United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE.
Anthony Clark Odom (“Petitioner”) is in the
custody of the South Carolina Department of Probation,
Parole, and Pardon services, serving five years of probation
following a conviction for criminal solicitation of a minor
in violation of S.C. Code § Ann.16-15-342. On August 14,
2015, Petitioner filed a petition for writ of habeas corpus
(“Habeas Petition”) pursuant to 28 U.S.C. §
2254, alleging a violation of his rights protected by the
United States Constitution. ECF No. 1.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
habeas petition is before the court concerning criminal
charges associated with Petitioner's conduct in internet
chat rooms from March 12, 2006, through May 4, 2006. ECF No.
22 at 1. Specifically, Petitioner was charged with soliciting
sexual activity from individuals he thought to be minors, but
were law enforcement officers posing as minors. ECF. No. 22
22, 2006, Petitioner was indicted on one count of criminal
solicitation of a minor under S.C. Code Ann. § 16-15-342
(Supp. 2006) in Spartanburg County, South Carolina. ECF No.
22 at 1. Petitioner's motion to suppress evidence was
granted during pretrial motions. Id. The state
appealed the suppression, and on March 30, 2009, the South
Carolina Supreme Court overturned the order to suppress and
remanded the case. State v. Odom, 676 S.E.2d 124
(S.C. 2009). The Spartanburg case proceeded to trial before
the Honorable J. Mark Hayes, II, in February 2010, ending
with a mistrial due to a deadlocked jury. ECF No. 22 at 2;
see also ECF No. 22-1 at 183.
April 12, 2010, Petitioner was indicted and charged with two
counts of criminal solicitation of a minor for chat room
communications occurring May 4, 2006, through May 6, 2006, in
Oconee County, South Carolina. The case went to trial on June
1, 2011; however, the Honorable Alexander S. Macaulay
subsequently recused himself from the action before the jury
was sworn. ECF No. 22-4 at 131-33. On November 1, 2011, the
case was called for trial again, this time before the
Honorable R. Lawton McIntosh. Id. at 134.
to trial, Petitioner moved to dismiss based on prosecutorial
vindictiveness, equal protection violations, and First
Amendment grounds. ECF. No. 22-5 at 31. On November 8, 2011,
the trial judge held a hearing to address these matters.
Id. The trial judge denied the motion to dismiss on
First Amendment grounds determining that Petitioner had no
First Amendment right to engage in sexual adult oriented
language with children. Id. at 35. The trial judge
dismissed the equal protection grounds, holding that there is
a rational basis for the different treatment of individuals
under the state statute. Id. at 35.
trial judge then took up the issue of prosecutorial
vindictiveness, an issue that had originally been heard
pretrial before Judge Macaulay on June 27, 2011. ECF No. 22-4
at 8. At the June 27, 2011, hearing, Petitioner argued that
the decision to bring charges in Oconee Country was solely
based on the prosecutor's annoyance with him. ECF No.
22-4 at 89. Petitioner presented the testimony of his trial
counsel who, detailed conversations that he had with the lead
prosecutor in which she displayed irritation with Petitioner
and his attorney as they were seeking court documents
concerning the dismissal of Officer Patterson from the police
force. Id. Petitioner was charged with chat room
conversations with Officer Patterson, an Oconee County police
officer that Petitioner believed was a minor. Trial counsel
detailed that during these conversations, the prosecutor
declared that she would just bring charges in Oconee Country
as well. Id. at 88. It was Petitioner's belief
that the prosecutor's office never intended to bring
charges in the Oconee case, but only did so after Petitioner
sought the dismissal documents of Officer Patterson.
defense, the prosecutor presented oral arguments in
opposition to the vindictive prosecution claims before the
trial judge on November 8, 2011. ECF No. 11-18. The
prosecutor credited the decision to bring additional charges
in Oconee County to a change in trial strategy. Id.
She pointed out that the original Spartanburg indictment was
filed in 2007, where trial was delayed until 2010 due to the
appeal on the motion to suppress core pieces of evidence. ECF
No. 22 at 30-31. The prosecutor also argued that there was a
change in the prosecutor's leadership during this time.
ECF No. 22-6 at 18-21. Finally, the prosecutor
asserted that the State's office had never foreclosed the
opportunity to bring the charges in Oconee County. ECF No.
22-6 at 21.
trial judge determined that Petitioner had not shown that the
State acted with genuine animus toward him or that he would
not have been prosecuted but for that animus. When ruling on
Petitioner's pretrial vindictive prosecution motion, the
trial judge stated:
Quite frankly, it was a close call, but I don't find that
there was established any malice or evidence that would rise
to an implied malice or vindictiveness. I think under the
circumstances the explanation given by the State was
reasonable, and given the wide discretion given to
prosecutors, the evidence doesn't amount to the level
that would give rise to the draconian remedy of dismissing
the warrant. So therefore, I'm denying the motion.
ECF No. 22-7 at 6.
trial, the State presented evidence of Petitioner's age,
which is an element of the offense of criminal solicitation
of a minor. First, the State called Officer Patterson, who
stated that during the chat room conversations at issue,
Petitioner “identified himself as a forty-year-old and
he began asking questions of a sexual nature.” ECF No.
22-4 at 182. Next, the trial judge allowed the State to
introduce into evidence State's Exhibit 2, a printout of
the online chat room conversations dated May 4, 2006. ECF No.
