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Freiburger v. State

Court of Appeals of South Carolina

February 11, 2015

Edward Freiburger, Petitioner,
State of South Carolina, Respondent

Heard October 16, 2014.

Appeal From Richland County. Henry F. Floyd, Trial Court Judge. G. Thomas Cooper, Jr., Post-Conviction Relief Judge. Appellate Case No. 2010-177147.

John H. Blume, III, Blume Norris & Franklin-Best, LLC, and Lindsey Sterling Vann, both of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Megan E. Harrigan, both of Columbia, for Respondent.

FEW, C.J. LOCKEMY, J., concurs. THOMAS, J. (concurring in part and dissenting in part).


Page 392



In 2001, the State indicted Edward Freiburger for a murder that occurred in 1961. Following his conviction and the denial of his direct appeal, Freiburger filed an application for post-conviction relief (PCR), claiming ineffective assistance of counsel. We find the PCR court correctly denied PCR as to all issues except one--Freiburger's claim that trial counsel was ineffective for failing to introduce a letter written in 1961 by the Chief of SLED, J.P. Strom, to the director of the FBI, J. Edgar Hoover. We find the letter would have deeply undermined the foundation of the State's case--its ballistics evidence. We reverse the denial of PCR as to this issue and remand to the court of general sessions for a new trial.

I. Facts and Procedural History

John Orner was a taxi driver in Columbia who regularly transported soldiers to and from the local U.S. Army base--Fort Jackson. On the evening of February 28, 1961, Orner did not return home after being dispatched to pick up a passenger at the base. Police found Orner's blood-stained taxi the next morning on the 1200 block of Assembly Street, near its intersection with Gervais Street. Two days later, police discovered Orner's body by the side of U.S. Highway 601 in lower Richland County. He died from a gunshot wound to the head. Forensic examinations of three bullet fragments removed from Orner's head indicated the bullet was fired from a .32 caliber Harrington and Richardson (H& R) revolver.

In March of 1961, Freiburger was arrested in Tennessee for hitchhiking, and police seized a .32 caliber H& R revolver he was carrying (the " Freiburger gun" ). This gun was later given to Richland County authorities in connection with their investigation of Orner's murder. Ballistics experts examined bullets test-fired through the Freiburger gun, as well as another .32 caliber H& R revolver seized from the home of a local resident, Alonzo Dreher (the " Dreher gun" ). These ballistics tests yielded inconclusive results, and no charges were brought at that time.

In 2000, the Richland County Sheriff's Department reopened the murder investigation. Lieutenant Ira Parnell, supervisor of the South Carolina Law Enforcement Division's (SLED) Firearms Identification Laboratory, reexamined the three bullet fragments and compared them to the test bullets fired by the Freiburger and Dreher guns. Lt. Parnell also fired his own test bullets with the Freiburger gun. He later issued a report stating the results " were inconclusive" and the bullet fragments " could have been fired by [the Dreher gun], [the Freiburger gun], or by another similarly rifled firearm of the same caliber." Also in 2000, four other SLED ballistics experts compared the test bullets with the three bullet fragments and reached the same inconclusive results. However, John Cayton, a private ballistics expert hired by the Sheriff's department, concluded striations on one of the bullet fragments matched markings on test bullets from the Freiburger gun, and not the Dreher gun or any similar caliber H& R gun. On the basis of Cayton's opinion, the State indicted Freiburger for the murder of Orner.

At trial, Freiburger was represented by John Delgado and Kathrine Hudgins. Cayton and Lt. Parnell testified as experts for the State. The jury found Freiburger guilty of murder, and the trial court sentenced him to life in prison. The supreme court affirmed his conviction. State v. Freiburger, 366 S.C. 125, 620 S.E.2d 737 (2005).

Page 393

Freiburger filed a PCR application, claiming trial counsel was ineffective for several reasons, including not introducing into evidence Chief Strom's 1961 letter to Hoover (the " Hoover letter" ). According to the Hoover letter, Lieutenant Millard Cate--the head of SLED's Firearms Identification Laboratory in 1961--performed comparative ballistics tests on the three bullet fragments and test bullets fired through the Freiburger and Dreher guns. In the letter, Chief Strom stated " Lt. Cate is of the opinion that [the Dreher] weapon killed the taxi driver." [1] The letter further stated that although Lt. Cate noted some similarities between the test bullets from the Freiburger gun and the bullet fragments, he was " unable to establish an identification of any kind." According to the letter, the " Army Firearms Examiner" also reached inconclusive results as to the Freiburger gun.

The PCR court initially found trial counsel was not deficient for failing to introduce the letter. In its order denying Freiburger's Rule 59(e), SCRCP, motion, however, the court stated, " It may have been error to not try to use the letter in some manner or for some purpose." Notwithstanding this, the court denied PCR because it found Freiburger did not prove he was prejudiced by trial counsel's error. This court granted Freiburger's petition for a writ of certiorari.

II. Ineffective Assistance of Counsel

Under the two-pronged test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a PCR applicant alleging ineffective assistance of counsel must show: (1) trial counsel " failed to render reasonably effective assistance under prevailing professional norms," Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006); and (2) " there is a reasonable probability, but for counsel's unprofessional errors, the result of the proceeding would have been different," Suber v. State, 371 S.C. 554, 558, 640 S.E.2d 884, 886 (2007). As to the first prong, Freiburger must prove trial counsel's performance was deficient, " meaning that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011) (citation and quotation marks omitted). If the State contends the alleged deficiency resulted from a strategic decision made at trial, counsel " must articulate a valid reason for employing a certain strategy." Ingle v. State, 348 S.C. 467, 470, 560 S.E.2d 401, 402 (2002) (emphasis removed). As to the second prong, Freiburger must show there is a " reasonable probability" that, absent trial counsel's error, " the jury would have had a reasonable doubt as to [his] guilt." Edwards, 392 S.C. at 459, 710 S.E.2d at 66; see also Lounds v. State, 380 S.C. 454, 459, 670 S.E.2d 646, 649 (2008) (" [W]hen a defendant's conviction is challenged, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." (citation and internal quotations marks omitted)).

Freiburger argues trial counsel was ineffective for failing to introduce the Hoover letter at trial. He correctly points out the letter was the only evidence establishing the Dreher gun as the murder weapon--a scenario under which Freiburger could not be the person who killed Orner. He argues the letter should have been used to contradict Cayton's opinion that the Freiburger gun was the murder weapon, refute a SLED examiners' testimony that he and Lt. Cate " exclude[d]" the Dreher gun, and corroborate the inconclusive results reached by multiple SLED examiners as to the Freiburger gun.

A. Deficiency--The First Prong of Strickland

We begin our analysis of whether Freiburger met the first prong of Strickland with the State's ...

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