Horton v. State

• Decision Date: 16 December 1991
• Docket Number: No. 23511,23511
• Citation: 306 S.C. 252,411 S.E.2d 223
• Court: South Carolina Supreme Court
• Parties: Bobby HORTON, Petitioner, v. STATE of South Carolina, Respondent.

Page 223

411 S.E.2d 223

306 S.C. 252

Bobby HORTON, Petitioner, v.STATE of South Carolina, Respondent.

No. 23511.

Supreme Court of South Carolina.

Submitted Sept. 25, 1991.

Decided Nov. 12, 1991.

Rehearing Denied Dec. 16, 1991.

Asst. Appellate Defender M. Anne Pearce, of the South Carolina Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka and Asst. Atty. Gen., Miller W. Shealy, Jr., Columbia, for respondent.

FINNEY, Justice:

This Court granted certiorari to review the circuit court's denial of post-conviction relief (PCR) to PetitionerBobby Horton.After considering the record and reviewing the applicable law, we reverse and remand for a new trial.

The sole issue before this Court is whether petitioner is entitled to PCR on the basis of ineffective assistance of trial counsel.

On September 4, 1986, Michael Peaster(Agent Peaster), an undercover agent with the South Carolina Law Enforcement Division purchased 1.877 grams of cocaine from a man introduced to him as Bobby Horton by Kerry Garner, a confidential informant.The transaction occurred at approximately 10:20 P.M. outside the Spring Hills Club.The petitioner was arrested on February 7, 1987, and later indicted for distribution of cocaine.

The petitioner did not testify at his trial.He was convicted of distribution of cocaine and sentenced to imprisonment for fifteen years and a $10,000 fine; suspended upon service of ten years, payment of the fine, and probation for five years.Petitioner's direct appeal was dismissed, State v. Horton, Memo.Op.No. 89-MO-088(S.C.Sup.Ct. filed February 21, 1989).

Petitioner filed an application for PCR alleging, inter alia, ineffective assistance of counsel on the grounds that 1) trial counsel gave petitioner erroneous advice on which petitioner based his decision not to testify; and 2) trial counsel failed to object to impermissible testimony.After a hearing, the PCR court issued its order finding that the matters raised a) had been refuted by the record; b) did not indicate any deficiency on the part of trial counsel; or c) were not sufficient to show prejudice to the petitioner.The PCR court dismissed the application with prejudice and remanded the petitioner to the custody of the state.

Petitioner filed a petition for writ of certiorari, and this Court granted certiorari to review only Question 1.

Petitioner maintains his decision not to testify was based on trial counsel's advice that he would be subject to cross examination on two prior criminal convictions.Petitioner's record shows a conviction in 1972 for assault and battery with intent to kill and a 1980 conviction for simple possession of marijuana.Petitioner contends trial counsel's advice was in error since neither conviction was admissible for the purpose of impeachment.

Petitioner's trial counsel testified at the PCR hearing that his advice was based upon counsel's desire to prevent petitioner's two prior convictions from being introduced to impeach the petitioner's credibility.

In order to meet the two-pronged test establishing ineffective assistance of counsel, a defendant must prove 1) that counsel's representation fell below an objective standard of reasonableness; and 2) that, but for counsel's error, there is a reasonable probability the result would have been different.Martinez v. State, 304 S.C. 39, 403 S.E.2d 113, 114(1991);Butler v. State, 286 S.C. 441, 334 S.E.2d 813(1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88 L.Ed.2d 908(1986).

We address first petitioner's conviction for simple possession of marijuana, which does not constitute a crime of moral turpitude.A prior conviction may be used to impeach the credibility of a witness only if such conviction involves a crime of moral turpitude.State v. Drakeford, 290 S.C. 338, 350 S.E.2d 391(1986).Hence, counsel's advice was the result of an erroneous legal syllogism.

Second, the offense of assault and battery with intent to kill for which petitioner was convicted in 1972 is classified as a crime of moral turpitude.However, the lapse of fifteen years between petitioner's 1972 conviction and his 1987 trial for distribution of cocaine raises the issue of remoteness in time.The decision of whether a prior conviction is too remote in time for admissibility to impeach a defendant is a matter within the sound discretion of the trial judge.State v. Livingston, 282 S.C. 1...