Tappeiner v. State

• Decision Date: 04 May 2016
• Docket Number: No. 27632.,Appellate Case No. 2013–001885.,27632.
• Citation: Tappeiner v. State, 416 S.C. 239, 785 S.E.2d 471 (S.C. 2016)
• Parties: Susan TAPPEINER, Petitioner, v. STATE of South Carolina, Respondent.
• Court: South Carolina Supreme Court

416 S.C. 239

785 S.E.2d 471

Susan TAPPEINER, Petitioner,

v.STATE of South Carolina, Respondent.

Appellate Case No. 2013–001885.

No. 27632.

Supreme Court of South Carolina.

Submitted March 15, 2016.

Decided May 4, 2016.

Tara Dawn Shurling, of Law Office of Tara Dawn Shurling, PA, of Columbia, for petitioner.

Attorney General, Alan M. Wilson, and Assistant Attorney General, J. Rutledge Johnson, both of Columbia, for respondent.

Justice HEARN.

A Beaufort County jury convicted Susan Tappeiner of criminal sexual conduct (CSC) with a minor, second degree.Tappeiner withdrew her direct appeal and filed an application for post-conviction relief(PCR), asserting, inter alia, that her trial counsel was deficient in failing to object to the State's improper remarks during closing arguments.The PCR court denied her relief, finding that although trial counsel was deficient in failing to object, Tappeiner was not prejudiced by the deficient performance.We reverse.

FACTUAL/PROCEDURAL BACKGROUND

In February 2009, Victim informed his school resource officer that he was sexually assaulted by Tappeiner, his forty-two year old neighbor.Victim stated the assault happened in August 2008, approximately seven weeks before his fourteenth birthday.

According to Victim, on that August night, he went to Tappeiner's house with his sister and a neighbor to watch movies with Tappeiner, her husband, and their two daughters while his parents were out of town.Tappeiner and her husband were drinking alcohol during the movies, although neither was noticeably intoxicated.By the end of the last movie, all of the children except Victim had fallen asleep in front of the television, and Tappeiner's husband had gone upstairs to bed.Tappeiner briefly left the room where the children lay sleeping, then reentered and began fondling Victim's penis.When he resisted, Tappeiner pulled Victim upstairs into her daughter's bedroom, where she forced him to perform oral sex on her, as well as engage in vaginal intercourse.Although Victim stated he screamed for help, apparently no one heard him or woke up.Eventually, Victim was able to escape and return home.¹

Tappeiner was arrested and indicted for CSC with a minor, second degree.From the outset of the trial, both parties acknowledged there was no physical evidence of the alleged crime, and therefore the case was entirely dependent on a credibility determination between Victim and Tappeiner.The State presented testimony from Victim, the school resource officer, two police officers, and a counselor at a local rape crisis center, who was qualified as an expert witness in forensic interviewing.Notably, although the rape crisis counselor interviewed Victim after he reported the assault, she did not testify as to that interview, instead merely addressing the solicitor's hypothetical questions as to why child victims of sex crimes may delay reporting the abuse.In an effort to corroborate Victim's story as to the details of the assault, the State introduced the dress and panties that Tappeiner allegedly wore during the attack because both articles of clothing were very distinctive.However, both items were clean and did not contain any DNA evidence.

In Tappeiner's defense, trial counsel called one witness—Tappeiner's husband.He testified that on the night in question, he accompanied his wife to bed at the end of the last movie, he slept with her all night, and she did not leave the bed for any reason.He stated his wife was “a little loopy” from the combination of her antianxiety medication and alcohol, and likely was not able to remember anything that occurred that night.However, he recalled that his wife was not wearing the clothing Victim described.Further, Tappeiner's husband asserted he was a light sleeper, and their house is small, such that he definitely would have heard Victim if he had yelled out, as alleged, that night.Moreover, Tappeiner's husband testified one of their dogs was “very protective and would have barked” at any loud noises, such as if Victim had shouted.Tappeiner's husband further stated that when he awoke the following morning, Victim was still sleeping in the living room with the other children, and when Victim awoke, he acted completely “normal,” entering the kitchen to have breakfast with him.Finally, Tappeiner's husband testified that prior to Victim reporting the assault, several neighbors informed the couple that Victim and his sisters were using the Tappeiners' hideaway key to enter their home without their permission, which could explain how Victim was able to describe the articles of clothing in question.²

