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24811 - James A. Pauling v. State

Davis Adv. Sh. No. 25
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



James A. Pauling, Petitioner

v.

State of South

Carolina, Respondent







ON WRIT OF CERTIORARI





Appeal From Richland County

Joseph A. Wilson, II, Trial Judge

William P. Keesley, Post-Conviction Judge





Opinion No. 24811

Submitted May 27, 1998 - Filed July 13, 1998





REVERSED





Robert M. Pachak, of South Carolina Office of

Appellate Defense, of Columbia, for petitioner.





Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, and Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, for respondent.





BURNETT, A.J.: Petitioner was convicted of first degree

burglary and first degree criminal sexual conduct (CSC). He received a

life sentence for burglary and a thirty-year sentence for CSC. This Court

granted a writ of certiorari to review the decision of the post-conviction

relief (PCR) judge denying petitioner's PCR application. We reverse.





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PAULING v. STATE

ISSUE

Did the PCR judge err in holding trial counsel was not

ineffective for failing to introduce the triage nurse's notes or to

interview and prepare the triage nurse as a defense witness?





FACTS

At trial, the fifty-five-year-old victim testified a man who

identified himself as Jimmy Copeland knocked on the back door of her

apartment. The victim did not know Jimmy Copeland and did not let the

man inside.





Later, the man returned, broke into her second floor bathroom

window, and entered her apartment. The victim testified she struck the

man with a glass vase which broke and cut her right hand; the man then

choked her, tied her up, and hit her in the mouth. Thereafter, the victim

stated the assailant took off her clothes and "put hisself (sic) into me."

The victim did not know whether the assailant ejaculated. The victim

described the perpetrator as seven feet tall and in his nineties.1





After receiving a call from neighbors, the police arrived at the

victim's apartment. The assailant ran upstairs and out the bathroom

window. The police apprehended petitioner within minutes after he fled

the victim's apartment.





Dr. Elizabeth Pernal testified she performed the rape protocol

examination. She testified she found no lesions, cuts, or tears while

performing a pelvic examination on the victim. Dr. Pernal further stated

she found no semen, but this was not unusual since the victim had stated

the assailant had not ejaculated. She testified the victim had a swollen

jaw, an abrasion on her forehead, and a bloody laceration on her right

palm.





On cross-examination, Dr. Pernal stated the victim told her

she had been assaulted by an elderly man. Referring to the notes of a

triage nurse, defense counsel asked Dr. Pernal if the victim had told one

of the nurses there had been no actual penetration. The doctor testified


1 Petitioner is 5'1 0" and was twenty-seven years old.

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PAULING v. STATE

she did not know what the victim had told the nurse, but the victim had

told her the assailant "did not enter all the way." At this point, the trial

judge sustained the prosecution's objection on the basis of hearsay.



At the PCR hearing, petitioner introduced the triage nurse's

notes which stated: "pt states pt did not penetrate the vagina. Was hit in

face and laceration rt hand." Petitioner argued trial counsel was

ineffective because he was not prepared to present the triage nurse as a

defense witness.





Defense counsel testified he did not attempt to identify the

triage nurse prior to trial. He agreed the nurse's testimony concerning the

victim's statement would have been substantive evidence that a sexual

battery did not occur and evidence to impeach the victim's credibility.





In the Order of Dismissal, the PCR judge determined petitioner

failed to establish he was prejudiced by trial counsel's failure to call the

triage nurse as a defense witness. The judge concluded petitioner did not

establish prejudice because the triage nurse had no independent

recollection of this case.2





DISCUSSION

In a post-conviction proceeding, the burden is on the applicant

to prove the allegations in his application. Butler v. State., 286 S.C. 441,

334 S.E.2d 813 (1985), cert. denied, 474 U.S. 1094Y 106 S.Ct. 869, 88

L.Ed.2d 908 (1986). As to allegations of ineffective assistance of counsel,

the applicant must show his counsel's performance fell below an objective

standard of reasonableness, and but for counsel's errors, there is a

reasonable probability the result at trial would have been different.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997). A

reasonable probability is a probability sufficient to undermine confidence


2 The record indicates there was confusion in locating the triage

nurse for the PCR hearing. The PCR judge allowed petitioner ten days in

which to locate and depose the nurse. The Order of Dismissal states

""[c]ounsel for the Applicant has informed this Court that she has located

the nurse. However, the nurse has indicated that she has no independent

recollection of this case."



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PAULING v. STATE





in the outcome of the trial. Johnson v. State, supra. This Court must

affirm the findings of the PCR judge if they are supported by any evidence

in the record. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).





At the PCR hearing, petitioner did not allege counsel was

ineffective for failing to introduce the triage nurse's notes at trial.

Accordingly, this issue is not preserved for review. Plyler v. State, 309

S.C. 408, 424 S.E.2d 477 (1992).



However, we conclude counsel's failure to call the triage nurse

as a defense witness was deficient and petitioner was prejudiced by this

deficiency. While there was overwhelming evidence petitioner had broken

into the victim's home,3 the only evidence of a sexual battery was the

victim's testimony. There was no corroborating physical evidence of

penetration or any forensic evidence of a sexual assault. The triage

nurse's testimony of the victim's statement shortly after the assault would

have been crucial, both as substantive evidence that a sexual battery did

not occur (and, therefore, there was no CSC)4 and as evidence to impeach

the victim's credibility.5 Even defense counsel admitted the nurse's

testimony was critical. Martinez v. State, 304 S.C. 39, 403 S.E.2d 113

(1991)(where trial counsel admits the testimony of a certain witness may

have made the difference in obtaining an acquittal, the Court may find

ineffective assistance).





Relying on Glover v. State, 318 S.C. 496, 458 S.E.2d 538

(1995), the State maintains petitioner failed to meet his burden of proof

because the triage nurse did not testify at the PCR hearing.


3 Not only did the police apprehend petitioner while he was fleeing

the victim's apartment, but a footprint found in the apartment matched

petitioner's shoes.

4 First degree CSC requires a "sexual battery." S.C. Code Ann. § 16-

3-652 (1)(1985). A "sexual battery" is "any intrusion, however slight, of

any part of a person's body or of any object into the genital or anal

openings of another person's body. . . ". S.C. Code Ann. § 16-3-651(h)

(1985).



5 During its deliberations, the jury requested to hear the testimony of

the victim and the doctor.

p.20


PAULING v. STATE



The State misconstrues Glover. In Glover the Court held "[i]n

order to support a claim that trial counsel was ineffective for failing to

interview or call potential alibi witnesses, a PCR applicant must produce

the witnesses at the PCR hearing or otherwise introduce the witnesses'

testimony in a manner consistent with the rules of evidence." (emphasis

added). Id. S.C. at 498-99, S.E.2d at 540.



At the PCR hearing, petitioner presented evidence as to the

nature of the nurse's testimony by introducing her triage notes. This

evidence is sufficient under Glover.



Similarly, the PCR judge concluded petitioner failed to

establish prejudice because the triage nurse had no independent

recollection of the case. The nurse's notes, however, could have been used

to refresh her recollection at petitioner's trial.6





The findings of the PCR judge are not supported by any

evidence of record. Holland v. State, 322 S.C. 11 1, 470 S.E.2d 378

(1996)(where there is no probative evidence to support the PCR judge's

findings, the findings should not be upheld). Accordingly, the order of the

PCR judge is reversed and petitioner's CSC conviction is vacated.





REVERSED.

FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.




6 In any event, petitioner's trial was held in May 1992, one and one-

half years after the alleged assault. The nurse may have remembered this

case at that time. The PCR hearing was held more than five years after

the assault.





p.21