Williams v. State of SC

• Decision Date: 22 June 1990
• Docket Number: Civ. A. No. 3:89-372-15.
• Court: U.S. District Court — District of South Carolina
• Parties: Reginald WILLIAMS, Petitioner, v. STATE OF SOUTH CAROLINA and Attorney General of the State of South Carolina, T. Travis Medlock, Respondents.

740 F. Supp. 1200

Reginald WILLIAMS, Petitioner, v. STATE OF SOUTH CAROLINA and Attorney General of the State of South Carolina, T. Travis Medlock, Respondents.

Civ. A. No. 3:89-372-15.

United States District Court, D. South Carolina, Columbia Division.

June 22, 1990.

Reginald Williams, pro se.

Donald J. Zelenka, Asst. Atty. Gen., Columbia, S.C., for respondents.

ORDER

HAMILTON, District Judge.

Petitioner, proceeding pro se, has brought the present action seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. The matter is currently before the court upon cross-motions for summary judgment. The court has concluded that respondents' motion for summary judgment should be granted. Rule 56, Fed.R.Civ.Proc.

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 19.02(b)(2)(C), D.S.C., the matter was referred to Magistrate Henry M. Herlong, Jr., for a report and recommendation. That report and recommendation, as filed on April 11, 1990, and entered on April 12, 1990, is before the court at this time. In his report and recommendation, Magistrate Herlong recommended that respondents' motion for summary judgment be granted. Petitioner filed objections to the magistrate's report and recommendation on May 7, 1990.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the court must make a de novo determination of those portions of the magistrate's report and recommendation to which the petitioner has objected. Camby v. Davis, 718 F.2d 198 (4th Cir.1983). Presently, petitioner has objected to the magistrate's report and recommendation in toto. After reviewing the record in this case, the magistrate's report and recommendation, the petitioner's objections thereto, and the applicable law, the court is constrained to conclude that petitioner's objections are meritless.

The petitioner was indicted for armed robbery at the August 1985 term of Court of General Sessions for Charleston County. On December 4, 1985, he was found guilty by the jury and sentenced to twenty-five (25) years imprisonment. The petitioner was represented in that proceeding by John T. Taylor, Esquire, and Albert T. Shahid, Esquire.¹

Petitioner was convicted of armed robbery for allegedly robbing at gunpoint, along with an accomplice, a Quick Stop located in Charleston County, South Carolina. According to Penny L. Teaster (Teaster), the convenience store clerk working on the night of the alleged robbery, two men entered the store, selected a six-pack of beer, and then proceeded toward Teaster who was standing behind the checkout counter. Tr. 36. Critical to the State's case against the petitioner was Teaster's pretrial identification of petitioner from among thirty photographs assembled by the police, as well as her in-court identification of the petitioner. Tr. 37, 120.

During petitioner's trial, the State offered the testimony of Officer Jhone Hart (Hart), an evidence technician employed by the Charleston County Police Department. In response to the Assistant Solicitor's question as to the nature of her duties, Hart testified as follows:

I am an evidence technician. I maintain all the evidence that comes into the department. I process major crime scenes. Part of my other duties would be to pull photo lineups. We maintain the mug shot files. I also do composites.

Tr. 100. Later in her testimony, Hart testified that Teaster was only able to positively identify one photograph out of a compilation of thirty photographs of individuals with similar physical characteristics, that of the petitioner as the perpetrator of the robbery. A photo pack containing these thirty photographs was admitted into evidence by the trial court as the State's Exhibit 17. Tr. 120.

Hart was later recalled to the stand, tr. 124, and, in response to questions by the Assistant Solicitor, explained the procedure used to develop photographic lineups. The following colloquy ensued:

Q. Is there some sort of procedure that you go through when you develop photographic lineups?

A. When an investigator comes to us with a suspect, we will pull the photo of that suspect or the detective may already have that photograph. We go into the files and look for photographs that match as closely as possible the physical characteristics of the suspect in question.

Q. How many photographs did you go through in trying to locate the five additional photographs that you used to compile that photographic lineup?

