Submitted June 15, 2017
from Spartanburg County J. Derham Cole, Trial Judge Robin B.
Stilwell, Post-Conviction Relief Judge
Attorney General Alan McCrory Wilson and Assistant Attorney
General Alicia A. Olive, both of Columbia, for Petitioner.
Adam Thompson, Law Office of Jeremy A. Thompson, LLC, of
Columbia, for Respondent.
WRIT OF CERTIORARI
a post-conviction relief (PCR) action. The PCR court granted
relief and ordered a new trial. We affirm.
State indicted Briggs for criminal sexual conduct with a
minor in the first degree and lewd act upon a child,
called the case to trial on August 23, 2010. The victim
testified Briggs touched her "private" with his
"private" and with his mouth, and the jury watched
video of two forensic interviews in which the victim
explained what happened. Using a special interrogatory
verdict form, the jury found Briggs performed "anal
intercourse, " "cunnilingus, " and "other
intrusion" on the victim. The trial court sentenced
Briggs to life in prison. The court of appeals affirmed.
State v. Briggs, Op. No. 2012-UP-323 (S.C. Ct. App.
filed May 30, 2012).
then filed this action for PCR. He claimed, among other
things, his trial counsel was ineffective in permitting the
forensic interviewer to give opinion testimony that she
believed the victim's accusations to be true. The PCR
court granted relief, vacated the convictions, and remanded
to the court of general sessions for a new trial. We granted
the State's petition for a writ of certiorari to review
the PCR court's ruling.
primary claim of ineffective assistance of counsel relates to
the testimony of Michele Arroyo-Staggs, who conducted the two
forensic interviews of the victim. At trial, the State called
Arroyo-Staggs to testify about those interviews, and moved to
qualify her as an expert witness in child abuse assessment.
court found trial counsel-Max B. Singleton of Spartanburg-was
deficient in three respects as to the testimony of
Arroyo-Staggs. First, Singleton failed to object to the
qualification of Arroyo-Staggs as an expert witness. Second,
Singleton did not object to her direct examination testimony
that improperly bolstered the credibility of the victim.
Third, Singleton intentionally elicited additional improper
bolstering testimony from Arroyo-Staggs on cross-examination
in which she explained the reasons she believed the
victim's accusations against Briggs. The PCR court found
Singleton's performance did not meet the objective
standard of reasonableness by which we judge the performance
of counsel under the first prong of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). See Williams v. State, 363 S.C. 341, 343,
611 S.E.2d 232, 233 (2005) (stating the first prong of the
Strickland test requires the applicant to prove
"counsel's representation fell below an objective
standard of reasonableness" (citing Strickland,
466 U.S. at 688, 104 S.Ct. at 2064, 80 L.E.2d at 693)).
Improper Bolstering Testimony
begin with the PCR court's second finding, that Singleton
was deficient for not objecting when Arroyo-Staggs gave
improper bolstering testimony on direct examination. The PCR
court focused on four points in Arroyo-Staggs' testimony.
First, Arroyo-Staggs explained to the jury that before the
interviews, she stressed to the victim the importance of
telling the truth. Second, Arroyo-Staggs testified to her
opinion the victim had not been coached. Third, Arroyo-Staggs
told the jury "my role is to always find out . . .
whether or not the child is able to know the difference
between a truth and a lie." On this point, the solicitor
asked, "Do you make an assessment to determine whether
or not the child understands truth and lie before you do [the
interview], " and she replied, "That's
correct." Fourth, when the solicitor asked Arroyo-Staggs
to "describe for the jury what a forensic interview is,
" Arroyo-Staggs answered, "A forensic interview is
an assessment that is conducted . . . for the purpose of
finding out if something happened or didn't happen."
Similarly, when asked how she "assess[es] a child's
competency to do a forensic interview, " Arroyo-Staggs
testified, "I base a lot of it on my experience and my
knowledge and my training in reference to the developmental
stages to figure out what has occurred."
recent years, we have decided many cases on the question of
the permissible limits of a forensic interviewer's
testimony in the context of the prohibition against improper
bolstering. See, e.g., State v. Anderson,
413 S.C. 212, 776 S.E.2d 76 (2015); State v. Chavis,
412 S.C. 101, 771 S.E.2d 336 (2015); State v.
Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013); State
v. Whitner, 399 S.C. 547, 732 S.E.2d 861 (2012);
State v. Jennings, 394 S.C. 473, 716 S.E.2d 91
(2011). Under the holdings of those cases, the PCR court was
correct to conclude Singleton should have objected to at
least three of the categories of testimony listed. The State
argues, however, the standards made clear in those cases were
not so clear when Briggs was tried in 2010. Thus, the State
argues, Singleton's failure to object was reasonable
under the circumstances that existed at the time. This is a
forceful argument, as we may not judge the reasonableness of
counsel's performance by standards that developed later.
