Milledge v. State

• Decision Date: 14 March 2018
• Docket Number: Appellate Case No. 2014-002386,Opinion No. 27784
• Citation: 811 S.E.2d 796,422 S.C. 366
• Court: South Carolina Supreme Court
• Parties: Michael MILLEDGE, Respondent, v. STATE of South Carolina, Petitioner.

422 S.C. 366

811 S.E.2d 796

Michael MILLEDGE, Respondent,

v.STATE of South Carolina, Petitioner.

Appellate Case No. 2014-002386

Opinion No. 27784

Supreme Court of South Carolina.

Submitted September 21, 2016

Filed March 14, 2018

Attorney General Alan M. Wilson and Senior Assistant Attorney General DeShawn Herman Mitchell, both of Columbia, for Petitioner.

Appellate Defender Susan B. Hackett, of Columbia, for Respondent.

JUSTICE HEARN :

Respondent Michael Milledge was arrested and convicted of multiple drug-related offenses in Greenville County following a traffic stop. Milledge applied for post-conviction relief (PCR), arguing his defense counsel was deficient for failing to object at trial to the introduction of contraband found pursuant to an illegal search. The PCR court agreed and granted Milledge a new trial. We reverse.

FACTUAL BACKGROUND

Deputies John Lanning, Patrick Swift, and Fred Miller were on patrol in a high-crime area¹ of Greenville County when they initiated a traffic stop after observing Milledge driving with a cracked windshield and missing rearview mirror. Upon making contact with Milledge, the deputies observed him exhibiting extreme nervousness. Swift noted Milledge was attempting to make a call on his cellphone, but his hands were shaking so much he could not dial the right number.² Swift asked Milledge why his hands were shaking and he responded it was because he was hot. After Swift stated he too was hot but his hands were not shaking, Milledge stared straight ahead, refused to respond to any further questions, and "acted like [Swift] wasn't even there." This behavior, coupled with the high-crime area where the stop occurred, caused Swift to fear for his safety so he asked Milledge to step out of the vehicle.³

After Lanning returned to the patrol vehicle but before he could perform a check on the driver's license and registration, Milledge complied with Swift's request to exit and walk towards the rear of his vehicle. Seeing that his partner had asked Milledge to exit the vehicle, Lanning ceased running the information check and approached Milledge. Noticing Milledge would not look at him and only stared straight ahead, Lanning asked him if he had any weapons on him, using specific language meant to elicit some sort of response from persons being questioned.⁴ Failing to get any response or reaction, Lanning decided it was necessary for the deputies' safety to conduct a pat-down search for weapons. As he began the frisk, Lanning felt what he recognized as a revolver in Milledge's shorts pocket. As Deputy Miller reached in to remove the revolver, a baggie containing pills and crack cocaine also emerged from the same pocket. The deputies then placed Milledge under arrest.

Milledge was indicted on charges of trafficking in crack cocaine; possession of a gun during the commission of a violent crime; possession of cocaine with intent to distribute; and possession of ecstasy. Prior to trial, Milledge's defense counsel made a motion in limine to suppress the drugs, arguing they were found as a result of an unlawful search. Defense counsel conceded the deputies had probable cause to conduct the traffic stop, but asserted the deputies lacked justification for the subsequent frisk, arguing the deputies' sole reason for conducting the frisk was because Milledge "acted nervous."

The trial court⁵ denied Milledge's motion in limine and found the frisk was based on a reasonably articulable suspicion.

The trial court held that standing alone, the individual characteristics relied on by the deputies would not support a reasonably articulable suspicion to conduct a frisk, but when considered in the aggregate, the circumstances and Milledge's conduct justified the frisk. Specifically, the trial court stated:

Extreme nervousness, not nervousness as is customarily incident to a traffic stop but extreme nervousness to the extent that the phone couldn't be dialed. The fact that there was a phone called [sic] that being [sic] attempted at the time. The fact that it was a high drug use area, the reluctance or recalcitrance of the defendant to respond to any questions. And the dubiousness of the explanation for the shaking that the officer received when he asked for or posed the first question. All of those things in the aggregate give me cause to believe that there was probable cause for the search.

