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Odom v. Adger

United States District Court, D. South Carolina

October 7, 2016

Anthony Clark Odom, Petitioner,
v.
Jerry B. Adger, Director South Carolina Department of Probation, Parole, and Pardon Services, Respondent.

          ORDER AND OPINION

          MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         This 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 at 2.

         On June 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.

         On 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.

         Prior 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.

         The 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.

         In her 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.

         The 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.

         During 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.

         Petitioner 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.

         During 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.

         The 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.

         Petitioner's 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.

         The 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.

         Further, 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.

         As to 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.

         Finally, 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 ...


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