Fred R. Rutland, Petitioner,
State of South Carolina, Respondent
January 15, 2016.
from Lexington County. L. Casey Manning, Post-Conviction
Relief Judge. Appellate Case No. 2014-000381.
Defender Susan Barber Hackett, of Columbia, for Petitioner.
General Alan McCrory Wilson and Assistant Attorney General
Patrick Lowell Schmeckpeper, both of Columbia, for
JUSTICE PLEICONES. BEATTY, KITTREDGE and HEARN, JJ., concur.
FEW, J., not participating.
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).
filed a post-conviction relief (" PCR" )
action, 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;
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
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
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
trial, Kestner testified she had a good view of the victim as
he walked into the Boutique, 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.
cross-examination, trial counsel failed to question Kestner
as to her prior inconsistent statements made to law
enforcement and to the newspaper reporter.
testified the victim entered the Boutique, drew his 9mm
handgun, chambered a round, and pointed the handgun
at Peele. Peele stated the victim had a " strange"
look in his eyes she had seen before. 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 ...