Later, at trial, defense counsel did not contemporaneously object when the drugs were introduced into evidence. The jury found Milledge guilty of all charges.

The court of appeals affirmed the trial court's findings in an unpublished opinion, holding the issue of the admissibility of the drugs was not preserved for appellate review because defense counsel failed to contemporaneously object.

Milledge then filed an application for PCR. Milledge argued his defense counsel was deficient by failing to renew his objection to the contraband when the State entered it into evidence at trial, and Milledge suffered prejudice as a result of this failure.

The PCR court granted Milledge's application for a new trial, finding defense counsel was deficient in failing to renew his objection to the evidence at trial. Furthermore, the PCR court held the factors asserted by the officers did not give rise to the level of reasonable and articulable suspicion required by the Fourth Amendment to conduct a frisk. Thus, the PCR court determined Milledge suffered prejudice because there was a reasonable probability an appellate court would have found the search unreasonable. Therefore, the PCR court concluded Milledge satisfied both prongs of the Strickland⁶ test and granted a new trial. The State appealed and this Court granted certiorari.

ISSUE PRESENTED

Did the PCR court err in finding a new trial was warranted in this case because defense counsel failed to object to the admission of evidence of contraband at trial on the grounds the evidence was the result of an unreasonable search in violation of the Fourth Amendment?

STANDARD OF REVIEW

In PCR actions, this Court will uphold the lower court's findings if there is any evidence of probative value to support them. Cherry v. State , 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). However, the Court will reverse the lower court's decision if it is controlled by an error of law. Pierce v. State , 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000). The PCR applicant bears the burden of proving his allegations by a preponderance of the evidence. Frasier v. State , 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e), SCRCP ).

Generally, in supporting his allegations of ineffective assistance of counsel, the applicant must satisfy a two-prong test. See Strickland , 466 U.S. at 687, 104 S.Ct. 2052. First, the applicant must demonstrate trial counsel's performance was deficient. Cherry , 300 S.C. at 117, 386 S.E.2d at 625. Second, the applicant must demonstrate trial counsel's "deficient performance prejudiced the [applicant] to the extent that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ "

Cherry , 300 S.C. at 117–18, 386 S.E.2d at 625 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Smith v. State , 386 S.C. 562, 566, 689 S.E.2d 629, 631 (2010).

LAW/ANALYSIS

The State argues the PCR court erred in finding Milledge's defense counsel was ineffective because regardless of whether counsel's performance was deficient, there was no resulting prejudice. In particular, the State contends that, even if defense counsel had renewed his objection when the evidence was presented, the trial court would have denied it, and an appellate court would have upheld the ruling on appeal. Thus, while the State does not contest the PCR court's findings regarding the first prong of Strickland —that Milledge's defense counsel was deficient in failing to object to the evidence when it was entered—the State contends Milledge suffered no prejudice because the search conducted by the deputies was lawful under the Fourth Amendment. We agree the appropriate inquiry is whether the search conducted by the deputies was lawful under the Fourth Amendment, as that issue would have controlled the outcome on direct appeal. We further agree with the State that the search was supported by the deputies' reasonable, articulable suspicion, and thus Milledge was not prejudiced by counsel's failure to contemporaneously object.

"[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Upon initiating the traffic stop, a police officer may order the driver out of the vehicle in the interest of officer safety. Pennsylvania v. Mimms , 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In conjunction with a valid automobile stop for a traffic violation, an officer may conduct a Terry⁷ frisk for his own safety after forming a reasonable conclusion "that the person whom he ha[s] legitimately stopped might be armed and presently dangerous." Id. at 112, 98 S.Ct. 330 ; State v. Banda , 371 S.C. 245, 253, 639 S.E.2d 36, 40 (2006).

Pursuant to the doctrine established in Terry , an officer that has initiated a legitimate stop of an individual may conduct

a reasonable search for weapons for the protection of the police officer .... The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

Terry , 392 U.S. at 27, 88 S.Ct. 1868. The reasonableness of the officer's actions under the circumstances must be determined based on "the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Id.

One of the...