Washington v. State
| Docket Number | 5997,Appellate Case 2018-000182 |
| Decision Date | 05 July 2023 |
| Parties | Mack Washington, Jr., Petitioner, v. State of South Carolina, Respondent. |
| Court | South Carolina Court of Appeals |
Heard October 12, 2022
Appeal From Colleton County Perry M. Buckner, III, Trial Court Judge Thomas A. Russo, Post-Conviction Relief Judge
Appellate Defender Jessica M. Saxon and Taylor Davis Gilliam both of Columbia, for Petitioner.
Senior Assistant Deputy Attorney General William M. Blitch, Jr. and Assistant Attorney General Joshua Abraham Edwards, both of Columbia, for Respondent.
In this post-conviction relief (PCR) action, Mack Washington, Jr. (Petitioner) appeals the denial of his PCR application. He contends the PCR court erred in finding trial counsel was not ineffective for failing to preserve the issue of an improper closing argument for direct appeal when the solicitor referred to "a pattern" of conduct and asked the jury "[w]ho among us is safe[?]" We reverse.
Frank Klem and Joan Klem[1] (collectively, the Klems) checked into the Rice Planters Inn in Walterboro on January 7, 2012, around 11:00 p.m. Two males followed them into their room and one of the men grabbed Joan around her waist and held a knife on her. The other perpetrator instructed Frank and Joan to give them their wallet, purse, and car keys or they would kill Joan. The Klems put their possessions on the bed, and the perpetrators took Frank's wallet, Joan's purse, and their car keys, and pulled the hotel phone out of the wall. The perpetrators fled in the Klems' white Chevrolet Impala, which contained luggage, golf clubs, and two rifles.
In connection with this incident, a Colleton County grand jury indicted Petitioner for possession of a weapon during the commission of a violent crime, two counts of kidnapping, and two counts of armed robbery.
Trial began March 17, 2014. At trial, Tyneshia Young testified Petitioner visited her apartment in Druid Hills "[a]lmost every other day" but he did not live there. Young testified she saw Petitioner on January 7, 2012 at her apartment. She later saw Petitioner with Tyheem Lewis[2] in the early morning hours of January 8. She provided she observed Lewis sitting on the couch in her living room at that time and noticed something large on the couch next to him. Young stated "[i]t almost looked like a guitar on the couch." Young testified Lewis indicated the item belonged to Petitioner.
Young testified Petitioner returned to her apartment in the evening on January 8, and later, they heard someone knock on the door. Young provided she went to the door and saw police. She stated Petitioner would not let her open the door; rather, he put her in her room and went to the bathroom. Young testified Petitioner then put her in the bathroom and she called her mother. She stated that when she returned to her room, she saw Petitioner take guns out of her closet and put them under her bed. Young testified she called her mother again and talked to a police officer. She stated she eventually opened the door once Petitioner allowed her to do so and she told police where they could locate the guns.
Young provided she initially told police someone else brought the guns to her house; however, she stated she lied because Petitioner told her to do so. Young testified she spoke to police again when she was arrested for receiving stolen goods and she lied to Lieutenant Jason Chapman of the Walterboro Police Department but eventually told him the truth. She stated police dismissed her charge but no one promised her anything for it to be dismissed. Additionally, Young testified a maintenance worker found credit cards and an older white woman's ID in her toilet and she believed Petitioner put the cards in her toilet.[3]
Lewis testified he pled guilty in exchange for a one- to six-year sentence and agreed to testify against Petitioner. He stated that on January 7, 2012, Petitioner asked if he wanted to make some money. Lewis testified he confirmed he wanted to make money and met with Petitioner later that night. He stated they went to the Rice Planters Inn and after waiting, saw a white male and white female pull into the parking lot and go inside their room. Lewis testified they ran in behind them and Petitioner grabbed the female and held a knife to her throat while Lewis grabbed a phone, wallet, purse, and car keys. He stated they then ran to the car and fled. Lewis testified they threw some items away near water and parked the car; however, they took the guns and went back to Druid Hills apartments. He stated Petitioner planned to pick up the car the following day and they were going to take it to a "chop shop."
Lewis testified he later spoke with police and confessed to the crime. Additionally, he confirmed he sent a letter to the solicitor, stating Petitioner was not with Lewis when he committed the crime, and another letter, stating the first letter was true.[4]However, Young testified the letters were not true but he sent them because Petitioner asked him to send them and he felt pressured to do so. He also stated he was pressured by police to help them prosecute Petitioner and police promised him leniency if he would help in Petitioner's prosecution. Lewis testified he believed the solicitor could have prosecuted him for kidnapping if he did not testify against Petitioner, which was part of the reason Lewis testified against Petitioner. However, Lewis maintained his statement to police implicating himself and Petitioner was true.
Lieutenant Chapman testified that on January 8, 2012, he received a phone call informing him the two firearms stolen during the robbery were in a particular apartment at Druid Hills. Lieutenant Chapman stated he reviewed the initial robbery report and confirmed two rifles had been stolen from the Klems. Lieutenant Chapman provided he confirmed with the informant the two firearms located in the Druid Hills apartment were "long guns[] or rifles," which matched the description of the firearms stolen from the Klems. Lieutenant Chapman testified he and a group of officers went to the apartment, which registered as being occupied by Young. He indicated no one would answer the door but he heard movement inside. He testified Young's mother approached them and he spoke to Young on the phone through her. Lieutenant Chapman testified Young eventually opened the door and gave him permission to obtain the guns from under her bed. He stated the police determined the guns were the ones stolen from the Klems.
Lieutenant Chapman provided police recovered the Klems' luggage and personal effects near a boat landing on January 10, 2012.[5] He testified that later in the month, police recovered Frank's golf clubs in Charleston. The following day, police learned of a possible location for the missing Impala and located what remained of the vehicle a few days later.
Lieutenant Chapman testified he spoke to Young again shortly after recovering the guns from her apartment and he believed she was not being honest. He stated he later arrested Young for receiving stolen goods and Young told him Petitioner and Lewis brought the guns to her apartment. Lieutenant Chapman testified he interviewed Lewis, arrested him, and issued warrants for Petitioner. He stated he recommended Young's charge be dropped after he spoke with Lewis.
Quincy White, an acquaintance of Petitioner's, testified he saw Petitioner driving a gray Impala and later standing outside the Impala in January 2012. He stated that when he walked by Petitioner, he did not really hear Petitioner say anything regarding the car. However, upon further questioning, White testified he heard Petitioner say he stole the Impala. White stated he later saw the Impala behind his abandoned house and the car was stripped while there. White testified he was charged with possession of a stolen vehicle regarding this matter and he obtained a deal-the charges would be dropped-for his testimony. He stated the deal did not have anything to do with his testimony; rather, he testified because he wanted the warrant against him dropped.
After trial counsel's closing argument, the solicitor gave her closing argument and stated the following at the end of the argument:
(emphasis added). The trial court took a brief recess.
Thereafter, trial counsel moved for a mistrial outside the presence of the jury. He argued the solicitor's comments in closing arguments about Petitioner having a pattern of robbing old people was improper because it implied he had a prior record for the same charges when his record had not been published to the jury.
Trial counsel explained he believed the solicitor's comments implied Petitioner had a prior record of robbing old people because "[a] pattern is not just one time"; rather, it "is something that is repeated." He asserted the comments prejudiced Petitioner.
The...
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