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2007-UP-411 - Clark v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Douglas R. Clark, Petitioner

v.

State of South Carolina, Respondent


Appeal From Greenville County
John C. Few, Circuit Court Judge


Unpublished Opinion No. 2007-UP-411
Submitted September 1, 2007 – Filed October 4, 2007


AFFIRMED


Assistant Appellate Defender Robert M. Pachak, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Karen Ratigan, all of Columbia, for Respondent.

PER CURIAM:  Douglas R. Clark appeals the denial of his petition for post-conviction relief (PCR).  We affirm.[1] 

BACKGROUND FACTS

On June 16, 1998, Cosette Lemon arrived at her apartment at about 11:15 p.m.  As she entered her home with a hamper of clothes, she pushed the door closed, but did not get it shut all the way.  She put the hamper down in her living room and then went to lower some blinds.  She heard a sound at the door, but thought it was her boyfriend, Terry Shackett who usually came home from work about that time.  As she turned, she saw the profile of a man standing in the door.  The man told Lemon her boyfriend told him to come on in.  As Lemon looked toward the kitchen, the man grabbed her, jerked her around, and shoved her face down into the couch.  He pulled her up off the couch and told her they were going to the bedroom.  He pushed her down on the bed and was choking her.  He grabbed a pillow case and told her to put it in her mouth.  He then tied it behind her head and instructed her to put her hands behind her back and tied her hands.  He also tied her ankles together.  He asked Lemon if she had any money and told her he might have to cut her if she lied.  About that time, Lemon heard someone at the door.  Lemon heard the intruder running and called out to her boyfriend to warn him.  After she was able to free herself, she ran into the kitchen, and saw her boyfriend chasing the man around the corner of the building.

Shackett testified he arrived at the apartment he shared with Lemon at about 11:25.  When he opened the screen door, he noticed the main door was open and realized something was not right.  Suddenly, the door jerked open and he saw a black male standing in the doorway.  Shackett grabbed the man, and the intruder pushed Shackett to the side and began running.  Shackett gave chase, but was unable to keep up with the intruder.

Lemon described the intruder to police as a light-skinned black man with short hair, between twenty and thirty years old, weighing around one hundred and seventy-five pounds and about five-nine or five-ten in height.  The day after the incident, Lemon and Shackett went to the police station and helped put together a composite by use of an identi-kit.[2]  They were not satisfied with the results of that composite, and later met with a sketch artist and put a new composite together.  Both Lemon and Shackett felt the sketch artist’s composite looked very similar to the intruder.

Four or five nights after the incident, Lemon and Shackett were shown two different photo lineups.  Lemon was unable to identify anyone from the first lineup.  In the second one, she indicated one of the individuals looked more similar than any of the others, but she was not able to make a positive identification.  Shackett likewise picked one individual from one of the lineups as looking similar to the intruder, but was not sure.  Both Lemon and Shackett had pointed out the same person

Using the sketch artist’s composite, the police began a surveillance of the area near Lemon’s apartment.  On the evening of June 24, officers observed a black male who looked just like the composite walking in the area.  That person was identified in court as Clark.  Clark’s picture was then placed in a third photographic lineup and was shown to both Lemon and Shackett.  Lemon felt strongly that Clark’s picture looked like the suspect, but she could not be absolutely sure.  Lemon indicated she had seen the intruder’s profile, and because it was dark and she had only seen his face for a few seconds, she felt she could better identify someone if she saw him in person.  However, the police informed her they could not do that.  When Shackett was shown the third lineup, he immediately picked out Clark as the intruder.  He testified he had no doubt this was the person.  He then made an in-court identification of Clark as the intruder. 

Lemon testified she went to Clark’s bond hearing, and at that time she observed Clark facing exactly the way he was in her apartment.  She stated she was looking at the floor when she realized there was a man in shackles standing there.  When she looked up and saw him facing that way, a chill went over her, and she realized it was the intruder.  She testified she did not realize Clark would be at the bond hearing, and when she looked up and saw him, it caught her by surprise.  Lemon identified Clark in court as the person who was in her apartment that night.

The evidence of record shows Clark was actually thirty-eight or thirty-nine years old, was about five feet five inches tall and weighed approximately one hundred and thirty-eight pounds.  The officer who arrested him testified, however, Clark did not look his age and he looked heavier than his actual weight.

On direct appeal, Clark argued the court erred in failing to suppress Lemon’s in-court identification of him.  This court affirmed.

POST-CONVICTION RELIEF

In his hearing on the application for PCR, Clark argues defense counsel was ineffective at trial in failing to object to a portion of the solicitor’s closing argument that allegedly vouched for and bolstered the credibility of the witnesses.

