Rutland v. State
| Decision Date | 30 March 2016 |
| Docket Number | No. 27614.,Appellate Case No. 2014–000381.,27614. |
| Citation | 415 S.C. 570,785 S.E.2d 350 |
| Court | South Carolina Supreme Court |
| Parties | Fred R. RUTLAND, Petitioner, v. STATE of South Carolina, Respondent. |
Appellate Defender, Susan Barber Hackett, of Columbia, for petitioner.
Attorney General, Alan McCrory Wilson and Assistant Attorney General, Patrick Lowell Schmeckpeper, both of Columbia, for respondent.
.
Petitioner was convicted of murder, possession of a firearm during the commission of a violent crime, and pointing a firearm. He was sentenced to life imprisonment without parole. This Court affirmed petitioner's convictions and sentences on direct appeal. State v. Rutland, Op. No. 95–MO–263 (S.C. Sup.Ct. filed Aug. 25, 1995)
.
Petitioner filed a post-conviction relief (“PCR”) action,1 and sought certiorari to review the PCR judge's order denying relief. We granted the petition for a writ of certiorari on two issues: (1) whether the PCR judge erred in finding trial counsel was not ineffective by failing to cross-examine the State's “key” witness regarding prior inconsistent statements;2 and (2) whether the PCR judge erred in finding trial counsel was not ineffective by failing to preserve for appellate review the trial judge's refusal to charge the jury on the defense of others. Because we find the PCR judge erred as to the first issue, we reverse the PCR judge's decision.3
Petitioner was romantically involved with the victim's estranged wife, Sally Peele (“Peele”), and both contend the victim was abusive and violent. On the morning of the victim's death, an altercation occurred at the Peele residence between petitioner, Peele, and the victim. Later that day, Peele and petitioner drove to Bow Wow Boutique (“Boutique”), a pet grooming business, to inquire about purchasing a vehicle from employee Kimberly Kestner (“Kestner”). The victim subsequently arrived at the Boutique, where he was shot and killed by petitioner. The only individuals in the Boutique at the time of the shooting, in addition to petitioner and the victim, were Peele and Kestner.
Prior to trial, Kestner gave a written and signed statement to law enforcement to the effect that the victim was armed when he was shot inside the Boutique. In the signed statement, Kestner attested, Kestner gave a similar statement to a newspaper reporter, who later wrote a published article quoting Kestner as stating,
At trial, Kestner testified she had a good view of the victim as he walked into the Boutique,4 and the only thing she saw in the victim's hands was a pack of cigarettes, which he placed on the counter as soon as he walked in. Kestner testified that as the victim entered the Boutique, petitioner put his pack of cigarettes in his mouth and reached behind his back, at which point the victim also reached behind his back. Kestner testified she then heard two gunshots, and that she never saw the victim possess a gun, or utter a word during the quick exchange. Kestner testified that after the victim was shot, she witnessed petitioner holding a handgun, and saw a second handgun lying on the floor.5
On cross-examination, trial counsel failed to question Kestner as to her prior inconsistent statements made to law enforcement and to the newspaper reporter.
Peele testified the victim entered the Boutique, drew his 9mm handgun, chambered a round,6 and pointed the handgun at Peele.
Peele stated the victim had a “strange” look in his eyes she had seen before.7 Peele described that as she started moving toward the victim, she heard petitioner beg him, “Please don't,” repeatedly. Peele testified that, in shock, she turned to look at petitioner, who was holding a .25 caliber handgun pointed towards the floor. Peele testified that when the victim saw petitioner's handgun, he shifted his aim to petitioner, at which point Peele saw the victim pull the trigger of the 9mm handgun. Peele testified that at that moment, she heard gunshots, and the victim collapsed.
