STATE OF SOUTH CAROLINA
In The Supreme Court
Jeffery McFadden, Petitioner
State of South Carolina, Respondent.
WRIT OF CERTIORARI
From Williamsburg County
M. Duane Shuler, Trial Judge
Charles W. Whetstone, Jr., Post-Conviction Judge
Submitted September 20, 2000- Filed October 30, 2000
Chief Attorney Daniel T. Stacey and Assistant Appellate Defender Katherine Carruth Link, both 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 G. Robert DeLoach, and Assistant Attorney General J. Benjamin Aplin, all of Columbia, for respondent.
JUSTICE TOAL: Jeffery McFadden ("Petitioner") appeals the denial
of his application for Post Conviction Relief ("PCR").
January of 1994, the Williamsburg County grand jury indicted Petitioner for
distribution of crack cocaine and distribution of crack cocaine within proximity
of a school. The indictment followed the alleged sale of crack cocaine by
Petitioner to an undercover police officer. A jury trial was held on September
1, 1994. The jury found Petitioner guilty on both counts. Petitioner was
sentenced to imprisonment for 15 years and payment of a $25,000 fine for
distribution, and 10 years for distribution within proximity of a school,
sentences to be served concurrently. The Court of Appeals affirmed Petitioner's
conviction pursuant to Anders. Petitioner then filed an application for PCR
alleging ineffective assistance of counsel. This Court granted certiorari on the
1. Was Petitioner's counsel ineffective in failing to object to the solicitor's closing argument alluding to Petitioner's failure to present a defense ?
2. Was Petitioner's counsel ineffective in failing to request a jury charge pursuant to State v. Jackson, and in failing to object to solicitor's closing argument that Petitioner's absence from trial was evidence of his guilt?
Failure to Present a Defense
argues his trial counsel was ineffective in failing to object to the solicitor's
closing argument, which in effect constituted a comment on Petitioner's right to
remain silent. We agree.
his closing argument to the jury, the solicitor stated, "In this particular
case, the state only has one opportunity in which to argue their case, because
there is no defense presented. And the only reason I mentioned it is because
no defense has been presented because this defendant based no [ sic] the
evidence is guilty." (emphasis added). The PCR judge found these
remarks were "simply an explanation of how closing arguments would proceed
and why ." The solicitor's comments were more than an explanation of
closing arguments, they were an-indirect comment on the defendant's
constitutional right to remain silent. See Doyle v. Ohio, 426 U.S. 610,
96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) (an accused has the right to remain
silent and the exercise of that right cannot be used against him).
The State may not comment on a defendant's exercise of a constitutional right. Edmond v. State, Op. No.25155 (S.C. Sup. Ct. filed June 26, 2000) (Shearouse Adv. Sh. No.26 at 1). Specifically, the solicitor must not comment, either directly or indirectly, on a defendant's silence, failure to testify, or failure to present a defense. State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997) ; see also Doyle v. Ohio, supra (right to remain silent); Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (Fifth and Fourteenth Amendments forbids comment by the prosecution on the accused's silence).
a PCR action, "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 trial." Johnson,
supra at 186, 480 S.E.2d at 735 (citations omitted). Counsel was deficient
in failing to object to the solicitor's improper comment on Petitioner's
exercise of a constitutional right. However, Petitioner must still prove he was
prejudiced by his counsel's failure to object.
a Doyle violation has occurred, the prejudice prong of the PCR analysis
runs parallel to the harmless error analysis applied in a direct appeal. Edmond,
supra; State v. Pickens, 320 S.C. 528, 466 S.E.2d 364 (1996); State v.
Truesdale, 285 S.C. 13, 328 S.E.2d 53 (1984). In deciding whether counsel's
error was harmless, the Court looks to the factors set forth in Truesdale
and Pickens. See Edmond, supra. In Truesdale and Pickens,
this Court held that several factors should be considered in analyzing whether a
Doyle violation was harmless: (1) the reference to the defendant's right
to remain silent was a single reference, which was not repeated or alluded to;
(2) the solicitor did not tie the defendant's silence directly to his
exculpatory story; (3) the exculpatory story was totally implausible; and ( 4)
the evidence of guilt was overwhelming. Although in this case the
reference to Petitioner's failure to present a defense was a single reference,1
his exculpatory story was not totally implausible, and the evidence of guilt was
not overwhelming.2 Therefore, the error was not
harmless, and Petitioner was prejudiced by his counsel's failure to object.
the trial judge's general charge to the jury on the right to remain silent did
not cure the error. See Pickens, supra (general charge, given shortly
after the improper comment, did not cure the error). The improper comment in
this instance occurred in the solicitor's closing argument when he stated:
"no defense has been presented because this defendant, based no [sic] the
evidence, is guilty ." Although this statement is akin to a comment on the
right to remain silent, the juqge's charge did not make this point clear to the
in his instructions did the trial judge inform the jury that the defendant was
not required to present
any evidence and that the jury could draw no adverse inference from his failure
to do so. In his closing argument to the jury, the solicitor improperly drew an
adverse inference, directly linking the lack of a defense to guilt.
was ineffective in failing to object to the solicitor's reference to
Petitioner's constitutional right to remain silent and failure to present a
defense. The error was not harmless since Petitioner's exculpatory story was not
completely implausible and the evidence ofhis guilt was not overwhelming. In
addition, the trial judge's general charge to the jury was insufficient to cure
the error, and it is probable that the jury drew the same improper inference
from the lack of defense that the solicitor drew in his closing argument.
