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Earley v. State

Supreme Court of South Carolina

October 19, 2016

Russell Earley, Respondent,
State of South Carolina, Petitioner. Appellate Case No. 2014-001566

          Submitted February 16, 2016

         Appeal from Sumter County George C. James, Jr., Post-Conviction Relief Judge


          Attorney General Alan Wilson and Assistant Attorney General Daniel Gourley, both of Columbia, for Petitioner.

          Tommy A. Thomas, of Irmo, for Respondent.



         This is a post-conviction relief (PCR) matter. Respondent Russell Earley was convicted of criminal solicitation of a minor and sentenced to eight years in prison. After withdrawing his direct appeal, Respondent filed a PCR application. The PCR court granted Respondent relief. We reverse and reinstate Respondent's conviction and sentence.


         Respondent's criminal charge arose from an encounter with a fourteen-year-old male (Victim) outside a public restroom at Walmart in Sumter in November 2008. On the evening of the incident, the Victim visited Walmart with his grandmother, who had promised to buy him some headphones. The Victim and his grandmother went in separate directions when they entered the store-the Victim headed for the electronics department while his grandmother went to pick up a few grocery items.

         After separating from his grandmother, the Victim stopped to use the restroom before shopping for headphones; as he entered the restroom, he noticed Respondent following him. The Victim stated he felt uncomfortable because Respondent stood in the restroom watching the Victim use the urinal. The Victim testified Respondent thereafter followed him out of the restroom, pointed to the Victim's genitals, and offered the Victim oral sex, which the Victim declined in no uncertain terms. The Victim immediately reported the incident to Walmart security, and multiple witnesses testified the Victim was visibly upset after the incident.

         As the Victim relayed the incident to store employees, a Walmart security officer spotted Respondent heading toward an exit and noticed a "steady pace about [Respondent's] step."[1] Respondent had not purchased anything and was leaving the store alone. The security officer immediately called law enforcement, followed Respondent out of the store, and watched him get into his vehicle and leave the parking lot. Within minutes, a police officer stopped Respondent's vehicle approximately half a mile from Walmart. Respondent was identified as the perpetrator and was arrested.

         There were no witnesss to the incident, and nothing was captured on Walmart surveillance video. In an effort to undermine the Victim's character and thus his story at trial, defense counsel sought to introduce a cartoon image obtained from the Victim's Facebook page referencing marijuana use; however, the trial court denied the motion, finding the cartoon from the Victim's Facebook page was not admissible. The trial court did, however, find that Respondent's 2003 federal conviction for bank robbery would be admissible as impeachment evidence.[2]

         At trial, Respondent testified in his own defense, and defense counsel questioned Respondent about his federal bank robbery conviction on direct examination in a strategic effort to mitigate its prejudicial impact. According to Respondent, he ate dinner with friends on the evening of his encounter with the Victim, and after dinner, the group went to Walmart in search of a birthday gift for a friend's son. After failing to locate the desired item, Respondent testified the group decided to try another store, and he stopped by the restroom before leaving Walmart. Respondent admitted encountering the Victim in the restroom; however, Respondent denied propositioning the Victim and being attracted to young boys.

         Essentially, the theory of his defense was that the Victim fabricated the whole story and the motivation for doing so was that Respondent had caught the Victim trying to shoplift CDs. According to Respondent, he was already in the restroom using the urinal when the Victim entered the restroom. Respondent testified the Victim kept both his hands in the front pocket of his sweatshirt and was acting nervous. Respondent testified he heard "tearing up plastic, like opening CDs, " and on his way out of the restroom, Respondent passed by the Victim, who was standing by the sinks, and said "hey, I wouldn't be doing that, I wouldn't be stealing."[3] However, Respondent admitted that he never actually saw the Victim attempting to steal any merchandise; rather, Respondent assumed the Victim was stealing CDs because he thought he heard plastic rustling in the Victim's sweatshirt pocket.

