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Smalls v. State

Supreme Court of South Carolina

February 7, 2018

Stephen Smalls, Petitioner,
State of South Carolina, Respondent. Appellate Case No. 2016-001079

          Heard November 14, 2017


         Appeal 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 Petitioner.

          Attorney General Alan McCrory Wilson and Assistant Attorney General Jessica Elizabeth Kinard, both of Columbia, for Respondent.

          FEW JUSTICE

         In this 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 prejudice.

         I. Facts and Procedural History

         At 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.

         Two 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.

         Investigator 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.

         At 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).

         Smalls 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.[1] The PCR court denied relief.

         We 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.

         II. Standard of Review

         Our 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.[2] Sellner, 416 610, 787 S.E.2d at 527 (citing Jamison v. State, 410 S.C. 456, 465, 765 S.E.2d 123, 127 (2014)).

         III. Deficient Performance

         To 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.

         A. Dismissal of Green's Carjacking Charge

         During 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.[3]

         Evidence 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.").

         In 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.

         The 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 with it."

         If 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[4] 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.

         B. Prior Burglary

         In an 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 ...

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