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 Supreme Court
Johnny L. Cantrell, Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Anderson County
J.C. Nicholson, Trial Judge
J. Cordell Maddox, Jr., Post-Conviction Judge
Memorandum Opinion No. 2008-MO-048
Submitted September 18, 2008 – Filed November 24, 2008
Appellate Defender Robert M. Pachak, of South Carolina Commission on Indigent Defense, Division of Appellate Defense, 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 Daniel E. Grigg, all of Columbia, for Respondent.
PLEICONES: After a jury trial, Petitioner Johnny L. Cantrell (Petitioner) was convicted of criminal sexual conduct with a minor in the second degree and assault with intent to commit the same. Petitioner filed a post-conviction relief (PCR) application alleging ineffective assistance of counsel, which the PCR court denied. We reverse.
Defense presented Petitioner’s daughter (Daughter) who is also the victim’s sister. Daughter testified that she lived in the home during eight of the nine months in which the alleged abuse occurred and contradicted much of the victim’s testimony of abuse.
The following day, the State sought to introduce the testimony of a reply witness (Witness) who, during an in-camera hearing, testified that on the day prior to Daughter’s testimony, she told Witness that she “knew” of her father’s guilt. Despite repeated inquiries by the trial judge, defense counsel (Counsel) interposed no objection to Witness’s testimony. Witness then testified in court. Counsel sought to recall Daughter to deny having made the statement to Witness, but the request was denied.
At the PCR hearing, Petitioner alleged that Counsel was ineffective in failing to object to Witness’s testimony regarding Daughter’s alleged prior inconsistent statement when no proper foundation had been laid. Daughter testified at the hearing and denied having made the statement. The PCR judge denied the ineffective assistance claim, finding that Counsel’s performance was not deficient and that Petitioner had not been prejudiced by Witness’s testimony.
Did the PCR judge err in finding that Petitioner’s counsel was not ineffective in failing to object to the State’s use of a reply witness to impeach a defense witness with a prior inconsistent statement without laying a proper foundation?
In considering a claim of ineffective assistance of counsel, courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). To receive relief, the Petitioner must overcome this presumption by satisfying a two-prong test. Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989). We must affirm the PCR court’s ruling if there is any probative evidence to support the judge’s factual findings and conclusions. McCray v. State, 317 S.C. 557, 559, 455 S.E.2d 686, 687 (1995). Finding no probative evidence to support the PCR court’s finding, we reverse.
A. Deficient Performance
To show ineffective assistance of counsel, Petitioner must first prove that trial counsel’s (Counsel) performance was deficient. Dawkins v. State, 346 S.C. 151, 155-56, 551 S.E.2d 260, 262 (2001). Under this prong, attorney performance is measured by its reasonableness “under prevailing professional norms.” Id.
The PCR court found that Counsel’s performance was not deficient in failing to object to the reply testimony of Witness. The PCR court cited two reasons why Counsel acted reasonably in not objecting. First, the PCR court noted that Witness’s testimony in reply was proper. Second, Counsel reasonably anticipated being able to call Daughter back to the stand in surrebuttal.
(1) Smith’s reply testimony was not proper.
Rule 613(b) of the South Carolina Rules of Evidence (SCRE) provides that extrinsic evidence of a prior inconsistent statement is not admissible unless “the witness is advised of the substance of the statement, the time and place it was allegedly made, and the person to whom it was made, and is given the opportunity to explain or deny the statement.” It is mandatory that a witness be permitted to admit, deny, or explain a prior inconsistent statement. State v. McLeod, 362 S.C. 73, 80, 606 S.E.2d 215, 219 (Ct. App. 2004). Since the record shows that Daughter was never informed of the date, time, and place of the statement, the reply testimony was not proper.
(2) Counsel did not articulate valid reasons for employing a trial strategy.
At the PCR hearing, Counsel noted that he planned to call Petitioner’s daughter (Daughter) in surrebuttal to the reply testimony. The question of surrebuttal, however, is irrelevant to Counsel’s choice not to object to Smith’s reply testimony unless Counsel’s trial strategy was to decline to assert Rule 613(b) and instead rely on surrebuttal testimony from Daughter.