Therefore, there is a reasonable probability that the result of the trial would
have been different if counsel had properly objected and received a sufficient
Absence at Trial
argues counsel was ineffective in not requesting a charge pursuant to State
v. Jackson and in failing to object to solicitor's closing argument that
Petitioner's absence from trial was evidence of his guilt4.
Jackson, this court held, "[w]hen a defendant is tried in absentia,
the trial court should instruct the jury that the defendant's failure to appear
may not be construed as an admission of guilt." State v. Jackson,
301 S.C. 49,50,389 S.E.2d 654,655 (1990). The PCR judge found that this was not
a case where the defendant "failed to appear ," and therefore
Petitioner was not entitled to a Jackson charge. The judge found the Petitioner
absented himself voluntarily, and thereby waived his right to be present.
Finally, the PCR judge found that even if the Petitioner was entitled to a
Jackson charge, the trial judge's general charge on the State's burden of proof,
petitioner's right to remain silent, and presumption of innocence were
sufficient to encompass the rule that a defendant's failure to appear cannot be
construed as an admission of guilt.
the defendant appears but does not remain for the trial after jury selection a
Jackson instruction is still required. There
is no significant difference between a defendant who does not appear in the
first instance, and one who appears for part of the trial and then leaves.
Therefore, counsel should have requested a Jackson charge. Furthermore,
Petitioner suffered prejudice as a result of his counsel's deficient
performance. The trial judge's general charge to the jury did not sufficiently
instruct the jury that it could not give weight to the Petitioner's absence in
deciding the question of guilt, especially in light of the solicitor's closing
argument that it could be so considered.
his closing argument to the jury, the solicitor made the following comments:
And one part of it, if you want to consider, in addition to all the evidence that was presented, is the fact that the defendant was here at this trial when we started to selecting the jury .Then because he is out on bond, he has the freedom to be able to leave. And he decided not to wait on this verdict to leave. And it's for you to decide what does that indicate regarding his own knowledge of the fact that he was guilty as charged. And I'll leave it at that, and let y'all weigh that. ..
And nonetheless, so he decided to skip out of the trial. So he certainly should not be rewarded for that.
expressly guarantees that an accused's absence from trial cannot be used as
evidence of guilt. The solicitor's argument, however, directly tells the jury
that it can consider such evidence.
PCR judge found the solicitor's comments were permissible comments on a
defendant's "flight," citing State v. Ballenger, 322 S.C.
196,470 S.E.2d 851 (1996), and State v. Grant, 275 S.C. 404, 272 S.E.2d
169 (1980). In Grant this Court held "it is oftentimes appropriate for
counsel to argue to the jury the inference growing out of flight." Grant,
supra at 404. However, the line of "flight" cases are
distinguishable from and inapplicable to the case at hand. Grant and Ballenger
involved flight from the scene of a crime. In light of this Court's holding in
Jackson, flight from a police officer or a crime scene as a means of escape is
an entirely different matter than failure to appear at a trial. The trial judge
should not have permitted the solicitor to argue that Petitioner's
"flight" from the courtroom was evidence of guilt, and defense counsel
was clearly deficient in failing to object. Furthermore, the trial judge's
general instruction did not cure the effect of the improper argument on the
suffered prejudice as a result of counsel's failure to object to the solicitor's
argument as well as his failure to request a Jackson charge. There is a
reasonable probability that the outcome of the trial would have been different
if the errors were not committed. The jury believed that they could consider
Petitioner's absence from trial as well as his failure to present a defense as
evidence of his guilt. The jury's verdict was unquestionably influenced by
the forgoing reasons, we REVERSE the PCR court and REMAND for a
WALLER, BURNETT and PLEICONES, JJ., concur.
Williamsburg County police set up a "buy/bust" in which two men acting
undercover for the state used identifiable money to make a drug purchase. The
undercover officer and a Confidential Informant (CI) made a purchase from two or
three men in a car. However, after the sale was made, the police officers were
unable to follow the car, but did get the license plate number. The only
description given of the seller at the time was a "black male."
Although Petitioner was wearing a very distinctive striped shirt, which should
have distinguished him from the other men in the car, the police report makes no
mention of his clothing. Police determined from the license plate that the car
was registered to the Petitioner. Approximately half an hour later, Petitioner
was stopped driving the car. At that time, an undercover officer and the ( CI)
identified Petitioner as the seller. They recovered a marked twenty dollar bill
from Petitioner when he was arrested. The remaining two hundred and twenty
dollars was never recovered. No other drugs were found on Petitioner or in the
car. Petitioner claims someone else had been driving the car when the sale took
place, and that the car was returned to him during the intervening half hour.
This story is not totally implausible, especially since the police officer and
CI who identified the Petitioner had never seen the Petitioner before, and
viewed him in the dark.
Now the fact that a defendant does not testify cannot, and must not be used against him in any way, or considered by you in any way whatsoever. And you may not consider the fact, or you must not consider the fact that the defendant has chosen not to testify when you determine the guilt or innocence of the defendant.
As I say, he has the constitutional right to remain silent. And the assertion of that constitutional right, cannot and must not be considered by you in your deliberations. So under your oath, you are to reach no inference or draw no conclusion whatsoever from the fact that this defendant did not testify in this trial. As a matter of fact, I tell you not to discuss that fact in your jury room. The burden is upon the state of South Carolina to prove guilt, rather than on the defendant to prove guilt [sic] .
4Although present for jury selection, Petitioner left the courthouse during a break before the trial began and did not return. At the PCR hearing, Petitioner testified he left because he was instructed by counsel to find a witness.