Thompson v. State

• Decision Date: 21 March 2018
• Docket Number: Appellate Case No. 2014-001611,Opinion No. 27785
• Parties: Yancey THOMPSON, Petitioner, v. STATE of South Carolina, Respondent.
• Court: South Carolina Supreme Court

423 S.C. 235

814 S.E.2d 487

Yancey THOMPSON, Petitioner,

v.STATE of South Carolina, Respondent.

Appellate Case No. 2014-001611

Opinion No. 27785

Supreme Court of South Carolina.

Submitted October 16, 2017

Filed March 21, 2018

Rehearing Denied June 12, 2018

Appellate Defender Robert M. Pachak, of Columbia, for Petitioner.

Attorney General Alan M. Wilson and Senior Assistant Attorney General Melody Jane Brown, of Columbia, for Respondent.

JUSTICE JAMES :

We granted a writ of certiorari to review the circuit court's denial of Petitioner's application for post-conviction relief (PCR).¹ We reverse the PCR court's denial of relief and remand to the court of general sessions for a new trial.

I.

In 2008, Petitioner Yancey Thompson was convicted of first degree criminal sexual conduct (CSC) with a minor, second degree CSC with a minor, and disseminating obscene material to a minor. He was sentenced to concurrent prison terms of twenty-five years, twenty years, and ten years, respectively. Petitioner appealed and this Court affirmed his convictions. State v. Thompson , Op. No. 2010-MO-028, 2010 WL 10097749 (S.C. Sup. Ct. filed Nov. 8, 2010). Petitioner then sought PCR. The PCR court concluded Petitioner had established his trial counsel was deficient in certain respects but denied relief on the basis that Petitioner had not proven he was prejudiced by these deficiencies.

II.

When Victim was an infant, her mother Monica Gleaton (Mother) sent her to live with her cousin Julia Thompson (Cousin) and Petitioner because Mother was seventeen years old, had four other children, and was therefore unable to care for Victim. When Victim was twelve years old, someone reported to authorities she was being physically abused and neglected by Cousin. While being interviewed by South Carolina Department of Social Services (DSS) caseworker Trina Elfering, Victim denied she was being abused by Cousin but reported Petitioner had sexually abused her from the time she was five years old. Ms. Elfering reported the allegations to the Lexington County Sheriff, resulting in the charges against Petitioner.

III.

Petitioner claims his trial counsel rendered ineffective assistance by failing to object to inadmissible hearsay testimony and by failing to object to testimony that improperly bolstered Victim's credibility.

To establish ineffective assistance of counsel, the PCR applicant must prove (1) counsel's performance fell below an objective standard of reasonableness, and (2) the applicant sustained prejudice as a result of counsel's deficient performance. Strickland v. Washington , 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Cherry v. State , 300 S.C. 115, 117–18, 386 S.E.2d 624, 625 (1989). To establish prejudice, the applicant must prove "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cherry , 300 S.C. at 117–18, 386 S.E.2d at 625 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

In a PCR case, this Court will uphold the PCR court's factual findings if there is any evidence of probative value in the record to support them. Sellner v. State , 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016). However, this Court gives no deference to the PCR court's conclusions of law, and we review those conclusions de novo. Jamison v. State , 410 S.C. 456, 465, 765 S.E.2d 123, 127 (2014).

A. Deficient Performance

The PCR court's deficiency findings were based upon an analysis of the South Carolina Rules of Evidence governing hearsay and upon the common law barring inadmissible bolstering testimony; because these findings—in this case—are conclusions of law, we review them de novo.

Failure to Object to Inadmissible Hearsay Testimony

In his application and during the PCR hearing, Petitioner claimed trial counsel rendered ineffective assistance by failing to object to inadmissible hearsay testimony given by DSS caseworker Elfering. The PCR court did not address this allegation in its order. Petitioner raised the issue again in his motion for reconsideration made pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure. The PCR court again did not address the issue. Petitioner raises the issue again before this Court; therefore, the issue is properly before us.

Ms. Elfering testified at trial that she spoke with Victim about each allegation against Petitioner and that Victim "revealed to me that she was being sexually abused by [Petitioner]." Trial counsel did not object to this testimony. Petitioner contends this testimony was inadmissible hearsay which served to improperly corroborate Victim's testimony.

