THE STATE OF SOUTH CAROLINA
In The Supreme Court
Irving Foye, Petitioner,
State of South Respondent.
ON WRIT OF CERTIORARI
Appeal From Charleston County
Luke N. Brown, Jr., Trial Judge
Daniel E. Martin, Sr., Post-Conviction Judge
Opinion No. 24974
Submitted June 23, 1999 - Filed July 26, 1999
Assistant Appellate Defender M. Anne Pearce, of
South Carolina Office of Appellate Defense, of
Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, and
Assistant Attorney General Matthew M. McGuire,
all of Columbia, for respondent.
BURNETT, A.J.: Petitioner was convicted of trafficking in
cocaine and was sentenced to imprisonment for thirty years and payment
of a $200,000 fine. His conviction and sentence were affirmed on direct
appeal by the Court of Appeals. State v. Foye, Op. No. 95-UP-323 (S.C.
Ct. App. filed December 6, 1995). Petitioner's application for post
conviction relief (PCR) was denied and this Court granted certiorari. We
I. Was petitioner's counsel ineffective in failing to present
evidence of prejudice when petitioner appeared in chains before
members of the venire?
II Was petitioner's counsel ineffective in failing to reevaluate
petitioner's decision not to testify after his co-defendant
implicated him in the crime?
Petitioner claims trial counsel was ineffective in failing to
request on the record that the trial judge question the seated members of
the jury about whether they saw petitioner in chains when he was brought
into the courtroom. We disagree.
Prior to jury selection, members of the venire observed
petitioner in chains. Defense counsel moved for a mistrial and a
continuance to another term of court. The trial judge denied the motions,
finding no evidence of prejudice. On direct appeal, the Court of Appeals
affirmed, finding no evidence that the members of the venire who saw
petitioner in chains were selected to serve as jurors in that case. Id. The
Court of Appeals refused to address petitioner's further argument that the
trial judge should have questioned the jurors to see if any of them had
seen him because the court found petitioner's counsel failed to request this
relief at trial. Id.
The PCR judge found this claim was addressed by the Court of
Appeals on direct appeal. Thus, the claim was barred from collateral
attack. Drayton v. Evatt, 312 S.C. 4, 430 S.E.2d 517 (1993). This ruling
is incorrect. Finding the issue unpreserved because petitioner's counsel
failed to request the trial judge question the jurors, the Court of Appeals
refused to address this issue. Thus, the issue was properly before the
PCR court to determine if petitioner's counsel rendered ineffective
assistance of counsel by failing to request this relief.
The burden is on the applicant in a post-conviction proceeding
to prove the allegations in his application. Butler v. State. 286 S.C. 441,
334 S.E.2d 813 (1985), cert. denied, 106 S.Ct. 869 (1986). There is a
strong presumption that counsel rendered adequate assistance and
exercised reasonable professional judgment in making all significant
decisions in the case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2025, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624
(1989). 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, supra; 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. Where matters of
credibility are involved, this Court gives great deference to a judge's
findings, because this Court lacks the opportunity to directly observe the
witnesses. Drayton v. Evatt 312 S.C. 4, 430 S.E.2d 517 (1993). This
Court must affirm the findings of the PCR judge if they are supported by
any evidence in the record. Cherry v. State, supra.
At trial, counsel stated petitioner claimed two members of the
venire saw him in chains. However, there was no claim that members of
the seated jury saw petitioner in chains. Petitioner testified at the PCR
hearing that one of the seated jurors saw him in chains.
Petitioner's counsel testified at the PCR hearing that he asked
the trial judge at a bench conference to question the jurors to determine
whether any of the seated jurors had seen petitioner in chains. The trial
judge denied the request. However, because this request was not on the
record, the Court of Appeals refused to address this issue. Thus, counsel
was deficient because he failed to adequately preserve this issue for
However, petitioner failed to prove he was prejudiced by
counsel's deficient performance. Although counsel testified he believed
petitioner was prejudiced by this incident, the PCR judge did not find this
statement credible or sufficient to establish prejudice. Butler v. State,
supra (the burden of. proof is on the applicant); Drayton v. Evatt, supra
(matters of credibility are within the discretion of the PCR judge).
Further, the trial judge did not find petitioner's testimony that one
member of his jury saw him in chains credible. Petitioner did not offer
the testimony or affidavits of any of the seated jurors that they saw
petitioner in chains and petitioner was prejudiced thereby. Without this
evidence, petitioner's claim is not supported by any probative evidence and
is based on pure speculation. See Glover v. State, 318 S.C. 496, 458
S.E.2d 538 (1995) (mere speculation and conjecture on the part of
respondent is insufficient). Accordingly, petitioner failed to meet his
burden of proving counsel rendered ineffective assistance.1
Petitioner claims counsel was ineffective for failing to
reevaluate petitioner's decision not to testify after petitioner's co-defendant
provided damaging testimony.
For an applicant to be granted PCR as a result of ineffective
assistance of counsel, he must show his counsel failed to render reasonably
effective assistance under prevailing professional norms and he was
prejudiced by his counsel's ineffective performance. Strickland v.
Washington, supra. To prove prejudice, the applicant must show but for
counsel's errors, there is a reasonable probability the result at trial would
have been different. Johnson v. State, supra. A reasonable probability is
a probability sufficient to undermine confidence in the outcome of the trial
Id. If there is any probative evidence to support the findings of the PCR
judge, those findings must be upheld. Cherry v State, supra.
matter because due to the passage of time it is impossible to conduct an
adequate post-trial inquiry. See State v. Aldret, 333 S.C. 307, 509 S.E.2d
811 (1999) (recognizing under certain circumstances it may be appropriate
to order a new trial absent a showing of actual prejudice in a case of juror
misconduct). We disagree. The jury was instructed to determine
petitioner's guilt based only on the evidence presented in the trial. A jury
is presumed to follow instructions. State v. Ard, 332 S.C. 370, 505 S.E.2d
328 (1998). Therefore, without some showing the jurors disregarded these
instructions, this Court declines to presume prejudice.
Petitioner was tried with his father.2 After petitioner's father
informed counsel he would testify petitioner did not know cocaine was in
the gym bag, counsel advised petitioner not to testify because of his prior
convictions for possession of marijuana with intent to distribute and
possession of cocaine.
At trial, petitioner's father testified petitioner helped him drive
from New York to Charleston. Petitioner's father claimed he did not tell
petitioner he was transporting cocaine before or during the drive.
However, petitioner's father testified, as they were walking from the
parking lot to the hotel, his son asked him what was in the gym bag.
Petitioner's father stated he told petitioner the bag contained cocaine.
Petitioner expressed dismay at this information and wanted to help his
father because he was afraid his father would be hurt. During this time,
petitioner and petitioner's father passed the bag back and forth several
times. Petitioner's father testified he insisted his son should not get
involved and he took the bag away from him prior to entering the hotel.
Petitioner waited in the lobby while his father delivered the cocaine.
Several police officers testified they observed petitioner carrying the gym
bag containing the cocaine.
The State argues counsel was employing a valid trial strategy
in not putting petitioner on the stand even after his father's damaging
testimony. See Whitehead v. State, 308 S.C. 119, 417 S.E.2d 529 (1992)
(if counsel articulates a valid reason for employing certain trial strategy,
such tactics will not be deemed ineffective assistance of counsel); Stokes v.
State, 308 S.C. 546, 419 S.E.2d 778 (1992). However, based on counsel's
testimony at the PCR hearing, counsel did not consider the possibility of
petitioner testifying after his father's testimony; therefore, counsel failed to
use his discretion in employing an appropriate trial strategy in light of the
unexpected testimony. Further, counsel admitted it may have been proper
to put petitioner on the stand after his father's damaging testimony.
Accordingly, counsel was deficient in failing to reevaluate petitioner's
decision not to testify after his father implicated him.
cocaine and for conspiracy to traffic in cocaine. While the jury found his
father guilty on both counts, it found petitioner not guilty on the
Petitioner claims if he had testified the jury would have had a
chance to hear him adamantly deny involvement in the drug transaction.
According to petitioner, his denial, in addition to the slim evidence against
him, would have convinced the jury he was not guilty.
We disagree. Petitioner's prior convictions probably would
have been admissible to impeach his testimony and cast severe doubt on
his credibility.3 Accordingly, the PCR judge correctly found the jury would
not have found petitioner credible and his testimony would not have
changed the outcome of the trial. See Drayton v. Evatt, supra (matters of
credibility are within the discretion of the PCR judge); Cherry v. State,
supra (the PCR judge's findings should be upheld if supported by any
Further, counsel sufficiently rehabilitated petitioner's father's
testimony during cross-examination and re-established petitioner's defense
that he was unaware he was transporting drugs. Thus, petitioner failed to
prove he was prejudiced by counsel's deficient performance.
FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.
Evidence were adopted. Under the law prior to the SCRE, evidence of a
prior conviction was admissible for impeachment purposes if the prior
crime involved "moral turpitude." State v. Millings, 247 S.C. 52, 145
S.R.2d 422 (1965). Possession of marijuana with intent to distribute and
possession of cocaine were considered crimes involving moral turpitude.
See State v. Lilly, 278 S.C. 499, 299 S.E.2d 329 (1983); State v. Major, 301
S.C. 181, 391 S.E.2d 235 (1.990). However, evidence of these convictions
was not per se admissible. Instead, the trial judge had discretion to
determine whether the prejudicial effect of admitting the prior conviction
outweighs the probative worth of such evidence on the issue of credibility.
See Merritt v. Grant, 285 S.C. 150, 328 S.E.2d 346 (Ct. App. 1985); see
also State v. Harvey, 275 S.C. 225, 268 S.E.2d 587 (1980).