Thrift v. State, 23285

• Decision Date: 26 September 1990
• Docket Number: No. 23285,23285
• Court: South Carolina Supreme Court
• Parties: David THRIFT, Petitioner, v. STATE of South Carolina, Respondent. . Heard

Page 523

397 S.E.2d 523

302 S.C. 535

David THRIFT, Petitioner, v. STATE of South Carolina, Respondent.

No. 23285.

Supreme Court of South Carolina.

Heard Sept. 26, 1990.

Decided Oct. 22, 1990.

John F. Hardaway, Columbia, for petitioner.

Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka and Staff Atty. Marshall Prince, Columbia, for respondent.

HARWELL, Justice:

Petitioner David Thrift was convicted of murder and sentenced to life imprisonment. His direct appeal was dismissed after review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This petition for writ of certiorari is before this Court following the denial of petitioner's application for Post Conviction Relief (PCR). We affirm.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

The facts giving rise to petitioner's assertion that the PCR judge erred in not finding he had been denied effective assistance of trial counsel are set forth below. Bill E. Faile ¹ and George Douglas Johnson ² (Doug) were petitioner's codefendants. Debra Fay McDaniel Johnson was Doug's wife. At trial, these witnesses testified to petitioner's participation in luring the victim to the Johnson's home, the scene of the murder, and petitioner's knowledge of Faile's intention "to get" or to kill the victim. Petitioner denied any knowledge of Faile's intentions.

During the solicitor's cross-examination of petitioner at trial, the following occurred:

Q: Were you not there when Ms. McDaniel [Doug Johnson's wife] testified?

A: Yes, sir. But I never had seen her that night.

Q: She said she was in the kitchen there.

A: I didn't even know she was home.

Q: And Bill said he was going to get him and you said, "We've got to get him."

A: No, Sir, I did not say that.

Q: She's lying; is that right?

A: If she said that.

Q: Doug's lying. He said you said you were going to have to get him.

A: Well, then he's lying then.

Q: He's lying. Bill Faile's lying.

A: Definitely.

Petitioner's trial counsel did not object to this cross-examination. At his PCR hearing, petitioner argued to the judge that he was denied effective assistance of counsel because his attorney's failure to object to the solicitor's line of questioning improperly forced him to attack the veracity of Bill Faile, Debra McDaniel Johnson, and Doug Johnson. Trial counsel testified that he could not remember why he had not objected. The PCR judge rejected petitioner's argument and found that despite trial counsel's failure to object, petitioner failed to establish prejudice.

Petitioner now argues that the PCR judge erred in failing to find petitioner received ineffective assistance of counsel. The burden is on the applicant in post-conviction proceedings to prove the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). As to allegations of ineffective assistance of counsel, the applicant must show that counsel's performance was deficient and that he was prejudiced by the deficiencies. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). This Court must affirm the findings of the PCR judge if they are supported by any evidence. Cherry v. State, supra.

While it is improper for the solicitor to cross-examine a witness in such a manner as to force him to attack the veracity of another witness, improper "pitting" constitutes reversible error only if the accused was unfairly prejudiced. State v. Brown, 297 S.C. 27, 374 S.E.2d 669 (1988); State v. Sapps, 295 S.C. 484, 369 S.E.2d 145 (1988). If it appears from the record that the conviction is clearly correct on the merits, that the accused had a fair trial, and that no other verdict could reasonably have been returned on the evidence, this Court is disposed to regard the error as harmless. State v. Hariott, 210 S.C. 290, 42 S.E.2d 385 (1947).

Clearly, petitioner has not met his burden of proof in showing prejudice. While petitioner's credibility was in question as to whether he heard Faile state that he intended to kill the victim, petitioner's own testimony indicated that he was aware that Faile was looking for the victim, that Faile as well as petitioner were armed, and that the victim would at least be "roughed up". On cross-examination, petitioner admitted carrying a gun for "protection". This is evidence petitioner expected a potentially violent situation. We find that although petitioner's trial attorney's performance was deficient, petitioner's trial testimony supports the PCR judge's finding that he was not prejudiced by his trial attorney's failure to object to the solicitor's improper pitting of witnesses.

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Petitioner also contends that the PCR judge erred in failing to find petitioner received ineffective assistance of appellate counsel. Petitioner asserts that his appellate attorney was ineffective for failing to argue on appeal that the trial judge's jury instruction was erroneous. This argument is without merit. In the present case, trial counsel requested the judge charge the following instruction based on State v. Peterson, 287 S.C. 244, 335 S.E.2d 800 (1985): "Before the law will hold the defendant responsible for this homicide you must find that the homicide was a natural or probable consequence of the acts actually agreed on by the defendants." The trial judge did not use the specific language in petitioner's request to charge, but instead charged the following Now, Mr. Foreman, Ladies and Gentlemen of the Jury, I will charge you that the law is that if a crime was committed by two or more persons who are acting together in the commission of an offense, the act of one is the act of both or all, if there are more...