Stone v. State, Appellate Case No. 2013-001968

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJUSTICE FEW
PartiesBobby Wayne Stone, Petitioner, v. State of South Carolina, Respondent.
Decision Date08 February 2017
Docket NumberOpinion No. 27701,Appellate Case No. 2013-001968

Bobby Wayne Stone, Petitioner,
State of South Carolina, Respondent.

Appellate Case No. 2013-001968
Opinion No. 27701


Heard March 23, 2016
February 8, 2017


Appeal from Sumter County
Michael G. Nettles, Post-Conviction Relief Judge


Emily C. Paavola, of Justice 360, of Columbia, and John H. Blume, III, of Cornell Law School, of Ithaca, New York, for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Alphonso Simon, Jr., all of Columbia, for Respondent.

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JUSTICE FEW: Bobby Wayne Stone shot and killed Charlie Kubala of the Sumter County Sheriff's Office. After we affirmed his murder conviction and death sentence, Stone filed an application for post-conviction relief (PCR) alleging he received ineffective assistance of counsel. The PCR court denied relief. We granted certiorari, and now affirm.

I. Facts and Procedural History

Stone began the day of February 26, 1996, by purchasing beer and two firearms—a .410 bore shotgun and a competition-grade .22 caliber semi-automatic pistol. He spent the remainder of the day roaming through the woods, drinking the beer and shooting the guns. Later that afternoon, Stone wandered into the backyard of Ruth Griffith. In Stone's statement to the police, he said he and Griffith were "old drinking buddies." Griffith denied that, and claimed she knew Stone only because he previously dated her niece and had been to Griffith's house to pick up her niece. Griffith's adult daughter, Mary Ruth McLeod, was living with Griffith and was at the house when Stone arrived. McLeod asked Stone—who was standing in the yard holding a beer can and his newly-purchased pistol—to leave the property. Stone complied, but McLeod had already called 911. Sergeant Charles Kubala arrived at Griffith's house at 6:06 p.m. By then, Stone had returned to the woods, so Sergeant Kubala checked the scene, spoke with McLeod and Griffith, and left.

A short time later, Griffith heard gunshots in her yard and then someone banging on the inside door of her side porch. McLeod had left the house, so Griffith called her neighbor—Landrow Taylor—who came over and called 911 from inside Griffith's home. Sergeant Kubala once again responded to the call, arriving at 7:07 p.m. Stone was still on the side porch, banging on the door and holding his pistol in his hand. Taylor and Griffith remained inside while Sergeant Kubala went around the house toward the side porch. From inside, Taylor and Griffith heard someone yell "halt" or "hold it," followed immediately by three or four gunshots. Stone struck Sergeant Kubala with two of the shots—once in the neck and once in the ear—and Sergeant Kubala died on the scene.

After hours of searching, Sumter County Sheriff's officers found Stone in the woods, lying motionless between two logs with the murder pistol beneath his body. Early the next morning, Stone gave a statement in which he confessed to the shooting. He claimed it was an accident, however, explaining, "I just turned from the house door and the gun went off on the porch and I ran."

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At the 1997 trial, Stone was represented by Cameron B. Littlejohn Jr. and James H. Babb. The jury convicted Stone of murder, first-degree burglary, and possession of a weapon during a violent crime. The jury found the statutory aggravating circumstance for the murder of a law enforcement officer and recommended Stone be sentenced to death. We affirmed Stone's convictions, but reversed his death sentence and remanded the case for a new sentencing proceeding. State v. Stone, 350 S.C. 442, 567 S.E.2d 244 (2002). In the 2005 resentencing proceeding, he was again represented by Littlejohn and Babb. For the second time, the jury recommended Stone be sentenced to death. On appeal, he was represented by Joseph L. Savitz III. We affirmed the death sentence. State v. Stone, 376 S.C. 32, 655 S.E.2d 487 (2007).

Stone filed an application for PCR alleging he received ineffective assistance of counsel during his 1997 trial, his 2005 resentencing proceeding, and his subsequent appeal. The PCR court denied relief on all claims.

Stone filed a petition for a writ of certiorari, which we granted as to three sets of issues: (1) whether Stone's trial and appellate counsel were ineffective in dealing with victim impact evidence, (2) whether Stone's trial counsel was ineffective in investigating and presenting evidence of brain damage, and (3) whether Stone's trial counsel was ineffective in investigating and presenting evidence of the accident theory of the case. We affirm as to all issues.

