Hill v. State

• Decision Date: 10 February 2016
• Docket Number: No. 5380.,Appellate Case No. 2012–212398.,5380.
• Citation: 782 S.E.2d 414,415 S.C. 421
• Court: South Carolina Court of Appeals
• Parties: Jomer HILL, Petitioner, v. STATE of South Carolina, Respondent.

415 S.C. 421

782 S.E.2d 414

Jomer HILL, Petitioner,

v.STATE of South Carolina, Respondent.

Appellate Case No. 2012–212398.

No. 5380.

Court of Appeals of South Carolina.

Heard Oct. 13, 2015.

Decided Feb. 10, 2016.

Appellate Defender, Susan Barber Hackett, of Columbia, for petitioner.

Attorney General, Alan McCrory Wilson and Senior Assistant Deputy Attorney General, Karen Christine Ratigan, both of Columbia, for respondent.

GEATHERS

, J.

Jomer Hill (Petitioner) appeals the denial of post-conviction relief (PCR), arguing the PCR court erred in declining to find appellate counsel ineffective for failing to raise a directed verdict issue on appeal. We affirm.

FACTS/PROCEDURAL HISTORY

In December of 2000, Kenneth Goldsmith and Clifton "Trey" Brown (Trey) were shot at a "liquor house" where locals regularly visited to buy drugs, drink alcohol, gamble, and socialize. Goldsmith died at the scene and Trey was transported to a hospital where he later died. The case became a cold case when investigators were unable to identify a suspect. Officers sought to reopen the case by seeking additional evidence and interviewing new witnesses. The officers observed some hesitancy in the community members' willingness to give information, stemming from their fear of Lamont "Mont" Brown (Brown),¹ a known drug dealer and leader of a large drug enterprise. Of his own volition, Timothy Paden² contacted investigators and alleged Petitioner confessed to the crimes. Paden offered to wear a wire and subsequently recorded Petitioner's confession. Thereafter, in 2005, a grand jury indicted Petitioner for the murders, and he proceeded to trial.

Trial testimony revealed that the liquor house was actually Goldsmith's residence and he received a portion of gambling proceeds generated at the home. Goldsmith gave Trey a key to the home and allowed him to operate the liquor house because of their friendship. Trey and Petitioner were reputed drug dealers and sold drugs for Brown from the liquor house; moreover, it was Petitioner who introduced Trey to Brown and the organization. One former member of the organization testified that the individual who introduces a new potential drug dealer to Brown becomes responsible for the actions of the person whom he brought into the organization. This former member further explained Brown ordered him to kill the former member's own cousin because the cousin "snitched" and Brown "don't like no snitches."

Witnesses testified that just prior to his death, Trey mentioned he had "to pay some bills" to Brown and Brown was "sweating" him for money. Also, Brown testified that a few days prior to the murders, Brown warned Petitioner that he "was getting tired of him, you know, not making his payments on time" and that he "was going to be kicked out of the [drug organization] ... if he didn't get his stuff together and start coming to bring his money in on time like Trey was." Further, Brown testified that prior to his death, Trey was "moving up" in the organization because he began to do "extra stuff" for Brown such as transporting drugs. In contrast, Petitioner was "on his way down, way down by then."

On the night before the crimes, several individuals were gambling and socializing at the liquor house, including Trey, Petitioner, and Goldsmith. At some point, Brown arrived and stood outside looking for Trey and Petitioner, expecting payment from both of them for drugs. According to Brown, both men informed him they would give him the money later that evening; however, neither returned with the money. Several witnesses testified they observed Brown and Trey argue about money because Brown wanted the money Trey owed him. One witness observed Trey and Brown have a conversation that was "probably serious because they didn't want anybody to hear their discussion." Another witness observed Trey go outside of the liquor house to give Brown money and Brown responded "that ain't right ... I want it all." During the argument, Trey cursed at Brown, stated "that's my half," and ran back into the liquor house. Once back inside, Trey spoke with Petitioner; Petitioner then went outside to speak with Brown.

Trey's girlfriend testified that on the morning of the crimes, Trey's pager went off at around 9:50 a.m. and he went upstairs to return the call. Phone records indicate that on that morning, Petitioner paged Trey at 9:39 a.m. and Trey placed a call to Petitioner five minutes later—the last recorded outgoing call on Trey's phone. After the call, Trey hurriedly grabbed a large sum of money and left the home. Trey's girlfriend testified Trey left to go to the liquor house. On cross-examination, however, she admitted she " didn't know for sure" if Trey went to the liquor house, "but that was his usual hangout."