See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065,
80 L.Ed.2d at 694 ("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
the PCR court's first point, the State is correct. In
2015 in Anderson, we held, "There is to be no
testimony" before the jury from a forensic interviewer
about instructing the victim on "the importance of
telling the truth" because this testimony
"necessarily conveys to the jury that the interviewer
and law enforcement believe the victim and that their beliefs
led to the defendant's arrest, these charges, and this
trial, thus impermissibly bolstering the minor's
credibility." 413 S.C. at 221, 776 S.E.2d at 80. In
State v. Douglas, 380 S.C. 499, 671 S.E.2d 606
(2009), however, we held that a forensic interviewer's
explanation to the jury about the importance of telling the
truth was not improper bolstering. 380 S.C. at 504, 671
S.E.2d at 609. The witness in Douglas told the jury
"we talk a lot about telling the truth and telling a lie
and we make an agreement with each other that I will tell her
the truth and that she will tell me the truth, if we get past
that, if the child agrees to do that, we go on." 380
S.C. at 501, 504, 671 S.E.2d at 607, 609. We disagreed this
was "vouching for Victim's veracity" and held,
"There is no evidence whatsoever [the forensic
interviewer] believed the Victim to be telling the
truth." 380 S.C. at 504, 671 S.E.2d at 609. On this
point, therefore, Singleton's decision not to object was
reasonable under the circumstances that existed at the time.
decision in Douglas makes clear, however, that a
forensic interviewer may not be permitted to give testimony
that improperly bolsters the credibility of the victim. We
decided Douglas on appeal from a ruling by the court
of appeals that recognized improper bolstering testimony is
inadmissible. See State v. Douglas, 367 S.C. 498,
520, 626 S.E.2d 59, 71 (Ct. App. 2006) ("The only
reasonable inference the jury could have drawn from
Herod's testimony is that she believed the victim told
the truth."), aff'd in part, rev'd in
part, 380 S.C. 499, 671 S.E.2d 606. Our decision was not
to disagree with the principle that improper bolstering
testimony is inadmissible, but simply to disagree that the
specific testimony at issue in that case was improper
made the inadmissibility of improper bolstering clear in
Smith v. State, 386 S.C. 562, 689 S.E.2d 629
(2010)-six months before Briggs' trial. In
Smith, we found trial counsel was ineffective for
not objecting to testimony by a forensic interviewer that
improperly bolstered the victim's credibility. 386 S.C.
at 569-70, 689 S.E.2d at 633. We explained, "The
forensic interviewer . . . testified without objection that
she found the Victim's statement 'believable' and
stated the Victim had no reason 'not to be
truthful.'" 386 S.C. at 564, 689 S.E.2d at 631. We
held "the forensic interviewer's . . . opinion
testimony improperly bolstered the Victim's credibility,
" 386 S.C. at 569, 689 S.E.2d at 633,  and granted a new
trial, 386 S.C. at 570, 689 S.E.2d at 633. We stated "we
can discern no defensible basis for trial counsel's
failure to challenge the forensic interviewer's
objectionable testimony." 386 S.C. at 568, 689 S.E.2d at
demonstrates the central point of the prohibition against
improper bolstering: a witness may not give an opinion for
the purpose of conveying to the jury- directly or
indirectly-that she believes the victim. The forensic
interviewer's testimony in Smith that she found
the victim's testimony "believable" directly
conveyed her opinion as to the victim's credibility. Our
holding that trial counsel was ineffective in failing to
object to the testimony made it clear that when a forensic
interviewer gives testimony that directly reveals her opinion
on the victim's credibility, it is improper bolstering.
However, we also found counsel ineffective for failing to
object when the interviewer testified "the victim had no
reason not to be truthful." This testimony indirectly
conveyed her opinion on the victim's credibility.
Therefore, Smith stands for the principle that there
is "no ...