THE STATE OF SOUTH CAROLINA
In The Supreme Court
Benjamin Bannister, Respondent,
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Dorchester County
Jackson V. Gregory, Trial Judge
Victor Rawl, Post-Conviction Judge
Opinion No. 24869
Submitted October 21, 1998 - Filed December 14, 1998
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, and Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, for petitioner.
Chief Attorney Daniel T. Stacey, of South Carolina
Office of Appellate Defense, of Columbia, for
BURNETT, A.J.: We granted the State a writ of certiorari to
review the post-conviction (PCR) judge's grant of a new trial to
respondent. We reverse.
Respondent was indicted on charges of first degree burglary
and assault with intent to commit first degree criminal sexual conduct
(CSC). A jury convicted him of burglary but acquitted him of CSC.
At trial, the State produced evidence on May 30, 1993,
respondent kicked open the front door and entered Unit F-16 of the
Canebrake Apartments. Occupants in the apartment, all young teenagers,
testified respondent stated he was looking for "Gayle" because she had his
money. One occupant told respondent Gayle lived in Unit F-8. One
witness testified, although it was morning, it was dark when respondent
entered her bedroom. Another testified, although it was early morning, he
could see respondent because the kitchen light was on. A patrol officer
testified she was dispatched to the Canebrake Apartments at 5:30 or 6:00
in the morning. She stated, at that time "[i]t was on the verge of not
quite being dark, but it wasn't quite light also."
Shortly after his arrest, respondent gave an oral statement to
a detective which the detective then placed into writing. In relevant part,
the statement provides: at 4:00 a.m. respondent met a woman named
"Gayle" in front of building F of the Canebrake Apartments in order to
purchase crack cocaine. Gayle took $150 from respondent and went inside
the apartments. Respondent waited for forty-five minutes. When she did
not return, he became angry, kicked the door open, and went inside to find
Gayle and get his money back. Children were inside the apartment.
When he went back outside, a little boy told respondent Gayle "wasn't at"
Respondent read the written statement and then signed it.
He was not given a copy of the statement until the morning of trial. At
the beginning of trial, defense counsel waived respondent's right to a
hearing on the voluntariness of the statement.
Respondent testified at trial. He stated on May 30, 1993, at
approximately 2:00 a.m., respondent spoke to Gayle James at a bar. Ms.
James told him she knew where there was crack cocaine. About thirty
minutes to an hour later, respondent and Ms. James left the bar
separately and met at the Canebrake Apartments in front of building F.
Respondent gave Ms. James $150 and she went into Unit F-16. After
waiting thirty to forty-five minutes, respondent became angry. He
knocked on the door of Unit F-16 several times and then kicked it three or
four times. When he entered the apartment, he yelled for "Gayle," but she
was not inside.
At the PCR hearing, respondent testified he told defense
counsel Ms. James could have corroborated his claim he did not break into
the apartment with the intent to commit a crime therein.1 Rather,
he entered the apartment, believing Ms. James was inside, and intended
to retrieve his money. Ms. James did not testify at the PCR hearing;
however, respondent testified he thought Ms. James would have offered
Defense counsel testified he did not remember if he attempted
to locate Ms. James; he agreed he did not issue a subpoena for the
witness. Defense counsel agreed if Ms. James had testified, her testimony
would have "added a considerable degree of credibility for [respondent's]
story . . . ."
Defense counsel testified he did not remember discussing
respondent's written statement with him or inquiring whether he had
received a copy of the statement. Similarly, he did not remember
discussing whether respondent should waive his right to challenge the
admissibility of his statement. According to defense counsel, there was
never any question as to the voluntariness of respondent's statement.
I. Did the PCR judge err by finding defense counsel was
ineffective for failing to subpoena witness Gayle James?
II. Did the PCR judge err by finding defense counsel was
ineffective for failing to move to suppress respondent's statement?
1S.C. Code Ann. § 16-11-311(A)(Supp. 1997)(first degree burglary
occurs when a person enters a dwelling without consent and with the
intent to commit a crime therein and, among other aggravating
circumstances, the entering occurs in the nighttime. S.C. Code Ann. § 16-
11-311 (A)(3)(Supp. 1997)(emphasis added).
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. 1094, 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
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).
The State contends the PCR judge erred by finding defense
counsel ineffective for failing to subpoena Ms. James for trial because
respondent failed to call Ms. James or otherwise properly introduce her
testimony at the PCR hearing. Respondent maintains because the State
did not object when he testified as to what Ms. James would have
testified, his testimony became competent evidence. See State v. White,
215 S.C. 450, 454, 55 S.E.2d 785, 787 (1949)("[e]vidence even though
incompetent, if admitted without objection or motion to strike, will be
given the same probative force as that to which it would be entitled if it
This Court has repeatedly held a PCR applicant must produce
the testimony of a favorable witness or otherwise offer the testimony in
accordance with the rules of evidence at the PCR hearing in order to
establish prejudice from the witness' failure to testify at trial. Pauling v.