At trial, Lemon testified she “was very hesitant to finger anyone because [she] saw [the perpetrator] so briefly and [she] wanted to be absolutely sure. . . .”  Lemon believed if she saw the perpetrator in person and could see a profile, she would be able to state with certainty if the suspect was the perpetrator.  She requested an in-person lineup, stating she “certainly didn’t want to pick someone who was not the man.”  On cross-examination, she repeated that she wanted to see the men in the photo lineups in person as she “didn’t feel good about fingering anybody” and “whenever [she] was shown a lineup, [she] did not feel comfortable saying absolutely sure that it was anyone in those pictures because [she] wanted to be absolutely sure.”  Lemon further testified:  “I remember thinking all at the same time I certainly don’t want someone innocent to be charged with this crime.”  At the bond hearing, Lemon witnessed Clark “facing exactly the same way he was in [the] apartment.”  She identified Clark.  Shackett likewise explained his hesitancy about identifying someone if he was not certain, testifying:  “[O]f course, I don’t want any innocent person being accused. . . . if I’m not a hundred percent sure, . . . I can’t pick one out.” 

During closing arguments, the solicitor stated:

Webster’s dictionary defines reliability as the ability to rely on or to depend on.  In this case you had an opportunity to see the definition of the reliability from the witness stand with two people, Cosette Lemon and Terry Shackett.  Those two people told you time and time again, as did the police officers who met with them, that from the beginning of this case to the very end they said, I don’t want to pick the wrong guy, I want to be careful, I want to make sure an innocent man is not arrested for this charge.  Over and over and over.  They were fearful.  They were careful.  They were dependable.  They were real.  They were honest.  And, again, in this courtroom yesterday they did all of those same things and you had an opportunity to see the definition of the reliability from that witness stand. 

(emphasis added).  Trial counsel did not object. 

At the PCR hearing, trial counsel, the PCR judge, and the assistant attorney general all conceded that stating the two witnesses were honest was the improper opinion of the solicitor.  Ultimately, however, the PCR judge found:  “[w]hile the statement that ‘they were honest’ could be construed as vouching for the credibility of the witnesses, such a statement also could be reasonably construed as highlighting the good-faith effort during the identification process—an effort about which the witnesses themselves had testified.”  Accordingly, the PCR judge denied Clark’s claim for ineffective assistance of counsel.  

STANDARD OF REVIEW

The appellate court gives great deference to the post-conviction relief court’s findings of fact and conclusions of law.  Dempsey v. State, 363 S.C. 365, 368-69, 610 S.E.2d 812, 814 (2005).  On review, a PCR judge’s findings will be upheld if there is any evidence of probative value sufficient to support them.  Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). 

LAW/ANALYSIS

In order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove that:  (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the applicant’s case.  Id.  To show that counsel was deficient, the applicant must establish that counsel failed to render reasonably effective assistance under prevailing professional norms.  Id.  To show prejudice, the applicant must show that but for counsel’s errors, there is a reasonable probability the result of the trial would have been different.  Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997).  A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial.  Id.

During trial, a solicitor “cannot vouch for the credibility of a witness by expressing or implying his personal opinion concerning a witness’ truthfulness.”  State v. Shuler, 344 S.C. 604, 630, 545 S.E.2d 805, 818 (2001).  Additionally, “[i]t is inappropriate for the State to assure the jury of a witness’ credibility, because the jury is charged with assessing the credibility of witnesses based on evidence in the record.”  Matthews v. State, 350 S.C. 272, 276, 565 S.E.2d 766, 768 (2002).

We find even if Clark’s counsel was ineffective in failing to object to the solicitor’s comments, there is no reasonable probability the jury’s verdict would have been different and therefore there is no prejudice to Clark.  See Johnson, 325 S.C. at 186, 480 S.E.2d at 735 (finding no prejudice where the result of the trial would not likely have been different).  Standing alone, the statement, “[t]hey were honest,” could be inappropriate as vouching for the credibility of witnesses.  However, in this case, we agree with the PCR judge’s conclusion that the solicitor’s comments were generally based on the witnesses’ testimony, in which they described their concern about misidentifying the perpetrator.  The substance of the solicitor’s closing argument reminded the jury of the diligence and hesitation with which the victims approached the identification process.  The solicitor was not talking about the witnesses’ credibility on the witness stand but was summarizing their testimony, which described their conscientious manner throughout the investigation of the crime.  Because we find the comment did not prejudice Clark, Clark has not met his burden of demonstrating he was deprived of a fair trial.  Accordingly, the order denying Clark’s petition for PCR is

AFFIRMED.

HUFF and STILWELL, JJ., and GOOLSBY, A.J., concur.


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] An identi-kit allows police to create a composite image of a suspect based on verbal descriptions using preprogrammed feature images.