Davis Adv. Sh. No. 3
THE STATE OF SOUTH CAROLINA
In The Supreme Court
David L. Burgess, II, Petitioner
State of South
ON WRIT OF CERTIORARI
Appeal From Union County
William T. Howell, Trial Judge
H. Dean Hall, Post-Conviction Judge
Opinion No. 24746
Submitted December 17, 1997 - Filed January 12, 1998
WALLER, A.J.: This Court granted certiorari to review the
denial of petitioner's application for post-conviction relief.
Petitioner was convicted of first degree criminal sexual conduct and
kidnapping. He was sentenced to consecutive terms of thirty years and life
Petitioner chose to testify at his trial. While the solicitor was cross-
examining petitioner, he asked petitioner to explain why the victim identified
him as the person who kidnapped and molested her. He also asked
petitioner to explain why three other witnesses presented by the state
identified him as the man they saw in the vicinity of the crime scene on the
day the crime occurred. The solicitor asked petitioner to give the jury a
reason why one of these witnesses would lie. After petitioner contradicted
the testimony of another of these witnesses, the solicitor asked, "She's lying,
too?" Petitioner would not accuse any witness of lying, causing the solicitor
to then ask, "So everybody's wrong except poor old [petitioner]?"
Petitioner applied for post-conviction relief, alleging his counsel was
ineffective for failing to object when the solicitor improperly pitted him
against four of the state's witnesses. The court below found "[t]he Solicitor's
questions did not necessarily force [petitioner] to attack the veracity of the
witnesses, but rather gave him the opportunity to explain any biases the
witnesses may have had."
The distinction drawn by the post-conviction relief judge follows
language from State v. Wells, __ S.C. __, 426 S.E.2d 814 (Ct. App. 1992).
In Wells, the Court of Appeals distinguished between pitting witnesses and
merely asking questions to uncover bias. In that case, the solicitor asked the
defendant if he knew of any reason why the state's witness would come into
the courtroom and accuse him of murder. In that context, the court could not
"say the solicitor sought to force [the defendant] to attack the veracity of [the
state's witness]. The focus of the solicitor's questioning was to uncover any
bias by [the state's witness], not to encourage [the defendant] to state [the
state's witness] was lying." 426 S.E.2d at 816.
We find the distinction made in Wells is illogical. A solicitor would
never try to discredit a state's witness by uncovering potential bias during
cross-examination of a defendant. Uncovering bias of the state's witnesses
would be the concern of a defense attorney and would either be done during
cross-examination of the state's witnesses or during direct examination of the
defendant. Therefore, the distinction drawn by Wells is unsound.
No matter how a question is worded, anytime a solicitor asks a
defendant to comment on the truthfulness or explain the testimony of an
adverse witness, the defendant is in effect being pitted against the adverse
witness. This kind of argumentative questioning is improper. State v.
Bryant, 316 S.C. 216, 221, 447 S.E.2d 852, 855 (1994); State v. Sapps, 295
S.C. 484, 486, 369 S.E.2d 145, 145-46 (1988).
However, improper pitting constitutes reversible error only if the
accused is unfairly prejudiced. Id. To establish his claim of ineffective
assistance of counsel, petitioner had to show a reasonable probability that the
result of his trial would have been different if counsel had objected to the
solicitor's improper questions. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733
(1997). A reasonable probability is a probability sufficient to undermine
confidence in the outcome of a trial. Id.
After reviewing the record, we do not find petitioner was prejudiced by
his counsel's failure to object to the solicitor's improper questions. In light
of the evidence presented, this error does not undermine confidence in the
outcome of this case. Accordingly, the dismissal of petitioner's application for
post conviction relief is affirmed. To the extent State v. Wells is inconsistent
with this opinion, it is hereby overruled.
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.