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Rutland v. State

Supreme Court of South Carolina

March 30, 2016

Fred R. Rutland, Petitioner,
v.
State of South Carolina, Respondent

         Submitted January 15, 2016.

          Appeal from Lexington County. L. Casey Manning, Post-Conviction Relief Judge. Appellate Case No. 2014-000381.

         Appellate Defender Susan Barber Hackett, of Columbia, for Petitioner.

         Attorney General Alan McCrory Wilson and Assistant Attorney General Patrick Lowell Schmeckpeper, both of Columbia, for Respondent.

         CHIEF JUSTICE PLEICONES. BEATTY, KITTREDGE and HEARN, JJ., concur. FEW, J., not participating.

          OPINION

         PLEICONES, CHIEF JUSTICE.

         Petitioner was convicted of murder, possession of a firearm during the commission of a violent crime, and pointing a firearm. He was sentenced to life imprisonment without parole. This Court affirmed petitioner's convictions and sentences on direct appeal. State v. Rutland, Op. No. 95-MO-263, (S.C. S.Ct. filed Aug. 25, 1995).

         Petitioner filed a post-conviction relief (" PCR" ) action,[1] and sought certiorari to review the PCR judge's order denying relief. We granted the petition for a writ of certiorari on two issues: (1) whether the PCR judge erred in finding trial counsel was not ineffective by failing to cross-examine the State's " key" witness regarding prior inconsistent statements; [2] and (2) whether the PCR judge erred in finding trial counsel was not ineffective by failing to preserve for appellate review the trial judge's refusal to charge the jury on the defense of others. Because we find the PCR judge erred as to the first issue, we reverse the PCR judge's decision.[3]

         FACTS

         Petitioner was romantically involved with the victim's estranged wife, Sally Peele (" Peele" ), and both contend the victim was abusive and violent. On the morning of the victim's death, an altercation occurred at the Peele residence between petitioner, Peele, and the victim. Later that day, Peele and petitioner drove to Bow Wow Boutique (" Boutique" ), a pet grooming business, to inquire about purchasing a vehicle from employee Kimberly Kestner (" Kestner" ). The victim subsequently arrived at the Boutique, where he was shot and killed by petitioner. The only individuals in the Boutique at the time of the shooting, in addition to petitioner and the victim, were Peele and Kestner.

         Prior to trial, Kestner gave a written and signed statement to law enforcement to the effect that the victim was armed when he was shot inside the Boutique. In the signed statement, Kestner attested, " [The victim] came in. He reached behind him and pulled a gun. I heard two shots and [the victim] fell." Kestner gave a similar statement to a newspaper reporter, who later wrote a published article quoting Kestner as stating, " [the victim] said nothing. He pulled his gun out and was fixing to shoot, . . . It scared me to death. I couldn't understand why he was doing this."

         At trial, Kestner testified she had a good view of the victim as he walked into the Boutique,[4] and the only thing she saw in the victim's hands was a pack of cigarettes, which he placed on the counter as soon as he walked in. Kestner testified that as the victim entered the Boutique, petitioner put his pack of cigarettes in his mouth and reached behind his back, at which point the victim also reached behind his back. Kestner testified she then heard two gunshots, and that she never saw the victim possess a gun, or utter a word during the quick exchange. Kestner testified that after the victim was shot, she witnessed petitioner holding a handgun, and saw a second handgun lying on the floor.[5]

         On cross-examination, trial counsel failed to question Kestner as to her prior inconsistent statements made to law enforcement and to the newspaper reporter.

         Peele testified the victim entered the Boutique, drew his 9mm handgun, chambered a round,[6] and pointed the handgun at Peele. Peele stated the victim had a " strange" look in his eyes she had seen before.[7] Peele described that as she started moving toward the victim, she heard petitioner beg him, " Please don't," repeatedly. Peele testified that, in shock, she turned to look at petitioner, who was holding a .25 caliber handgun pointed towards the floor. Peele testified that when the victim saw petitioner's handgun, he shifted his aim to petitioner, at which point ...


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