Odom v. Adger
| Decision Date | 07 October 2016 |
| Docket Number | C/A No. 5:15-03249-MBS |
| Court | U.S. District Court — District of South Carolina |
| Parties | Anthony Clark Odom, Petitioner, v. Jerry B. Adger, Director South Carolina Department of Probation, Parole, and Pardon Services, Respondent. |
Petitioner Anthony Clark Odom ("Petitioner") is in the custody of the South Carolina Department of Probation, Parole, and Pardon services, serving five years of probation following a conviction for criminal solicitation of a minor in violation of S.C. Code § Ann.16-15-342. On August 14, 2015, Petitioner filed a petition for writ of habeas corpus ("Habeas Petition") pursuant to 28 U.S.C. § 2254, alleging a violation of his rights protected by the United States Constitution. ECF No. 1.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
This habeas petition is before the court concerning criminal charges associated with Petitioner's conduct in internet chat rooms from March 12, 2006, through May 4, 2006. ECF No. 22 at 1. Specifically, Petitioner was charged with soliciting sexual activity from individuals he thought to be minors, but were law enforcement officers posing as minors. ECF. No. 22 at 2.
On June 22, 2006, Petitioner was indicted on one count of criminal solicitation of a minor under S.C. Code Ann. § 16-15-342 (Supp. 2006) in Spartanburg County, South Carolina. ECF No. 22 at 1. Petitioner's motion to suppress evidence was granted during pretrial motions. Id. The state appealed the suppression, and on March 30, 2009, the South Carolina Supreme Court overturned the order to suppress and remanded the case. State v. Odom, 676 S.E.2d 124 (S.C. 2009). The Spartanburg case proceeded to trial before the Honorable J. Mark Hayes, II, in February 2010, ending with a mistrial due to a deadlocked jury. ECF No. 22 at 2; see also ECF No. 22-1 at 183.
On April 12, 2010, Petitioner was indicted and charged with two counts of criminal solicitation of a minor for chat room communications occurring May 4, 2006, through May 6, 2006, in Oconee County, South Carolina. The case went to trial on June 1, 2011; however, the Honorable Alexander S. Macaulay subsequently recused himself from the action before the jury was sworn. ECF No. 22-4 at 131-33. On November 1, 2011, the case was called for trial again, this time before the Honorable R. Lawton McIntosh. Id. at 134.
Prior to trial, Petitioner moved to dismiss based on prosecutorial vindictiveness, equal protection violations, and First Amendment grounds. ECF. No. 22-5 at 31. On November 8, 2011, the trial judge held a hearing to address these matters. Id. The trial judge denied the motion to dismiss on First Amendment grounds determining that Petitioner had no First Amendment right to engage in sexual adult oriented language with children. Id. at 35. The trial judge dismissed the equal protection grounds, holding that there is a rational basis for the different treatment of individuals under the state statute. Id. at 35.
The trial judge then took up the issue of prosecutorial vindictiveness, an issue that had originally been heard pretrial before Judge Macaulay on June 27, 2011. ECF No. 22-4 at 8. At the June 27, 2011, hearing, Petitioner argued that the decision to bring charges in Oconee Country was solely based on the prosecutor's annoyance with him. ECF No. 22-4 at 89. Petitioner presented the testimony of his trial counsel who, detailed conversations that he hadwith the lead prosecutor in which she displayed irritation with Petitioner and his attorney as they were seeking court documents concerning the dismissal of Officer Patterson from the police force. Id. Petitioner was charged with chat room conversations with Officer Patterson, an Oconee County police officer that Petitioner believed was a minor. Trial counsel detailed that during these conversations, the prosecutor declared that she would just bring charges in Oconee Country as well. Id. at 88. It was Petitioner's belief that the prosecutor's office never intended to bring charges in the Oconee case, but only did so after Petitioner sought the dismissal documents of Officer Patterson.
