in denying Petitioner's request for a new sentencing proceeding. We reverse and grant Petitioner a new sentencing proceeding.
Petitioner, then age 35, averred in a signed confession to law enforcement investigators that he walked from the Berkeley County pawnshop he managed to a nearby dry cleaning shop to ask for change the morning of May 28, 1990. He stated shop employee Margaret McLean (Victim) refused to give him change and told him his brother, who recently had been murdered, deserved to die.
Petitioner returned to the pawnshop, loaded a rifle, and walked back to the shop. He stated he intended only to scare Victim for her alleged cruel and thoughtless comments. He forced Victim to disrobe to make the crime appear to be a rape. He stated the rifle discharged accidentally when Victim ran and caused a bar bolting the back door to strike Victim and the gun. Petitioner then shot Victim in the back of the head and decided to steal money from the store in order to make it appear to be a robbery.
The jury convicted Petitioner of murder and armed robbery, and recommended a sentence of death based on the aggravating circumstance of armed robbery. See S.C. Code Ann. §§ 16-3-20(A) and 16-3-20(C)(a)(1)(d) (Supp. 1991). The trial judge sentenced Petitioner to death for murder on the jury's recommendation and twenty-five years for armed robbery. The convictions and sentences were affirmed on direct appeal. State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689 (1996).
Petitioner filed a PCR application in 1997 and later amended it. The PCR judge denied the application after a hearing in 1999. We granted a writ of certiorari to consider two questions raised by Petitioner:
I. Does any evidence of probative value support the PCR judge's ruling that Petitioner's trial attorneys were not ineffective in failing to adequately prepare and present evidence during the penalty phase of the trial that Petitioner suffered from a major mental illness at the time of the murder?
II. Does any evidence of probative value support the PCR judge's ruling that Petitioner's trial attorneys were not ineffective in failing to object to the prosecutor's closing argument during the penalty phase of the trial that jurors should put themselves in Victim's shoes?
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. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). In order to prove counsel was ineffective, the applicant must show that counsel's performance was deficient and that there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 687-694, 104 S.Ct. at 2064-2068, 80 L.Ed.2d at 693-698; Rhodes v. State, 349 S.C. 25, 561 S.E.2d 606 (2002); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). Thus, an applicant must show both error and prejudice to be granted relief in a PCR proceeding. Strickland, supra; Scott v. State, 334 S.C. 248, 513 S.E.2d 100 (1999).
The burden is on the applicant in a post-conviction proceeding to prove the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). An appellate court may affirm the PCR court's decision when its findings are supported by any evidence of probative value in the record. Cherry, supra. However, an appellate court will not affirm the decision when it is not supported by any probative evidence. Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).
During the penalty phase of the trial, witnesses testified Petitioner had been a good husband, married for seventeen years; a good father, with four children ages two through fourteen; and a dependable, likeable employee of grocery stores and pawnshops. Petitioner grew up in a very poor family and had been physically abused and emotionally neglected as a child. He had no prior criminal record. The violent murder was completely unexpected and out of character for a man who had never displayed violent tendencies.
Witnesses testified Petitioner's personality and demeanor underwent a dramatic change when — about two weeks before Victim's murder — Petitioner's brother was murdered by the brother's father-in-law. Petitioner became withdrawn, irritable, and depressed. He began abusing alcohol and Valium, an anti-anxiety medication.
At trial during the penalty phase, Dr. Michael Lampkin, a psychiatrist, testified Petitioner at the time of the murder suffered from "adjustment reaction with mixed features of emotions and conduct," as well as pathological intoxication from the abuse of alcohol and Valium. Adjustment reaction is a disorder in which a person's expression of grief exceeds what is normally expected. It is generally easily treatable and lasts no longer than three months. On cross-examination, Lampkin testified Petitioner did not have a chronic mental illness and did not dispute the solicitor's assertion that adjustment reaction disorder was "pretty small potatoes" in the spectrum of mental illnesses.
In the penalty phase closing arguments, the solicitor argued Petitioner did not suffer from any mental or emotional disturbance and that the murder was committed in "cold premeditation." The solicitor contended,
At the PCR hearing, Lampkin testified that if he had been provided with additional medical and psychiatric records that existed and were available before the trial, he would have diagnosed Petitioner as suffering at the time of the murder from "major depressive episodes with severe symptoms of anxiety and possible prepsychotic features," plus alcohol and Valium abuse.
Dr. Lampkin identified six items that changed his opinion: (1) the MMPI test1 administered to Petitioner in 1990 while at the William S. Hall Psychiatric Institute, a state hospital; (2) Petitioner's complete medical record from his four months at the Hall Institute, including nurses' notes with numerous references to Petitioner's depressed state, impaired memory, isolation, and hopelessness; (3) the medical records of Petitioner's father indicating he suffered from chronic depression and thus providing a genetic basis for Petitioner's chronic depression; (4) the medical records of Petitioner's brother, John, who attempted suicide shortly before Petitioner's trial, providing additional proof of a genetic predisposition for mental disorders; (5) an MCMI test2 administered to Petitioner in 1990 by Dr. Harold Morgan at the Hall Institute, revealing elevated scores for anxiety, depression, and delusional disorders; and (6) Petitioner's records prepared in 1990 by Dr. Don Hinnant, a psychologist, which revealed symptoms of major depression. All the records were potentially available to Petitioner's attorneys and expert witnesses before his trial in 1991.
Louisa Storen, a social worker who testified at trial about Petitioner's background and family, testified at the PCR hearing she asked Lampkin to review Petitioner's case shortly before trial to ensure she had not overlooked important issues. Storen provided a mostly oral summary of Petitioner's medical records and background to Lampkin. Storen did not expect Lampkin to testify at trial and, in a meeting lasting no more than thirty minutes, "what I remember was talking very fast, telegraphically trying to give him a bunch of information in a short period of time before he saw [Petitioner]."
At the PCR hearing, Dr. John DeWitt, a forensic psychiatrist, testified he treated Petitioner for 3½ years beginning in August 1991, examining Petitioner fifty-two times. Petitioner suffered from a major mental illness at the time of Victim's murder — severe depression with psychotic and suicidal tendencies. Petitioner's mental condition in May 1990 was far more serious than the usually short-lived adjustment reaction disorder with which he was diagnosed.
Further, DeWitt testified Petitioner's severe depression was a condition to which he was predisposed by a family history of mental illness and alcohol or drug abuse, as well as a physically abusive childhood. The condition likely began in earnest when Petitioner was diagnosed with cancer in the 1980s. It was exacerbated by the suicide of his fathe...
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