According to the mother of Petitioner's child, sometime before noon on the morning of the crimes, while she was at Petitioner's home, Petitioner ran into the home, sweating and out of breath. He changed clothes, and as she was leaving, asked her to throw away a black trash bag for him. He cautioned her to make sure she did not throw the bag away at her house. She followed his directions without looking inside the bag.

At around 5:00 or 6:00 p.m. on the evening of the murders, investigators arrived at the crime scene and did not find any evidence of forced entry. Both Goldsmith and Trey were discovered in the same bedroom of the home. Goldsmith suffered two gunshot wounds

to the chest, one being a rapidly fatal wound. Trey suffered a gunshot wound to the back of the skull. An expert opined both Goldsmith and Trey remained in the liquor house for approximately seven or eight hours before they were discovered. Accordingly, the pathologist opined they were shot between 9:00 a.m. and 12:00 p.m. An officer testified ballistic fingerprints from the bullet projectiles discovered at the crime scene showed all the bullets were fired from the same gun and both Goldsmith and Trey were shot with a .38 caliber gun.

Although no witness placed Petitioner at the crime scene at the time of the crimes, individuals saw Petitioner in the general vicinity of the liquor house between 9:00 a.m. and 12:00 p.m. on the day of the crimes. Along with the mother of Petitioner's child, other witnesses testified they noticed Petitioner changed outfits that morning and he never again wore the same outfit he wore between 9:00 a.m. and 12:00 p.m. that morning.

I. Confessions or Admissions of Essential Facts

Paden testified he and Petitioner were incarcerated together³ when Petitioner confessed to committing the murders.

He stated he and Petitioner discussed a double homicide, and given the nature of the conversation, Paden concluded Petitioner murdered Goldsmith and Trey. After his release, Paden contacted law enforcement and reported Petitioner's confession. Thereafter, Paden sought "concrete evidence" of the confession by audio-recording a conversation with Petitioner. The audio recording was played for the jury while the jury reviewed a transcript of the recording. The record provided for this appeal does not include a copy of the transcript. However, in Petitioner's direct appeal, Petitioner included a transcript of the taped recording in the record. The opinion disposing of the direct appeal noted "[i]n the transcript, [Petitioner] purportedly answers in the affirmative several times when Paden asks if [Petitioner] was alone when he shot Trey and [Goldsmith.]" State v. Hill, 382 S.C. 360, 365 n. 3, 675 S.E.2d 764, 767 n. 3 (Ct.App.2009)

.

According to Brown, on the morning of the crimes, Petitioner arrived at Brown's house between 9:30 and 10:00 a.m. and Brown asked why Trey did not come with Petitioner. Petitioner responded "he was gone" and "kind of made the sign of a gun." Brown asked, "What?" and Petitioner responded, "man, it was just over with." According to Brown, Petitioner elaborated that Trey had "used him" and "made him look bad" in front of Brown. Petitioner also stated "it was crunch time and [he] did what [he] had to do." Brown understood their conversation to mean Petitioner shot Trey. Brown opined Petitioner shot Trey because: he was jealous of Trey; Petitioner was using some of the drugs they were supposed to sell; and he felt Trey betrayed him. Brown also testified that while at the hospital visiting Trey before Trey died, Petitioner told Brown he shot Trey because Trey "didn't help him when he was in a bind with" Brown and Trey had already paid off his debts to Brown.

At trial, Maxie Wright, the longtime boyfriend of Petitioner's grandmother,⁴ denied telling investigators Petitioner confided in him that Brown directed Petitioner to murder Trey.

Wright also stated Petitioner denied killing Trey and Goldsmith. However, an officer testified Wright had previously stated Petitioner told Wright that Brown "made him do it; that [Brown] had told him if he didn't do it, he would kill his whole family."

After the State rested, Petitioner moved to dismiss the indictments and for a directed verdict, arguing the only evidence connecting him to the two murders was an alleged confession and South Carolina law requires more than a confession to convict him of the crimes. Petitioner argued the State did not present sufficient evidence corroborating Petitioner's confession to establish the corpus delicti of the two murders. The trial court denied the directed verdict motion, finding there was evidence in addition to Petitioner's confession to establish the corpus delicti. The jury convicted Petitioner as indicted. Petitioner moved for a judgment notwithstanding the verdict, arguing the record did not include any evidence proving Petitioner committed the crimes aside from his alleged confession. The trial court construed the motion as a motion for a new trial, which it denied. The trial court sentenced Petitioner to concurrent sentences of fifty years' imprisonment for each crime.

Petitioner appealed. During the appeal process, Petitioner wrote to appellate counsel, encouraging...