November 14, 2017
OF CERTIORARI TO THE COURT OF APPEALS
from Richland County Henry F. Floyd, Trial Court Judge J.
Ernest Kinard Jr., Post-Conviction Relief Judge
Appellate Defender Kathrine Haggard Hudgins, of Columbia, for
Attorney General Alan McCrory Wilson and Assistant Attorney
General Jessica Elizabeth Kinard, both of Columbia, for
post-conviction relief (PCR) case, we agree with the court of
appeals' finding that trial counsel was deficient, but
disagree that the State presented overwhelming evidence of
guilt that precluded a finding of prejudice under the second
prong of Strickland v. Washington. We find the
evidence was not overwhelming, and reverse the court of
appeals' finding that counsel's errors resulted in no
Facts and Procedural History
almost midnight on May 21, 2000, Jim Lightner and Eugene
Green were closing the Bojangles restaurant on Elmwood Avenue
in Columbia when a man charged in the door wielding a
shotgun. The man forced Lightner to the back of the
restaurant to open the safe. When they went to the back,
Green escaped out the front door and ran across Elmwood to a
gas station to call the police. While Green was on the phone
with police, he saw the man walk out the side service door of
the Bojangles carrying the shotgun in one hand and a white
bag in the other. The man walked out of a wooden gate near
the back of the parking lot just as a police cruiser pulled
up to the front of the Bojangles. Green told the police to
"make a left at the Lizard's Thicket, " which
would take the officer to where the man exited the wooden
gate. When Green saw the cruiser make the left, he said
"you got him." Although the officers were unable to
find the suspect at that time, they did find a twelve-gauge
pump-action shotgun and a white bag containing $1, 900 just
outside the gate.
fingerprint experts later examined the shotgun and determined
that one of several prints on the gun belonged to Smalls.
After securing a warrant for Smalls' arrest, Investigator
Joe Gray drove to Smalls' house. When he saw Smalls
walking down a nearby street carrying a child in his arms,
Gray stepped out of his vehicle and asked Smalls about the
robbery of the Bojangles. Gray testified Smalls "dropped
the child" and "began running." Another
officer found Smalls later that evening hiding in bushes a
few blocks away.
Paul Mead prepared a photographic lineup that he presented to
Lightner. Investigator Gray presented the same lineup to
Green. Four days after the robbery, Green identified Smalls.
Lightner, however, could not identify Smalls, but did narrow
the suspects down to two people, one of whom was Smalls.
trial in May of 2002, the State introduced Green's
pretrial identification of Smalls. Green testified and
identified Smalls in the courtroom. The State introduced the
fact Lightner narrowed the suspects down to Smalls and one
other person. Investigator Gray identified Smalls as the
person who dropped the child and ran when he was asked about
the robbery. Both fingerprint experts testified one of the
fingerprints on the shotgun belonged to Smalls. The jury
convicted Smalls of armed robbery, and the trial court
sentenced him to twenty-five years in prison. The court of
appeals dismissed his appeal in an unpublished opinion.
State v. Smalls, Op. No. 2004-UP-315 (S.C. Ct. App.
filed May 13, 2004).
filed an application for PCR alleging he received ineffective
assistance of counsel. The PCR court first held a hearing in
2007. The court held the record open to allow PCR counsel
time to investigate the circumstances under which the State
dismissed a carjacking charge against Green on the morning of
Smalls' trial. The hearing was not reconvened until 2012.
The PCR court described the issue regarding the carjacking
charge as not only one of ineffective assistance of counsel,
but also whether "the State was deceptive" in
representations made to the trial court and trial
counsel. The PCR court denied relief.
transferred Smalls' petition for a writ of certiorari to
the court of appeals pursuant to Rule 243(1) of the South
Carolina Appellate Court Rules, and the court of appeals
granted the petition. The court of appeals then found trial
counsel's performance was deficient regarding the
carjacking charge and in two other instances. Smalls v.
