Submitted February 16, 2016.
Appeal From Kershaw County James R. Barber, III, Circuit Court Judge.
Appellate Defender John H. Strom, of Columbia, for Petitioner.
Attorney General Alan M. Wilson and Assistant Attorney General Megan Harrigan Jameson, both of Columbia, for Respondent.
ON WRIT OF CERTIORARI
A jury convicted Jarvis Gibbs of kidnapping, entering a bank with the intent to steal, and using a firearm during the commission of a violent crime. The trial court sentenced Gibbs to an aggregate eighteen years' imprisonment. The Court of Appeals affirmed. State v. Gibbs, Op. No. 2011-UP-511 (S.C. Ct. App. filed Nov. 28, 2011). Gibbs subsequently filed an application for post-conviction relief ("PCR"). After a hearing, the PCR court dismissed his application with prejudice. This Court granted Gibbs' petition for a writ of certiorari to review the PCR court's finding that trial counsel was not ineffective in failing to object to claims of witness intimidation. We affirm.
I. Factual/Procedural History
On July 25, 2008, at approximately 10:55 a.m., an individual robbed the First Palmetto Savings Bank in Camden wearing gloves, a white t-shirt, and a ski mask. Witnesses indicated the individual was a black male approximately six feet, four inches tall. None of the witnesses were able to state with certainty whether the man had any noticeable scars or tattoos.
Two individuals observed the man fleeing the bank on a bicycle. At this time, one of the individuals also noticed a four-wheeler in the vicinity of the bank. Shortly thereafter, the police found a bicycle on the side of a dirt road located in the general direction in which the man fled. Next to the bicycle were tracks left by a four-wheeler. The police seized the bicycle.
That afternoon, Arthur Macklin saw the bicycle in the trunk of a passing police car. Macklin, believing it was the same bicycle he loaned Gibbs, contacted his attorney who subsequently contacted the police. Macklin informed the police that he loaned Gibbs the bicycle earlier that day. He also told police that a local resident named James Drakeford drove past his house on a four-wheeler that morning.
At approximately 5:00 p.m. that afternoon, police picked Gibbs up for questioning. In his video statement to the police, Gibbs denied robbing the bank. Gibbs said that morning he woke up and took a shower at a friend's house at 10:30 or 11:00 a.m. After taking a shower, Gibbs stated he headed to the Dusty Bend area of Camden to get a haircut at "11:00, 12:30, 1:30." At one point, Gibbs stated after his haircut, he went to Macklin's to borrow a bicycle for twenty minutes. At another, Gibbs stated he borrowed the bicycle before the haircut. Gibbs then provided two different versions about returning the bicycle. In one version, Gibbs dropped it off by Macklin's fence. In another, he gave the bicycle back in-person. In both versions, he borrowed the bicycle after 11:30 a.m. Gibbs was subsequently charged with kidnapping, entering a bank with the intent to steal, and using a firearm during the commission of a violent crime.
At trial, the State called Melissa Roberts, an employee of First Palmetto Savings Bank who was working at the time of the robbery. Roberts testified she knew Gibbs because they went to the same school together for one or two years approximately fifteen years before the robbery. She also said she saw Gibbs about five years before the robbery at her mother-in-law's store. In addition, Roberts testified that before the bank robbery she had seen Gibbs in the bank standing around, which she thought was strange because she did not believe he had a relationship with the bank.
Roberts testified that after reviewing the video surveillance of the robbery, but before the police provided the bank with a suspect, she told the police she believed Gibbs was the individual who robbed the bank. Roberts based her belief on Gibbs' "mannerisms and the shape of his body" and the fact that he had been in the bank prior to the robbery. On cross-examination, however, Roberts conceded that, at the time she identified Gibbs from the video surveillance, she knew Gibbs had already been arrested.
Chad Moore also testified for the State. Moore, who was also being held in the Kershaw County Detention Center at the same time as Gibbs, testified that Gibbs confessed to robbing the bank. Specifically, Moore testified that Gibbs told him: (1) Gibbs rode a bicycle to the bank; (2) he robbed the bank wearing a toboggan hat, a white t-shirt, blue jeans, and black sneakers; (3) after leaving the bank, he got on a four-wheeler with "Little James"; (4) Gibbs and "Little James" ditched the four-wheeler by a pond in Dusty Bend; and (5) after ditching the four-wheeler, Gibbs went to get a haircut. According to Moore, the only thing Gibbs was worried about was someone noticing his scars and tattoos. On July 28, 2008, Moore relayed this information to the City of Camden Police Department. The next day, the police recovered the four-wheeler from a pond on Firetower Road in Dusty Bend.
Macklin was also called to testify. According to Macklin, Gibbs borrowed one of his bicycles on the morning of the bank robbery. Ten to twenty minutes later, Macklin said he noticed police cars riding in the neighborhood. Later that morning, he recognized the bicycle he loaned Gibbs in a passing police car. The State then showed Macklin a picture of the bicycle and asked Macklin whether the picture was of his bicycle. Macklin replied "That's my bike." Shortly thereafter, Macklin's testimony concerning the bicycle wavered. The following exchange occurred:
Q. Is this your bike right here?
A. Like I told Lieutenant -- Detective Boan, that looks like my bicycle. I don't recall the coil being around the seat. And I thought that my bike had rubber things where the shocks are on the front.
. . .
Q. Do you agree that this is the same bike as in the picture?
A. I'm quite sure that is the same bike in the picture.
Q. Okay. And your bike was the one that was in the back of the patrol car?
A. Yes, it was.
Q. And you identified this as your bike in the picture?
Q. So this is your ...