Sanchez v. State

• Citation: 351 S.C. 270,569 S.E.2d 363
• Decision Date: 26 August 2002
• Docket Number: No. 25521.,25521.
• Court: United States State Supreme Court of South Carolina
• Parties: Daryl Dean SANCHEZ, Respondent/Petitioner, v. STATE of South Carolina, Petitioner/Respondent.

351 S.C. 270

569 S.E.2d 363

Daryl Dean SANCHEZ, Respondent/Petitioner, v. STATE of South Carolina, Petitioner/Respondent.

No. 25521.

Supreme Court of South Carolina.

Submitted October 23, 2001.

Decided August 26, 2002.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, of Columbia, for petitioner/respondent.

Assistant Appellate Defender Robert M. Pachak, of South Carolina Office of Appellate Defense, of Columbia, for respondent/petitioner.

MOORE, Justice:

We granted both respondent/petitioner Sanchez's and petitioner/ respondent State's cross-petitions for certiorari. The post-conviction relief (PCR) judge had granted in part and denied in part Sanchez's PCR application. We affirm in part and reverse in part.

FACTS

Respondent/petitioner Sanchez was convicted of first-degree criminal sexual conduct with a minor and sentenced to sixteen years imprisonment.

At trial, the State's first witness was the six-year-old victim. Victim testified she was visiting her grandmother on the evening of July 15, 1989, when Sanchez, a family friend, "touched her on her bottom with his dingle." Direct examination continued:

Q. All right. Did he touch you with anything else on your bottom?

A. This time I have been thinking but nope, his fingers, not dingle.

Q. Now, [victim], did you touch [Sanchez] anywhere? A. Yes.

Q. Where did you touch him?

A. On his hiney.

Q. Why did you do that?

A. Huh?

Q. Did he tell you to touch him there?

A. Yes, that's most likely [sic] he told me.

Q. All right. What happened when you touched him there?

A. He peed in my mouth.

. . .

Q. All right. Do you know how his hiney felt?

A. Hard, hard, hard.

Thereafter, victim testified Sanchez made her touch him "on his penis again." She touched him with her hands.

Victim testified, the following morning, she told her mother Sanchez "stuck his hiney—he took his dingle over my hiney."

On direct examination, victim's mother testified victim told her "[Sanchez] stuck his finger in my hiney." Mother testified, later the same morning, victim stated "[Sanchez] peed in my mouth." Trial counsel did not object to these statements.

On direct examination, victim's father testified mother told him that victim told her "[Sanchez] had stuck his finger in her hiney." He testified, later the same morning, victim stated Sanchez had "peed" in her mouth. Trial counsel did not object. Thereafter, father stated, in the afternoon, mother told him "[Sanchez] did the whole thing; he raped [victim.]." At this point, the trial judge interjected, "[w]e are getting into a lot of hearsay now."

On direct examination, Officer Georgia Malloy testified she showed victim four anatomically correct dolls. Malloy testified she asked victim to demonstrate what happened with Sanchez using the dolls. Victim selected the adult male doll and the child female doll. Malloy testified victim inserted the fingers of the adult male doll into the vagina of the child female doll then put the penis of the adult male doll against the vagina of the child female doll. Victim also placed the male doll's penis into the child doll's mouth. Counsel did not offer any objections to this testimony.

At the PCR hearing, trial counsel testified he did not object to mother's and father's hearsay testimony because it did not bolster the victim's testimony. Trial counsel stated he did not object to the testimony regarding the victim's demonstration with the anatomically correct dolls because the victim's statements with the dolls were vague.

The PCR judge found counsel had a valid strategic reason for not objecting to mother's and father's hearsay testimony. The PCR judge also found counsel had a valid strategic reason for not objecting to hearsay testimony concerning the victim's demonstration with the anatomically correct dolls. The judge concluded, for tactical reasons, counsel wanted the jury to hear the testimony regarding the victim's use of the dolls because it illustrated her vague statements and descriptions regarding the alleged assault.

ISSUE

Was counsel ineffective for failing to object to hearsay testimony?

