Heard: October 20, 2015.
Appeal From Richland County, Henry Floyd, Trial Judge. J. Ernest Kinard, Jr., Post-Conviction Relief Judge. Appellate Case No. 2012-212553.
Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant Attorney General Daniel Francis Gourley, II, both of Columbia, for Respondent.
MCDONALD, J. SHORT and GEATHERS, JJ., concur.
ON WRIT OF CERTIORARI
In this post-conviction relief (PCR) action, Stephen Smalls (Petitioner) argues the PCR court erred in finding trial counsel was not ineffective for failing to (1) object and request a mistrial when an investigator testified Petitioner burglarized someone's house and stole the gun used in the robbery, (2) object when the State erroneously told the jury during its opening statement that police saw Petitioner leaving the scene of the robbery, and (3) preserve an issue concerning the trial court's refusal to allow witness Eugene Green to be cross-examined about his dismissed carjacking charge. We affirm.
In 2000, a grand jury indicted Petitioner for armed robbery resulting from the robbery of a Bojangles restaurant in Columbia.
At trial, Eugene Green testified that on the night of the robbery, he was helping his manager, Jim Lightner, close the restaurant when Petitioner ran through the door with a shotgun. Green stated Petitioner did not wear a mask. Petitioner ordered Lightner to open the safe, and when Petitioner turned his back, Green fled the restaurant and ran across the street. While on the phone with police at a nearby gas station, Green saw Petitioner leave the restaurant with the gun in his right hand and a white trash bag full of money in his left hand. Green stated that Petitioner approached a dumpster behind the restaurant and a wooden gate connected to a fence with a hole in it. Four days after the robbery, Green identified Petitioner as the robber by selecting Petitioner's photograph from a six-person lineup. Green also identified Petitioner in court and identified the shotgun. Green acknowledged that he had prior convictions for distribution of crack, use of a motor vehicle without consent, and possession of a stolen vehicle. On cross-examination, Green reiterated he was a convicted felon who had been in possession of a stolen car in the past.
Lightner testified that on the night of the incident, the robber grabbed a carryout bag and ordered Lightner to take him to the safe. Lightner testified he could not open the safe in the dark, but when the robber allowed him to turn on the lights, he opened the safe and removed its contents. After the robber put the money in the bag, he ordered Lightner to lie down and then walked away. Several days later, Lightner was able to narrow a photographic lineup down to two individuals, one of whom was Petitioner.
Officers responding to the scene discovered the bag of money and the shotgun approximately ten feet from one another near a fence behind the restaurant--in the direction in which Green indicated Petitioner fled. A fingerprint found on the shotgun matched Petitioner's right-hand middle finger.
When a plain clothes officer in an unmarked car went to Petitioner's home to arrest him, the officer found Petitioner walking along a road holding a small child in his arms. As the officer identified himself and asked Petitioner to stop because he was the subject of a robbery investigation, Petitioner dropped the child and fled. However, police arrested Petitioner later that night hiding in some bushes a few blocks away.
The jury deliberated less than an hour and convicted Petitioner of armed robbery. The trial court sentenced him to twenty-five years' imprisonment.
In 2005, Petitioner filed a PCR application, and the PCR court subsequently held an evidentiary hearing. At the PCR hearing, trial counsel testified that she had only practiced law for a year and a half at the time of Petitioner's trial and had only tried two or three serious felony cases. Trial counsel admitted she failed to make some " very important" objections because of her inexperience, but she acknowledged that the State had evidence to support its case. According to trial counsel, during that time period, her public defender's office lost all of its senior attorneys and the office " didn't have enough experience at that time . . . to combat . . . these big trials that [they] had in front of [them]." Another ...