Glover v. State

458 S.E.2d 538, 318 S.C. 496, 1995 S.C. LEXIS 93

• Court: Supreme Court of South Carolina
• Decided: June 19, 1995
• Docket: 24260
• Status: Published

Opinions

Moore, Justice:

This case is before us on a writ of certiorari to review the grant of respondent’s application for postconviction relief (PCR). We reverse.

FACTS

Respondent was convicted of kidnapping, armed robbery, assault and battery of a high and aggravated nature, possession of a firearm during the commission of a violent crime, and temporary use of a vehicle without permission. In State v. Glover, Op. No. 92-MO-302 (S.C. Sup. Ct. filed December 18, 1992), we affirmed these convictions pursuant to Rule 220(b)(1), SCACR. Subsequently, respondent filed a PCR application alleging, inter alia, ineffective assistance of trial counsel. After a hearing, the PCR judge found trial counsel was ineffective and ordered a new trial.

ISSUE

Did the PCR judge err in finding trial counsel ineffective?

DISCUSSION

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 the result at trial would have been different. Underwood v. State, 309 S.C. 560, 425 S.E. (2d) 20 (1992). A reasonable probability is a probability sufficient to undermine confidence in the outcome of trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. (2d) 674 (1984).

At the PCR hearing, respondent argued trial counsel was ineffective for failing to contact several witnesses who could have testified respondent was in Florida when the crimes were committed. In support of this argument, respondent presented the testimony of two witnesses. The first witness was respondent’s grandfather, Sylvester Jordan. Mr. Jordan initially stated he “believe[d]” respondent was in Florida on the date the crimes were committed. However, Mr. Jordan subsequently stated he knew “nothing” and testified he did not recall any specific dates respondent was in Florida. The second witness was respondent’s aunt, Sandra Jordan. Ms. Jordan testified respondent came to her house in Florida at approximately 8:00 a.m. on the date the crimes were committed. Ms. Jordan stated respondent stayed approximately fifteen minutes, then left in a car by himself.

In his order, the PCR judge found trial counsel ineffective for failing to contact respondent’s alibi witnesses. The State argues this was error. We agree.

By finding trial counsel ineffective, the PCR judge necessarily found counsel’s actions or inaction resulted in prejudice to respondent. Strickland v. Washington, supra; Underwood v. State, supra. However, there is no evidence to support the PCR judge’s finding of prejudice.

The failure to contact Sylvester or Sandra Jordan did not result in prejudice to respondent as neither witnesses’s PCR testimony established an alibi defense. Ms. Jordan’s testimony merely placed respondent in Florida between 8:00 and 8:30 a.m. on the date the crimes occurred. However, the crimes occurred in Williamsburg County over eleven hours later at approximately 8:30 p.m.¹ In addition, Mr. Jordan’s testimony was not sufficient to establish an alibi defense. See State v. Robbins, 275 S.C. 373, 271 S.E. (2d) 319 (1980) (since an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused’s guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all).

Further, because the other witnesses respondent claimed could have provided an alibi defense did not testify at the PCR hearing, respondent could not establish any prejudice from counsel’s failure to contact these witnesses. See Underwood v. State, supra (prejudice from trial counsel’s failure to interview or call witnesses could not be shown where witnesses did not testify at PCR hearing); see also Clark v. State, 315 S.C. 385, 434 S.E. (2d) 266 (1993) (pure conjecture as to what a witness’s testimony would have been is not sufficient to show a reasonable probability the result at trial would have been different). In order to support a claim that trial counsel was ineffective for failing to interview or call potential alibi witnesses, a PCR applicant must produce the witnesses at the PCR hearing or otherwise introduce the witnesses’ testimony in a manner consistent with the rules of evidence. The applicant’s mere speculation what the witnesses’ testimony would have been cannot, by itself, satisfy the applicant’s burden of showing prejudice.²

Here, respondent failed to show counsel’s actions or inaction resulted in prejudice. Consequently, there is no evidence to support the PCR judge’s finding that counsel was ineffective. We therefore reverse the PCR judge’s order granting respondent’s PCR application and ordering a new trial. Cartrette v. State, — S.C. —, 448 S.E. (2d) 553 (19944) (a PCR judge’s findings will not be upheld if the findings are not supported by probative evidence).

Reversed.

Toal, A.J., and A. Lee Chandler, Acting Associate Justice, concur. Finney, C.J., and Waller, J., dissenting in separate opinion.

1 At the PCR hearing, Ms. Jordan testified it took her approximately six and one-half hours to drive from her home in Florida to Williamsburg County. This testimony indicates that even if respondent was in Florida on the date the crimes occurred, he had ample opportunity to travel from Florida to Williamsburg County prior to the time the crimes occurred.

2 To the extent the majority opinion in Grier v. State, 299 S.C. 321, 384 S.E. (2d) 722 (1989), can be read to suggest that a PCR applicant’s mere speculation what a witness’s testimony would have been is sufficient to satisfy the applicant’s burden of showing prejudice, it is overruled.