DISCUSSION

To prove ineffective assistance of counsel, a PCR applicant must establish that (1) counsel failed to render reasonably effective assistance under prevailing professional norms and (2) he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). To establish prejudice, the applicant must show, but for counsel's errors, there is a reasonable probability the result of the trial would have been different. Brown v. State, 340 S.C. 590, 533 S.E.2d 308 (2000). Where counsel articulates a valid reason for employing certain strategy, the conduct will not be deemed ineffective. Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000). If there is any probative evidence to support the findings of the PCR judge, those findings must be upheld. Anderson v. State, 342 S.C. 54, 535 S.E.2d 649 (2000).

The rule against hearsay prohibits the admission of an out-of-court statement to prove the truth of the matter asserted unless an exception to the rule applies. Dawkins v. State, 346 S.C. 151, 551 S.E.2d 260 (2001); Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994). A well-settled exception in criminal sexual conduct cases allows limited corroborative testimony. Id. When the victim testifies, evidence from other witnesses that the victim complained of the sexual assault is admissible in corroboration; however, such evidence is limited to the time and place of the assault and cannot include details or particulars or the identity of the perpetrator. Id.

Since mother's and father's testimony was inadmissible hearsay, counsel's failure to object to the introduction of that evidence fell below an objective standard of reasonableness. See Strickland v. Washington, supra; Brown v. State, supra.

As to the prejudice prong of Strickland v. Washington, supra,

Sanchez was prejudiced by counsel's deficient performance because improper corroboration testimony that is merely cumulative to the victim's testimony cannot be harmless. As stated in Jolly v. State, 314 S.C. at 21, 443 S.E.2d at 569, "it is precisely this cumulative effect which enhances the devastating impact of improper corroboration." Mother's and father's testimony impermissibly bolstered the victim's testimony. Mother and father both testified as to the identity of the perpetrator and the details and particulars of the assault. Their testimony corroborated the victim's accusation. Consequently, the PCR judge erred by not granting Sanchez relief on this ground.

Furthermore, counsel was ineffective for failing to object to the police officer's hearsay testimony concerning the victim's demonstration of the assault through the use of anatomically correct dolls. Counsel's reason for not objecting was that he wanted the jury to hear the testimony because it illustrated the victim's vague statements regarding the alleged assault. Because the officer's testimony regarding the dolls corroborated the victim's testimony at trial, counsel's strategy was not reasonable given the prejudicial effect this testimony had on Sanchez.

CONCLUSION

Because Sanchez was prejudiced by counsel's deficient performance, we find he is entitled to a new trial. The State's issue is affirmed pursuant to Rule 220(b)(1), SCACR, and the following authorities: Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Plyler v. Moore, 129 F.3d 728 (4th Cir.1997), cert. denied, Moore v. Cummings, 524 U.S. 945, 118 S.Ct. 2359, 141 L.Ed.2d 727 (1998); Jernigan v. State, 340 S.C. 256, 531 S.E.2d 507 (2000); Plyler v. Evatt, 313 S.C. 405, 438 S.E.2d 244 (1993).

AFFIRMED IN PART; REVERSED IN PART.

WALLER and PLEICONES, JJ., concur. BURNETT, J., dissenting in a separate in which TOAL, C.J., concurs.

BURNETT, Justice (dissenting):

I respectfully dissent. As noted by the majority, if there is any probative evidence which supports the findings of the PCR judge, those findings must be upheld. Anderson v. State, 342 S.C. 54, 535 S.E.2d 649 (2000). Because there is probative evidence which supports the PCR judge's findings in this matter, the Court is required to affirm.

First, I agree mother and father offered inadmissible hearsay testimony regarding the victim's identity of the perpetrator and the specific details of the assault. Nonetheless, counsel articulated a valid, strategic reason for not objecting to the hearsay. Counsel's decision not to object to mother's and father's testimony because it did not bolster the victim's testimony was a reasonable, strategic decision. Mother and father testified the victim stated Sanchez "stuck his finger in her hiney." The victim, however, testified to various accounts of the incident, none of which specifically stated Sanchez "stuck his finger in her hiney." In my opinion, counsel offered a valid trial strategy by not objecting to mother's and father's testimony as their testimony contradicted the victim's already vague description of the assault. Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000) (where counsel articulates a valid reason for employing certain strategy, the...