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Frierson v. State

Court of Appeals of South Carolina

June 29, 2016

Darryl Frierson, Petitioner,
v.
State of South Carolina, Respondent. Appellate Case No. 2012-211091

          Heard September 8, 2015

         Appeal From Richland County J. Michelle Childs, Circuit Court Judge Clifton Newman, Post-Conviction Relief Judge

          Appellate Defender Kathrine Haggard Hudgins, of Columbia, for Petitioner.

          Attorney General Alan McCrory Wilson, Assistant Attorney General John Walter Whitmire, and Assistant Attorney General James Clayton Mitchell, III, all of Columbia, for Respondent.

          MCDONALD, J.:

         Darryl Frierson (Petitioner) pled guilty to kidnapping, armed robbery, assault and battery of a high and aggravated nature (ABHAN), and criminal conspiracy. He appeals from the denial of his application for post-conviction relief (PCR), arguing the PCR court erred in not finding his guilty plea was involuntary due to counsel's failure to advise him he could move to suppress evidence stemming from the placement of a mobile tracking device on his car. We affirm.

         FACTS AND PROCEDURAL HISTORY

         On May 10, 2007, Petitioner and his co-conspirators stole approximately 9.8 million dollars from an Express Tellers Services (ETS) armored truck. ETS employees David Jones (Jones) and Petitioner drove the truck from Charleston to Columbia, where two co-conspirators-Jeremy McPhail (McPhail) and Dominic Lyde (Lyde)-attacked Jones while he refueled, pushed him into the truck, and restrained him. The co-conspirators drove the truck away and stopped in a field, where two other co-conspirators-Domonique Blakney (Domonique) and Kelby Blakney (Kelby)-transferred money from the truck into a different car, left Jones and Petitioner in the truck, and fled.

         Despite suffering substantial injuries, Jones was able to free himself and walk to a nightclub to call the police. Officers responding to the scene found Petitioner still inside the armored truck. Petitioner self-reported injuries and was transported to the hospital, where a team of investigators came to interview him.

         Petitioner provided a fictitious account of the incident that immediately alerted investigators to the possibility of dishonesty. For example, although it was dark outside at the time of the heist and Petitioner alleged he was too injured to escape the abandoned armored car, he provided a very detailed account of the surrounding crime scene. During a follow-up interview at the police station, officers became more suspicious when they saw Petitioner through the two-way mirror freely moving his arm, despite his claims of injury to his arm and shoulder. Petitioner failed a polygraph test and had no duct tape residue or significant injuries such as those suffered by Jones. At this point, the investigative team at the police station determined Petitioner was a suspect, not a victim, and placed a Global Positioning System (GPS) tracking device on Petitioner's car-without a warrant or court order-before he left the police department.

         Although the Richland County Sheriff's Department's led the detectives working on the case, dozens of additional law enforcement officers from across the state took part in the investigation. While Petitioner was being interviewed at the station, a separate team of officers was examining the armored truck. They collected a blue latex glove from inside the truck that was identical to a glove found in the trash abandoned on the street outside Petitioner's house. In addition, officers interviewing other ETS employees learned that Paul Whitaker (Whitaker), another co-conspirator, [1] and Petitioner were friends. When police questioned Whitaker, he became upset, started crying, and immediately confessed to his role in the scheme. According to Whitaker's statement, Petitioner had been planning to rob the armored truck for several months. Police searched Whitaker's house, where they discovered a large amount of cash and receipts from Petitioner's recent purchases. Based on Whitaker's confession and the evidence gathered at his home, police obtained a warrant for Petitioner's arrest.

         Monitoring the tracking device on Petitioner's car, police located him driving with Domonique and found several thousand dollars in cash in the car. Police arrested Petitioner and interviewed Petitioner and Domonique in separate rooms at the police department. On Domonique's cell phone, officers found pictures of large bags of money. Domonique subsequently gave a statement admitting his role in the robbery and implicating Petitioner as the "mastermind." After police told Petitioner about Domonique's statement, Petitioner waived his rights and confessed to his involvement in the heist.

         In September 2007, a grand jury indicted Petitioner for kidnapping, armed robbery, ABHAN, and criminal conspiracy. Domonique, Kelby, McPhail, Lyde, and Whitaker were also indicted for their involvement in the conspiracy.

         On December 3, 2008, Petitioner pled guilty to all charges. At the plea hearing, Petitioner acknowledged he understood that by pleading guilty he was waiving his constitutional rights, including his right to challenge the State's evidence at trial. Petitioner also stated he was satisfied with plea counsel's representation. He testified plea counsel reviewed with him and explained his charges, his potential sentences, and his constitutional rights, allowing him to make an informed and intelligent decision about whether to plead guilty or proceed to trial. The plea court accepted Petitioner's guilty plea but deferred sentencing until a later proceeding.

         On August 24, 2009, the plea court sentenced Petitioner to concurrent sentences of thirty years' imprisonment for kidnapping, thirty years' imprisonment for armed robbery, and ten years' imprisonment for ABHAN, as well as a consecutive sentence of five years' imprisonment for criminal conspiracy.

         Petitioner filed a PCR application, alleging ineffective assistance of counsel. At the PCR hearing, Petitioner testified that plea counsel's lack of confidence about the outcome of a trial prompted Petitioner to plead guilty despite his desire to go to trial. Petitioner also stated plea counsel influenced ...


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