State, 415 S.C. 490, 498-501, 783 S.E.2d 817, 820-22
(Ct. App. 2016). However, the court of appeals found
"there was no prejudice resulting from trial
counsel's deficient performance because the State
presented overwhelming evidence of [Smalls'] guilt."
415 S.C. at 501, 783 S.E.2d at 822. Smalls filed a petition
for a writ of certiorari, which we granted.
Standard of Review
standard of review in PCR cases depends on the specific issue
before us. We defer to a PCR court's findings of fact and
will uphold them if there is evidence in the record to
support them. Sellner v. State, 416 S.C. 606, 610,
787 S.E.2d 525, 527 (2016) (citing Jordan v. State,
406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013)). We review
questions of law de novo, with no deference to trial
courts. Sellner, 416 S.C.at 610, 787
S.E.2d at 527 (citing Jamison v. State, 410 S.C.
456, 465, 765 S.E.2d 123, 127 (2014)).
prove trial counsel's performance was deficient, an
applicant must show "counsel's representation fell
below an objective standard of reasonableness."
Williams v. State, 363 S.C. 341, 343, 611 S.E.2d
232, 233 (2005) (citing Strickland v. Washington,
466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.E.2d 674, 693
(1984)). The court of appeals held trial counsel's
performance fell below this standard as to three separate
instances. First, trial counsel did not effectively argue
that the existence and dismissal of Green's carjacking
charge was admissible as evidence of Green's bias.
Second, trial counsel did not object to the State's
question to Investigator Mead suggesting Smalls burglarized
someone's home to obtain the shotgun. Third, trial
counsel did not challenge the State's statement during
opening that the police saw Smalls leaving the Bojangles.
Dismissal of Green's Carjacking Charge
a pretrial hearing on the morning of trial, the solicitor
asked the trial court to make preliminary rulings on whether
Green's prior convictions would be admissible to impeach
him under Rule 609 of the South Carolina Rules of Evidence.
The trial court ruled Green's convictions for
distribution of crack cocaine, use of vehicle without
owner's consent, and possession of a stolen motor vehicle
were admissible. Trial counsel then asked about the pending
carjacking charge, "He has a pending charge, Your Honor,
but I don't know if I am allowed to go into that."
The solicitor informed the trial court that Green's
carjacking charge had been dismissed that morning. Apparently
not recognizing that the dismissal of the charge was
potentially stronger evidence of bias than the charge itself,
trial counsel raised no further argument on the issue, and
did not ask the trial court to make a ruling as to whether
counsel would be permitted to use the carjacking charge or
its dismissal to impeach Green.
of a witness's bias can be compelling impeachment
evidence, and for that reason "considerable latitude is
allowed" to defense counsel in criminal cases "in
the cross-examination of an adverse witness for the purpose
of testing bias." State v. Brown, 303 S.C. 169,
171, 399 S.E.2d 593, 594 (1991). Our courts have followed the
"general rule" that "'anything having a
legitimate tendency to throw light on the accuracy,
truthfulness, and sincerity of a witness may be shown and
considered in determining the credit to be accorded his
testimony, '" so that "'on
cross-examination, any fact may be elicited which tends to
show interest, bias, or partiality' of the witness."
State v. Brewington, 267 S.C. 97, 101, 226 S.E.2d
249, 250 (1976) (quoting 98 C.J.S. Witnesses
§§ 460, 560a). "Rule 608(c) [of the South
Carolina Rules of Evidence] 'preserves [this
longstanding] South Carolina precedent.'" State
v. Sims, 348 S.C. 16, 25, 558 S.E.2d 518, 523 (2002)
(quoting State v. Jones, 343 S.C. 562, 570, 541
S.E.2d 813, 817 (2001) and citing Brewington, 267
S.C. at 101, 226 S.E.2d at 250). See Rule 608(c),
SCRE ("Bias, prejudice or any motive to misrepresent may
be shown to impeach the witness either by examination of the
witness or by evidence otherwise adduced.").
