Vail v. State
| Decision Date | 20 March 2013 |
| Docket Number | No. 5092.,5092. |
| Citation | 738 S.E.2d 503,402 S.C. 77 |
| Court | South Carolina Court of Appeals |
| Parties | Mark Edward VAIL, Petitioner, v. STATE of South Carolina, Respondent. Appellate Case No. 2009–112367 |
OPINION TEXT STARTS HERE
Daniel J. Westbrook and Travis Dayhuff, both of Nelson Mullins Riley & Scarborough, LLP, of Columbia, for Petitioner.
Attorney General Alan M. Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley Elliott, Assistant Attorney General Matthew Frideman, and Assistant Attorney General Ashleigh Rayanna Wilson, of Columbia, for Respondent.
In this appeal from the denial of his post-conviction relief (PCR) application, Mark E. Vail argues the PCR court erred in finding trial counsel was not ineffective for failing to object to alleged hearsay testimony. We reverse and grant Vail a new trial.
This case involved allegations from a thirteen-year-old girl (Victim), who claimed she and Vail, a teacher and coach at her First Baptist Church School (First Baptist), were having a sexual relationship. At trial, the State called several witnesses, including Kelsey R. (Sister) and John R. (Father), to testify regarding Victim's statements. Portions of witnesses' testimonies went into detail about the alleged sexual encounters and the resulting actions that were taken. At least two witnesses, Sister and Caroline O., testified Victim recanted her story soon after her confession to them.
Trial counsel did not object to the testimonies now alleged to be inadmissible hearsay, did not request limiting instructions, and did not move to exclude any of the statements pursuant to Rule 403, SCRE. The jury convicted Vail on the charges of second-degree criminal sexual conduct (CSC) with a minor and lewd act with a minor. He received a ten-year sentence and an eight-year sentence, to be served concurrently. The jury acquitted him of two other counts of CSC with a minor. Vail filed a timely notice of appeal but later withdrew it. Subsequently, Vail sought PCR claiming trial counsel had rendered ineffective assistance by failing to object to many instances of inadmissible hearsay. An evidentiary hearing was held on January 23, 2008.
At the PCR hearing, trial counsel explained his trial strategy was to use alibi witnesses for all the alleged instances of sexual intercourse except for one on November 4, 2003. While trial counsel admitted the November 4, 2003 incident presented a problem because Vail had no way of refuting it through an alibi witness, he hoped his attacks on the other instances would undermine the Victim's credibility. Trial counsel stated he had a “huge mountain to overcome” when the jury was presented with evidence of thirty hours of telephone calls between Vail and Victim, many of which were late at night. He maintained he did not object to all instances of hearsay because he wanted to be “transparent” with the jury and avoid appearing as if he was playing “hide the ball,” because credibility was crucial in this case. He explained he failed to object to further hearsay from other witnesses because he had to elicit Victim's recantations through them as well. However, he admitted that even without the recantations and collateral attacks on Victim's credibility, he had various other credibility issues he could have pursued as well. He testified that another trial strategy was creating a picture that Victim had a teenage obsession with Vail. Trial counsel believed allowing the jury to hear through other witnesses the constant altering of Victim's story contributed to that picture.
The PCR court found trial counsel was not ineffective for failing to object to hearsay. To support its finding, the PCR court determined the majority of statements alleged by Vail to be hearsay did not fall under the definition of hearsay, or in the alternative, fell under various exceptions to the rule against hearsay. After the denial of PCR relief, Vail filed a petition for writ of certiorari, which this court granted on August 16, 2011.
“For [a] petitioner to be granted PCR as a result of ineffective assistance of counsel, he [has the burden to prove] both: (1) that his counsel failed to render reasonably effective assistance under prevailing professional norms, and (2) that he was prejudiced by his counsel's ineffective assistance.” Dawkins v. State, 346 S.C. 151, 155–56, 551 S.E.2d 260, 262 (2001) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Brown v. State, 340 S.C. 590, 533 S.E.2d 308 (2000)).
“ ‘An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.’ ” Smith v. State, 386 S.C. 562, 565, 689 S.E.2d 629, 631 (2010) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). ” Id. at 565–66, 689 S.E.2d at 631 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “Moreover, no prejudice occurs, despite trial counsel's deficient performance, where there is otherwise overwhelming evidence of the defendant's guilt.” Id. at 566, 689 S.E.2d at 631 (citing Rosemond v. Catoe, 383 S.C. 320, 325, 680 S.E.2d 5, 8 (2009)).
Upon appellate review, this court “will uphold the PCR court if any evidence of probative value supports the decision.” Id. at 565, 689 S.E.2d at 631 (citing Smith v. State, 369 S.C. 135, 138, 631 S.E.2d 260, 261 (2006)). 1
Vail cited numerous instances in the record in which he claims trial counsel should have objected on the basis of inadmissible hearsay testimony or irrelevance. He argues the PCR court erred in finding the challenged testimony fell under Rule 801(d)(1), SCRE, was an exception to the rule against hearsay, or did not fit within the definition of hearsay. We agree.
“ ‘The rule against hearsay prohibits the admission of evidence of an out-of-court statement to prove the truth of the matter asserted unless an exception to the rule applies.’ ” Watson v. State, 370 S.C. 68, 71, 634 S.E.2d 642, 644 (2006) (quoting Dawkins, 346 S.C. at 156, 551 S.E.2d at 262). However,
[i]n a CSC case, the testimony of a witness regarding the Victim's out-of-court statement is not hearsay when: “The declarant testifies at the trial ... 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 or attempted criminal sexual conduct case where the declarant is the alleged Victim and the statement is limited to the time and place of the incident.”
Smith, 386 S.C. at 566, 689 S.E.2d at 631–32 (quoting Rule 801(d)(1)(D), SCRE). “Any other details or particulars, including the perpetrator's identity, must be excluded.” Watson, 370 S.C. at 71–72, 634 S.E.2d at 644 (citing Dawkins, 346 S.C. at 156, 551 S.E.2d at 262–63).
Additionally, Rule 801(d)(1)(B), SCRE, provides a prior statement by a witness 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 and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose....
In other words, for a prior consistent statement to be admissible pursuant to Rule 801(d)(1)(B), the following elements must be present:
“(1) the declarant must testify and be subject to cross-examination, (2) the opposing party must have explicitly or implicitly accused the declarant of recently fabricating the statement or of acting under an improper influence or motive, (3) the statement must be consistent with the declarant's testimony, and (4) the statement must have been made prior to the alleged fabrication, or prior to the existence of the alleged improper influence or motive.”
State v. Winkler, 388 S.C. 574, 583, 698 S.E.2d 596, 601 (2010) (quoting State v. Saltz, 346 S.C. 114, 121–22, 551 S.E.2d 240, 244 (2001)).
We find portions of challenged testimony far exceeded the limitations provided in Rule 801(d)(1)(B) & (D). For example, Victim's father, John R. (Father), gave the following statements during the State's direct examination:
A: Well, a lot of the admissions that came out, it didn't just all come out in one big package for us. You know, a lot of the details, especially, you know, the more intense sexual details, she had a hard time telling me face to face.
....
....
Additionally, Sister testified Victim In related testimony, Caroline O. stated Victim
talked to [Sister] and [Sister] was...
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