         The issue in this PCR matter involves a line of questioning during the State's cross- examination of Respondent. Specifically, the State had evidence that Respondent posted the message "See ya" on the Victim's Facebook wall the week before trial, despite having been ordered after his arrest not to have any contact with the minor Victim. The State's theory was that by posting such a message, Respondent was attempting to intimidate or threaten the Victim on the eve of trial. See State v. Edwards, 383 S.C. 66, 72, 678 S.E.2d 405, 408 (Ct. App. 2009) (holding that "witness intimidation evidence, if linked to the defendant, may be admitted to show a consciousness of guilt"). It is undisputed that the State did not provide defense counsel with a copy of Respondent's Facebook post "See ya" prior to trial.

         Initially, Respondent was unaware the State had a copy of the message he posted on the Victim's Facebook page and denied having any contact with the Victim since the incident in the Walmart bathroom four years earlier. However, once the State confronted Respondent with a copy of the message, Respondent admitted contacting the Victim and explained he did so "[be]cause his time will come." Defense counsel did not object or otherwise alert the trial court that the State had failed to disclose the "See ya" Facebook posting prior to trial. In response to the Solicitor's questions about his bank robbery conviction, Respondent volunteered that he had been convicted of not one, but nine bank robberies. Respondent's testimony concluded shortly thereafter, and the defense rested without presenting any other evidence.

         Immediately thereafter, the trial court invited counsel to place upon the record the substance of several side-bar conversations that took place off the record during the defense presentation. At that time, defense counsel stated:

[Defense Counsel]: I understand Your Honor's ruling on the side bar, but our position was that while my client testified[, ] Mr. [Solicitor] had asked him about going on to [the Victim's] Facebook page and leaving a message. And obviously, Judge, what we had talked about before was the [marijuana cartoon] that we had gotten off of [the Victim's] Facebook page and printed a copy. We talked about that earlier in trial, and it was our intent to talk about that in response to Mr. [Solicitor's] question about the Facebook page.
The Court: And I ruled that you not-that I was not allowing you to put in the information you got off of the [V]ictim's Facebook about smoking marijuana, whatever.
[Defense Counsel]: And Judge, I wanted to make sure-I was not going to offer it into evidence, but I wanted to ask my client what did he find on the Facebook page.
The Court: Yeah, I would have allowed you to get into anything regarding him leaving a message on [the Victim's] Facebook page, but not any other information that he might have come across on the Facebook so that's why I ruled that you do not introduce that, okay?

(emphasis added).

         The jury returned a guilty verdict, and the trial court sentenced Respondent to eight years in prison. A direct appeal was timely filed but subsequently dismissed upon Respondent's motion to withdraw his appeal. Thereafter, Respondent filed a PCR application, in which his only legal or factual allegation was the general statement "ineffective assistance of counsel." Respondent's PCR application included no further details regarding his legal claims or any facts which supported his asserted ground for relief. Specifically, neither Respondent's PCR application nor his testimony at the PCR hearing referred, in any way, to his "See ya" Facebook posting or the word "mistrial."

         At the beginning of the PCR hearing, Respondent's PCR attorney summarized for the PCR court the ineffective assistance of counsel claims Respondent wished to assert; however, this summary likewise made no reference to the Facebook comment or the word "mistrial."[4] Indeed, the Facebook posting was not mentioned until defense counsel brought it up during questioning by the State's attorney about his efforts to prepare for trial. In response to a question about why the defense did not interview or call as witnesses Respondent's friends who were with him at Walmart around the time of the incident, counsel explained that Respondent's friends' testimony would not have been helpful since none of Respondent's friends were present at the restroom when the solicitation was alleged to have taken place, and in dismissing the impact of his failure to interview and call those witnesses, counsel testified that he believed the turning point of the trial was the evidence that Respondent contacted the victim on Facebook-not the lack of defense witnesses.

         After hearing trial counsel's testimony on direct examination that he was surprised to learn of the Facebook posting, Respondent's PCR attorney raised, for the first time, ...

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