Sims, decided three months before Smalls' trial,
we discussed the use of pending charges as evidence of bias
to impeach a State's witness. 348 S.C. at 23-26, 558
S.E.2d at 522-23. We stated, "There was the substantial
possibility [the witness with pending charges] would give
biased testimony in an effort to have the solicitor highlight
to his future trial judge how he had cooperated . . . ."
348 S.C. at 25, 558 S.E.2d at 523. In this case, the fact
Green faced charges for carjacking is evidence of his bias
for the reasons we explained in Sims. In most
circumstances, a trial court would admit evidence of the
charge. See State v. Dial, 405 S.C. 247, 256, 746
S.E.2d 495, 499-500 (Ct. App. 2013) (recognizing trial courts
have wide discretion in admitting evidence of bias).
Smalls' counsel not only failed to attempt to
cross-examine Green with evidence of these charges, but
erroneously believed the State's dismissal of the charges
eliminated the tendency of the evidence to show Green's
bias. If the mere existence of the charge made it likely
Green would give biased testimony, as we explained in
Sims, the dismissal of the charge made the
likelihood of bias manifest-because Green actually received
the benefit he hoped the solicitor would provide in exchange
for his cooperation.
fact Green faced a carjacking charge that was dismissed on
the morning of trial was strong evidence of Green's bias,
and counsel's failure to cross-examine him on this point
fell well below the "objective standard of
reasonableness" by which we judge the performance of
counsel. Williams, 363 S.C. at 343, 611 S.E.2d at
233. The magnitude of counsel's deficiency did not become
clear, however, until the PCR trial was reconvened in 2012.
Green testified he had been in jail awaiting trial on the
carjacking charge in the weeks before Smalls' trial.
Green explained that on two occasions the solicitor brought
him to the courthouse and "asked [him] to be a
cooperating witness and testify against Mr. Smalls."
According to Green, he told the solicitor he did not want to
cooperate because "I didn't want anything to do with
it." Recalling his conversation with the solicitor,
Green testified, "He was like if I didn't come . . .
to participate in the trial that my charge wasn't going
to go anywhere. . . . Like I still was going to be charged
with the [carjacking]." Then, "a couple of days
before" Smalls' trial, according to Green, he was
released on a personal recognizance bond. The charge was
dismissed the morning of trial, and Green testified against
Smalls. PCR counsel asked Green at the 2012 hearing,
"Would you have testified in the case against Stephen
Smalls if you had not been told that your carjacking charge
would not be dismissed if you didn't, " and he
responded, "No. Because I didn't want anything to do
trial counsel had attempted to cross-examine Green on the
carjacking charge, she would have demonstrated that the State
dismissed a charge that carried up to twenty years in
prison on the morning of trial in an apparent
effort to secure Green's favorable testimony. If the
trial court ruled against her, she was required to make a
proffer. See State v. Schmidt, 288 S.C. 301, 303,
342 S.E.2d 401, 402-03 (1986) (stating "this Court will
not review alleged error of the exclusion of testimony unless
a proffer of testimony is properly made on the record").
In either circumstance, it is reasonably possible Green would
have admitted-as he did at the PCR trial-the State made him a
deal that handsomely rewarded him for his cooperation. Even
if Green did not admit that, trial counsel should have forced
the solicitor to disclose the terms of any deal he made with
Green. See State v. Hinson, 293 S.C. 406, 408, 361
S.E.2d 120, 120 (1987) ("'When the reliability of a
given witness may well be determinative of guilt or
innocence, ' nondisclosure of a promise of immunity made
to that witness is a violation of due process." (quoting
Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct.
763, 766, 31 L.Ed.2d 104, 108 (1972))). The court of appeals
was correct to find trial counsel was deficient in handling
the carjacking charge.
effort to show an innocent explanation for Smalls'
fingerprint on the shotgun, trial counsel cross-examined
Investigator Mead as follows,
Q: Was the gun stolen? Had it been ...