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Milledge v. State

Supreme Court of South Carolina

March 14, 2018

Michael Milledge, Respondent,
State of South Carolina, Petitioner. Appellate Case No. 2014-002386

          Submitted September 21, 2016

         Appeal from Greenville County James R. Barber, III, Circuit Court Judge

          Attorney General Alan M. Wilson and Senior Assistant Attorney General DeShawn Herman Mitchell, both of Columbia, for Petitioner.

          Appellate Defender Susan B. Hackett, of Columbia, for Respondent.



         Respondent Michael Milledge was arrested and convicted of multiple drug-related offenses in Greenville County following a traffic stop. Milledge applied for post-conviction relief (PCR), arguing his defense counsel was deficient for failing to object at trial to the introduction of contraband found pursuant to an illegal search. The PCR court agreed and granted Milledge a new trial. We reverse.


         Deputies John Lanning, Patrick Swift, and Fred Miller were on patrol in a high-crime area[1] of Greenville County when they initiated a traffic stop after observing Milledge driving with a cracked windshield and missing rearview mirror. Upon making contact with Milledge, the deputies observed him exhibiting extreme nervousness. Swift noted Milledge was attempting to make a call on his cellphone, but his hands were shaking so much he could not dial the right number.[2] Swift asked Milledge why his hands were shaking and he responded it was because he was hot. After Swift stated he too was hot but his hands were not shaking, Milledge stared straight ahead, refused to respond to any further questions, and "acted like [Swift] wasn't even there." This behavior, coupled with the high-crime area where the stop occurred, caused Swift to fear for his safety so he asked Milledge to step out of the vehicle.[3]

         After Lanning returned to the patrol vehicle but before he could perform a check on the driver's license and registration, Milledge complied w i th Swi ft's reques t to exit and walk towards the rear of his vehicle. Seeing that his partner had asked Milledge to exit the vehicle, Lanning ceased running the information check and approached Milledge. Noticing Milledge would not look at him and only stared straight ahead, Lanning asked him if he had any weapons on him, using specific language meant to elicit some sort of response from persons being questioned.[4]Failing to get any response or reaction, Lanning decided it was necessary for the deputies' safety to conduct a pat-down search for weapons. As he began the frisk, Lanning felt what he recognized as a revolver in Milledge's shorts pocket. As Deputy Miller reached in to remove the revolver, a baggie containing pills and crack cocaine also emerged from the same pocket. The deputies then placed Milledge under arrest.

         Milledge was indicted on charges of trafficking in crack cocaine; possession of a gun during the commission of a violent crime; possession of cocaine with intent to distribute; and possession of ecstasy. Prior to trial, Milledge's defense counsel made a motion in limine to suppress the drugs, arguing they were found as a result of an unlawful search. Defense counsel conceded the deputies had probable cause to conduct the traffic stop, but asserted the deputies lacked justification for the subsequent frisk, arguing the deputies' sole reason for conducting the frisk was because Milledge "acted nervous."

         The trial court[5] denied Milledge's motion in limine and found the frisk was based on a reasonably articulable suspicion. The trial court held that standing alone, the individual characteristics relied on by the deputies would not support a reasonably articulable suspicion to conduct a frisk, but when considered in the aggregate, the circumstances and Milledge's conduct justified the frisk. Specifically, the trial court stated:

Extreme nervousness, not nervousness as is customarily incident to a traffic stop but extreme nervousness to the extent that the phone couldn't be dialed. The fact that there was a phone called [sic] that being [sic] attempted at the time. The fact that it was a high drug use area, the reluctance or recalcitrance of the defendant to respond to any questions. And the dubiousness of the explanation for the shaking that the officer received when he asked for or posed the first question. All of those things in the aggregate give me cause to believe that there was probable cause for the search.

         Later, at trial, defense counsel did not contemporaneously object when the drugs were introduced into evidence. The jury found Milledge guilty of all charges.

         The court of appeals affirmed the trial court's findings in an unpublished opinion, holding the issue of the admissibility of the drugs was not preserved for appellate review because defense counsel failed to contemporaneously object.

         Milledge then filed an application for PCR. Milledge argued his defense counsel was deficient by failing to renew his objection to the contraband when the State entered it into evidence at trial, and Milledge suffered prejudice as a result of this failure.

         The PCR court granted Milledge's application for a new trial, finding defense counsel was deficient in failing to renew his objection to the evidence at trial. Furthermore, the PCR court held the factors asserted by the officers did not give rise to the level of reasonable and articulable suspicion required by the Fourth Amendment to conduct a frisk. Thus, the PCR court determined Milledge suffered prejudice because there was a reasonable probability an appellate court would have found the search unreasonable. Therefore, the PCR court concluded Milledge satisfied both prongs of the Strickland[6] test and granted a new trial. The State appealed and this Court granted certiorari.


         Did the PCR court err in finding a new trial was warranted in this case because defense counsel failed to object to the admission of evidence of contraband at trial on the grounds the evidence was the result of an unreasonable search in violation of the Fourth Amendment?


         In PCR actions, this Court will uphold the lower court's findings if there is any evidence of probative value to support them. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). However, the Court will reverse the lower court's decision if it is controlled by an error of law. Pierce v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000). The PCR applicant bears the burden of proving his allegations by a preponderance of the evidence. Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e), SCRCP).

         Generally, in supporting his allegations of ineffective assistance of counsel, the applicant must satisfy a two-prong test. See Strickland, 466 U.S. at 687. First, the applicant must demonstrate trial counsel's performance was deficient. Cherry, 300 S.C. at 117, 386 S.E.2d at 625. Second, the applicant must demonstrate trial counsel's "deficient performance prejudiced the [applicant] to the extent that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625 (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Smith v. State, 386 S.C. 562, 566, 689 S.E.2d 629, 631 (2010).

         LA ...

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