Petitioner's testimony largely corroborated Peele's version of events. However, petitioner added he had concealed the .25 caliber handgun and carried it into the Boutique due to threats made earlier that day by the victim to “blow [petitioner's] shit away, fuck [petitioner's] world up.” Petitioner explained that as he saw the victim quickly approaching the front door of the Boutique, he tried to avoid a confrontation by exiting through the back of the building, but when petitioner could not find an escape route, he removed the .25 caliber handgun from his belt. Petitioner recalled that when he then encountered the victim, the victim reached behind his back, pulled out a handgun, cocked it, and aimed it at Peele from less than one foot away. Petitioner testified the victim appeared “wild,” and was unresponsive to petitioner's verbal attempts to calm him down.
Petitioner stated the victim then aimed the 9mm handgun at petitioner and pulled the trigger. Petitioner explained seeing the victim pull the trigger prompted him to shoot the victim once, which did not faze the victim, and as petitioner saw the victim continue to pull the trigger, petitioner shot the victim three more times. Petitioner described that in the moment, he believed he himself had been shot.
At the PCR hearing, petitioner argued, inter alia, trial counsel was ineffective for failing to cross-examine Kestner as to her prior inconsistent statements that the victim was armed at the time of the shooting.
Trial counsel agreed Kestner's testimony at trial was important as she was the only disinterested, objective witness to the shooting. Trial counsel testified he was aware of Kestner's prior inconsistent statements, and acknowledged they could have been used to impeach her trial testimony, but explained he was unable to locate the newspaper article prior to trial, and admitted his failure to use the police report was due to his “oversight.” Trial counsel further acknowledged that whether the victim was armed was an important issue at trial, and agreed the statement given under oath to law enforcement could have been used not only to impeach Kestner, but also could have been entered into evidence if she had denied giving it.
The solicitor testified he was aware of Kestner's prior inconsistent statements, and agreed her trial testimony was essential as she was the only independent witness, and any inconsistencies in her statements could have negatively affected her credibility.
Although Kestner did not testify at the PCR hearing, petitioner produced the signed police statement wherein Kestner stated the victim was armed at the time of the shooting. Petitioner also produced affidavits by several individuals swearing that after the incident, Kestner stated to them the victim was armed when he was shot.
In his order denying relief, the PCR judge determined trial counsel was deficient for failing to impeach Kestner with her prior inconsistent statements; however, the PCR judge further found petitioner failed to prove he was prejudiced by trial counsel's deficient performance. We granted petitioner's petition for a writ of certiorari to review the PCR judge's decision.
Did the PCR judge err in finding trial counsel was not ineffective by failing to cross-examine the State's “key” witness as to her prior inconsistent statements?
LAW/ANALYSIS
The PCR judge found that although trial counsel was deficient in failing to cross-examine Kestner as to her prior inconsistent statements, petitioner failed to meet his burden of proving trial counsel's deficiencies were prejudicial. We disagree.
A criminal defendant is guaranteed the right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI
; Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In a PCR proceeding, the burden is on the applicant to prove the allegations in his application. Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007) (citation omitted). This Court will uphold factual findings of the PCR court if there is any evidence of probative value to support them. Webb v. State, 281 S.C. 237, 238, 314 S.E.2d 839, 839 (1984) (citation omitted). However, this Court will not uphold the findings of a PCR court if no probative evidence supports those findings. Holland v. State, 322 S.C. 111, 113, 470 S.E.2d 378, 379 (1996) (citing Cartrette v. State, 323 S.C. 15, 448 S.E.2d 553 (1994) ).
In order to prove trial counsel was ineffective, the PCR applicant must show: (1) counsel's performance was deficient; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Ard, 372 S.C. at 331, 642 S.E.2d at 596
(citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ; Rhodes v. State, 349 S.C. 25, 30–31, 561 S.E.2d 606, 609 (2002) ).
Regarding the deficiency prong, the proper measure of counsel's performance is whether he has provided representation within the range of competence required by attorneys in criminal cases. McHam v. State, 404 S.C. 465, 474, 746 S.E.2d 41, 46 (2013)
(quoting Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985) ). Regarding the prejudice prong, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
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