Smalls v. State

• Citation: 415 S.C. 490,783 S.E.2d 817
• Decision Date: 10 February 2016
• Docket Number: Appellate Case No. 2012–212553.,No. 5378.,5378.
• Court: Court of Appeals of South Carolina
• Parties: Stephen SMALLS, Petitioner, v. STATE of South Carolina, Respondent.

415 S.C. 490
783 S.E.2d 817

Stephen SMALLS, Petitioner,
v.
STATE of South Carolina, Respondent.

Appellate Case No. 2012–212553.
No. 5378.

Court of Appeals of South Carolina.

Heard Oct. 20, 2015.
Decided Feb. 10, 2016.
Rehearing Denied April 21, 2016.

783 S.E.2d 818

Appellate Defender, Kathrine Haggard Hudgins, of Columbia, for petitioner.

Attorney General, Alan McCrory Wilson and Assistant Attorney General, Daniel Francis Gourley, II, both of Columbia, for respondent.

McDONALD, J.

415 S.C. 494

In this post-conviction relief (PCR) action, Stephen Smalls (Petitioner) argues the PCR court erred in finding trial counsel was not ineffective for failing to (1) object and request a mistrial when an investigator testified Petitioner burglarized someone's house and stole the gun used in the robbery, (2) object when the State erroneously told the jury during its opening statement that police saw Petitioner leaving the scene of the robbery, and (3) preserve an issue concerning the trial court's refusal to allow witness Eugene Green to be cross-examined about his dismissed carjacking charge. We affirm.

FACTS/PROCEDURAL BACKGROUND

In 2000, a grand jury indicted Petitioner for armed robbery resulting from the robbery of a Bojangles restaurant in Columbia.

At trial, Eugene Green testified that on the night of the robbery, he was helping his manager, Jim Lightner, close the restaurant when Petitioner ran through the door with a shotgun. Green stated Petitioner did not wear a mask. Petitioner ordered Lightner to open the safe, and when Petitioner turned his back, Green fled the restaurant and ran across the street. While on the phone with police at a nearby gas station, Green saw

783 S.E.2d 819

Petitioner leave the restaurant with the gun in his right hand and a white trash bag full of money in his left hand. Green stated that Petitioner approached a dumpster behind the restaurant and a wooden gate connected to a fence with a hole in it. Four days after the robbery, Green identified Petitioner as the robber by selecting Petitioner's photograph from a six-person lineup. Green also identified Petitioner in court and identified the shotgun. Green acknowledged that he had prior convictions for distribution of crack, use of a motor vehicle without consent, and possession of a stolen vehicle. On cross-examination, Green reiterated he was a convicted felon who had been in possession of a stolen car in the past.

415 S.C. 495

Lightner testified that on the night of the incident, the robber grabbed a carryout bag and ordered Lightner to take him to the safe. Lightner testified he could not open the safe in the dark, but when the robber allowed him to turn on the lights, he opened the safe and removed its contents. After the robber put the money in the bag, he ordered Lightner to lie down and then walked away. Several days later, Lightner was able to narrow a photographic lineup down to two individuals, one of whom was Petitioner.

Officers responding to the scene discovered the bag of money and the shotgun approximately ten feet from one another near a fence behind the restaurant—in the direction in which Green indicated Petitioner fled. A fingerprint found on the shotgun matched Petitioner's right-hand middle finger.

When a plain clothes officer in an unmarked car went to Petitioner's home to arrest him, the officer found Petitioner walking along a road holding a small child in his arms. As the officer identified himself and asked Petitioner to stop because he was the subject of a robbery investigation, Petitioner dropped the child and fled. However, police arrested Petitioner later that night hiding in some bushes a few blocks away.

The jury deliberated less than an hour and convicted Petitioner of armed robbery. The trial court sentenced him to twenty-five years' imprisonment.

In 2005, Petitioner filed a PCR application, and the PCR court subsequently held an evidentiary hearing. At the PCR hearing, trial counsel testified that she had only practiced law for a year and a half at the time of Petitioner's trial and had only tried two or three serious felony cases. Trial counsel admitted she failed to make some "very important" objections because of her inexperience, but she acknowledged that the State had evidence to support its case. According to trial counsel, during that time period, her public defender's office lost all of its senior attorneys and the office "didn't have enough experience at that time ... to combat ... these big trials that [they] had in front of [them]." Another attorney who served as second chair during the trial testified she had only six months of criminal practice experience at the time of Petitioner's armed robbery trial.

415 S.C. 496

During this hearing, an issue arose concerning an alleged deal the State made to dismiss a pending carjacking charge against Green. The PCR court ordered the former solicitor who prosecuted Green to obtain Petitioner's case file and Green's case file and review them for information about the deal. When the solicitor's office refused to produce the files because the attorney had left the office for private practice, the PCR court ordered the solicitor's office to provide the files.

In 2011, Petitioner moved for a de novo PCR hearing because Petitioner had expended "all reasonable efforts" to review the files. According to the motion, the solicitor's office claimed it did not have a separate file related to Green. Later in 2011, Petitioner entered into a consent order with the State to conduct a second evidentiary hearing. After the second PCR hearing, the PCR court denied Petitioner's application. This court granted Petitioner's petition for certiorari on August 20, 2014.

STANDARD OF REVIEW

"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). "Any evidence of probative value to support the PCR

783 S.E.2d 820

court's factual findings is sufficient to uphold those findings on appeal." Lee v. State, 396 S.C. 314, 320, 721 S.E.2d 442, 446 (Ct.App.2011). Thus, an appellate court "gives great deference to the PCR court's findings of fact and conclusions of law." Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006). "If matters of credibility are involved, then this court gives deference to the PCR court's findings because this court lacks the opportunity to directly observe the witnesses." Lee, 396 S.C. at 319, 721 S.E.2d at 445.

LAW/ANALYSIS

"In order to receive relief for ineffective assistance of counsel, a defendant must make two showings." Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011). "First, he must show that his trial counsel's performance was deficient, meaning that ‘counsel made errors so serious that counsel was

415 S.C. 497

not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.’ " Id. (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "Second, he must demonstrate that this deficiency prejudiced him to the point that he was deprived of a fair trial whose result is reliable." Id.

I. Deficient Performance

A. Failure to object to prior burglary testimony

Petitioner argues that the solicitor's intentional improper reference to a prior burglary was irrelevant, prejudicial, and unsubstantiated, and that trial counsel should have objected and moved for a mistrial.

The prior burglary reference occurred during the testimony of lead investigator Paul Mead. During Mead's cross-examination by trial counsel, he was asked about the shotgun's history. Mead stated he...