Witherspoon v. Stonebreaker

• Decision Date: 08 April 2022
• Docket Number: 19-7276
• Citation: 30 F.4th 381
• Parties: Lynel WITHERSPOON, Petitioner - Appellant, v. Donnie STONEBREAKER, Warden of Evans Correctional Institution, Respondent - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

30 F.4th 381

Lynel WITHERSPOON, Petitioner - Appellant,

v.Donnie STONEBREAKER, Warden of Evans Correctional Institution, Respondent - Appellee.

No. 19-7276

United States Court of Appeals, Fourth Circuit.

Argued: September 24, 2021

Decided: April 8, 2022

ARGUED: Emily Washburn, Rohun Shah, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Tommy Evans, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON BRIEF: John J. Korzen, Director, Rachel A. Klink, Third-Year Law Student, Alexandria K. Montgomery, Third-Year Law Student, Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, Melody J. Brown, Senior Assistant Deputy Attorney General, Caroline Scrantom, Assistant Attorney General, OFFICE

OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.

Before KING and RUSHING, Circuit Judges, and John A. GIBNEY, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge King wrote the majority opinion, in which Senior Judge Gibney joined. Judge Rushing wrote a dissenting opinion.

KING, Circuit Judge:

This appeal arises from Lynel Witherspoon's nearly decade-long pursuit of relief from his 2013 conviction of a single count of cocaine distribution. Witherspoon was tried for that offense in the Court of General Sessions for Horry County, South Carolina (the "trial court"). The prosecution's evidence at trial was short of overwhelming, consisting principally of the testimony of an informant and a surveillance video she recorded during a controlled drug buy in a vehicle. The jury was initially unable to arrive at a verdict, and the trial court therefore ordered further deliberations. Shortly thereafter, the jury requested to view an enlarged, still frame from the informant's video, appearing to show the seller's face reflected in the vehicle's side-view mirror. Witherspoon's trial counsel did not object to that request, and the court granted it. The jury then requested that Witherspoon stand beside the enlarged image. The court inquired if Witherspoon's counsel had any objection, to which counsel replied, "I would, Your Honor, but ...." See J.A. 246.¹ The court interjected and directed Witherspoon to stand as the jury wished. The jury then resumed deliberations and, 10 minutes later, returned with a guilty verdict. Witherspoon was sentenced to 17 years of imprisonment.

Witherspoon subsequently pursued an unsuccessful direct appeal and, in 2014, filed an application for postconviction relief in the Court of Common Pleas for Horry County (the "PCR court"). In that proceeding, Witherspoon alleged that his trial counsel had rendered ineffective assistance by failing to raise significant objections at trial, including an objection to the stand-up order. The PCR court denied relief in an abbreviated ruling, determining that, under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Witherspoon's counsel "attempted to object at all appropriate times" and consequently was not "deficient in any way." See Witherspoon v. State , No. 2014-CP-26-8292, at 5 (S.C. Ct. Com. Pl. Mar. 7, 2016) (the "PCR Opinion"). The PCR court further ruled that, because there was no evidence that counsel's representation "was anything but professional and beneficial," there was no showing of prejudice. Id. Witherspoon sought appellate review, once more without success.

In 2019, Witherspoon brought these federal habeas corpus proceedings in the District of South Carolina pursuant to 28 U.S.C. § 2254, but the district court denied relief, concluding that the PCR court had not unreasonably applied the standards set forth in Strickland . Witherspoon timely noted an appeal to this Court, and we granted a certificate of appealability relative to his claim that his trial counsel was ineffective for failing to object to the stand-up order.

As explained herein, we conclude that Witherspoon's trial counsel's failure to object to the stand-up order constituted objectively deficient performance, that her performance prejudiced Witherspoon's defense, and that she thereby rendered constitutionally ineffective assistance. We also resolve that, in ruling to the contrary, the PCR court unreasonably applied the standards of Strickland to the facts of this case. Accordingly, we reverse the district court's judgment denying § 2254 relief and remand for the court to award Witherspoon a writ of habeas corpus unless the State of South Carolina endeavors to prosecute him in a new trial within a reasonable time.

I.

A.

