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Stone v. State

Supreme Court of South Carolina

March 29, 2017

Bobby Wayne Stone, Petitioner,
State of South Carolina, Respondent. Appellate Case No. 2013-001968

          Heard March 23, 2016

         Appeal from Sumter County R. Markley Dennis, Jr., Trial Judge Howard P. King, Resentencing Judge Michael G. Nettles, Post-Conviction Relief Judge


          Emily C. Paavola, of Justice 360, of Columbia, and John H. Blume, III, of Cornell Law School, of Ithaca, New York, for Petitioner.

          Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Alphonso Simon, Jr., all of Columbia, for Respondent.


         We deny both Petitions for Rehearing. We also deny the motion to stay remittitur. The attached opinion is substituted for the previous opinion, which is withdrawn. The only changes in the substituted opinion are to the second full paragraph on the twenty-sixth page of the majority opinion.

          FEW JUSTICE.

         Bobby Wayne Stone shot and killed Charlie Kubala of the Sumter County Sheriff's Office. After we affirmed his murder conviction and death sentence, Stone filed an application for post-conviction relief (PCR) alleging he received ineffective assistance of counsel. The PCR court denied relief. We granted certiorari, and now affirm.

         I. Facts and Procedural History

         Stone began the day of February 26, 1996, by purchasing beer and two firearms-a .410 bore shotgun and a competition-grade .22 caliber semi-automatic pistol. He spent the remainder of the day roaming through the woods, drinking the beer and shooting the guns. Later that afternoon, Stone wandered into the backyard of Ruth Griffith. In Stone's statement to the police, he said he and Griffith were "old drinking buddies." Griffith denied that, and claimed she knew Stone only because he previously dated her niece and had been to Griffith's house to pick up her niece. Griffith's adult daughter, Mary Ruth McLeod, was living with Griffith and was at the house when Stone arrived. McLeod asked Stone-who was standing in the yard holding a beer can and his newly-purchased pistol-to leave the property. Stone complied, but McLeod had already called 911. Sergeant Charles Kubala arrived at Griffith's house at 6:06 p.m. By then, Stone had returned to the woods, so Sergeant Kubala checked the scene, spoke with McLeod and Griffith, and left.

         A short time later, Griffith heard gunshots in her yard and then someone banging on the inside door of her side porch. McLeod had left the house, so Griffith called her neighbor-Landrow Taylor-who came over and called 911 from inside Griffith's home. Sergeant Kubala once again responded to the call, arriving at 7:07 p.m. Stone was still on the side porch, banging on the door and holding his pistol in his hand. Taylor and Griffith remained inside while Sergeant Kubala went around the house toward the side porch. From inside, Taylor and Griffith heard someone yell "halt" or "hold it, " followed immediately by three or four gunshots. Stone struck Sergeant Kubala with two of the shots-once in the neck and once in the ear-and Sergeant Kubala died on the scene.

         After hours of searching, Sumter County Sheriff's officers found Stone in the woods, lying motionless between two logs with the murder pistol beneath his body. Early the next morning, Stone gave a statement in which he confessed to the shooting. He claimed it was an accident, however, explaining, "I just turned from the house door and the gun went off on the porch and I ran."

         At the 1997 trial, Stone was represented by Cameron B. Littlejohn Jr. and James H. Babb. The jury convicted Stone of murder, first-degree burglary, and possession of a weapon during a violent crime. The jury found the statutory aggravating circumstance for the murder of a law enforcement officer and recommended Stone be sentenced to death. We affirmed Stone's convictions, but reversed his death sentence and remanded the case for a new sentencing proceeding. State v. Stone, 350 S.C. 442, 567 S.E.2d 244 (2002). In the 2005 resentencing proceeding, he was again represented by Littlejohn and Babb. For the second time, the jury recommended Stone be sentenced to death. On appeal, he was represented by Joseph L. Savitz III. We affirmed the death sentence. State v. Stone, 376 S.C. 32, 655 S.E.2d 487 (2007).

         Stone filed an application for PCR alleging he received ineffective assistance of counsel during his 1997 trial, his 2005 resentencing proceeding, and his subsequent appeal. The PCR court denied relief on all claims.

         Stone filed a petition for a writ of certiorari, which we granted as to three sets of issues: (1) whether Stone's trial and appellate counsel were ineffective in dealing with victim impact evidence, (2) whether Stone's trial counsel was ineffective in investigating and presenting evidence of brain damage, and (3) whether Stone's trial counsel was ineffective in investigating and presenting evidence of the accident theory of the case. We affirm as to all issues.