State, ___ S.C. __, 503 S.E.2d 468 (1998)(applicant established prejudice
where nurse's notes presented at PCR hearing corroborated lack of
penetration in sexual assault case); Glover v. State, 318 S.C. 496, 458
S.E.2d 538 (1995)(where witnesses applicant claimed could have provided
an alibi defense did not testify at the PCR hearing, he could not establish
any prejudice from counsel's failure to contact these witnesses); Underwood
v. State, 309 S.C. 560, 425 S.E.2d 20 (1992)(where applicant did not offer
witnesses at PCR hearing but merely alleged they would have provided
him with alibi defense and testified victims had recanted their trial
testimony, he failed to establish prejudice); see also Jackson v. State, 329
S.C. 345, 495 S.E.2d 768 (1998)(applicant failed to establish prejudice from
counsel's failure to investigate criminal backgrounds of victims and
witnesses where he failed to substantiate at PCR hearing that victims and
witnesses had criminal records). "The applicant's mere speculation what
the witnesses' testimony would have been cannot, by itself, satisfy the
applicant's burden of showing prejudice." Glover v. State, supra, S.C. at
498-99, S.E.2d at 540. The State's failure to object to respondent's
testimony as to Ms. James' alleged testimony does not relieve respondent
of the burden of producing and/or offering Ms. James' testimony in
accordance with the rules of evidence.
Assuming Ms. James would have testified as speculated by
respondent, her testimony would have been crucial to the defense as it
would have corroborated respondent's version of the events on the morning
of May 30, 1993. However, since respondent neither produced Ms. James
as a witness nor offered her testimony in some other manner consistent
with the rules of evidence, her "testimony" was purely speculative. The
State's failure to object to this testimony did not relieve respondent of the
burden of either producing Ms. James as a witness or offering her
testimony in some other acceptable manner. Accordingly, respondent
failed to establish prejudice from defense counsel's failure to subpoena Ms.
James. The findings of the PCR judge are not supported by any evidence
of record and,should be reversed. Pauling v. State, supra (where there is
no probative evidence to support the PCR judge's findings, the findings
should not be upheld).
The State contends the PCR judge erred in finding defense
counsel ineffective for failing to challenge the admissibility of respondent's
statement. Respondent contends counsel should have moved to suppress
his statement on the basis he was not given a copy of the statement as
required by statute.2 He argues he was prejudiced because 1) the
2 South Carolina Code Ann. §§ 19-1-80 and 90 (1976) preclude the
examination of any witness in a criminal proceeding about a written
statement formerly given to a government employee unless the witness
was given a copy of the statement at the time it was made.
statement contained the only evidence that the burglary occurred in the
nighttime and 2) referred to his use of crack cocaine. We disagree.
There is no evidence to support the PCR judge's conclusion
counsel was ineffective for failing to challenge the admissibility of
respondent's statement. Respondent did not establish that if counsel had
moved to suppress the statement on the basis of the statutory violation
there is a reasonable probability the trial judge would have granted the
motion. Respondent was provided with a copy of his statement on the
morning of trial. There is no evidence he did not have adequate time to
review the statement in preparation for trial. State v. Butler , 277 S.C.
452, 290 S.E.2d 1 (1982)(as long as the witness has time to prepare for
trial after receiving a copy of the written statement, the failure to provide
the statement at the time it is made is not reversible error).
Furthermore, admission of the statement was not prejudicial.
Other witnesses testified it was nighttime when respondent broke into the
apartment. One witness testified it was dark in her bedroom; another
testified he could see respondent due to the kitchen light; a patrol officer
stated at the time she arrived on the scene, "[i]t was on the verge of not
quite being dark, but it wasn't quite light also." 12A C.J.S. Burglary § 26
(1980)("'Nighttime' . . . is, as was held at common law, that period
between sunset and sunrise during which there is not daylight enough by
which to discern or identify a man's face, except by artificial light or
Finally, the reference to respondent's crack cocaine use in his
statement corroborated his defense. Respondent's drug use explained his
reason for meeting Ms. James at the Canebrake Apartments and giving
There is not a reasonable probability the result of respondent's
trial would have been different had his statement been suppressed.
Strickland v. Washington, supra. The findings of the PCR judge are not
supported by any evidence of record and should be reversed. Pauling v.
TOAL, MOORE, and WALLER, JJ., concur. FINNEY, C.J.,
dissenting in separate opinion.
FINNEY, C.J.: I respectfully dissent, and would affirm the grant of post-
conviction relief (PCR) to respondent. We are required to affirm the circuit
court's PCR order if it is supported by any evidence in the record. Pauling
v. State, __S.C.__ , 503 S.E.2d 468 (1998). Where, as in this case, there
was no objection to respondent's testimony nor a motion to strike it, his
testimony was rendered competent and the judge was entitled to consider it
to the extent it was relevant. State v. Frank, 262 S.C. 526, 205 S.E.2d 827
(1974); see also Glover v. State, 318 S.C. 496, 458 S.E.2d 538 (1995)(Waller,
A.J., dissenting). In my opinion, the order's findings regarding defective
representation and resulting prejudice are supported by the evidence. I