Sosebee v. Leeke, No. 22796
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | HARWELL; NESS |
| Citation | 293 S.C. 531,362 S.E.2d 22 |
| Parties | Frank Victor SOSEBEE, Petitioner, v. William D. LEEKE, Commissioner, South Carolina Department of Corrections, and the Attorney General of South Carolina, Respondents. |
| Docket Number | No. 22796 |
| Decision Date | 09 November 1987 |
Page 22
v.
William D. LEEKE, Commissioner, South Carolina Department of
Corrections, and the Attorney General of South
Carolina, Respondents.
Decided Nov. 9, 1987.
David I. Bruck, Columbia, for petitioner.
Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen., Donald J. Zelenka, and Asst. Atty. Gen. William A. Ready, III, Columbia, for respondents.
HARWELL, Justice:
[293 S.C. 532] Petitioner was convicted of criminal sexual conduct in the second degree and kidnapping. He was sentenced to consecutive sentences of 20 years for criminal sexual conduct and life imprisonment for kidnapping. We affirmed both convictions in State v. Sosebee, 284 S.C. 411, 326 S.E.2d 654 (1985). Petitioner filed an application for Post-Conviction Relief (PCR), which was denied following an evidentiary hearing. We granted Petitioner's Petition for Certiorari on the question of whether he received effective assistance of counsel at
Page 23
trial. We hold that he did not and reverse and remand for a new trial.Petitioner's allegation of ineffective assistance of counsel first raises the question of whether the representation was within the range of competence demanded of attorneys in criminal cases. Watson v. State, 287 S.C. 356, 338 S.E.2d 636 (1985). "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 693 (1984). The second prong of the Strickland test requires a showing that trial counsel's deficient performance so prejudiced the defense "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 693.
Petitioner claims he was denied effective assistance of counsel because his attorney failed to object to two prejudicial comments made by the trial judge:
COMMENT 1
The victim testified that several days after the incident Petitioner drove up beside her and spoke to her in the parking lot near her barracks. 1 On cross-examination the victim denied that Petitioner was in a car and stated that he was walking. When Petitioner's trial counsel attempted to explore this inconsistency, the trial judge interjected:
She never said that [he was walking], Mr. Wilson. You're just examining idly now. You're asking her didn't she say so-and-so, and it's exactly what she in [293 S.C. 533] fact said. Move along with an examination that elicits information. Ask a question to which you want a real answer, not rhetorical questions. You can use them in your jury argument.
Counsel did not object to this statement and pursued a different line of questioning.
COMMENT 2
The victim testified that she told a friend about the incident shortly after returning to the barracks. When the friend testified the solicitor asked if the victim's trial testimony was substantially the same as her story on the night of the incident. When Petitioner's counsel objected that this testimony was only designed to buttress the victim's testimony, the judge stated:
No sir, it's not necessarily to buttress it in a situation such as this. You have suggested that her story is patently incredible, but within a few moments after reporting back home she told that...
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Green v. State, 99-323
...on which appellant most strongly relies, Watkins v. State, 222 Ark. 444, 261 S.W.2d 274 (1953), an Arkansas case and Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 (1987), a South Carolina case. In Watkins, the trial court's comments went beyond a simple definition of perjury and included th......
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State v. Hughes, No. 24704
...is contrary to both common sense and the law, since it is well-settled that argument of counsel is not evidence. e.g., Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 Where, as here, evidence has been improperly excluded, this Court has deemed the error harmless only where the excluded eviden......
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State v. Charping, No. 24855.
...informed tactical decision based on all the evidence offered at trial. A solicitor's closing argument is not evidence. Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 8. Charping's remaining issues are affirmed pursuant to Rule 220(b), SCACR and the following authorities: Issue 4—State v. Pow......
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State v. Brisbon, No. 24482
...or sufficiency of the evidence, the credibility of witnesses, the guilt of an accused, or any fact in controversy. Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 (1987); State v. Smith, 288 S.C. 329, 342 S.E.2d 600 (1986). Sosebee and Smith, however, are easily distinguishable. In Smith, dur......
-
Green v. State, 99-323
...on which appellant most strongly relies, Watkins v. State, 222 Ark. 444, 261 S.W.2d 274 (1953), an Arkansas case and Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 (1987), a South Carolina case. In Watkins, the trial court's comments went beyond a simple definition of perjury and included th......
-
State v. Hughes, No. 24704
...is contrary to both common sense and the law, since it is well-settled that argument of counsel is not evidence. e.g., Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 Where, as here, evidence has been improperly excluded, this Court has deemed the error harmless only where the excluded eviden......
-
State v. Charping, No. 24855.
...informed tactical decision based on all the evidence offered at trial. A solicitor's closing argument is not evidence. Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 8. Charping's remaining issues are affirmed pursuant to Rule 220(b), SCACR and the following authorities: Issue 4—State v. Pow......
-
State v. Brisbon, No. 24482
...or sufficiency of the evidence, the credibility of witnesses, the guilt of an accused, or any fact in controversy. Sosebee v. Leeke, 293 S.C. 531, 362 S.E.2d 22 (1987); State v. Smith, 288 S.C. 329, 342 S.E.2d 600 (1986). Sosebee and Smith, however, are easily distinguishable. In Smith, dur......