         II. Sixth Amendment

         The Sixth Amendment guarantees every criminal defendant the reasonably effective assistance of counsel. U.S. Const. amend. VI.; Strickland v. Washington, 466 U.S. 668, 683, 104 S.Ct. 2052, 2061, 80 L.Ed.2d 674, 691 (1984); Von Dohlen v. State, 360 S.C. 598, 603, 602 S.E.2d 738, 740 (2004). We measure counsel's performance by "an objective standard of reasonableness." Weik v. State, 409 S.C. 214, 233, 761 S.E.2d 757, 767 (2014) (quoting Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.E.2d 471, 484 (2003)). As we analyze whether Stone's counsel met the Sixth Amendment standard, the law requires we presume counsel rendered adequate assistance and exercised reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007). To overcome this presumption and prevail on his ineffective assistance of counsel claim, Stone must satisfy the Strickland test, which requires that he prove: "(1) counsel's representation fell below an objective standard of reasonableness and (2) but for counsel's error, there is a reasonable probability that the outcome of the proceeding would have been different." Williams v. State, 363 S.C. 341, 343, 611 S.E.2d 232, 233 (2005) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.E.2d at 693).

         III. Victim Impact Evidence

         Stone makes two categories of arguments regarding the performance of his trial and appellate counsel as to the admissibility of victim impact evidence offered by the State during the resentencing proceeding. First, he argues trial counsel was ineffective in not objecting to portions of the testimony of law enforcement officers the State presented as victim impact evidence. The second category relates to the testimony of Teresa Kubala-Hanvey, Sergeant Kubala's widow. Kubala-Hanvey testified she attempted suicide after hearing this Court reversed the first death sentence and remanded for a new sentencing proceeding. As to Kubala-Hanvey's testimony, Stone makes two arguments. First, he contends trial counsel-while he did object-was ineffective in omitting several grounds for the objection. Second, Stone argues his appellate counsel was ineffective in not addressing in his brief the only ground on which trial counsel objected. As to both categories of arguments, we find Stone met his burden of proof under the first prong of Strickland, but not under the second prong.

         A. Law Enforcement Officers' Testimony

         The State offered seven victim impact witnesses during the resentencing proceeding. Several of them were colleagues of Sergeant Kubala at the Sumter County Sheriff's Office. These officers testified extensively about the impact of Sergeant Kubala's death on them personally, on the Sheriff's office generally, and on the community as a whole. Stone argues five particular components of the officers' testimony were inadmissible, and contends his trial counsel was deficient in not objecting when the State offered each into evidence. First, Major Gary Metts testified about a golf tournament organized in Sergeant Kubala's honor. Second, Major Metts explained that the tournament proceeds are used to fund college scholarships for the children of law enforcement officers killed in the line of duty.[1] Third, Major Metts testified the Sheriff's Office maintained an "Explorer Group, " a program designed to help children, for which Sergeant Kubala volunteered. Major Metts testified the program "collapsed" after Sergeant Kubala's death. Fourth, Captain Gene Edward Hobbs recounted to the jury how he went to Sergeant Kubala's house to tell Kubala-Hanvey about her husband's death. Fifth, Captain Hobbs described how the Sheriff's Office takes new recruits to visit the location where Sergeant Kubala died and to his gravesite to "talk about the consequences of the job."

         Under South Carolina law, "victim impact evidence is relevant for a jury to 'meaningfully assess the defendant's moral culpability and blameworthiness.'" State v. Hughey, 339 S.C. 439, 457, 529 S.E.2d 721, 730-31 (2000) (quoting Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720, 735 (1991)), overruled on other grounds by Rosemond v. Catoe, 383 S.C. 320, 330, 680 S.E.2d 5, 10 (2009). The State may present victim impact evidence for the purpose of demonstrating "the 'uniqueness' of the victim and the specific harm committed by the defendant." Hughey, 339 S.C. at 457, 529 S.E.2d at 730 (quoting State v. Rocheville, 310 S.C. 20, 27, 425 S.E.2d 32, 36 (1993)). In State v. Bennett, we explained that evidence of "the specific harm caused by the defendant" can "includ[e] the impact of the murder on the victim's family and 'a quick glimpse of the life which the defendant chose to extinguish.'" 369 S.C. 219, 228, 632 S.E.2d 281, 286 (2006) (quoting Payne, 501 U.S. at 825, 822, 111 S.Ct. at 2608, 2607, 115 L.Ed.2d at 735, 733). Under Payne, "if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." 501 U.S. at 827, 111 S.Ct. at 2609, 115 L.Ed.2d. at 736. However, when victim impact "evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." 501 U.S. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735.

