Underwood v. State, 23750

• Citation: 425 S.E.2d 20,309 S.C. 560
• Decision Date: 07 December 1992
• Docket Number: No. 23750,23750
• Court: United States State Supreme Court of South Carolina
• Parties: Charles UNDERWOOD, Petitioner, v. STATE of South Carolina, Respondent.

Page 20

425 S.E.2d 20

309 S.C. 560

Charles UNDERWOOD, Petitioner, v. STATE of South Carolina, Respondent.

No. 23750.

Supreme Court of South Carolina.

Submitted Oct. 27, 1992.

Decided Dec. 7, 1992.

Francis E. Grimball and Michael J. Ferri, both of Grimball and Cabaniss, Charleston, and South Carolina Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka and Asst. Atty. Gen. Lisa G. Jefferson, Columbia, for respondent.

MOORE, Justice:

Petitioner Charles Underwood was convicted of one count of assault with intent to commit criminal sexual conduct (CSC) with a minor, first degree; two counts of lewd act upon a minor; and five counts of CSC with a minor, first degree. He was sentenced to thirty years for the assault count; ten years for each lewd act count; and thirty years for each CSC count, all to run consecutively. His direct appeal was affirmed. State v. Underwood, S.C. S.Ct. Memo Op. No. 87-MO-243 (filed April 27, 1987).

We granted certiorari to review the denial of petitioner's application for post-conviction relief (PCR). Petitioner alleges he received ineffective assistance of counsel because counsel failed to: (1) properly prepare for trial because he did not individually interview all of the potential witnesses; (2) produce key witness at trial; and (3) object to expert testimony regarding a "common profile" of persons who sexually abuse children. The PCR judge found counsel was effective and petitioner did not show any prejudice. We affirm.

DISCUSSION

Petitioner was convicted of sexually abusing his neighbor's two daughters (ages 6 and 7). Petitioner denied the allegations. The victims testified that petitioner often gave them money and presents, let them watch television at his house and took them places. Petitioner gathered approximately twelve witnesses, mostly young children, nine of whom testified that petitioner also had given them money and presents but that he did not sexually abuse them. Petitioner alleges trial counsel's performance was deficient for failing to individually interview all of these witnesses prior to trial and not calling all of them to testify.

Specifically, in his application, petitioner alleges that three witnesses could have testified to an alibi defense and a recantation by the victims if trial counsel had interviewed them prior to trial. At the PCR hearing, however, none of these witnesses testified.

To establish a claim of ineffective assistance of counsel, petitioner must show that counsel's performance was deficient and but for this deficiency there is a reasonable probability that the result would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Martinez v. State, 304 S.C. 39, 403 S.E.2d 113 (1991). Even if trial counsel was deficient in failing to interview and call all of these witnesses, petitioner has failed to show any prejudice.

Next, petitioner alleges trial counsel was ineffective for failing to call Dr. James Alderman as a witness. Dr. Alderman performed a medical exam on the victims on January 7, 1985, and although in his report, he stated he did not discover any physical findings of sexual abuse, he reported that the victims had told him about the sexual abuse. At trial, Dr. Sarah Schuh testified she found physical evidence of sexual abuse following a medical exam she conducted on January 30, 1985.

Trial counsel extensively questioned Dr. Schuh about the inconsistencies between the two findings on physical evidence. At the PCR hearing, trial counsel explained that he did not call Dr. Alderman for tactical reasons. Trial counsel testified that most people who work with abused children always testify that the children do not lie about the abuse whether there is physical evidence or not and he did not want two doctors to testify on the veracity of abused children. Where counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective. Stokes v. State, --- S.C. ----, 419 S.E.2d 778 (1992).

Appellant also alleges trial counsel was ineffective for not objecting to Dr. Schuh's testimony of a "common profile" of people who sexually abuse children:

A person who wants to have sex with or to accomplish penile-vagina penetration with a child may be one of two kinds of people. He may be a person...