22-5 at 9. Petitioner responded “40 m Columbia”
when asked “asl”, which is an acronym for age,
sex and location. ECF. No. 22-2 at 271. Moreover, when asking
the trial judge to take judicial notice of Petitioner's
age, the State provided certified records from the South
Carolina Department of Motor Vehicles indicating
Petitioner's date of birth. ECF No. 22-12 at 9. The trial
judge took judicial notice of Petitioner's age.
next objected that Officer Patterson was not acting in his
“official capacity” as required by Section
16-15-342. Petitioner's trial counsel sought to show that
a police officer must be bonded to be acting in his
“official capacity” when monitoring chat rooms
for illegal conduct. Petitioner's trial counsel presented
the testimony of a city clerk, Jennifer Adams, who said that
she did not believe that Officer Patterson had been bonded.
ECF No. 22-1 at 123. Petitioner's trial counsel also
presented the testimony from Chief Bannister, chief of
police, who said that he believed that all municipal officers
are to be bonded under oath. Id. at 88-90. In the
end, Petitioner was allowed by the trial judge to argue,
during closing arguments, that at the time of the offense,
Officer Patterson was not bonded, and therefore not acting in
his “official capacity.” Id.at 155-56.
deliberations, the jury wrote a note asking, “If an
officer is not bonded, are they considered an official police
officer?” ECF No. 22-8 at 46. The trial judge did not
instruct on the law of bond or official capacity and instead
instructed the jury that they could not deliberate concerning
whether the officer needed to be bonded to be in his official
capacity because the law of “bond” was not
addressed during trial. Id. at 48.
jury found Petitioner guilty of one count of criminal
solicitation of a minor and not guilty on the other count of
criminal solicitation of a minor. ECF No. 22-9 at 9.
Petitioner was instructed to register as a sex offender and
was sentenced to seven years imprisonment, suspended upon
five years of probation. Id. at 11. Petitioner
timely filed a motion for new trial on November 21, 2011. The
motion was denied on January 3, 2012. ECF No. 22-1 at 5.
appellate counsel, Brian McDaniel, Esquire, filed a direct
appeal to the South Carolina Supreme Court in which he raised
the following issues:
I. Was it constitutional, and not subject to harmless error,
for the trial court to (A) take conclusive judicial notice of
an element of the crime charged, and (B) instruct the jury,
during jury deliberations, to disregard evidence on the
element of “Official Capacity”?
A. The trial court's unconstitutional taking of
conclusive judicial notice of a crime element, and the
application of harmless error.
B. Trial court instructions to the jury after the jury had
begun deliberation, to disregard legal evidence, thereby
interfering with the jury's fact finding role on the
element of “Official Capacity”, and the
application of harmless and cumulative error.
II. Did the trial court err in failing to dismiss the
indictment due to vindictive prosecution?
III. Did the trial court err in failing to dismiss the
charges due to S.C. Code § 16-15-342 being
unconstitutional under the equal protection clauses of the
South Carolina and United States Constitutions?
IV. Does S.C. Code § 16-15-342, as interpreted at trial
and being enforced, violate the free speech clauses of the
South Carolina and United States Constitutions?
A. Is this protected speech and how to construe S.C. §
16-15-342 and S.C. 15-15-375(5) together and application of
the “Chilled Speech Doctrine.” B. Does conducting
sting operations in adult rooms with no emphasis on minor
children violate the “Chilled Speech Doctrine”?
ECF No. 22-10 at 8.
South Carolina Supreme Court agreed with Petitioner that the
trial judge's taking of judicial notice of a crime
element was an error, finding, “[t]he taking of
judicial notice of Appellant's date of birth was
tantamount to a directed verdict on the element of the
accused's age, a practice which is clearly forbid[den].
(Citing United Bhd. of Carpenters & Joiners of Am. v.
United States, 330 U.S. 395, 408 (1947)).” ECF No.
22-12 at 11. Although the South Carolina Supreme Court found
that an error existed, the supreme court determined that the
error was subject to a harmless error standard. Id.
Using the standard set forth in Chapman v.
California, 386 U.S. 18, 22 (1967), the Supreme Court
determined that the error was harmless “beyond a
reasonable doubt in light of the properly admitted evidence
that Appellant was eighteen years or older at the time of the
underlying offense.” Id. In its rejection of
Petitioner's claims regarding the first issue presented,
the South Carolina Supreme Court pointed to the State's
testimony from Officer Patterson and the jury's ability
to see Petitioner throughout the trial and found that the
cumulative effect of the evidence presented provided a proper
basis to find harmless error beyond a reasonable doubt.
Id. at 11.
the South Carolina Supreme Court found that the trial judge
made no error in refusing to instruct the jury on the law of
bonding. ECF No. 22-12 at 3. The court noted that “. .
. Officer Patterson was a municipal police officer with the
Westminster City Police Department [and that] State law does
not mandate a bond requirement. . .” Id.
Petitioner's second issue presented, the South Carolina
Supreme Court found there was insufficient evidence to show
that vindictiveness “played any role in the decision to
prosecute” in Oconee County. ECF No. 22-12 at 8. The
supreme court considered both actual vindictiveness and a
presumption of vindictiveness and concluded that Petitioner
fell short of the “heavy burden of proving that the. .
. . prosecution could not be justified as a proper exercise
of prosecutorial discretion.” (citing United States
v. Wilson, 262 F.3d 305 at 316). ECF No. 22-12 at 8.
Ultimately, the South Carolina Supreme Court found no error
in the trial judge's refusal to dismiss the indictment
due to vindictive prosecution. Id.
the South Carolina Supreme Court disagreed with
Petitioner's claims that Section 16-15-342 is
unconstitutional because it violates Petitioner's rights
to equal protection and free speech. The supreme court held
that courts “have recognized that speech used to
further the sexual exploitation of children does not enjoy
constitutional protection.” ECF No. 22-12 at ...