         We begin our analysis of whether counsel's performance was deficient under the Sixth Amendment for not objecting to these five components of testimony by observing that the "admission or exclusion of evidence" in a capital trial is within the "discretion of the trial court." State v. Wise, 359 S.C. 14, 21, 596 S.E.2d 475, 478 (2004). We have specifically applied that principle to the admission of victim impact evidence in the penalty phase, stating, "A trial judge has considerable latitude in ruling on the admissibility of evidence." State v. Bixby, 388 S.C. 528, 554-55, 698 S.E.2d 572, 586 (2010) (discussing our review of the trial court's decision to admit "a seven minute video showing portions of [the officer's] funeral"). In this context, we examine trial counsel's performance.

         At the PCR trial, Stone's PCR counsel asked trial counsel whether he considered objecting to Captain Hobbs' testimony, to which he replied,

I considered objecting to a lot of this, but Judge King was being very liberal in what he was allowing in from the standpoint of victim's testimony. I mean I felt if he allowed in what Ms. Kubala said about her reaction to the appeal that he was probably going to allow this in. I didn't want to be perceived by the jury as-as jumping up and objecting to everything like I was trying to hide something. So yes, I did consider it. I didn't consider my chances of winning that objection . . . to be very good and I mean there's a lot of leeway that the courts have allowed in-in this kind of testimony.

         Stone's PCR counsel also asked trial counsel whether he considered objecting to Major Metts' testimony. He replied,

I considered objecting to a lot of this, but I did not feel that the objection would be sustained. I didn't want to be perceived as-as trying to hide things and . . . I just think Judge King would have-would have let it in.

         Trial counsel is repeatedly required during any trial-particularly a capital trial- to make split-second decisions on many subjects, including whether to object to testimony. There are a variety of reasons counsel may soundly choose not to make such an objection, including the reality that not all evidence offered by the State is harmful to the defendant. Under certain circumstances, therefore, counsel may employ a strategy of not objecting-even when counsel has a good argument for exclusion-if counsel reasonably perceives the benefits of doing so are outweighed by some other consideration. See Watson v. State, 370 S.C. 68, 72-73, 634 S.E.2d 642, 644 (2006) (finding counsel's performance was not deficient in making the decision not to object to "inadmissible" testimony because his strategy-that doing so "might lead to the more damaging introduction" of other evidence-was sound). The necessity of making these and other strategic decisions is part of the difficulty of trying any case, and these difficulties are intensified in a capital trial.

         For these and other reasons, we defer to reasonable strategies employed by counsel at trial. As the Supreme Court explained in Strickland,

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (citations omitted).

         Stone argues trial counsel's decision not to object was an invalid strategic decision because the reasons counsel gave for employing the strategy were not sound. As we have often stated, counsel's strategic decisions will not be found to be deficient performance if he articulates a valid reason for employing the strategy. E.g., Smith v. State, 386 S.C. 562, 567-68, 689 S.E.2d 629, 632-33 (2010); Caprood v. State, 338 S.C. 103, 110, 525 S.E.2d 514, 517 (2000); Stokes v. State, 308 S.C. 546, 548, 419 S.E.2d 778, 779 (1992). The necessary converse of this principle is that counsel's decision to employ a certain strategy will be deemed unreasonable under the Sixth Amendment if the reasons given for the strategy are not sound. See Dawkins v. State, 346 S.C. 151, 157, 551 S.E.2d 260, 263 (2001) (finding counsel's performance was deficient in making a decision not to object to the admission of testimony when the underlying strategy was not sound).

         Stone's trial counsel gave three reasons for not objecting to the law enforcement officers' testimony. First, trial counsel stated "Judge King was being very liberal in what he was allowing in from the standpoint of victim's testimony." Second, trial counsel stated-specifically as to Captain Hobbs-he "felt if [Judge King] allowed in what [Kubala-Hanvey] said about her reaction to the appeal that he was probably going to allow this in." Third, trial counsel stated he "didn't want to be perceived by the jury as . . . as jumping up and objecting to everything like [he] was trying to hide something." We agree with Stone that none of counsel's reasons for not objecting were sound strategic reasons.

         As to the first reason, although the trial court has wide discretion in making a ruling on the admissibility of victim impact evidence, counsel has potentially good arguments for its exclusion. See supra, discussion of Bennett, Hughey, and Payne. This is particularly true when the State offers evidence that pushes the limits of permissible victim impact. See United States v. Fields, 516 F.3d 923, 947 (10th Cir. 2008) ("Including the community in the victim-impact inquiry is fraught with complication."). Of the five components of victim impact evidence to which Stone argues his counsel should have objected, we find the fourth component-Captain Hobbs' testimony about informing Sergeant Kubala's widow of his death-would almost certainly have been properly admitted. While we stress that such decisions are within the discretion of the trial court, we can hardly imagine a more direct impact of a victim's death than the events and circumstances surrounding his family learning of it. See Bennett, 369 S.C. at 228, 632 S.E.2d at 286 (explaining that permissible victim impact evidence includes "'the specific harm caused by the defendant, ' including the impact of the murder on the victim's family").

