Simpson v. Moore, 26114.
| Decision Date | 13 February 2006 |
| Docket Number | No. 26114.,26114. |
| Citation | 627 S.E.2d 701 |
| Court | South Carolina Supreme Court |
| Parties | Keith Lasean SIMPSON, Respondent-Petitioner, v. Michael MOORE, Commissioner, S.C. Department of Corrections, and Henry Dargan McMaster, Attorney General, State of South Carolina, Petitioner-Respondent. |
John H. Blume, III, and Sheri L. Johnson, both of Cornell Law School, of Ithaca, NY; and Russell Ghent, of Leatherwood Walker Todd & Mann, of Greenville, for Respondent-Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General S. Creighton Waters, all of Columbia, for Petitioner-Respondent.
Respondent-Petitioner Keith Lasean Simpson (Simpson) was found guilty of murder and received a death sentence. Simpson appealed and this Court affirmed. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996). Simpson filed for post-conviction relief (PCR). The PCR court denied relief on all issues related to guilt but granted relief on sentencing. We affirm in part and reverse in part.
Simpson and his accomplice planned to rob a convenience store. Armed with guns, the two men went to a store owned by Joe Harrison. Once there, Simpson went inside the store while his accomplice waited in the parking lot. At the same time, a customer entered the store with his nine-year-old son, Nathan. After making his purchase, the customer went outside to wait for Nathan. Joe Harrison was behind the counter, working the register.
Suddenly, gunshots were fired. A store employee, who was in the back of the store, testified that he saw Harrison walking towards the front door while Simpson shot at Harrison from behind. Nathan testified that he walked towards the front of the store to see what had happened. According to Nathan, Simpson pointed the gun at Nathan's forehead and attempted to fire the gun, but it only made a clicking noise. After this encounter with Simpson, Nathan ran and hid behind a poker machine. Nathan testified that while he was hiding, he saw Simpson go behind the counter and take money from the cash register.
Once the shooting began inside, Simpson's accomplice shot Nathan's father, Tony Scott, outside, in the parking lot. Scott was injured, and Harrison, the owner, died. Simpson and his accomplice fled the scene, pointing their guns and shooting at others in the area, but injuring no one else.
Simpson was indicted for murder, armed robbery, assault and battery with intent to kill, possession of a firearm during commission of a violent crime, and five counts of pointing a firearm.
At trial, Simpson gave a different version of events. He testified that once inside the store, he "chickened out." He claimed that he lifted his shirt, exposing the gun, as a way of signaling to his accomplice that he no longer wanted to rob the store. When Simpson lifted his shirt, Harrison saw the gun, grabbed Simpson by the shirt collar, and the two began to struggle. During the alleged struggle, two shots went off, Harrison began to stagger, and then Simpson fired two additional shots at Harrison. In addition, Simpson testified that he did not take anything from the store when he left.
The jury found Simpson guilty of murder and he was sentenced to death. He was also sentenced to serve consecutive sentences of thirty years for armed robbery, twenty years for assault, and five years for each of the pointing-a-firearm charges. Simpson appealed and this Court affirmed. State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996). Simpson filed for post-conviction relief (PCR), and following a hearing, Simpson was denied relief on guilt but granted relief on sentencing. We granted Simpson's and the State's petitions for certiorari.
Simpson raises the following issues for review:
I. Did the PCR court err in finding counsel was not ineffective for failing to consult an independent forensic pathologist, medical examiner, or homicide-reconstruction expert?
II. Did the PCR court err by denying Simpson relief due to the State's failure to disclose potentially exculpatory evidence related to the armed-robbery charge?
III. Did the PCR court err in finding the State did not engage in prosecutorial misconduct?
IV. Did the PCR court err in finding counsel was not ineffective for failing to call an expert witness to discredit a child witness's testimony?
V. Did the PCR court err in finding counsel was not ineffective for failing to object to the State's use of peremptory challenges against women?
VI. Did the PCR court err in failing to conduct a cumulative-error analysis?
The State raises the following issues for review:
I. Did the PCR court err in finding Simpson was prejudiced by counsel's failure to fully develop Simpson's mitigation case?
II. Did the PCR court err by considering numerous depositions and affidavits in lieu of live testimony?
This Court gives great deference to the PCR court's findings of fact and conclusions of law. Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000) (citing McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995)). On review, a PCR judge's findings will be upheld if there is any evidence of probative value sufficient to support them. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). If no probative evidence exists to support the findings, this Court will reverse. Pierce v. State, 338 S.C. 139, 144, 526 S.E.2d 222, 225 (2000) (citing Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996)).
To establish a claim that counsel was ineffective, a PCR applicant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) but for counsel's errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997). "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. at 2068.
Simpson contends that the PCR court erred in finding counsel was not ineffective for failing to consult an independent forensic pathologist, a medical examiner, or a homicide-reconstruction expert. We disagree.
At trial, the State presented the expert testimony of Dr. Wren, the pathologist who performed Harrison's autopsy. Dr. Wren testified that Harrison was shot three times: once through the hand, once through the front abdomen, and once through the back. Dr. Wren stated that all three were distant gunshot wounds, meaning that when fired, the gun was at least twelve inches from the victim.
Defense counsel did not call an expert to rebut Dr. Wren's testimony. Instead, the defense presented Simpson as its sole witness. Simpson testified that the shooting occurred during a struggle over the gun. During closing argument, defense counsel reenacted Simpson's testimony, showing the jury three possible theories regarding the trajectory of the bullets.
At the PCR hearing, defense counsel testified that he did not see a need for calling an expert witness to refute Dr. Wren's testimony. But to show that there was in fact a need for such testimony, PCR counsel called three expert witnesses to the stand. Two of the experts testified that Harrison was shot in the hand while he was gripping the barrel of Simpson's gun, which supported Simpson's testimony that the shots were fired during a struggle. But one expert testified that Harrison could have been shot in the back while lying on the ground or he could have been shot in the back while standing upright and fleeing.
After considering this testimony, the PCR court found that defense counsel was not deficient in failing to consult an expert. The court viewed the allegations against counsel as relating less with trial strategy and more to the degree that counsel should go in pursuing a defense theory. In addition, the court found that even if counsel was deficient, there was no prejudice. The judge found that the expert testimony presented at the PCR hearing added little either factually or theoretically, and did not negate the fact that all of the elements necessary for a murder conviction were present. Therefore, the PCR court found that there was not a reasonable probability the added testimony would have changed the outcome of the guilt phase of the trial.
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A decision "not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. When counsel's performance falls below this standard, a "defendant must show that there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
We agree with the PCR court and find that counsel was not deficient in failing to consult a forensic expert. It is clear from the record that counsel's primary strategy was to prove that the shooting occurred during a struggle, and that this struggle somehow negated or lessened Simpson's criminal liability for Harrison's death. However, evidence that Harrison grabbed Simpson by the shirt collar does nothing to explain how and why the gun was pulled from Simpson's waist. Additionally, Simpson himself testified to...
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