The record demonstrates that Counsel’s decision not to object to the reply testimony was not based on a trial strategy but instead Counsel’s misunderstanding of Rule 613(b). When confronted with Smith’s testimony during the in-camera hearing, Counsel stated that the testimony would be proper reply. Counsel reiterated his view at the Hearing:
Q. Okay. Do you have any basis why you wouldn’t have objected [to Smith’s reply testimony]?
A. I think it was probably pretty proper reply. Damaging, but proper reply. The young lady had just – recently had testified on her father’s behalf. And then apparently she had indicated otherwise previously. I think it was proper reply.
The record demonstrates that Counsel made a mistake rather than a choice, and thus did not fail to object based on trial strategy.
Assuming arguendo that Counsel acted pursuant to a strategy, Counsel has no valid reason for his decision. Where counsel articulates valid reasons for employing a certain strategy, counsel’s choice of tactics will not be deemed deficient performance. Whitehead v. State, 308 S.C. 119, 417 S.E.2d 530 (1992). “Counsel must articulate a valid reason for employing a certain strategy to avoid a finding of ineffectiveness.” Ingle v. State, 348 S.C. 467, 470, 560 S.E.2d 401, 403 (2002) (emphasis in original). Where counsel articulates a strategy, it is measured against an objective standard of reasonableness. Id.
In choosing not to object to the testimony, Counsel effectively declined to assert a right to call Daughter to deny having made the statement, in favor of a discretionary right to surrebuttal. See State v. Watson, 353 S.C. 620, 632, 579 S.E.2d 148, 150 (2003) (“Admission of evidence in surrebuttal is very much in the discretion of the trial judge.”). Counsel never articulated a valid reason for the decision not to object.
There is no evidence to support the PCR judge’s finding that Counsel’s performance was not deficient.
In order to find ineffective assistance of counsel, Petitioner must show not only deficient performance but also that Counsel’s deficient performance prejudiced Petitioner. Dawkins, supra. To demonstrate prejudice, the applicant must show that but for Counsel’s errors, there is a reasonable probability that the result of the trial would have been different. Id. at 156, 551 S.E.2d at 262. A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial. Id.
The State presented no physical evidence and, other than Smith and the victim, called only five witnesses. The testimony of all five witnesses focused almost solely on the fact that victim had communicated to them that he had been sexually abused.
The remainder of the evidence favorable to the State was minimal. One investigator testified that he observed a bottle of hand lotion on a coffee table in the house. The victim testified that Petitioner used lotion when attempting to anally penetrate the victim. However, Petitioner and both his daughters explained the presence of the lotion as a treatment for Petitioner’s dry hands, which he claimed resulted from contact with Agent Orange during the Vietnam War.
We find that there is no probative evidence to support the PCR court’s finding that absent counsel’s error, there is no reasonable probability that the result of the trial would have been different. Had counsel objected to Witness’s testimony, Daughter would have been called prior to Witness’s testimony to deny or explain the statement. If Daughter had not been called, Witness’s testimony would be barred by Rule 613(b). Instead, Witness was allowed to testify and was the next to last witness the jury heard. Moreover, Daughter was never called to rebut Witness’s testimony. It is reasonably probable that the jury inferred from Daughter’s failure to testify regarding Witness’s assertion, an admission that Witness’s statement was true.
This Court must affirm if there is any probative evidence to support the judge’s factual findings and conclusions. McCray, supra. We find there is no probative evidence to support the finding that Petitioner’s counsel was not ineffective in failing to object to Witness’s testimony. Accordingly, we reverse the finding and remand for a new trial.
WALLER, BEATTY and KITTREDGE, JJ., concur. TOAL, C.J., dissenting in a separate opinion.
Chief Justice Toal: I respectfully dissent. In my view, evidence in the record supports the PCR court’s ruling and I would therefore affirm the decision.
Although I agree with the majority that the Witness’s testimony was improper, in my view, Petitioner failed to show prejudice. The Witness’s testimony, in which she told the jury that the Victim’s sister stated to her that she “believed” her father had sexually abused the Victim, was extremely brief and the solicitor did not mention this testimony in closing arguments. In my opinion, the Witness’s testimony regarding the sister’s statements had little or no impact on the jury’s decision because the jury clearly believed the testimony of the eyewitness to the crime, the Victim. For these reasons, I believe that Petitioner failed to show a reasonable probability that the result of the trial would have been different, and I would therefore affirm the PCR court’s decision denying relief.