         On the other hand, we find the second component-the use of the proceeds from the golf tournament-and the fifth component-the testimony about taking new recruits to Sergeant Kubala's gravesite-are more likely to have been excluded. We find it difficult to relate this evidence to the definitions we have previously given of permissible victim impact evidence because these two components show primarily the general impact of Sergeant's Kubala's death on the community, as opposed to showing his unique qualities or a specific harm caused by the murder. See supra, discussion of Bennett and Hughey. But see Bixby, 388 S.C. at 556, 698 S.E.2d at 587 (finding the admission of victim impact evidence permissible "because it showed the traditional trappings of a law enforcement officer's funeral, demonstrating the general loss suffered by society").

         The other two components-the golf tournament itself and the "collapse" of the "Explorer Program"-are close calls, subject to the discretion of the trial court. These two components do show more than the victim's uniqueness and the specific impact of the murder, but they also illustrate the qualities of Sergeant Kubala that made him special and unique. For instance, that his colleagues would hold a golf tournament in his honor, and his extensive involvement in the "Explorer Program" such that it could not continue in his absence, show the kind of person Sergeant Kubala was. See Riddle v. State, 314 S.C. 1, 11-12, 443 S.E.2d 557, 563-64 (1994) (holding testimony about victim's standing in the community was allowable "to establish the victim as a unique human being").

         We do not intend with this discussion to define which of the five components would have been permissible for the trial court to admit within its discretion. Rather, we discuss them to demonstrate that, with varying degree, the admission of each one was debatable. Without an objection, however, there can be no debate; and the trial court has no opportunity to exercise its discretion. Here, even if the trial court was being "liberal" in allowing victim impact testimony, trial counsel should have objected to those components of the law enforcement officers' testimony as to which counsel felt he had a reasonably persuasive argument for exclusion. If he had objected in those instances, the trial court may have sustained the objection. But in any event, counsel would have at least tested the trial court's discretion. See Ard, 372 S.C. at 331, 642 S.E.2d at 597 ("When evaluating the reasonableness of counsel's conduct, 'the court should keep in mind that counsel's function . . . is to make the adversarial testing process work in the particular case.'" (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695)). The fact the trial court has such wide discretion does not justify the decision not to object. Rather, the debate that precedes the exercise of that discretion is part of the adversarial process Ard and Strickland require trial counsel to test.

         In this case, counsel testified he made the decision not to object for reasons other than the strength of his argument for exclusion. In fact, we read counsel's testimony to say he made the decision not to object despite his belief that he had good grounds for the objection. A capital defendant would generally prefer to exclude victim impact evidence where possible because it is favorable to the State. This was not a situation in which trial counsel made several unsuccessful objections and then decided further objections were futile. Instead, the transcript reveals trial counsel did not make a single objection during either Major Metts' or Captain Hobbs' testimony. Under these circumstances, counsel's belief the trial court would overrule his objection does not justify the decision not to make it.

         As to the second reason, trial counsel claims he did not object to Captain Hobbs' testimony, in part, because the trial court allowed Kubala-Hanvey to testify about her suicide attempt. This is not a valid explanation. In addition to the reasons we explained above, the transcript reveals Captain Hobbs testified the day before Kubala-Hanvey. The trial court's rulings during her testimony could not possibly have affected trial counsel's earlier decision not to object to Captain Hobbs' testimony.

         Trial counsel's other explanation for not objecting-his concern the jury might think he "was trying to hide something"-is also not valid. See Dawkins, 346 S.C. at 157, 551 S.E.2d at 263 (holding counsel's failure to object because he did not want to confuse or upset the jury was not a valid strategic decision); Gallman v. State, 307 S.C. 273, 276-77, 414 S.E.2d 780, 782 (1992) (holding trial counsel's failure to object because he did not want to "give the jury the idea that something was being hidden" was not a valid strategic decision). If trial counsel was truly concerned about the effect his objections would have on the jury, he should have sought a determination as to admissibility outside the jury's presence. See Dawkins, 346 S.C. at 157, 551 S.E.2d at 263 ("To eliminate the possibility of confusing or upsetting the jury, counsel could have sought a determination as to the inadmissibility of the . . . testimony out of the hearing of the jury . . . .").

         Trial counsel failed to articulate any valid strategic reason for not objecting to important victim impact testimony the trial court had the discretion to exclude. Therefore, the decision not to object does not meet an objective standard of reasonableness, and Stone has satisfied the first prong of Strickland.

         B. Testimony Regarding ...

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