McKnight v. State, 26484.

• Decision Date: 12 May 2008
• Docket Number: No. 26484.,26484.
• Citation: 661 S.E.2d 354
• Parties: Regina Denise McKNIGHT, Petitioner, v. STATE of South Carolina, Respondent.
• Court: South Carolina Supreme Court

661 S.E.2d 354

Regina Denise McKNIGHT, Petitioner, v. STATE of South Carolina, Respondent.

No. 26484.

Supreme Court of South Carolina.

Submitted April 1, 2008.

Decided May 12, 2008.

C. Rauch Wise, of Greenwood, Julie M. Carpenter and Matthew Hersh, both of Jenner & Block, of Washington, D.C., for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald Zelenka, and Assistant Attorney General Melody J. Brown, all of Columbia, for Respondent.

Susan King Dunn, of Charleston, Tiloma Jayasinghe and Lynn M. Paltrow, both of National Advocates for Pregnant Women, of New York, NY, Theshia Naidoo and Daniel N. Abrahamson, both of The Drug Policy Alliance, of Berkeley, CA, for Amici Curiae.

Chief Justice TOAL:

In this case, the post-conviction relief (PCR) court denied Petitioner's application alleging numerous grounds for ineffective assistance of counsel. This Court granted certiorari and we reverse the PCR court's denial of relief on several grounds.

FACTUAL/PROCEDURAL BACKGROUND

Petitioner Regina McKnight gave birth to a nearly full-term stillborn baby girl in May 1999. An autopsy revealed inflammations in the placenta and umbilical cord respectively known as chorioamnionitis and funisitis, as well as the presence of benzoylecgonine (BZE), a by-product of cocaine. The autopsy report concluded that death occurred one to two days earlier "secondary to chorioamnionitis, funisitis and cocaine consumption" and labeled the baby's death a homicide. McKnight was subsequently charged with homicide by child abuse pursuant to S.C.Code Ann. § 16-3-85 (2003).

The public defender for Horry County represented McKnight in each of two trials for homicide by child abuse. The first trial in January 2001 ended in a mistrial. At the second trial in May 2001, a jury convicted McKnight of homicide by child abuse. This Court affirmed the jury's verdict on direct appeal. See State v. McKnight, 352 S.C. 635, 576 S.E.2d 168 (2003).

McKnight filed a petition for PCR alleging ineffective assistance of counsel on numerous grounds. The PCR court held that counsel was not ineffective and denied McKnight relief as to each of her claims. This Court granted certiorari to review the PCR court's decision, and McKnight raises the following issues for review:

I. Did the PCR court err in determining that counsel was not ineffective for failing to prepare an adequate defense?

II. Did the PCR court err in determining that counsel was not ineffective in failing to ensure the trial court gave proper jury instructions?

III. Did the PCR court err in determining that counsel was not ineffective for failing to move to dismiss the charges on the grounds that the disparity between the sentences for criminal abortion and homicide by child abuse violates the Equal Protection Clause?

IV. Did the PCR court err in determining that counsel was not ineffective in failing to introduce the autopsy report into evidence?

V. Did the PCR court err in determining counsel was not ineffective in failing to argue the issue of intent during the closing argument?

VI. Did the PCR court err in excluding expert testimony on the standards of practice for South Carolina defense lawyers?

STANDARD OF REVIEW

In order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove: (1) counsel failed to render reasonably effective assistance under prevailing professional norms; and (2) counsel's deficient performance prejudiced the applicant's case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). In reviewing the PCR court's decision, this Court is concerned only with whether any evidence of probative value exists to support the decision. Smith v. State, 369 S.C. 135, 138, 631 S.E.2d 260, 261 (2006). If no probative evidence exists to support the PCR court's findings, this Court will reverse. Pierce v. State, 338 S.C. 139, 144, 526 S.E.2d 222, 225 (2000).

LAW/ANALYSIS

I. Failure to prepare an adequate defense

McKnight argues that counsel was ineffective in her preparation of McKnight's defense through expert testimony and cross-examination. We agree.