During closing arguments, trial counsel asserted “[t]here's no scientific evidence here.There's no semen.There's no DNA.”Citing repeatedly to Tappeiner's husband's testimony, trial counsel discussed the discrepancies between the version of events offered by Victim and the husband, such as Tappeiner not wearing the described clothing on the night in question, and that she slept with her husband all night after the last movie ended.Moreover, trial counsel pointed out that Victim's story was unlikely, as the house was small and someone would have heard him screaming; he remained in the house after the alleged assault and had breakfast with Tappeiner's husband the next morning like normal; and, given the disparity in sizes between Victim and Tappeiner, Tappeiner would have been unable to physically drag him upstairs if he was resisting.Trial counsel then criticized the rape crisis counselor's testimony, stating “she gave no information that was really specifically related to [V]ictim.”Finally, trial counsel also reminded the jury that Victim had unauthorized access to the Tappeiner house via the hideaway key.

By contrast, the solicitor reiterated that this case centered on credibility.After stating to the jurors that “Victim looked [them] in the eye” to aid them in their credibility determination, the solicitor summarized the relevant testimony.First, the solicitor reminded the jury of the colloquy in which the solicitor explicitly asked the school resource officer if he believed Victim's story, to which the officer “said, yeah.Yes.”³The solicitor then asserted the rape crisis counselor likewise interviewed Victim “face to face, eye to eye,” and she believed his version of events as well.Specifically, the solicitor stated, “I think the expert told you that she has done over 200 forensic interviews.Folks, these are people who can detect when someone is making something up or if there is nothing there.”The solicitor then reminded the jury that the police interviewed Tappeiner “face to face, eye to eye,” and that she was charged the same day with CSC with a minor, second degree.

In concluding, the solicitor repeatedly argued that Victim made consistent statements throughout his “eye to eye, [ ] face to face discussions” with the various witnesses, and that the jury should “think about the eye to eye, face to face interviews that victim has had with law enforcement and the expert [ ].”

As her final statement to the jury, the solicitor asserted that in making their decision, the jurors should consider “would you let [Tappeiner] babysit your kids?Your grand kids [sic]?Nieces and nephews?I think the answer to that is why you should find her guilty.”

Ultimately, the jury found Tappeiner guilty of CSC with a minor, second degree, and the trial court sentenced Tappeiner to ten years' imprisonment, suspended on the service of five years' imprisonment and three years' probation.⁴The trial court also informed Tappeiner she would be placed on the sex offender registry for life.

Tappeiner elected to abandon her direct appeal due to preservation problems and proceeded to post-conviction relief.PCR counsel then filed an application for PCR, asserting twenty-seven grounds for relief.

The PCR court denied relief on all counts.However, in its order, the court only made specific findings on four of the twenty-seven grounds, including, inter alia, that trial counsel was deficient in failing to object to the State's allegedly improper remarks during closing argument.However, the PCR court found that trial counsel's deficiencies did not prejudice Tappeiner.

The State and Tappeiner filed cross-motions to alter or amend pursuant to Rule 59(e), SCRCP.The State requested the PCR court reconsider its findings that trial counsel was deficient.Tappeiner argued, inter alia, that the PCR court failed to make factual findings or conclusions of law on twenty-three of her twenty-seven allegations of ineffectiveness as required by law, and requested that the PCR court make such findings.SeeS.C.Code Ann. § 17–27–80(2014)(stating the PCR court must make specific findings of fact and rulings of law).

In response, the PCR court issued an amended order that was identical in all respects to the initial order, except at the end, it listed the allegations by number and inserted an identical paragraph under each allegation, stating:

[Tappeiner] fails to carry her burden in proving (1) that her counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) that she was prejudiced by her counsel's ineffective performance.Further, even if this [c]ourt were to find a deficiency in [trial counsel's] representation, any such deficiency did not prejudice the defense in that this [c]ourt does not conclude from reviewing the evidence that by a preponderance of the evidence the result of the trial would have been different.

Tappeiner made a second motion to alter or amend, asserting the PCR court's order still did not comply with the requirements set forth in section 17–27–80.However, the PCR court denied the motion.

We granted Tappeiner's petition for a writ of certiorari to review the PCR court's decision.

ISSUE PRESENTED

Did the PCR court err in failing to find that trial counsel's failure to object during the State's closing argument constituted prejudicial error?

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