A. I didn't make notes on it. We don't. We pull too many lineups to make specific notes. But indicated by the mug numbers that are present, I went through at least 300 photographs in order to pull that one out.

Q. When you say indicated from the numbers, are those the numbers indicated on State's Exhibit No. 20 marked for identification purposes only?

A. It is the mug numbers that are listed to the right of each name.

Tr. 125. It should be noted that mug numbers were referenced on State's Exhibit 20, which was not admitted into evidence. Rather, State's Exhibit 17 was admitted into evidence, which apparently did not reference any mug numbers. Also, Hart's testimony makes it clear that only the additional "photographs that match as closely as possible the physical characteristics of the suspect in question" were "used to compile the photographic lineup." Tr. 125. Hart did not attribute the police mug shot files, however, as the source for petitioner's photograph. After Hart concluded her testimony, and the State rested its case, petitioner's trial counsel moved for a mistrial on grounds Hart had "referred to mug numbers as being along beside the names of the persons on the list she was examining, by implication along beside the petitioner's name ... as well." Tr. 126.

Petitioner contends that Hart's apparently inadvertent reference to the term "mug numbers" during his trial had the effect of placing his character in issue in violation of the due process clause of the fourteenth amendment. Asserting that his attorneys made numerous errors at trial, petitioner also contends that counsel were constitutionally ineffective.

Respondents argue initially, however, that petitioner did not object to the "mug numbers" testimony at trial, and thus has failed to establish sufficient cause and prejudice for his procedural default under State law. Respondents alternatively submit that, in the context of the entire record, it was not error for the trial court to admit the challenged testimony and deny petitioner's motion for a mistrial. Respondents also contend that the factual record developed in petitioner's state post-conviction relief proceeding, which this court is ordinarily constrained to accept under 28 U.S.C. § 2254(d), reveals that his ineffective assistance claim is meritless.

The magistrate concluded that both of petitioner's allegations were nonmeritorious. To be entitled to relief on the "mug numbers" allegation, the magistrate determined petitioner must show that the trial court's denial of his motion for a mistrial rendered his trial fundamentally unfair, or, alternatively, that any resulting unfairness was not harmless error. The magistrate concluded that only slight prejudice resulted from Hart's reference to "mug numbers," and that the admission of the photographs themselves was proper.² Addressing petitioner's ineffective assistance allegations, the magistrate found petitioner had failed to show that his attorneys' conduct fell below an objective standard of reasonableness.³

The Supreme Court has held that failure to object at trial to an alleged error as required by a state contemporaneous objection rule forecloses federal habeas corpus review of the alleged error "absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation." Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977). The doctrine of procedural default, of course, arises from the well-settled recognition "that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forego the exercise of its habeas corpus power." Francis v. Henderson, 425 U.S. 536, 539, 96 S.Ct. 1708, 1710, 48 L.Ed.2d 149 (1976). The Court has indicated, however, that "a procedural default does not bar consideration of a federal claim on ... habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, ___, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)).

Under South Carolina's contemporaneous objection rule, an objection is waived unless made contemporaneously to the objectionable testimony. State v. Lynn, 277 S.C. 222, 284 S.E.2d 786, 789 (1981); State v. Atchison, 268 S.C. 588, 235 S.E.2d 294, 298-99, cert. denied, 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181 (1977). In Lynn the State Supreme Court concluded that any objection was deemed waived where the defendant failed to contemporaneously object to allegedly prejudicial testimony proffered by State witnesses. 284 S.E.2d at 789. Particularly relevant to the instant action, the court concluded that the failure to contemporaneously object could not later be "bootstrapped by a motion for a mistrial." Id. See also Atchison, 235 S.E.2d at 298-99. Because the present petitioner did not make a contemporaneous objection to Hart's inadvertent use of the term "mug numbers," but rather merely made a motion for a mistrial after Hart stepped down from the witness stand and the State rested its case, it is clear that petitioner defaulted under State law.

Nonetheless, on direct appeal from his conviction, the South Carolina Supreme Court merely affirmed the conviction and sentence pursuant to Supreme Court Rule 23. State v. Williams, Memo. Op. No. 87-MO-143 (March 23, 1987). The court cited six previous judicial...