In August 2011, a South Carolina narcotics task force orchestrated a controlled drug buy in Horry County with a confidential informant, Jessica Stone. Stone represented that she was familiar with a drug dealer of interest to the task force, known to her as "Spoon." At the task force's direction, Stone arranged to purchase a quantity of crack cocaine from "Spoon" outside a Myrtle Beach apartment building. Investigators equipped a button in Stone's shirt with a small, forward-facing "button cam," searched her for drugs, and gave her $40 in marked bills to exchange for the cocaine. Stone's boyfriend then drove her to the site of the deal, followed closely behind by task force investigators.

Once in front of the apartment building, Stone made a phone call to "Spoon" from her vehicle's passenger seat. The investigators, positioned about 100 yards away, then witnessed a "Black male" approach Stone's vehicle. See J.A. 128. The man entered the vehicle's back seat on the right side, sitting directly behind Stone. Because of his positioning, the man's face was never directly recorded by Stone's "button cam." The man remained in the vehicle for several minutes, completed the transaction, and then left the area. Stone and her boyfriend drove to a prearranged meeting place, where Stone turned over to the investigators a bag of crack cocaine and her surveillance camera.

Evidently, the task force suspected Witherspoon of being the seller at the time of the controlled buy.² He was not arrested for his alleged involvement in the transaction, however, until September 2012, some thirteen months later. Following his arrest, Witherspoon was indicted by a Horry County grand jury with a single count of distribution of cocaine, in contravention of S.C. Code Ann. § 44-53-370(b)(1). In July 2013, Witherspoon pleaded not guilty and proceeded to trial.

B.

Witherspoon's jury trial was conducted in the state trial court (the Court of General Sessions for Horry County) on July 24 and 25, 2013. He was represented during that trial by a lawyer from the county public defender's office. The prosecution's witnesses consisted largely of the involved narcotics investigators, alongside the confidential informant, Jessica Stone. The task force's lead investigator testified that it was one of his colleagues who witnessed the crack cocaine seller enter Stone's vehicle, acknowledging that the observation was made from some distance. Other investigators testified as to their interactions with Stone, as well as the sampling and chain of custody of the purchased cocaine. Each member of the task force conceded that they were unable to witness the drug buy firsthand, and none were able to identify Witherspoon in the courtroom. The prosecution did not elicit any testimony as to why no arrest was made at the scene of the crime, nor why Witherspoon was not apprehended until more than a year after the fact.

For her part, Stone identified Witherspoon as the person she knew as "Spoon" and as the man she purchased the crack cocaine from during the 2011 controlled buy. During Stone's testimony, the prosecution played the video captured during the transaction by the "button cam." Stone acknowledged on cross-examination, however, that because of the camera's forward-facing orientation, it failed to capture the seller's face or any material parts of the drug handoff. She further explained that no investigators were present during the transaction or at the time she spoke with the seller over the phone. When confronted by Witherspoon's trial counsel, Stone admitted to having three prior felony convictions for forgery. Witherspoon's counsel ultimately inquired of Stone, "So, again, there is nothing else here to confirm the identity of anybody other than your say-so, you calling out a name; isn't that right?" See J.A. 196. Stone agreed: "Seems that way." Id. The prosecution rested following Stone's testimony. Witherspoon subsequently moved for a directed verdict, which motion the trial court denied. Witherspoon opted not to testify in his own defense.

The case was submitted to the jury at 3:53 p.m., and the jury returned with a series of questions during the afternoon. In response to queries as to why the seller was not arrested at the scene and why Witherspoon was not arrested until more than a year later, the trial court admonished the jury that "it would be highly improper to supplement the testimony during your deliberations. So I can only tell you that you must decide this case based on the evidence that has been given and the testimony that has been presented during the trial of the case, all right." See J.A. 229. As relevant to this appeal, the court's instruction was generally consistent with South Carolina precedent recognizing that submitting evidence not admitted during trial to a jury during its deliberations unfairly prejudices the defendant, oftentimes entitling him to a new trial. See, e.g., State v. Hill , 394 S.C. 312, 714 S.E.2d 879, 886, 888 (S.C. Ct. App. 2011). Ultimately, at 6:50 p.m. that evening, the jury indicated that it was unable to arrive at a unanimous decision. The court dismissed the jury for the day and resolved to issue an Allen charge in the morning.³

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