McHam v. State

• Decision Date: 17 July 2013
• Docket Number: No. 27287.,27287.
• Citation: 746 S.E.2d 41,404 S.C. 465
• Parties: Gregory McHAM, Petitioner, v. STATE of South Carolina, Respondent. Appellate Case No. 2010–157966.
• Court: South Carolina Supreme Court

404 S.C. 465
746 S.E.2d 41

Gregory McHAM, Petitioner,
v.
STATE of South Carolina, Respondent.
Appellate Case No. 2010–157966.

No. 27287.

Supreme Court of South Carolina.

Submitted Feb. 1, 2013.
Decided July 17, 2013.

[746 S.E.2d 43]

Appellate Defender Kathrine Haggard Hudgins, of South Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy, Attorney General John W. McIntosh, Assistant Deputy, Attorney General Salley W. Elliott, and Assistant, Attorney General Suzanne Hollifield White, all of Columbia, for Respondent.

Justice BEATTY.

[404 S.C. 469]We granted certiorari to review the denial of Gregory McHam's application for post-conviction relief (PCR). McHam contends he received ineffective assistance of trial counsel because counsel failed to renew an in limine motion to suppress drug evidence. McHam asserts his Fourth Amendment rights were violated when an officer at a traffic checkpoint opened the passenger's side door of the vehicle he was driving, which revealed a package of crack cocaine inside the car and led to the discovery of additional drug evidence. The State contends counsel

[746 S.E.2d 44]

was not ineffective and the officer's action was justified by concerns for officer safety. We affirm as modified.

I. FACTS A. Trial Proceedings & Direct Appeal

This case arose out of a stop at a traffic safety checkpoint conducted on May 22, 2002 by the South Carolina Highway Patrol. The checkpoint was at Powell Mill Road near U.S. Highway 29 in Spartanburg County. Three officers were present with marked patrol cars. McHam was driving a 1984 Ford Thunderbird when he was stopped at the checkpoint along with his passenger, Kobe Carter, at around 10:50 p.m. The car was making noises, and McHam's brakes were squealing due to mechanical problems as he stopped. Neither of the occupants was wearing a seat belt.

Trooper James Scott Crawford approached McHam and asked for his driver's license, registration, and proof of insurance. McHam provided his driver's license, but he and the passenger then began looking in various locations in the vehicle for the registration and insurance. According to Crawford, he thought “[t]hey were making a lot of movements [404 S.C. 470]in the car that [he] didn't feel was consistent [with] looking for a registration card or a proof of insurance,” so he walked around to the other side “to make sure they weren't accessing a weapon or anything like that.” Once he got around to the passenger's side, the officer could not see their hands clearly because it was dark out and there wasn't much artificial lighting, so “for [his own] safety he opened up the door to watch what they were doing while they were going through the car.”

As soon as Crawford opened the door, he saw “a baggy of crack that was situated ... between the seat and the passenger's door.” At first he pretended not to see it, and he used his radio to summon another trooper. When the second trooper, Stephen J. Sulligan, came over, Crawford grabbed the crack, reached in and shut the car off and took the keys, and then arrested the passenger. A third trooper, Jeff Bradley, then arrived. The troopers searched under the car seats for weapons and noticed a grocery bag with cocaine. McHam was searched and a large amount of cash was found on his person. Marijuana and a small amount of cash were found on the passenger, and more cash was discovered in the car. A set of digital scales was found near the car during the arrest. McHam was ticketed for a seat belt violation and having faulty equipment on the vehicle, and he was charged with trafficking in cocaine and possession of crack cocaine with intent to distribute.

Trial counsel made an in limine motion at the start of the trial to suppress the drug evidence. Counsel argued that, while the officer had the authority to order the occupants to exit the vehicle and to review the requested documents, there was no articulable suspicion that they were involved in criminal activity, and the officer had no cause to open the car door. Counsel argued this was a routine traffic stop and if the officer had not opened the car door, the drugs would never have been found, so they should be suppressed as the product of an illegal search and seizure in violation of the Fourth Amendment.¹

[404 S.C. 471]The trial court denied the suppression motion. The court found the initial traffic stop was made for a legitimate purpose, and the officer acted reasonably in opening the car door to enable him to see what the occupants were doing and to ensure his own safety during the traffic stop. The court noted that traffic stops, even when thought to be routine, were inherently dangerous, especially in the dark, and stated both sides had acknowledged the officer had the right to remove the defendants from the vehicle to ensure his own safety, so opening the door in order to better view the occupants did not constitute an unreasonable search and any seizure was not violative of a constitutional provision.

During the trial, McHam's counsel did not renew his Fourth Amendment objection, although he did object to some of the drug evidence based on the chain of custody.

[746 S.E.2d 45]

McHam was convicted of trafficking in cocaine and possession of crack cocaine. He was sentenced to concurrent prison terms of twenty-five years and ten years, respectively, and was fined for each offense.

McHam's counsel filed a direct appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Anders issue raised by counsel was whether the lower court erred in refusing to suppress the evidence that was seized as a result of an unlawful search of the vehicle McHam was driving. McHam's direct appeal was dismissed by the Court of Appeals after an Anders review. State v. McHam, 2005–UP–460 (S.C.Ct.App. filed July 26, 2005).

B. PCR Proceedings

McHam subsequently filed this PCR matter alleging ineffective assistance of counsel. At the PCR hearing, McHam's PCR counsel contended trial counsel was ineffective for failing to contemporaneously object to the admission of the drug evidence based on an illegal search and seizure. PCR counsel maintained the officer's opening of the car door constituted an improper search leading to the illegal seizure of the drug evidence, and this evidence should have been suppressed. Counsel stated that, although trial counsel raised the Fourth Amendment issue in an in limine motion, he failed to preserve the issue for appeal as he did not renew his objection on this [404 S.C. 472]basis when the drugs were actually admitted into evidence at trial. PCR counsel argued McHam was prejudiced because, if the issue had been preserved, it would have been considered on direct appeal, at which time an appellate court could have ruled the search was unlawful.

McHam presented the testimony of his trial counsel, who testified that he thoroughly investigated the search issue and thought he had a good chance of prevailing on the suppression motion. However, he conceded that he did not preserve the issue by objecting when the evidence came in at trial. He also acknowledged the suppression motion was the most critical part of McHam's trial.

The State, in contrast, asserted the opinion of the Court of Appeals did not appear to dismiss the Anders appeal on a procedural basis as it did not employ that language. Rather, the State maintained the Fourth Amendment issue was dismissed on the merits and, as a result, formed no basis for a PCR claim. In addition, the State reiterated its position that the officer did not violate the Fourth Amendment as his action was justified by concerns for officer safety.

The PCR judge denied McHam's application for relief and dismissed it with prejudice. The PCR judge found trial counsel's “representation on the suppression motion [ ] exceed[ed] the standard of reasonableness” and that he “was not ineffective for failing to prevail on the suppression motion.” The PCR judge stated it appeared the Court of Appeals had reviewed the suppression issue submitted by McHam on direct appeal and “[t]he dismissal of the appeal appears to be on [the] merits rather than for a failure to preserve as suggested by [McHam].” The PCR judge further noted: “Anders review requires a review of the appeal to determine if any issue briefed has merit. In this case, the issue was raised and found to be without merit. Therefore, attorney error, if any, was harmless.” The PCR judge concluded McHam had not demonstrated that his attorney failed to properly argue the motion to suppress or that the lack of an objection had led to the dismissal of his direct appeal.

II. STANDARD OF REVIEW

On certiorari in PCR cases, the Court applies an “any evidence” standard of review. [404 S.C. 473]Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011) (citing Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989)). “This Court will uphold the findings of the PCR judge when there is any evidence of probative value to support them,” and it “will reverse the PCR judge's decision when it is controlled by an error of law.” Suber v. State, 371 S.C. 554, 558–59, 640 S.E.2d 884, 886 (2007). This Court gives great deference to the PCR judge's findings of fact and conclusions of law. Dempsey v. State, 363 S.C. 365, 610 S.E.2d 812 (2005).

III. LAW/ANALYSIS

McHam contends the PCR judge erred in ruling he did not receive ineffective assistance

[746 S.E.2d 46]

of counsel. He asserts the PCR judge erroneously assumed the Court of Appeals ruled on the merits of the unpreserved search issue when it conducted an Anders review. McHam argues that, although trial counsel made an in limine motion to suppress the drug evidence seized as a result of an illegal search, counsel was deficient because he failed to renew the objection when the drugs were admitted into evidence at trial, and this failure to preserve a meritorious issue prejudiced him.

In response, the State argues the...