Johnson v. State, No. 24561

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtWALLER; FINNEY
Citation480 S.E.2d 733,325 S.C. 182
Docket NumberNo. 24561
Decision Date27 January 1997
PartiesMichael A. JOHNSON, Respondent, v. STATE of South Carolina, Petitioner.

Page 733

480 S.E.2d 733
325 S.C. 182
Michael A. JOHNSON, Respondent,
v.
STATE of South Carolina, Petitioner.
No. 24561.
Supreme Court of South Carolina.
Submitted Nov. 21, 1996.
Decided Jan. 27, 1997.

Page 734

[325 S.C. 184] Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Teresa Nesbitt Cosby and Assistant Attorney General Alice C. Broadwater, Columbia, for petitioner.

Assistant Appellate Defender Robert Pachak, Columbia, for respondent.

WALLER, Justice:

We granted certiorari to review the grant of Post Conviction Relief (PCR) to Respondent, Michael Johnson. We affirm in part, reverse in part.

FACTS

Johnson was convicted of possession with intent to distribute (PWID) 2.64 grams of crack cocaine and PWID crack within 1/2 mile of a public park. He was respectively sentenced to 15 years and 10 years, and fined a total of $35,000.00. His application for PCR was granted on the ground of ineffective assistance of counsel in failing to timely notify Johnson of his [325 S.C. 185] right of appeal, and in failing to object to the solicitor's closing argument.

ISSUES

1. Does any evidence support the PCR court's ruling that counsel failed to timely notify Johnson of his right to appeal?

2. Was counsel ineffective in failing to object to the solicitor's closing argument?

1. RIGHT OF APPEAL

The State essentially conceded at PCR, and the appendix contains ample evidence, that Johnson was not timely advised of his right to appeal. Accordingly, we concur with the PCR court's ruling in this regard and proceed with a review of the direct appeal issue pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974).

The sole issue raised on direct appeal was whether Johnson was entitled to a directed verdict on the charge of PWID crack. Johnson essentially conceded he possessed the crack, but claimed it was for his own personal use and he had no intent to distribute it.

In ruling on a motion for directed verdict, the trial court is concerned with the existence of evidence, not its weight. State v. Williams, 303 S.C. 274, 400 S.E.2d 131 (1991). In reviewing the denial of a motion for directed verdict, the Court must determine whether any evidence exists which tends to prove the guilt of the accused, or from which her guilt may be fairly and logically deduced. State v. Edwards, 298 S.C. 272, 379 S.E.2d 888, cert. denied, 493 U.S. 895, 110 S.Ct. 246, 107 L.Ed.2d 196 (1989).

S.C.Code Ann. § 44-53-375(B) creates a permissive statutory inference that possession of more than one gram of crack constitutes PWID. As Johnson was in possession of 2.64 grams of crack, the statutory inference constitutes "any evidence" such that Johnson's motion for directed verdict was properly denied. See McAninch and Fairey, The Criminal Law of South Carolina, 386 (1996) (possession of statutory [325 S.C. 186] amount of drugs is sufficient to support conviction for PWID). Accordingly, the direct appeal issue is affirmed.

2. COMMENT ON FAILURE TO TESTIFY

At the outset of his closing argument, the assistant solicitor made the following statement;

... You have seen that the defendant has not put up a defense, he's not testified, and you will hear shortly, after I argue and after Mr. Pough argues and his honor, Judge Whetstone, you cannot even consider the fact that this man has not testified in this trial, so what you have before you to consider is the testimony of all the witnesses that were presented by the State, and the physical evidence. The crack cocaine and the marijuana which is

Page 735

contained in this package and you will be able to take these back into the jury room...

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101 practice notes
  • Russell v. Warden Prison, C/A No. 0:15-267-DCN-PJG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 16, 2015
    ...624, 625 (1989). "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052).The Applicant stated trial counsel failed......
  • Brown v. State, No. 4297.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...and, but for counsel's errors, there is a reasonable probability that the result at trial would have been different...." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 652 S.E.2d 768 735 (1997); Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Simmons v. State, 308 S.C. 481, 41......
  • Thompson v. McFadden, C/A No. 5:15-cv-01568-TMC-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 8, 2016
    ...S.E.2d at 625. "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland).With respect to guilty plea counsel, the Applicant must show that there is a reasonable ......
  • State v. Hamilton, No. 3317.
    • United States
    • Court of Appeals of South Carolina
    • March 12, 2001
    ...S.E.2d 237 (Ct.App. 1999). The defendant bears the burden of proving the improper argument deprived him of a fair trial. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997); State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996). See also Coleman, 301 S.C. at 61-62, 389 S.E.2d at 661 (app......
  • Request a trial to view additional results
101 cases
  • Russell v. Warden Prison, C/A No. 0:15-267-DCN-PJG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 16, 2015
    ...624, 625 (1989). "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052).The Applicant stated trial counsel failed......
  • Brown v. State, No. 4297.
    • United States
    • Court of Appeals of South Carolina
    • October 5, 2007
    ...and, but for counsel's errors, there is a reasonable probability that the result at trial would have been different...." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 652 S.E.2d 768 735 (1997); Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Simmons v. State, 308 S.C. 481, 41......
  • Thompson v. McFadden, C/A No. 5:15-cv-01568-TMC-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 8, 2016
    ...S.E.2d at 625. "A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland).With respect to guilty plea counsel, the Applicant must show that there is a reasonable ......
  • State v. Hamilton, No. 3317.
    • United States
    • Court of Appeals of South Carolina
    • March 12, 2001
    ...S.E.2d 237 (Ct.App. 1999). The defendant bears the burden of proving the improper argument deprived him of a fair trial. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997); State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996). See also Coleman, 301 S.C. at 61-62, 389 S.E.2d at 661 (app......
  • Request a trial to view additional results

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