The analysis of this issue begins with a summary of the parties' strategies at the first trial. At this trial, the State tendered Dr. Edward Proctor, the pathologist who performed the autopsy, to opine as to the cause of death. Consistent with his autopsy report, Dr. Proctor testified that the chorioamnionitis and the funisitis in conjunction with cocaine caused the fetus to die. The doctor said that he based his finding of cocaine on the presence of the cocaine metabolite BZE in the fetus and attributed his failure to otherwise find any of the typical physiological effects of cocaine on the fetus's central nervous system to post-mortem decomposition. Although Dr. Proctor made general statements on the lethal effects of maternal cocaine consumption on fetuses, he also admitted it was possible for chorioamnionitis or funisitis alone to have caused the death of McKnight's fetus. Dr. Brett Woodard, an expert in pediatric pathology and the State's second witness on the issue, testified that by ruling out other possible causes of death, including syphilis,¹ thyroid problems, or other substance use, it was his opinion that McKnight's cocaine use alone caused the chorioamnionitis and funisitis in the fetus which resulted in fetal death. Dr. Woodard further based his conclusions on studies to which he extensively cited for their conclusions on the harmful effects of cocaine in utero.

Counsel for McKnight called two expert witnesses to testify as to possible alternative causes of death. Dr. Steven Karch, a cardiac pathologist and expert in drug-related deaths, opined that although he could not determine the underlying cause of the chorioamnionitis and funisitis found in the fetus, these conditions alone were responsible for its death. Dr. Karch explained that in the absence of pure-form cocaine in the fetus, the only conclusion he could make from the presence of BZE was that the mother was a cocaine user. The doctor additionally testified that it was impossible to rule out syphilis as a cause of death.

Dr. Karch also rebutted the State's experts' testimony on the harmful effects of cocaine and the notion of "crack babies" by explaining at great length that although cocaine is a potentially dangerous drug, it is not as dangerous as the medical community once believed. Dr. Karch went on to describe recent studies which had been unable to conclusively link cocaine to stillbirth, and discussed the flaws in earlier studies that had shown otherwise.² The doctor further cited this research to supplement his explanation as to why particular natural causes could not be ruled out as having caused fetal death.

Counsel for McKnight also called Dr. Sandra Conradi, a pathologist at MUSC, to testify on the cause of death. Similar to Dr. Karch, Dr. Conradi rebutted the State's testimony on the harmful effects of cocaine by pointing to a published medical study showing fetal exposure to levels of cocaine even higher than McKnight's fetus was no more likely to give rise to an adverse pregnancy than exposure to other harmful conditions. Dr. Conradi also stated that she would have ruled the cause of death "undetermined," rather than a homicide. However, upon further questioning, the doctor eliminated all potential natural causes of death, testifying that it was "unlikely, but possible" that the chorioamnionitis and funisitis led to stillbirth and that her tests for syphilis were negative. On the other hand, Dr. Conradi testified that she could not rule out cocaine as a cause of death.

In its closing argument at the first trial, the State initially focused on the testimony of its expert, Dr. Woodard, the sole expert to testify that cocaine alone caused the fetal demise. The State concentrated the remainder of its closing argument on Dr. Conradi's testimony, repeatedly emphasizing that McKnight's own expert had eliminated all potential causes of death except exposure to cocaine. The jury deliberated for over seven hours without reaching a verdict and was sent home for the night. The next morning, upon learning that several jurors had researched medical issues related to the case on the internet overnight, the trial court declared a mistrial.

At the second trial in May 2001, the State again called Dr. Proctor and Dr. Woodard³ to testify to their belief that cocaine caused baby McKnight's stillbirth. Counsel for McKnight did not call Dr. Karch back to testify and only called Dr. Conradi, who again testified that although she could not precisely determine the cause of death, neither chorioamnionitis, funisitis, nor syphilis caused the fetus to die. Counsel did not examine Dr. Conradi on the published study favorable to McKnight's defense that the doctor had mentioned at the first trial. Furthermore counsel did not call any other expert to rebut or discredit the medical studies cited by the State's experts as Dr. Karch had done previously, nor did counsel cross-examine the State's experts on the matter.

As in the closing arguments of the first trial, the State began by pointing out Dr. Conradi's failure to eliminate cocaine as a cause of fetal demise and declared that in conjunction with the testimony of Dr. Woodard, Dr. Conradi "really helped us out in figuring out the cause of death in this particular case" by eliminating all other relevant causes of death. The jury returned a guilty verdict in thirty minutes.

a. Expert witnesses

McKnight argues that counsel was ineffective in calling an expert witness whose testimony undermined the defense and in failing to call an expert witness whose testimony supported the defense. We agree.

There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional...