THE STATE OF SOUTH CAROLINA
In The Supreme Court
Mark Wesley Edmond, Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Greenville County
Paul M. Burch, Trial Judge
Larry R. Patterson, Post-Conviction Judge
Opinion No. 25155
Submitted May 24, 2000 - Filed June 26, 2000
Clay T. Allen of Greenville, for petitioner.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, and Assistant Attorney General Kevin
Patrick Tierney of Greenville, for respondent.
JUSTICE WALLER: A jury convicted Mark Wesley Edmond
(petitioner) of first degree burglary and grand larceny. He was sentenced to life
in prison for burglary and four years, consecutive, for larceny. We dismissed his
direct appeal following an Anders 1 review. State v. Edmond, Op. No. 96-MO-
086 (S.C. Sup. Ct. filed April 10, 1996).
The circuit court denied petitioner's application for post-conviction
relief (PCR). Counsel for petitioner filed a Johnson 2 petition for a writ of
certiorari. We ordered the parties to fully brief the issue raised in the Johnson
The State accused petitioner of breaking into the home of Elizabeth S. Goldsmith
and stealing a television, a videocassette recorder, jewelry, and
other household items on August 31, 1994. The State presented no direct or
physical evidence of petitioner's guilt, but relied solely on circumstantial
A detective testified he told petitioner in response to petitioner's
questions following his arrest several days after the burglary that someone had
told police where to find him. Petitioner, who had been drinking shortly before
his arrest, replied, "She called in. I know she did. She's out there free. My wife
was with me. I didn't do this alone." The detective acknowledged that
petitioner, in a more sober condition, later denied making such a statement.
The detective testified, " I did pull him out [of jail] the next day to interview him.
However, he invoked his right to counsel." On cross examination, the officer
testified that petitioner invoked his right to remain silent and he "honored that
(approving withdrawal of counsel after counsel conscientiously examines the
record, informs the appellate court the appeal is wholly frivolous and asks to
withdraw, and accompanies the request with a brief raising any issue that
might arguably support the appeal; counsel must furnish a copy of the brief to
the appellant, who must have an opportunity to raise any points that he
chooses; appellate court must then decide, after a full examination of all the
proceedings, whether the case is wholly frivolous; if so, it may grant counsel's
request to withdraw and affirm the conviction; if not, court may deny the
request to withdraw and direct the parties to fully brief any matter).
2 Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988) (approving the
withdrawal of counsel in meritless appeals of PCR actions by following Anders
In her closing argument while describing the detective's testimony,
the prosecutor stated, "And then the very next day [after his arrest] [petitioner]
invoked his right to counsel, smartly enough."
Petitioner's trial counsel did not object to the detective's testimony
or the prosecutor's argument. Throughout the trial and in his closing
argument, counsel emphasized the circumstantial nature of the evidence.
Counsel also suggested the real culprit was the former husband of petitioner's
wife - a man who allegedly had access to the car used in the burglary and
matched the description of the person seen walking in front of the victim's home
the evening the burglary occurred. Petitioner did not testify at trial.
At the PCR hearing, petitioner testified that he and his wife left the
hospital to visit her son at her former husband's home. The former husband
borrowed the car while they were there. The former husband knew the location
of the victim's home because petitioner previously had taken the former
husband there to meet an ex-girlfriend. Petitioner claimed he went to a video
arcade, where he remained for a couple of hours after unexpectedly meeting a
female acquaintance. Petitioner's wife offered testimony corroborating
petitioner's version of events.
Petitioner asserted his trial counsel was ineffective in failing to
object to improper references to the invocation of his constitutional rights to
remain silent and be represented by counsel during the detective's testimony
and the prosecutor's closing arguments. Petitioner's trial counsel testified he
did not know why he failed to object to the testimony or comments. The PCR
judge denied petitioner's PCR application.
Does any probative evidence support the PCR judge's
denial of petitioner's claim that the detective's
testimony and the prosecutor's closing argument
violated his constitutional rights to remain silent and
be represented by counsel?
Petitioner contends the PCR judge erred in denying his claim that
the detective's testimony and prosecutor's closing argument violated his rights
under the state and federal constitutions. See U.S. Const. amends. V & XIV;
S.C. Const. art. I, §§ 3 and 12. He further argues the error was prejudicial. We
It is improper for the State to refer to or comment upon a
defendant's exercise of a constitutional right. State v. Johnson, 293 S.C. 321,
360 S.E.2d 317 (1987). Such comments may not be made either directly or
indirectly. State v. Goolsby, 275 S.C. 110, 268 S.E.2d 31 (1980), overruled on
other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State
v. Rouse, 262 S.C. 581, 206 S.E.2d 873 (1974).
In particular, the State may neither comment upon nor present
evidence at trial of a defendant's decision to exercise his right to remain silent
or be represented by an attorney. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct.
2240, 49 L.Ed.2d 91 (1976) (due process clause of Fourteenth Amendment is
violated when a state prosecutor seeks to impeach defendants' exculpatory
story, told for the first time at the trial, by cross-examining them about their
post-arrest silence after receiving the Miranda warnings); Griffin v. California,
380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (Fifth and Fourteenth
Amendments forbid comment by the prosecution on the accused's silence or
failure to testify, as well as instructions by the court that such silence is
evidence of guilt); State v. Cockerham, 294 S.C. 380, 365 S.E.2d 22 (1988)
(holding that prosecutor's indirect reference to defendant's silence and indirect
comments on defendant's exercise of his rights to counsel and jury trial violated
defendant's due process rights and were reversible error in murder and
kidnaping trial); State v. Hawkins, 292 S.C. 418, 423, 357 S.E.2d 10, 13 (1987)
(reversing conviction where prosecutor improperly commented upon defendant's
failure to testify and explaining that such a comment essentially is a comment
upon defendant's right to remain silent), overruled on other grounds by State
v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State v. Woods, 282 S.C. 18, 20,
316 S.E.2d 673, 674 (1984) (reversing conviction where solicitor improperly
introduced evidence that defendant had exercised his right to remain silent);
State v. Holliday, 333 S.C. 332, 509 S.E.2d 280 (Ct. App. 1998) (reversing
conviction because solicitor's cross-examination of defendant, during which she
repeatedly questioned defendant as to why he had not told his version of events
until the day of trial, was improper in that the questions clearly referenced his
These principles are rooted in due process and the belief that justice
is best served when a trial is fundamentally fair. See Brecht v. Abrahamson,
507 U.S. 619, 629, 113 S.Ct. 1710, 1717, 123 L.Ed.2d 353, 367 (1993);
Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S.Ct. 634, 638, 88 L.Ed.2d
623, 630 (1986); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). The obvious purpose is to try to prevent jurors from improperly
inferring the accused is guilty simply because he exercised rights guaranteed
him by the state and federal constitutions. Such an inference is constitutionally
impermissible because the burden at all times remains upon the State to prove
beyond a reasonable doubt every element of a crime with which the accused is
charged. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970);
State v. Schrock, 283 S.C. 129, 322 S.E.2d 450 (1984).
In a direct appeal, the admission of comments or evidence of the
defendant's exercise of a constitutional right is a "trial error" subject to
harmless error analysis. State v. Pickens, 320 S.C. 528, 530-31, 466 S.E.2d 364,
367 (1996); see also Arizona v. Fulminante, 499 U.S. 279, 306-10, 111 S.Ct.
1246, 1263-65, 113 L.Ed.2d 302, 329-32 (1991) (a "trial error" occurs during the
presentation of case to jury and is amenable to harmless-error analysis because
it may be quantitatively assessed in the context of other evidence presented in
order to determine the effect it had on the trial; these are distinguished from
structural defects in the constitution of the trial mechanism, which defy
harmless error analysis).
In this PCR proceeding, petitioner must meet the standard
established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). "To establish a claim of ineffective assistance of trial
counsel, a PCR applicant has the burden of proving counsel's representation fell
below an objective standard of reasonableness and, but for counsel's errors,
there is a reasonable probability that the result at trial would have been
different .... A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial." Johnson v. State, 325 S.C. 182, 186, 480
S.E.2d 733, 735 (1997) (citing Strickland, supra). Thus, a PCR applicant must
show both error and prejudice to win relief in a PCR proceeding. Scott v. State,
334 S.C. 248, 513 S.E.2d 100 (1999).
The burden is on the applicant in a PCR proceeding to prove the
allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813
(1985). An appellate court must affirm the PCR court's decision when its
findings are supported by any evidence of probative value. Cherry v. State, 300
S.C. 115, 386 S.E.2d 624 (1989). However, an appellate court will not affirm the
decision when it is not supported by any probative evidence. Holland v. State,
322 S.C. 111, 470 S.E.2d 378 (1996).
We conclude the PCR judge erred in denying petitioner's claim
because no probative evidence supports his decision. Petitioner has shown error
in counsel's failure to object to the detective's testimony and the prosecutor's
comments, as explained by the above cases.
We further conclude petitioner has shown that the error prejudiced
him. In Johnson, supra, we held that counsel was not ineffective in failing to
object to the solicitor's closing comment that "You have seen that the defendant
has not put up a defense, he's not testified, and you will hear shortly, after I
argue and after Mr. Pough argues and his honor, Judge Whetstone, you cannot
even consider the fact that this man has not testified in this trial . . . ." Id. at
186, 480 S.E.2d at 734 (emphasis in original).
We found that the PCR judge's conclusion that the jury could have
drawn an adverse inference from the solicitor's comment was not supported by
the evidence. "In context, the comment was simply a statement of the evidence
which was before the jury, rather than a comment on Johnson's failure to
testify. As such, it is distinguishable from the typical 'comment' in which the
clear implication is that the defendant has failed to explain the circumstances
of the crime or has shown no remorse." Id. at 187, 480 S.E.2d at 735.
Furthermore, the judge's curative instruction nullified any error. Id. 3
defendant's silence prior to arrest, or his silence after arrest but prior to the
giving of the Miranda warnings, in order to impeach the defendant's testimony
at trial. "Such silence is probative and does not rest on any implied assurance
by law enforcement authorities that it will carry no penalty." Brecht v.
Abrahamson, 507 U.S. 619, 628, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353 (1993).
The State also may in limited instances raise a defendant's silence when the
defendant or his counsel "open the door" by asserting the State never has given
him an opportunity to tell his side of the story. United States v. Robinson, 485
U.S. 25,108 S.Ct. 864, 99 L.Ed.2d 23 (1988) (where defendant's counsel stated
several times in closing argument that the Government had not allowed
defendant to explain his side of the story, prosecutor's closing comment that (3 con't...)
Johnson is easily distinguished from the present case. The
detective's testimony and the prosecutor's closing argument at petitioner's trial
were direct and improper references to the exercise of his constitutional rights.
Jurors may have used the improper testimony and comments to infer petitioner
was guilty simply because he exercised his rights. In addition, petitioner's
counsel did not request and the trial judge did not give a curative instruction.
In deciding the prejudice prong in this PCR action, we examine the
following factors, which are the same ones analyzed in deciding on direct appeal
whether a similar error is harmless beyond a reasonable doubt. Such an error
will not be deemed prejudicial when the record shows the reference to the
defendant's right to silence or to an attorney was a single reference, which was
not repeated or alluded to; the prosecutor did not tie the defendant's exercise
of his right directly to his exculpatory story; the exculpatory story was totally
implausible; and the evidence of guilt was overwhelming. See Pickens, 320 S.C.
at 530-31, 466 S.E.2d at 367. A court's confidence in the outcome of the trial
likely would not be undermined if those factors are met.
Petitioner has shown prejudice because the record contains three
direct references to the exercise of his right to remain silent or be represented
by counsel. Immediately after stating that petitioner had invoked his right to
counsel, the prosecutor told jurors that the man at whom petitioner had pointed
the finger testified he did not commit the crimes. The prosecutor tied the
exercise of the right to petitioner's exculpatory story, which was not totally
defendant's Fifth Amendment right against self-incrimination because
prosecutor's reference to defendant's opportunity to testify was a fair response
to a claim made by defendant's counsel). However, the proper practice in a
typical case such as petitioner's is for the prosecutor to avoid any mention of the
defendant's exercise of constitutional rights. See Holliday, 333 S.C. at 340, 509
S.E.2d at 284 (stating that Supreme Court and Court of Appeals repeatedly
have warned against violation of the Doyle prohibition, and citing cases).
implausible. Finally, evidence of petitioner's guilt was not overwhelming as the
State's entire case was built on circumstantial evidence.
We reverse the denial of PCR and remand petitioner's case for a
TOAL, C.J., MOORE, BURNETT, and PLEICONES, JJ., concur.