II. Sixth Amendment

The Sixth Amendment guarantees every criminal defendant the reasonably effective assistance of counsel. U.S. CONST. amend. VI.; Strickland v. Washington, 466 U.S. 668, 683, 104 S. Ct. 2052, 2061, 80 L. Ed. 2d 674, 691 (1984); Von Dohlen v. State, 360 S.C. 598, 603, 602 S.E.2d 738, 740 (2004). We measure counsel's performance by "an objective standard of reasonableness." Weik v. State, 409 S.C. 214, 233, 761 S.E.2d 757, 767 (2014) (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. E. 2d 471, 484 (2003)). As we analyze whether Stone's counsel met the Sixth Amendment standard, the law requires we presume counsel rendered adequate assistance and exercised reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007). To overcome this presumption and prevail on his ineffective assistance of counsel

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claim, Stone must satisfy the Strickland test, which requires that he prove: "(1) counsel's representation fell below an objective standard of reasonableness and (2) but for counsel's error, there is a reasonable probability that the outcome of the proceeding would have been different." Williams v. State, 363 S.C. 341, 343, 611 S.E.2d 232, 233 (2005) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. E. 2d at 693).

III. Victim Impact Evidence

Stone makes two categories of arguments regarding the performance of his trial and appellate counsel as to the admissibility of victim impact evidence offered by the State during the resentencing proceeding. First, he argues trial counsel was ineffective in not objecting to portions of the testimony of law enforcement officers the State presented as victim impact evidence. The second category relates to the testimony of Teresa Kubala-Hanvey, Sergeant Kubala's widow. Kubala-Hanvey testified she attempted suicide after hearing this Court reversed the first death sentence and remanded for a new sentencing proceeding. As to Kubala-Hanvey's testimony, Stone makes two arguments. First, he contends trial counsel—while he did object—was ineffective in omitting several grounds for the objection. Second, Stone argues his appellate counsel was ineffective in not addressing in his brief the only ground on which trial counsel objected. As to both categories of arguments, we find Stone met his burden of proof under the first prong of Strickland, but not under the second prong.

A. Law Enforcement Officers' Testimony

The State offered seven victim impact witnesses during the resentencing proceeding. Several of them were colleagues of Sergeant Kubala at the Sumter County Sheriff's Office. These officers testified extensively about the impact of Sergeant Kubala's death on them personally, on the Sheriff's office generally, and on the community as a whole. Stone argues five particular components of the officers' testimony were inadmissible, and contends his trial counsel was deficient in not objecting when the State offered each into evidence. First, Major Gary Metts testified about a golf tournament organized in Sergeant Kubala's honor. Second, Major Metts explained that the tournament proceeds are used to fund college scholarships for the children of law enforcement officers killed in the line

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of duty.1 Third, Major Metts testified the Sheriff's Office maintained an "Explorer Group," a program designed to help children, for which Sergeant Kubala volunteered. Major Metts testified the program "collapsed" after Sergeant Kubala's death. Fourth, Captain Gene Edward Hobbs recounted to the jury how he went to Sergeant Kubala's house to tell Kubala-Hanvey about her husband's death. Fifth, Captain Hobbs described how the Sheriff's Office takes new recruits to visit the location where Sergeant Kubala died and to his gravesite to "talk about the consequences of the job."

Under South Carolina law, "victim impact evidence is relevant for a jury to 'meaningfully assess the defendant's moral culpability and blameworthiness.'" State v. Hughey, 339 S.C. 439, 457, 529 S.E.2d 721, 730-31 (2000) (quoting Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 2608, 115 L. Ed. 2d 720, 735 (1991)), overruled on other grounds by Rosemond v. Catoe, 383 S.C. 320, 330, 680 S.E.2d 5, 10 (2009). The State may present victim impact evidence for the purpose of demonstrating "the 'uniqueness' of the victim and the specific harm committed by the defendant." Hughey, 339 S.C. at 457, 529 S.E.2d at 730 (quoting State v. Rocheville, 310 S.C. 20, 27, 425 S.E.2d 32, 36 (1993)). In State v. Bennett, we explained that evidence of "the specific harm caused by the defendant" can "includ[e] the impact of the murder on the victim's family and 'a quick glimpse of the life which the defendant chose to extinguish.'" 369 S.C. 219, 228, 632 S.E.2d 281, 286 (2006) (quoting Payne, 501 U.S. at 825, 822, 111 S. Ct. at 2608, 2607, 115 L. Ed. 2d at 735, 733). Under Payne, "if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." 501 U.S. at 827, 111 S. Ct. at 2609, 115 L. Ed. 2d. at 736. However, when victim impact "evidence is introduced that...

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