In her defense, the prosecutor presented oral arguments in opposition to the vindictive prosecution claims before the trial judge on November 8, 2011. ECF No. 11-18. The prosecutor credited the decision to bring additional charges in Oconee County to a change in trial strategy. Id. She pointed out that the original Spartanburg indictment was filed in 2007, where trial was delayed until 2010 due to the appeal on the motion to suppress core pieces of evidence. ECF No. 22 at 30-31. The prosecutor also argued that there was a change in the prosecutor's leadership during this time. ECF No. 22-6 at 18-21. Finally, the prosecutor asserted that the State's office had never foreclosed the opportunity to bring the charges in Oconee County. ECF No. 22-6 at 21.
The trial judge determined that Petitioner had not shown that the State acted with genuine animus toward him or that he would not have been prosecuted but for that animus. When ruling on Petitioner's pretrial vindictive prosecution motion, the trial judge stated:
Quite frankly, it was a close call, but I don't find that there was established any malice or evidence that would rise to an implied malice or vindictiveness. I think under the circumstances the explanation given by the State was reasonable, and given the wide discretion given to prosecutors, the evidence doesn't amount to the level that would give rise to the draconian remedy of dismissing the warrant. So therefore, I'm denying the motion.
During trial, the State presented evidence of Petitioner's age, which is an element of the offense of criminal solicitation of a minor. First, the State called Officer Patterson, who stated that during the chat room conversations at issue, Petitioner "identified himself as a forty-year-old and he began asking questions of a sexual nature." ECF No. 22-4 at 182. Next, the trial judge allowed the State to introduce into evidence State's Exhibit 2, a printout of the online chat room conversations dated May 4, 2006. ECF No. 22-5 at 9. Petitioner responded "40 m Columbia" when asked "asl", which is an acronym for age, sex and location. ECF. No. 22-2 at 271. Moreover, when asking the trial judge to take judicial notice of Petitioner's age, the State provided certified records from the South Carolina Department of Motor Vehicles indicating Petitioner's date of birth. ECF No. 22-12 at 9. The trial judge took judicial notice of Petitioner's age.
Petitioner next objected that Officer Patterson was not acting in his "official capacity" as required by Section 16-15-342. Petitioner's trial counsel sought to show that a police officer must be bonded to be acting in his "official capacity" when monitoring chat rooms for illegal conduct. Petitioner's trial counsel presented the testimony of a city clerk, Jennifer Adams, who said that she did not believe that Officer Patterson had been bonded. ECF No. 22-1 at 123. Petitioner's trial counsel also presented the testimony from Chief Bannister, chief of police, who said that he believed that all municipal officers are to be bonded under oath. Id. at 88-90. In the end, Petitioner was allowed by the trial judge to argue, during closing arguments, that at the time of the offense, Officer Patterson was not bonded, and therefore not acting in his "official capacity." Id.at 155-56.
During deliberations, the jury wrote a note asking, "If an officer is not bonded, are they considered an official police officer?" ECF No. 22-8 at 46. The trial judge did not instruct on the law of bond or official capacity and instead instructed the jury that they could not deliberate concerning whether the officer needed to be bonded to be in his official capacity because the law of "bond" was not addressed during trial. Id. at 48.
The jury found Petitioner guilty of one count of criminal solicitation of a minor and not guilty on the other count of criminal solicitation of a minor. ECF No. 22-9 at 9. Petitioner was instructed to register as a sex offender and was sentenced to seven years imprisonment, suspended upon five years of probation. Id. at 11. Petitioner timely filed a motion for new trial on November 21, 2011. The motion was denied on January 3, 2012. ECF No. 22-1 at 5.
Petitioner's appellate counsel, Brian McDaniel, Esquire, filed a direct appeal to the South Carolina Supreme Court in which he raised the following issues:
The South Carolina Supreme Court agreed with Petitioner that the trial judge's taking of judicial notice of a...
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