Petitioner also claims trial counsel was ineffective in failing to object to inadmissible hearsay testimony provided by Dr. Alicia Benedetto, a clinical psychologist who conducted the forensic interview of Victim at the request of law enforcement.² Dr. Benedetto was qualified by the trial court as an expert in clinical psychology and child sexual abuse assessment. The solicitor asked Dr. Benedetto if Victim made any disclosures to her during the forensic interview, and Dr. Benedetto testified Victim disclosed chronic sexual abuse by Petitioner in the form of vaginal penetration, anal penetration, and oral sex. Trial counsel did not object to this testimony. Petitioner claims this testimony was inadmissible hearsay which served to improperly corroborate Victim's testimony. The PCR court ruled trial counsel was deficient in not objecting but ruled Petitioner did not prove he was prejudiced by the deficiency. In its brief, the State does not directly contest the PCR court's finding of deficiency and instead concentrates its argument on the prejudice prong. To ensure our analysis is complete, we will address the deficiency prong with respect to both Dr. Benedetto's and Ms. Elfering's hearsay testimony.

" ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), SCRE. Hearsay is not admissible except as provided by the South Carolina Rules of Evidence, by other rules prescribed by this Court, or by statute. Rule 802, SCRE. Rule 801(d)(1)(D), SCRE, provides:

A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent

with the declarant's testimony in a criminal sexual conduct case ... where the declarant is the alleged victim and the statement is limited to the time and place of the incident.

(emphasis added). This rule obviously limits corroborating testimony in this case to the time and place of the assault(s); any other details or particulars, including the perpetrator's identity, must be excluded. See Watson v. State , 370 S.C. 68, 71–72, 634 S.E.2d 642, 644 (2006).

The foregoing testimony from Ms. Elfering and Dr. Benedetto was clearly inadmissible hearsay. These accounts of their conversations with Victim meet the definition of hearsay under Rule 801(c), and these accounts provided information outside the time and place restriction set forth in Rule 801(d)(1)(D). The State does not contend trial counsel's failure to object was part of a valid trial strategy. See Watson , 370 S.C. at 73, 634 S.E.2d at 644 (finding trial counsel was not deficient when his failure to object to inadmissible hearsay testimony was part of a valid trial strategy). Trial counsel was deficient in not objecting.

Failure to Object to Inadmissible Bolstering Testimony

The PCR court ruled trial counsel was deficient in failing to object to testimony of Detective Traci Barr and Dr. Benedetto that impermissibly bolstered the credibility of Victim. We agree.

Detective Barr of the Lexington County Sheriff's Department testified at trial that she investigates child exploitation cases and that she conducted an investigation in this case. Detective Barr testified about her "specialized training" in child exploitation cases and testified she was trained in forensic interviewing of children who claim to be victims of sexual abuse. She did not conduct the forensic interview in this case, but she testified she watched the audio-visual recording of the forensic interview conducted by Dr. Benedetto and reviewed the medical findings of Dr. Susan Luberoff, who conducted a physical examination of Victim after Victim reported she was sexually abused. In the forensic interview, as testified to by Dr. Benedetto, Victim identified Petitioner as the perpetrator of the sexual abuse and provided other details. Detective Barr testified Victim's disclosures in the forensic interview were consistent with her own training and experience, and she testified the physical findings of sexual abuse recorded by Dr. Luberoff corroborated the account given by Victim during the forensic interview. The PCR court correctly ruled trial counsel was deficient in not objecting because this testimony impermissibly bolstered Victim's testimony. The State did not contest the PCR court's finding in its brief to this Court.

As previously noted, Dr. Benedetto conducted the forensic interview of Victim and was qualified by the trial court as an expert in clinical psychology and child sexual abuse assessment. She testified she has conducted perhaps a thousand forensic interviews of children who are possible victims of physical, sexual, or psychological abuse. She explained the process she follows in conducting a forensic interview and explained what certain terms mean and how she applies them in reaching her conclusions. She testified Victim suffered from post-traumatic stress disorder

(PTSD) based upon the significant emotional distress and "genuine, just palpable grief" exhibited by Victim during the interview. When asked by the solicitor to explain her overall findings to the jury, Dr. Benedetto testified that while most interviews conducted of alleged child abuse victims are determined to be "p...